43rd Report, 2014 (Session 4): Subordinate Legislation

SP Paper 567 (Web Only)

DPLR/S4/14/R43

43rd Report, 2014 (Session 4)

Subordinate Legislation

Remit and membership

Remit:

1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—
(a) any—
(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;
(ii) [deleted]
(iii) pension or grants motion as described in Rule 8.11A.1; and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;
(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;
(c) general questions relating to powers to make subordinate legislation;
(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;
(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and
(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.
(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and
(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule.

Membership:

Richard Baker
Nigel Don (Convener)
Mike MacKenzie
Margaret McCulloch
Stuart McMillan (Deputy Convener)
John Scott
Stewart Stevenson

Committee Clerking Team:

Clerk to the Committee
Euan Donald

Assistant Clerk
Elizabeth White

Support Manager
Daren Pratt

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 17 June 2014, the Committee agreed to draw the attention of the Parliament to the following instruments—

Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2014 (SSI 2014/142);

National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) Regulations 2014 (SSI 2014/154).

2. The Committee’s recommendations in relation to the above instruments are set out below.

3. The Committee determined that it did not need to draw the Parliament’s attention to the instruments which are set out at the end of this report.

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2014 (SSI 2014/142) (Local Government and Regeneration Committee)

4. This Order amends the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (“the principal Order”).

5. Article 2 makes changes to the classes of development which are currently permitted, and introduces new classes of permitted development. New Parts 2A to 2E of the Order introduce a number of new classes.

6. The Order comes into force on 30 June 2014.

7. In considering the instrument, the Committee asked the Scottish Government for an explanation of certain matters. The correspondence is reproduced at Annex A.

8. The Scottish Government has acknowledged that there are drafting errors in the Order, within the description of the new classes of permitted development, 9A to 9C. Class 9A relates to the extension or alteration of a shop or financial or professional services establishment. Class 9B relates to the erection or construction of a trolley store within the curtilage of a shop. Class 9C creates permitted development rights for the extension or alteration of schools, colleges, universities, hospital buildings, nursing homes or buildings used for the provision of care, subject to certain restrictions. The errors are set out below.

9. The Committee draws the Order to the attention of the Parliament on the reporting ground (i). The drafting of the Order appears to be defective in two respects:

10. Firstly, paragraph (5) of class 9B in Part 2A of schedule 1 to the Town and Country Planning (General Permitted Development) (Scotland) Order 1992, as inserted by the schedule to this instrument, inter alia purports to define the terms “enclosed shopping centre” and “retail park” for the purposes of class 9B. However those terms are not used in the class, but are used within the definition of “shop or financial or professional services establishment” in paragraph (5) of class 9A.

11. Secondly, “raised platform” is defined for the purposes of the class 9A referred to above, to specify the minimum height of platform, but it should also have been defined for the purposes of the use of the term in class 9C, paragraph (2)(f).

12. The Committee notes however that the Scottish Government has undertaken to make an amending instrument shortly, to correct the errors.

National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) Regulations 2014 (SSI 2014/154) (Health and Sport Committee)

13. The instrument makes changes to the NHS Superannuation Scheme, as set out in the National Health Service Superannuation Scheme (Scotland) Regulations 2011, the National Health Service (Scotland) (the 2008 Section) Superannuation Regulations 2013, the National Health Service (Scotland) (Injury Benefits) Regulations 1998 and the National Health Service Superannuation Scheme (Scotland) (Additional Voluntary Contributions) Regulations 1998.

14. The Regulations come into force on 28 June 2014, but certain provisions have retrospective effect, some from 1 April 2014 and some from 6 April 2014.

15. In considering the instrument, the Committee asked the Scottish Government for an explanation of certain matters. The correspondence is reproduced at Annex B.

16. The Scottish Government provided a letter to the Presiding Officer explaining the failure to comply with Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, in respect of the delay in laying the Regulations before the Parliament. The correspondence is reproduced at Annex C.

17. There has been an unusual and inordinate delay between the making of these Regulations (on the last date of signing on behalf of the Treasury) on 16 May 2014, and when they were laid before Parliament on 30 May 2014. This will have in particular shortened the period for persons who are interested in the Regulations to become aware of them as from their publication, before the coming into force of the Regulations on 28 June 2014. (The Regulations are published on www.legislation.gov.uk on the same day or shortly after they are laid before the Parliament.)

18. The correspondence at Annex B concerns some drafting errors in the instrument, which are set out below.

19. The Committee accordingly draws the Regulations to the attention of the Parliament on the reporting grounds (d) and (j). There has been unjustifiable delay in the laying of the Regulations before the Parliament, as they were made on 16 May and laid on 30 May 2014 (ground (d)).

20. While the delay does not affect the validity of the instrument, it also amounts to a failure to comply with the laying requirement in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, that the instrument must be laid as soon as practicable after it is made (ground (j)). The period of delay in laying the Regulations is unusual and is not satisfactory.

21. The Committee is disappointed that this follows a similar delay in the laying of the National Health Service (Superannuation Scheme) (Scotland) Amendment Regulations 2014 (SSI 2014/43). The Committee also notes that the Scottish Public Pensions Agency is again contacting the Treasury, with a view to steps being taken to seek to ensure that the omission is not repeated.

22. The Committee also draws the Regulations to the attention of the Parliament on the general reporting ground, as it contains minor drafting errors.

23. Firstly, regulation 11(c), and the consequential references to the provision which that paragraph inserts, have been included in error. The Scottish Government has confirmed that these provisions have no substantive effect, and an amendment will be brought forward to make the appropriate provision, as and when the Finance Act 2014 is enacted and the relevant Regulations under it are made.

24. Secondly, regulation 24 so far as it adds new regulation 2.J.14(12) of the National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013 refers to “host Board” when this should refer to “contracting Health Board”. The Scottish Government has undertaken to amend the provision in due course.

NO POINTS RAISED

25. At its meeting on 17 June 2014, the Committee considered the following instruments and determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:

Economy, Energy and Tourism

Land Register Rules etc. (Scotland) Regulations 2014 (SSI 2014/150);

Regulatory Reform (Scotland) Act 2014 (Commencement No. 1 and Transitional Provision) Order 2014 (SSI 2014/160 (C.11)).

Education and Culture

Children and Young People (Scotland) Act 2014 (Commencement No. 2, Transitional and Transitory Provisions) Order 2014 (SSI 2014/165 (C.12)).

Justice

Legal Profession and Legal Aid (Scotland) Act 2007 (Membership of the Scottish Legal Complaints Commission) Amendment Order 2014 [draft];

Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014 [draft];

Adults with Incapacity (Supervision of Welfare Guardians etc. by Local Authorities) (Scotland) Amendment (No. 2) Regulations 2014 (SSI 2014/157);

Act of Adjournal (Criminal Procedure Rules Amendment) (Regulatory Reform (Scotland) Act 2014) 2014 (SSI 2014/162).

ANNEX A

Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2014 (SSI 2014/142)

On 6 June 2014, the Scottish Government was asked:

(1) Would you agree there is an error in paragraph (5) of class 9B in Part 2A of schedule 1 to the principal 1992 Order (the erection or construction of a trolley store within the curtilage of a shop), as inserted by the schedule to this instrument? The paragraph (inter alia) purports to define the terms “enclosed shopping centre” and “retail park” for the purposes of class 9B. However those terms appear not be used in the class, but are used within the definition of “shop or financial or professional services establishment” in paragraph (5) of class 9A (the extension or alternation of a shop or financial or professional services establishment).

If this is an error, would the Scottish Government propose to amend the provision?

(2) “Raised platform” is defined for the purposes of the Class 9A referred to above, to specify the minimum height of platform, but not for the purposes of the use of the term in Class 9C, paragraph (2)(f). Could you clarify why no definition is appropriate for the purposes of Class 9C?

The Scottish Government responded as follows:

(1) We are grateful to the Committee for pointing out this error and we intend shortly to make an amending instrument, correcting matters appropriately.

(2) “Raised platform” ought to have been defined for the purposes of paragraph Class 9C. The Scottish Government intends to include this definition in the amending instrument to be brought forward shortly.

ANNEX B

National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) Regulations 2014 (SSI 2014/154)

On 6 June 2014, the Scottish Government was asked:

(1) In regulation 11(c), would you agree there is an error, as in the new regulation T3(5B)(a) which that paragraph inserts, the year of the Registered Pension Schemes and Relieved Non-UK Pension Schemes (Lifetime Allowance Transitional Protection) (Notification) Regulations should be 2013 (as per regulation 11(b)(iii)) rather than 2014? If so, would you propose to amend it?

(2) Regulation 24, so far as it adds new regulation 2.J.14(12) of the National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013 (in the second last line of regulation 24) refers to the “host Board”, but this term does not seem to be defined in the 2013 Regulations or this instrument.

Please clarify what the “host Board” refers to, and why it is considered there is no need for further definition. Is it intended to refer to “Health Board”?

The Scottish Government responded as follows:

(1) Regulation 11(c) (and consequential references in regulation 11(d) and (e)) have been included in these Regulations in error. The provisions were included in a draft version of the Regulations at a point in time when it appeared possible that the Regulations would be made after a “Finance Act 2014” and an instrument of the name referred to within regulation 11(c) had been enacted. The Bill which is likely to lead to “the Finance Act 2014” is, however, still before the UK Parliament.

The error occurred principally because the drafting solicitor was unexpectedly absent from work (due to family illness) in the last few days before this instrument was signed and the final check therefore required to be carried out by a solicitor who was unfamiliar with the content of the instrument. The provisions in question have no substantive legal effect at the moment, but will be amended when the Finance Act 2014 is eventually enacted and relevant Regulations under it are made.

(2) The reference to “host Board” which is contained with regulation 2.J.14(12) of the 2013 Regulations should have been a reference to “contracting Health Board”. The Scottish Government apologises for this error, which resulted from incorrect conversion of an equivalent provision at regulation 34 of the National Health Service Pension Scheme (Amendment) Regulations 2014 (S.I. 2014/570). It is not thought that any employing authority will be in any doubt as to the nature of the obligation which new regulation 2.J.14(12) sought to impose, but the provision will be corrected when S.S.I. 2013/174 is next amended for other purposes.

ANNEX C

National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) Regulations 2014 (SSI 2014/154)

Breach of laying requirements: letter to the Presiding Officer:

The above instrument was made on 16 May 2014 under section 10 of, and Schedule 3 to, the Superannuation Act 1972. It was laid before the Scottish Parliament on 30 May 2014 and comes into force on 28 June 2014.

Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 has not been complied with. In accordance with section 31(3) of that Act, t his letter sets out why the instrument has not been laid as soon as practicable after it was made.

The instrument was signed by the Cabinet Secretary for Finance, Employment and Sustainable Growth on 14 May and immediately sent to the Treasury in order for Treasury consent to be signalled by way of signature by two of the Lord Commissioners of Her Majesty’s Treasury. Treasury signatures were appended to the instrument on 16 May but this fact was not communicated to the Scottish Government until 30 May. During the intervening period, there were communications between the Treasury and the SPPA about the instrument, but the Treasury never indicated that the instrument had already been signed.

There was another recent occurrence of the Treasury failing to notify the fact of signature timeously to the Scottish Government (the National Health Service (Superannuation Scheme) (Scotland) Amendment Regulations 2014 (SSI 2014/43)) and SPPA made representations to the Treasury with a view to there being no recurrence of such delay. SPPA is again contacting the Treasury to stress the importance of their advising the Scottish Government immediately any SSI is signed by Treasury Ministers.


Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites.

Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body, The Scottish Parliament, Edinburgh, EH99 1SP by APS Group Scotland, 21 Tennant Street, Edinburgh EH6 5NA

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