54th Report, 2014 (Session 4): Supplementary Legislative Consent Memorandum on the Deregulation Bill

SP Paper 591 (Web Only)

DPLR/S4/14/R54

54th Report, 2014 (Session 4)

Supplementary Legislative Consent Memorandum on the Deregulation Bill

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 Anderson

Support Manager
Daren Pratt

Supplementary Legislative Consent Memorandum on the Deregulation Bill

The Committee reports to the Parliament as follows—

1. At its meeting on 30 September 2014, the Committee considered the provisions in the Deregulation Bill (“the Bill”)1 that confer powers to make subordinate legislation on the Scottish Ministers.

2. The Bill was introduced to the House of Commons on 23 January 2014. It makes wide ranging provision for the removal or reduction of burdens resulting from legislation on businesses, individuals and public sector bodies; for the repeal of legislation that the UK Government no longer consider of any practical use; and for the exercise of regulatory functions including a duty to have regard to the desirability of promoting economic growth. The Bill, therefore, covers a range of matters much wider than those before the Committee for delegated powers consideration. The Bill completed its second reading in the House of Lords on 7 July 2014 and will move to Committee stage on 21 October 2014.

3. The Supplementary LCM2 was lodged by the Cabinet Secretary for Infrastructure, Investment and Cities, Nicola Sturgeon MSP, on 15 August 2014. The draft motion is:

“That the Parliament agrees that the relevant provisions within the Deregulation Bill, introduced in the House of Commons on 23 January 2014, which would enable the investigation of tramway accidents in Scotland by the Rail Accident Investigation Branch, and provide Scottish Ministers with powers relating to races or trials of speed on public roads, in so far as these matters fall within the legislative competence of the Scottish Parliament or alter the executive competence of Scottish Ministers, should be considered by the UK Parliament.”

4. The Supplementary LCM was considered by the Committee under Rule 9B.3 of the Parliament’s Standing Orders. Paragraph 6 of Rule 9B.3 provides that where the Bill that is the subject of a legislative consent memorandum contains provisions conferring on the Scottish Ministers powers to make subordinate legislation, the Delegated Powers and Law Reform Committee shall consider and may report to the lead committee on those provisions.

5. A previous Legislative Consent Motion was approved by the Scottish Parliament for the Bill in relation to the amendment of the Farriers Registration Act 1975, and repeal of the Farm and Garden Chemical Act 1967 and the Agricultural Produce (Grading and Marking) Acts 1928 and 1931 on 29 April 2014. This previous Legislative Consent Motion did not engage the remit of the Committee.

Delegated Powers

6. The Bill will confer new powers on, and extend existing powers of, the Scottish Ministers to make subordinate legislation to allow for the introduction of a regime to permit motorsports on public roads in Scotland. These new and extended powers will be found in section 12 of the Road Traffic Act 1988, section 16A of the Road Traffic Regulation Act 1984, and in the Bill itself.

7. The clauses which will introduce these new and extended powers (“the amendment clauses”) are contained in an amendment (“the amendment”)3 dated 1 August 2014, to be moved by Lord Wallace of Saltaire, which will be considered at Committee stage in the House of Lords on 21 October 2014. Once agreed, the amendment would be inserted after clause 57 of the Bill.

8. In addition to the powers contained in the amendment, Schedule 9, Part 5 of the Bill (Off-road motoring events) also extends an existing power of the Scottish Ministers to make subordinate legislation, contained in section 13A(1) of the Road Traffic Act 1988.

Proposed clause - Motor racing on public roads: general

Power conferred on: the Scottish Ministers
Power exercisable by: regulations
Parliamentary procedure: negative (as to new section 12G) Affirmative (as to new section 12H)

New section 12G of the Road Traffic Act 1988 (“the RTA”)

9. The first amendment clause inserts new sections into the Road Traffic Act 1988 (“the RTA”). New section 12G provides powers for the Scottish Ministers to introduce, by regulations, a scheme (“the scheme”) to allow for the authorisation of races and trials of speed (“authorised races”) on public roads in Scotland. Subsection (1) sets out the general power authorising the introduction of the scheme by regulations.

10. Subsection (2) gives further particulars. Regulations may specify the persons by whom such authorisations may be given; limit the circumstances in which/ places in respect of which authorisations may be given; provide for authorisations to be subject to conditions imposed by or under the regulations; provide for authorisations to cease to have effect in specified circumstances; and provide for the procedure to be followed when applying for authorisations (including information to be given and fees to be paid). Subsection (3) provides that regulations may make different provisions for different cases.

11. There is no express consultation requirement in respect of the powers in new section 12G. The existing consultation requirement set out in section 195 of the RTA is expressly disapplied in relation to regulations made under section 12G (subsection (5) of the third amendment clause).

New section 12H of the RTA

12. New section 12H of the RTA makes further provision in relation to authorised races, and provides for four specific new powers to be conferred on the Scottish Ministers.

13. Subsection (3) provides that various offences under the RTA are disapplied in relation to participants in authorised races. Powers are provided to the Scottish Ministers to make regulations to extend the provisions of this section to other persons of a description specified in such regulations. In either case, such participants/persons must comply with any conditions imposed on them in order to benefit from these protections.

14. The offences which are disapplied are contained in sections 1, 1A, 2, 2B and 3 of the RTA, covering: causing death by dangerous driving; causing severe physical injury by dangerous driving; driving dangerously on a road/public place; causing death by careless or inconsiderate driving; and driving carelessly and inconsiderately on a road/public place.

15. Subsection (4) provides powers to the Scottish Ministers to make regulations disapplying (or modifying the application of) certain types of legislation in relation to participants/vehicles in authorised races and to such other persons/vehicles as may be specified in the regulations.

16. Types of legislation which may be disapplied are set out in subsection (5), covering: speed restrictions and restrictions on use of vehicles on public roads; construction/lighting/maintenance of vehicles; requirements for vehicle insurance, tax, licensing and registration; requirements for a drivers licence; and legislation relating to the enforcement of any of the above. Regulations under subsection (4) may not disapply or alter the application of the offences of driving under the influence of drink or drugs (subsection (6).

17. Subsection (7) provides a power for the Scottish Ministers to make regulations to amend section 16A of the Road Traffic Regulation Act 1984 (“the RTRA”), Section 16A allows a traffic authority by order to impose temporary restrictions on the use of public roads in connection with sporting events (“restriction orders”), and to suspend certain statutory provisions as specified in that section. Where a restriction order is made for the purpose of an authorised race, the Scottish Ministers may by regulations amend section 16A so as to enable the restriction order to suspend other statutory provisions, in addition to those already specified in section 16A.

18. Subsection (8) provides that the promoter of an authorised race is liable in damages if personal injury or damage to property is caused by anything done by or on behalf of the promoter or a participant (unless reasonable steps were taken to prevent the injury/ damage occurring). Powers are provided for the Scottish Ministers to make regulations extending the provisions of this section to persons of a description specified in such regulations.

19. New section 12H is subject to a requirement that the Scottish Ministers must consult such persons as they consider appropriate before making regulations (subsection 12I(1)).

20. The Committee finds the powers contained in the proposed clause (Motor racing on public roads: general) which would insert new sections 12G to 12I of the Road Traffic Act 1988 to be acceptable in principle. The Committee is content that the powers are subject to the negative procedure (in respect of the powers in new section 12G) and the affirmative procedure (in respect of the powers in new section 12H).

Proposed clause - Motor racing: road closures

Power conferred on: the Scottish ministers (as the Scottish road authority)
Power exercisable by: order
Parliamentary procedure: “Not laid” (section 30(4) of the Interpretation and Legislative Reform (Scotland) Act 2010)

Changes to section 16A of the Road Traffic Regulation Act 1984 (“the RTRA”)

21. The second amendment clause sets out changes to section 16A of the RTRA. Section 16A, as discussed above, allows a traffic authority to impose temporary restriction orders on the use of public roads in connection with sporting events. Subsection (4) of section 16A provides that such an order may not be made in relation to any race or speed trial falling within section 12(1) of the RTA (which prohibits motor racing on public roads).

22. Section 16A(4) is amended so that the prohibition against restriction orders in respect of races on public roads will not extend to authorised races. This will allow for restriction orders to be made in connection with the scheme.

23. The Committee is content with the proposed clause that would amend the powers contained in section 16A of the Road Traffic Regulation Act 1984.

Proposed clause - Motor Racing: consequential amendments

Power conferred on: the Scottish Ministers
Power exercisable by: regulations
Parliamentary procedure: negative (subclause (13))

24. Subclause (10) of the third amendment clause provides a power for the Scottish Ministers to make regulations repealing any local Act which makes provision for authorising races or trials of speed between motor vehicles on public roads in Scotland. This power applies in relation to any local Act which is passed before the Deregulation Act comes into force. Subclause (11) provides that such regulations may include transitional, transitory or saving provision.

25. The Committee finds the power conferred in subclause (10) of the proposed clause (Motor racing: consequential amendments) to be acceptable in principle, and is content that it is subject to the negative procedure.

Schedule 9, Part 5 of the Bill – Off-road motoring events

Power conferred on: the Scottish Ministers
Power exercisable by: regulations
Parliamentary procedure: negative (section 195(3) RTA))

26. Schedule 9, Part 5 of the Bill amends section 13A of the RTA. Section 13A of the RTA (Disapplication of sections 1 to 3 for authorised motoring events) confers a power on the Scottish Ministers to make regulations to authorise off-road motoring events. Section 13A(1) sets out that a participant in such an authorised event shall not be guilty of an offence under sections 1, 1A, 2 or 3 of the RTA. (The offences which are disapplied are: causing death by dangerous driving; causing severe physical injury by dangerous driving; driving dangerously on a road/ public place; and driving carelessly and inconsiderately on a road/ public place.)

27. The amendment contained in Schedule 9, Part 5 of the Bill extends the sections of the RTA which are disapplied by virtue of section 13A(1). This is so that section 2B of the RTA will also be disapplied in respect of motoring events authorised by regulations made under section 13A. Section 2B of the RTA makes it an offence to cause death by careless, or inconsiderate, driving. Thus, a person shall not be guilty of causing death by careless, or inconsiderate, driving if he shows that he was driving in an authorised motoring event under section 13A of the RTA.

28. The Committee finds the amendment of the powers in section 13A of the Road Traffic Act 1988 made by Schedule 9, Part 5 of the Bill is acceptable.


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

Footnotes:

1The latest version of the Bill is available at: http://services.parliament.uk/bills/2013-14/deregulation.html

2 Deregulation Bill supplementary LCM available at: http://www.scottish.parliament.uk/LegislativeConsentMemoranda/DeruglationBillSuppLCM.pdf

3 The proposed amendment is available here: http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0033/amend/am033-e.htm

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