Delegated Powers and Law Reform Committee
Meeting date: Tuesday, October 31, 2017
Official Report 405KB pdf
Contents
- Attendance
- Decision on Taking Business in Private
- Draft Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2018
- Instruments subject to Negative Procedure
Instruments subject to Negative Procedure
Council Tax Reduction (Scotland) Amendment (No 2) Regulations 2017 (SSI 2017/326)
Agenda item 3 is instruments subject to the negative procedure. The Council Tax Reduction (Scotland) Amendment (No 2) Regulations 2017 make further amendments to the Council Tax Reduction (Scotland) Regulations 2012 (SSI 2012/303) and the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012 (SSI 2012/319), which are the principal regulations.
Our legal advisers have suggested that the regulations raise a devolution issue for the same reasons that were previously discussed by the committee when it considered the Council Tax Reduction (Scotland) Regulations 2012, the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012, and subsequent amending instruments. That is to say, the regulations raise a devolution issue, as they may relate to matters that are reserved by section F1 of part II of schedule 5 to the Scotland Act 1998, in relation to social security schemes. It is recognised that the Scottish Government takes a contrary view.
Since September last year, a new exception 10 to the social security reservation has given the Scottish Parliament powers to create new benefit schemes in areas of devolved responsibility in which the requirements of the exception are satisfied, including that the new scheme must be funded from the Scottish consolidated fund.
In relation to the Council Tax Reduction (Scotland) Amendment Regulations 2017 (SSI 2017/41), which the committee considered on 7 March this year, the committee suggested to the Scottish Government that framing a new discrete scheme could avoid the committee’s concern were that scheme to comply with the requirements of exception 10. The committee also highlighted that a new discrete scheme would have a further benefit of accessibility to readers if consolidated regulations could be produced.
The principal regulations are well in need of consolidation, as the instrument is the 12th amending instrument. The Cabinet Secretary for Finance and the Constitution wrote to the committee on 4 October and undertook to be in touch on the potential to consolidate the principal regulations and to update the committee on that issue in the next few months.
Do members have any comments?
Members: No.
Does the committee wish to draw the regulations to the attention of the Parliament on reporting ground (f), on the basis that they raise a devolution issue?
The position of members of the committee on such instruments is well documented. I disagree with the suggestion that we should draw the regulations to the attention of the Parliament, because I do not think that they raise a devolution issue.
I advise members that I intend to vote in accordance with the advice that the regulations raise a devolution issue. In the event of a tied vote, I will use my casting vote in the same manner. Does anyone else have anything to say?
The proposition is—
I am sorry, convener—I had my hand up, but I know that you did not notice.
I agree with the convener’s position. For me, the legal advice is important. We must make sure that the regulations are competent, because we want people to be able to claim what they are entitled to and we do not want there to be any challenge to what is proposed. I am concerned about the fact that the legal advice has not been fully taken on board by the Government.
The proposition is, that the committee considers that the regulations raise a devolution issue and should be drawn to the attention of the Parliament on that basis. Are we agreed?
Members: No.
There will be a division.
For
Harris, Alison (Central Scotland) (Con)
Lennon, Monica (Central Scotland) (Lab)
Simpson, Graham (Central Scotland) (Con)
Against
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 3, Against 2, Abstentions 0. The proposition is agreed to.
Secondly, does the committee agree to seek an update on the consolidation of the principal regulations when the Minister for Parliamentary Business attends the committee in December to respond to issues that are raised in the committee’s annual report?
Members indicated agreement.
Council Tax Reduction (Scotland) Amendment (No 2) Amendment Regulations 2017 (SSI 2017/357)
The regulations make a specific amendment to the Council Tax Reduction (Scotland) Amendment (No 2) Regulations 2017 (SSI 2017/326) to fully implement the policy intention that underlies those regulations.
SSI 2017/326 includes amendments to the Council Tax Reduction (Scotland) Regulations 2012 (SSI 2012/303) to enable income from the new bereavement support payment to be disregarded when an applicant’s level of council tax reduction is calculated.
SSI 2017/326 was laid on 6 October. The Scottish Government has explained that, shortly after that date, it was identified that those regulations did not fulfil the policy intention that income from bereavement support payments should be wholly ignored in the council tax reduction scheme when an applicant’s income is calculated. Unless SSI 2017/326 is changed, it would have the effect that only £20 of someone’s bereavement support payment would be disregarded, rather than the full payment.
The regulations that are under consideration address that issue. The aim is to ensure that the original policy intention is met, so that income from such support payments is disregarded in full for those of working age for 52 weeks from the date of the first payment.
Our legal advisers make the same suggestion as they did for SSI 2017/326, by which I mean that they consider that the regulations raise a devolution issue, as they may relate to matters that are reserved under section F1 of part II of schedule 5 to the Scotland Act 1998. Again, it is recognised that the Scottish Government takes a contrary view.
Does the committee wish to draw the regulations to the attention of the Parliament on reporting ground (f), on the basis that they raise a devolution issue for the reasons that the committee has previously considered?
I disagree with that recommendation.
10:45
The proposition is, that the committee considers that the regulations raise a devolution issue and should be drawn to the attention of the Parliament on that basis. Are we agreed?
Members: No.
There will be a division.
For
Harris, Alison (Central Scotland) (Con)
Lennon, Monica (Central Scotland) (Lab)
Simpson, Graham (Central Scotland) (Con)
Against
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 3, Against 2, Abstentions 0. The proposition is agreed to.
Furthermore, the regulations were laid before the Parliament on 25 October and they come into force on 19 November, so they do not respect the requirement that at least 28 days should elapse between the laying of an instrument that is subject to the negative procedure and the coming into force of that instrument.
As regards its interest in the Scottish Government’s decision to proceed in this manner, the committee may wish to find the failure to comply with section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 to be acceptable in the circumstances. The reasons for it doing so are outlined by the Scottish Government’s local government and communities directorate in its letter to the Presiding Officer of 25 October.
Does the committee wish to draw the regulations to the attention of the Parliament on reporting ground (j), as they fail to comply with the requirements of section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010?
Members indicated agreement.
No points have been raised by our legal advisers on the following three instruments.
Road Traffic (Permitted Parking Area and Special Parking Area) (North Lanarkshire Council) Designation Order 2017 (SSI 2017/342)
Parking Attendants (Wearing of Uniforms) (North Lanarkshire Council Parking Area) Regulations 2017 (SSI 2017/343)
Road Traffic (Parking Adjudicators) (North Lanarkshire Council) Regulations 2017 (SSI 2017/344)
Is the committee content with the instruments?
Members indicated agreement.
10:47 Meeting continued in private until 11:14.