Delegated Powers and Law Reform Committee

Meeting date: Tuesday, January 10, 2023

Official Report 556KB pdf

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Instruments subject to Negative Procedure

Under agenda item 5, we will consider six instruments. Issues have been raised on three of these instruments. Again, full details of the issues can be found in paper 3 on the committee’s web page.

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First-tier Tribunal for Scotland Local Taxation Chamber (Rules of Procedure) Regulations 2022 (SSI 2022/364)

The instrument lays down the rules of procedure that are to apply in the local taxation chamber, which is a new chamber of the First-tier Tribunal for Scotland. The committee identified various errors with the regulations. First, that the preamble cites an enabling power that is not, in fact, relied on for making the instrument and that, if it had been relied on, would have required the instrument to be laid under a different procedure. The Scottish Government proposes to rectify this error by way of a correction slip.

Secondly, the committee also identified a number of cross-referencing errors in rules 20(4), 26(2)(i) and (j), 26(5), 27(1)(b) and 27(2)(a)(iii); a drafting error in regulation 26(2)(i); that the definition in rule 1 of “respondent” could be clearer as to the types of appeal to which it relates; and that rule 20 could be clearer as regards what expenses the tribunal can award. The Scottish Government has committed to addressing those points in an amending instrument before the regulations come into force.

Does the committee wish to draw the instrument to the attention of the Parliament on the general reporting ground, in that the preamble cites an enabling power that is not, in fact, relied on for making the instrument and that, if it had been relied on, would have required the instrument to be laid under a different procedure?

Members indicated agreement.

Does the committee wish to note that the Scottish Government proposes to rectify the error by correction slip?

Members indicated agreement.

Does the committee wish to welcome that the Scottish Government undertakes to review this point for the future to make sure that a consistent approach is taken to these instruments?

Members indicated agreement.

We are not finished yet.

Does the committee wish to draw the instrument to the attention of the Parliament on the general reporting ground, in respect of cross-referencing errors in rules 20(4), 26(2)(i) and (j), 26(5), 27(1)(b), and 27(2)(a)(iii); and an error in regulation 26(2)(i)?

Members indicated agreement.

Does the committee wish to welcome the Scottish Government’s intention to correct those points in an amending instrument before the regulations come into force?

Members indicated agreement.

Does the committee also wish to draw the instrument to the attention of the Parliament on reporting ground (h)—“meaning could be clearer”—in that the definition in rule 1 of “respondent” could be clearer as to the types of appeal to which it relates, and that rule 20 could be clearer as regards whether the tribunal may make an order awarding expenses as taxed or whether it can award only a specified sum, and as regards what expenses the award may cover, given the different provision in this regard made in subparagraphs (3) and (5)?

Members indicated agreement.

Does the committee wish to welcome the fact that the Scottish Government intends to clarify the meaning of the points in rules 1 and 20 by amending instrument before the regulations come into force?

Members indicated agreement.

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Upper Tribunal for Scotland (Local Taxation Rules of Procedure) Regulations 2022 (SSI 2022/365)

This instrument makes the Upper Tribunal for Scotland local taxation rules of procedure 2022. The committee identified some minor drafting errors in schedules 1 and 3. The Scottish Government has committed to correcting those errors by way of an amending instrument before the regulations come into force on 1 April 2023.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (h), on account of the fact that the meaning of rules 31 and 32 could be clearer?

Members indicated agreement.

Does the committee wish to draw the instrument to the attention of the Parliament on the general reporting ground, in respect of the three referencing errors in schedule 3?

Members indicated agreement.

Does the committee wish to welcome the fact that the Scottish Government intends to lay an amending instrument before the regulations come into force on 1 April 2023?

Members indicated agreement.

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Official Controls and Import Conditions (Transitional Periods) (Miscellaneous Amendment) (Scotland) Regulations 2022 (SSI 2022/371)

This instrument amends the Official Controls (Extension of Transitional Periods) Regulations 2021 and European Commission decision 2000/572/EC to extend the transitional staging periods that apply in relation to the import of animals and goods that originate from certain third countries and territories from 31 December 2022 to 31 January 2024.

Under section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, instruments subject to the negative procedure must be laid at least 28 days before they come into force, not counting recess periods of more than four days. The instrument breaches that requirement, as it was laid on 14 December 2022 and came into force on 1 January 2023. In correspondence with the Presiding Officer, the Scottish Government stated that the breach had occurred due to United Kingdom Government delays in agreeing policy, which resulted in the Scottish Government pursuing separate Scottish legislation.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (j), for failure to comply with laying requirements? The instrument was not laid at least 28 days before it came into force as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.

Members indicated agreement.

Does the committee wish to note the reasons for the breach and refer them to the lead committee?

Members indicated agreement.

Also under this agenda item, no points have been raised on the following instruments.

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Red Rocks and Longay Marine Conservation Order 2022 (SSI 2022/372)

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Food and Feed (Miscellaneous Amendments) (Scotland) Regulations 2022 (SSI 2022/373)

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St Mary’s Music School (Aided Places) (Scotland) Amendment (No 2) Regulations 2022 (SSI 2022/377)

Is the committee content with the instruments?

Members indicated agreement.