Subordinate Legislation Committee
Meeting date: Tuesday, March 1, 2011
Official Report
408KB pdf
Draft Instruments subject to Approval
Public Services Reform (General Teaching Council for Scotland) Order 2011 (Draft)
We considered our approach at last week’s meeting, so I suggest that we agree to report as follows. First, there appears to be doubt as to whether the following functions that would be conferred on the General Teaching Council for Scotland to make rules or schemes are intra vires, by reason of a breach of the prohibition in section 20(1) of the Public Services Reform (Scotland) Act 2010, that an order may not confer or transfer a function of legislating on persons other than the Scottish ministers, the First Minister or the Lord Advocate: the function of making rules in relation to the registration of teachers, in article 15; the function of making schemes, under articles 26 and 31 and paragraphs 2 and 7 of schedule 2; and the function of making rules, under schedule 4, paragraph 1.
Secondly, there appears to be doubt as to whether the provisions in schedule 2 that would have the effect of transferring to another person the existing function of the Scottish ministers of appointing six members of the GTCS are intra vires, by reason of their breaching the prohibition on such transfer that is contained in section 20(7) and (8) of the 2010 act. Our colleagues on the Education, Lifelong Learning and Culture Committee will consider the instrument at their meeting tomorrow.
Does the committee agree to report in the terms that I have outlined?
Members indicated agreement.
Public Services Reform (Agricultural Holdings) (Scotland) Order 2011 (Draft)
We considered our approach to the instrument at last week’s meeting. First, there appears to be doubt as to whether article 3, which replaces the “two-man unit” test with a “viable unit” test, is within vires. We doubt that the failure of the two-man unit to operate in a way that delivers the desired policy can properly be described as a burden within the meaning of section 17 of the 2010 act, in the form of an obstacle to efficiency, productivity and profitability.
Secondly, the function of the test is to determine, between two competing private interests, who is to be entitled to occupation of the holding. Clearly, the test will operate to the financial detriment of one party and to the financial benefit of the other. In whatever manner a test that operates in that way is framed, the characteristic of detriment to one party will remain. For that reason, doubts remain as to what burden as regards efficiency, productivity and profitability will be removed by refinement of the test in the manner that is proposed in article 3.
Do we agree to report in the terms that I have outlined? I remind members that the Rural Affairs and Environment Committee will consider the instrument at its meeting a week hence, on 9 March.
Members indicated agreement.