Official Report 403KB pdf
Local Authority (Capital Finance and Accounting) (Scotland) Regulations 2016 [Draft]
The regulations are made under the power in section 165 of the Local Government etc (Scotland) Act 1994, which enables the Scottish ministers to make provision with respect to the powers of “authorities” to borrow and lend money, and to establish and operate loan funds.
The term “authorities” is defined for the purpose of section 165 and includes the Strathclyde Passenger Transport Authority—the SPTA. However, the term “authorities” is defined for the purposes of the instrument as including not the SPTA but the regional transport partnership for the west of Scotland—designed as the Strathclyde partnership for transport—established under the Transport (Scotland) Act 2005.
There is no narration of how the functions of the SPTA have been transferred to the west of Scotland transport partnership. In the circumstances, narrating that transfer of functions would have been proper drafting practice.
Does the committee therefore agree to draw the instrument to the Parliament’s attention under the general reporting ground, as there has been a failure to follow proper drafting practice?
Members indicated agreement.
Scotland’s Adoption Register Regulations 2016 [Draft]
Regulation 5(6) provides that when, after information is provided under the regulation for inclusion in the adoption register, it is decided that the person in respect of whom the information was provided is no longer suitable to be an adoptive parent, “an adoption agency” must as soon as is reasonably practicable notify the Scottish ministers and inform them of the reason for the decision. Those requirements enable the adoption register to be brought up to date.
The Scottish Government’s intention is that the adoption agency that decides that the person is no longer suitable to be an adoptive parent—which might not be the same as the agency that approved suitability—must implement the requirements of regulation 5(6). The committee may consider that the provision could more clearly implement that intention.
Does the committee therefore agree to draw the regulations to the attention of the Parliament on the reporting ground (h), as the meaning of regulation 5(6) could be clearer?
Members indicated agreement.
Procurement (Scotland) Regulations 2016 [Draft]
Some provisions of the regulations are made by virtue of provision in the Procurement Reform (Scotland) Act 2014 that applies to “regulated procurements”. Others are made by virtue of provision in the 2014 act that applies to “regulated contracts”. Yet other provisions are made by virtue of provision in the 2014 act that applies to “regulated procurements” and “EU-regulated procurements”, and others are made by virtue of provision that applies to “regulated procurements” but not those which are “EU-regulated”.
In that way, regulations 4, 6 and 12, apply to differing types of contract or procurement. However, the provisions make no reference to a “regulated procurement” or “regulated contract”, apart from one reference in regulation 11(1).
Can I just correct you? It is regulations 4, and 6 to 12, rather than 4, 6 and 12.
Thank you—you are absolutely right. It is one of those mornings.
The committee may consider that it would have been appropriate drafting practice in these circumstances to have specified in the relevant regulations, as well as in the explanatory note, which types of contract or procurement the regulations apply to. Alternatively, where it might be more suitable drafting, a regulation could have made reference back to the section of the act specifying which type of contract or procurement the provision applies to. That would have helped the reader to understand the extent of the provisions.
Does the committee agree to draw the regulations to the attention of the Parliament on the general reporting ground, as there has been a failure to follow proper drafting practice?
Members indicated agreement.
Assessment of Energy Performance of Non-domestic Buildings (Scotland) Regulations 2016 [Draft]
No points have been raised by our legal advisers on the instrument. Is the committee content with it?
Members indicated agreement.
Budget (Scotland) Act 2015 Amendment Regulations 2016 [Draft]
No points have been raised by our legal advisers on the instrument. Is the committee content with it?
Members indicated agreement.