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Council Tax Reduction (Scotland) Amendment (No 2) Regulations 2013 (SSI 2013/218)
Council Tax Reduction (Scotland) Amendment (No 3) Regulations 2013 (SSI 2013/239)
Regulation 9 in Scottish statutory instrument 2013/218 appears to be defectively drafted as it provides that
Our legal advisers have suggested that both instruments—SSI 2013/218 and SSI 2013/239—raise the question of whether they relate to matters that are reserved by section F1 of part II of schedule 5 to the Scotland Act 1998. As such, the committee may wish to report that the regulations raise a devolution issue.
We should follow the legal advice and report the instruments on the ground that they may not be intra vires as they appear to relate to matters that are reserved by section F1 of part II of schedule 5 to the Scotland Act 1998.
The advice that we have received that the regulations may be ultra vires is based on the idea that a reduction in the charge should be identified as a benefit, and benefits are a reserved matter. If that were the case, a wide range of other reductions in charges, particularly reductions in council tax charges, would also have to be deemed ultra vires. I give as examples the reduction in the council tax charge when there is a single person in the property and reductions that relate to second properties. The lack of any challenge to those reductions on the basis that they are a benefit applies equally in this case. I will continue to adhere to the view that the reduction in the charge is not, in law, a benefit, and therefore I would not wish the committee to report the instruments to the Parliament.
Could our advisers confirm whether the Westminster Government has commented on the issues raised under the suite of related proposals that the committee has previously considered?
I can certainly ask them.
We have had no intimation from the Westminster Government in relation to this suite of instruments.
I tend to agree with Mr Scott and with the position that he took previously. Although there has been no challenge in the past, I am still not convinced that our legal advisers are wrong on this one. To be consistent, we should ask that the instruments be referred.
The fact that there has not been a legal challenge thus far does not mean that there will not be one in future.
I entirely accept that.
There will be a division.
The result of the division is: For 4, Against 3, Abstentions 0. Therefore, the proposition is agreed to. Thank you for that swift and agreeable discussion.
Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2013 (SSI 2013/221)
There has been a failure to lay the regulations at least 28 days before they came into force, as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. The Scottish Government has explained that the breach of the rule was necessary to ensure the continued integrity of the feed and food chain to prevent products containing unauthorised genetically modified rice from being placed on the market in Scotland and in order to comply with European Union requirements. Accordingly, the committee may wish to be content with the explanation provided.
Does the committee agree to find acceptable the explanation that the Scottish Government has given for the failure to lay the regulations at least 28 days before they came into force?
Landfill (Scotland) Amendment Regulations 2013 (SSI 2013/222)
There has been a failure to comply with the 28-day rule in relation to this instrument, too. The committee may consider that better advance planning of the regulations could have avoided the breach, taking into account that directive 2011/97/EU, which is implemented by the regulations, was published in the Official Journal of the European Union in December 2011 and provided until 15 March 2013 for implementation.
Does the committee also wish to note the Scottish Government’s explanation?
It is appropriate for the committee to draw the issue to the Parliament’s attention as we have agreed. However, in doing so, we should recognise that there will be no practical environmental effect one way or the other from the passing of the regulations because they apply to an activity that does not and is not expected to take place in Scotland. Nonetheless, they raise a wider issue in that they appear to be outwith the timescale required under European law. The Government might wish to note the committee’s remarks in that regard and find a more substantial reason—other than simply resourcing and administrative convenience—for going outside what is required under European law. In this case, there is no practical effect, but there is a point of principle.
I agree with Mr Stevenson. It is not appropriate for the Government to decide that it is appropriate to break the 28-day rule knowingly and without good reason, given the amount of time that was available for the Government to comply with it.
Does the committee therefore wish to draw the Scottish Government’s explanation for the breach of the 28-day rule to the Parliament’s attention as the appropriate way of dealing with that?
Is there scope for seeking an explanation? Convener, you will recall that I have commented on time slippage in the past. It seems to be a management issue. If we ask for an explanation, it might focus people’s minds and make them give the appropriate support whenever it is needed to make sure that deadlines are not missed in future. To continually have time slippage and accept it is bad practice.
On a slightly different subject, I note that the Government has agreed to consider consolidating the regulations, and I would welcome that. I am sure that colleagues would welcome it too, given that the regulations have been amended nine times. I am trying to finish the discussion on a positive note.
Indeed, and I take it that members will welcome that. We have raised the issue many times and it would be good to see that happen.
Football Banning Orders (Regulated Football Matches) (Scotland) Order 2013 (SSI 2013/228)
There has been a failure to comply with the 28-day rule. However, the committee might be content that the breach of the rule was necessary to update the definition of “regulated football matches” in section 55(3) of the Police, Public Order and Criminal Justice (Scotland) Act 2006 to include pre-season football matches at which one or both of the participating teams represents a club that is a member of the Scottish Professional Football League. The committee might therefore be content with the explanation that the Government has provided.
Does the committee agree to find the Scottish Government’s explanation for the failure to lay the order at least 28 days before it came into force acceptable?
Sports Grounds and Sporting Events (Designation) (Scotland) Amendment (No 2) Order 2013 (SSI 2013/229)
There has again been a failure to comply with the 28-day rule. However, the committee might be content that the breach of the rule was necessary to bring the order into force to ensure that pre-season football matches that were played by members of the Scottish Professional Football League were subject to the terms of the Sports Grounds and Sporting Events (Designation) (Scotland) Order 2010 (SSI 2010/199) as they would have been prior to the change of the league name. The committee might therefore be content with the explanation that the Scottish Government has provided.
Does the committee agree to find the Scottish Government’s explanation acceptable?
Public Health etc (Scotland) Act 2008 (Sunbed) Amendment Regulations 2013 (SSI 2013/201)
Sale of Tobacco (Prescribed Documents) (Scotland) Regulations 2013 (SSI 2013/202)
Vulnerable Witnesses (Giving evidence in relation to the determination of Children’s Hearing grounds: Authentication of Prior Statements) (Scotland) Regulations 2013 (SSI 2013/215)
Contaminants in Food (Scotland) Regulations 2013 (SSI 2013/217)