Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Amendment Regulations 2013 (SSI 2013/7)
There appears to be a doubt whether the regulations are intra vires as the statutory consultation requirements specified in section 93(4) of the Housing (Scotland) Act 2001 do not appear to have been complied with. It does not appear that the Scottish ministers have consulted
I agree that the level of consultation has perhaps been weak at best. In fact, instead of simply concentrating on our suggested changes, the Government might well have to revisit the regulations. The consultation has not been carried out as required to its fullest extent. Revisiting will be beneficial to the ministers as well—it will protect them against any challenge.
I think that the matter is worth reporting. I am not in quite such a certain position as Hanzala Malik, but certainly, at the end of the day, it will protect ministers if they consider whether they should take action.
I agree with Stewart Stevenson. It is worth reporting. I welcome the changes that have been made as a result of the committee’s observations on and scrutiny of the previous draft. It is vital that the regulations are properly consulted on. I appreciate that there is some doubt, but it is by virtue of the fact that the changes that the committee suggested have been made that those regulations have not been consulted on, and that could leave them open to challenge, as I understand it. They might very well not be intra vires; if they are not, there would be consequences in terms of the awarding of grants and so on that the regulations would have allowed. That opens a whole can of worms that ministers should want to examine. They should go through the proper process so that that potential loophole and area of challenge can be eliminated at this stage.
Does the committee agree to draw the regulations to the attention of the Parliament on reporting ground (e) as there is a doubt as to whether they are intra vires?
Energy Performance of Buildings (Scotland) Amendment Regulations 2013 (SSI 2013/12)
There has been a failure to lay the regulations at least 28 days before they come into force, as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.
I am satisfied with the explanations in so far as they describe why we are in this position. However, although the explanations are sufficient, there is an issue with the co-ordination between the two Administrations, which is not meeting a satisfactory standard. Whether that is a reporting ground for us as a committee is a slightly different point, but I hope that having what I have just said on the record makes it clear that this is not how we would hope that things would happen. I think that the response from the Scottish Government indicates that that is its view as well.
I support Stewart Stevenson in that regard. The important point is that there have been only two sitting days available for consultation time and that is not adequate.
I think that there is a case for seeking clarification of why ministers were not in a position to make and lay the regulations at the same time as, or shortly after, the English regulations were made and laid. I do not know that we have yet had sufficient explanation of that from ministers.
I agree.
My reading of the situation is simply that the final version of the regulations that the Scottish ministers received from Westminster was not what they expected, so changes had to be made. I am sure that we could explore the detail of that—let us do so—but I cannot help making the basic observation that if the Westminster Government is sailing close to the wind to observe its 21-day rule, we will never manage to observe the 28-day rule for an instrument that is supposed to come into force at the same time in Scotland.
As I read the notes that have been provided, it is claimed that there has been a co-ordinated approach. Self-evidently, that co-ordination has broken down, which is probably where the difficulty lies. The upshot is that the consultation period has been reduced from 28 days to two days.
The sum of all that is that not only has the 28-day rule been broken, but there has been a total lack of opportunity for the public in general and those who will be affected by the law change to find out about it.
Just for clarity, I point out that, although there is a difficulty in that the regulations came into force in such a short period that no one could prevent them from coming into force, as the regulations are a negative instrument, there is nonetheless still a period during which they can be revoked. That is not without its difficulties, but we should be proportionate in our discourse. The situation is not ideal.
The 28-day rule is there so that we can scrutinise instruments and, on many occasions, have them withdrawn and relaid. Plainly, that opportunity disappears if an instrument is brought in in two days and there is no meeting at which to consider it.
What Stewart Stevenson says is absolutely correct. It would, of course, be for the lead committee to decide not to proceed with the regulations.
I think that we have agreed that we will seek more information from the Government on why it was behind when the new regulations were signed at Westminster.
Looked After Children (Scotland) Amendment Regulations 2013 (SSI 2013/14)