Delegated Powers and Law Reform Committee

Meeting date: Tuesday, November 5, 2013

Official Report 287KB pdf

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Instrument subject to Negative Procedure

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Council Tax Reduction (Scotland) Amendment (No 4) Regulations 2013 (SSI 2013/287)

I welcome members to the 28th meeting in 2013 of the Delegated Powers and Law Reform Committee and ask them to turn off mobile phones.

Agenda item 1 is consideration of an instrument that is subject to negative procedure. Our legal advisers have suggested that the regulations raise the question whether they relate to matters that are reserved by section F1 of part II of schedule 5 to the Scotland Act 1998 and that, as such, the committee may wish to report them as raising a devolution issue.

The matter was also raised in connection with the principal regulations—that is, the Council Tax Reduction (Scotland) Regulations 2012 (SSI 2012/303) and the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012 (SSI 2012/319)—and various other instruments that amend the principal regulations, all of which the committee has previously considered.

The Scottish Government’s view is that the principal regulations do not relate to any of the reserved matters that are described in section F1 of part II of schedule 5 to the Scotland Act 1998. When the committee considered the principal regulations and the amending regulations, a majority of committee members preferred the Scottish Government’s view.

It is, of course, for the committee to decide whether it wishes to report the regulations or whether, as with the Council Tax Reduction (Scotland) Regulations 2012 and the amending regulations that the committee has previously considered, it is content that no devolution issue has been raised.

Do members wish to comment?

I support the view of our legal advisers. I am concerned that the regulations may well be ultra 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. There is certainly a doubt about whether the regulations are intra vires, which is what we are seeking to report. As a council tax reduction could be considered to be a benefit, our legal advisers have consistently taken the view that the making of such a reduction may well be ultra vires. Therefore, I disagree with the Scottish Government’s interpretation and would like the committee to report the regulations under reporting ground (f).

Can I provide you with some wording? I suggest that the proposition is that the committee considers that the regulations may raise a devolution issue and should be drawn to the attention of the Parliament on that basis.

That is the position that I support.

Okay—I will take that as your position. Stewart Stevenson wishes to comment.

It is perfectly proper for our legal advisers to put it to us that there is “sufficient doubt” about whether the regulations are intra vires. It is clear that were it to be decided by whomever that the regulations related to a reserved matter, a wide range of other activities in relation to reduction of taxation for special categories of people would be affected, and it is clear that that is not required or desired.

The real question is what the correct forum is for the doubt that our legal advisers have raised to be resolved. I am clear that a reduction of a tax is simply a reduction of a tax and not a benefit. It is not the delivery of value to people; it is a reduction in what we take away. Therefore, I seek to oppose the proposition that is before the committee, which came from Mr Scott.

I support Mr Scott’s proposition. Beyond the merits of the policy and the fact that, even if the regulations are ultra vires, they should be, from a policy perspective, intra vires, the fact is that the committee has received legal advice that is contrary to the advice that the Scottish Government has received. I respect the fact that the Scottish Government takes a different legal view on the matter but, as Stewart Stevenson said, the issue comes down to what the correct forum for debate is. I agree with Mr Scott that, given that doubt has been raised about whether the regulations are intra vires, they should be drawn to the Parliament’s attention.

Do any other members wish to comment?

This is the fifth time that we have been round this particular loop, so I think that we know what we are doing. I reiterate that the proposition is that the committee considers that the regulations may raise a devolution issue and should be drawn to the attention of the Parliament on that basis. Are we agreed?

Members: No.

There will be a division.

For

Baker, Richard (North East Scotland) (Lab)

McCulloch, Margaret (Central Scotland) (Lab)

Scott, John (Ayr) (Con)

Against

Allard, Christian (North East Scotland) (SNP)

Don, Nigel (Angus North and Mearns) (SNP)

MacKenzie, Mike (Highlands and Islands) (SNP)

Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

The result of the division is: For 3, Against 4, Abstentions 0.

As before, the proposition is not agreed to.