Subordinate Legislation Committee

Meeting date: Tuesday, May 7, 2013

Official Report 262KB pdf

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Instruments subject to Negative Procedure

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Police Service of Scotland (Amendment) (No 2) Regulations 2013 (SSI 2013/125)

The instrument corrects several instances of defective drafting, lack of clarity and drafting errors that the committee identified in the Police Service of Scotland Regulations 2013 (SSI 2013/35), the Police Service of Scotland (Police Cadets) Regulations 2013 (SSI 2013/42), the Police Service of Scotland (Special Constables) Regulations 2013 (SSI 2013/43), the Police Service of Scotland (Conduct) Regulations 2013 (SSI 2013/60) and the Police Service of Scotland (Performance) Regulations 2013 (SSI 2013/61). It makes no other substantive provision.

It is the usual practice of the Scottish ministers to issue corrective instruments free of charge to all known recipients and to include a headnote disclosing that fact. The ministers have not done so in this case. Although ministers have discretion in the matter, the committee may consider that the purpose of the practice is to promote accessibility of legislation and to ensure that end users are not put to additional expense in gaining access to legislation when corrective action is required. The committee may also consider that that principle should be applied when consideration is given to whether a corrective instrument should be issued free of charge. The guiding principle is not whether ministers consider that individual corrections among those that are made are necessary.

In applying that principle to the instrument under consideration, the committee may consider that it is clear that the instrument’s primary objective is to correct acknowledged defects. The committee may wish to note, in particular, that amendments were required to SSI 2013/42 in order for it to have the legal effect that the Government intended. The committee previously reported its dissatisfaction with the Scottish Government’s decision not to consolidate the Police Cadets (Scotland) Regulations 1968 (SI 1968/208) but to apply them with modifications. The committee considered that that approach hindered access by affected persons to the legislation as it is in force.

In those circumstances, the committee might have expected the Government to mitigate the additional inconvenience to those affected by providing the instrument under consideration to them free of charge. Does the committee therefore agree to draw the instrument to the attention of the Parliament on the general reporting ground?

Members indicated agreement.

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Late Payment of Commercial Debts (Scotland) (No 2) Regulations 2013 (SSI 2013/131)

There has been a failure to lay the instrument at least 28 days before it comes into force, as section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 requires. The committee may wish to find the breach of the 28-day rule acceptable in this case, since it is important to ensure that Scots law properly implements directive 2011/7/EU as quickly as possible.

Does the committee agree to draw the instrument to the attention of the Parliament on reporting ground (j), as there has been a failure to lay it at least 28 days before it comes into force, as section 28(2) of the 2010 act requires?

Members indicated agreement.

We seem to be getting quite a few late instruments. What is the reason for that?

I think that the reasons vary. Do our legal advisers want to comment on why the instrument under consideration was late in the first place?

I cannot comment on why it was late—that is a matter for the Scottish Government.

In relation to this instrument, as opposed to its predecessor, the Scottish Government decided that it was important to implement European Union law correctly as quickly as possible. That is why the Government has not complied with the 28-day rule.

I just flag up a concern that we seem to be getting quite a few late instruments. I do not understand why that is happening repeatedly. Perhaps we could draw that to the attention of someone who manages the process.

The instrument that we are considering is late because we want it to be late.

I am not addressing that instrument specifically.

No, but it is late because it responds to a point that we have previously made. We want it to be late—we would be even more critical if it were not late.

Indeed. Many of the late instruments that we have received recently have been late because they have responded to a request by us to change something. In addition, it is generally true that late instruments are becoming slightly less frequent—that is what the statistics tell us. However, in principle, we are in absolute agreement with you—we would like things to be on time.

Could we get a figure on that when we do our report?

Yes, that will come through.

Thank you, convener.

Does the committee agree to find acceptable the explanation that the Scottish Government has given for the failure to lay the instrument at least 28 days before it comes into force?

Members indicated agreement.