Subordinate Legislation Committee, 09 Mar 2004

Meeting date: Tuesday, March 9, 2004

Official Report 85KB pdf

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Executive Responses

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Debt Arrangement Scheme (Scotland) Regulations 2004 (draft)

We raised several points on the regulations and I will summarise most of the issues. First, there is still some concern about the definitions of terms and phrases used in the regulations—the legal advice is detailed. I note that the legal advice makes the point strongly that these are not easy regulations to draft. It is easy to scrutinise the regulations in detail and think about points to raise, but I am assured that they are quite difficult to draft. Secondly, the committee raised a significant point about the appeal procedure, in question 6 to the Executive. Thirdly, we feel quite strongly about sanctions.

There is a general point to make, which is that while the regulations place a large number of duties on money advisers, payment distributors and debtors there are very few sanctions, if any, for breach of those duties. For example, regulation 7(2) uses the phrase

"ceased to act"

and requires the debtor to notify the debt arrangement scheme administrator of that happening. Regulation 43 is cited as the complying regulation for regulation 7(2), but legal advice tells us that it is not necessarily relevant.

There is a general point about duties and sanctions and the detail in the regulations that would give effect to them.

Does anyone want to comment on the appeal procedure?

It is clear that the revocation of the person's accreditation—I think that that is the correct word—is effectively depriving them of the right to carry on their business, which is against the European convention on human rights. The Executive, in its response, states that there is recourse to judicial review. However, that is only on a point of law and not on the merits of the case. I think that the ECHR would say that you have to be able to appeal the merits of the case. There must be some provision for that.

Are there any other points about definitions or phrases, or are we quite happy to list for the Parliament and the lead committee the various examples that are in front of us?

There is one "what if" question, which relates to how the matter of advice being available free of charge is dealt with. The Executive's response says that it does not envisage any occasion when advice will not be available free of charge. "What if there is such an occasion?" is still a good question to ask. A slight change to the wording of the draft regulations could help make thinking clearer. We should also make the general point that a lot of expertise on debt advice and money advice is already out there.

This is perhaps straying into the realms of policy, but it is relevant for the purposes of our scrutiny of the draft regulations. We would hope that the lead committee might wish to recommend in its report that the advice and expertise out there be used in conjunction with the regulations. That way, it could be ascertained where they are defective, where they need amended and where they need strengthened. As you have pointed out, convener, it is difficult to anticipate all the circumstances and difficulties that might arise—and they will—when we have a first pass at such draft regulations. It is perhaps in order to suggest to the lead committee that such a recommendation might be part of its report.

There are several definitional points. Perhaps the most glaringly obvious one is in regulation 7(4), which says:

"A money adviser shall assist the debtor to appoint a replacement adviser where that first adviser has ceased to act by reason of the resignation, or revocation … of that first adviser."

Apart from the trainspotter point that, if

"that first adviser has ceased to act by reason of … revocation",

he is no longer a money adviser, in which case the regulation would not apply to him, there is also a practical point that if the money adviser has had their ability to practise revoked, they would be very unlikely to be willing or even capable of assisting the debtor to do anything. There are question marks over that paragraph and over other points in the draft regulations.

Do you have any points to raise, Mike?

No.

Murray?

No—I think that all the recommendations have been very well argued.

They have indeed. The recommendation is that we draw to the attention of the lead committee and the Parliament the points that the legal adviser has raised with us, which are listed as grounds (a) to (e) in the legal brief. They include legislative practice not being kept to, defective drafting and so on. We shall also highlight the examples that the legal adviser has given us, particularly with regard to the definitions and difficulties that might arise.

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Less Favoured Area Support Scheme (Scotland) Regulations 2004 (SSI 2004/70)

We raised four points on the regulations. The Executive has conceded that the regulations are defectively drafted, and proposes to lay amending regulations as soon as possible. We should be fairly content with that.

Members indicated agreement.

There is a wee comment in the legal advice about the breaching of the 21-day rule. We are quite happy with the reason for that on this occasion.

The committee might wish to note formally that we were very content with how the matter was dealt with.

Yes. We will draw the attention of the lead committee and the Parliament to the two points that the legal adviser has identified. Is that agreed?

Members indicated agreement.

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Private Hire Vehicles (Carriage of Guide Dogs etc) Act 2002 (Commencement No 1) (Scotland) Order 2004 (SSI 2004/57)

The issue here was about the numbering system for commencement orders. We wrote to the Executive to ask about how orders commencing UK acts of Parliament for Scotland are numbered, and about whether there should be a separate numbering series for such orders. It would appear from what we have heard from the Executive that that is what it is proposing. Indeed, that was Alasdair Morgan's proposal at the previous meeting. I hope that I have summarised that adequately. Are we in agreement that that numbering series would get over some of the difficulties of using a common system for two jurisdictions?

Very much so.

I thought that you would say that. In future discussions with the Scottish Executive, we might wish to check how the training is progressing on the use of the two different numbering systems. We have been told that the new "Scottish Statutory Instrument Practice"—known as the Scottish SIP—is now in draft form, but will be coming on stream. Although the commencement order in front of us has been numbered as part of a Scottish series, the most recent training would seem to have indicated that that scheme should not be used at the moment. We might want to check on that. Is that agreed?

Members indicated agreement.