Subordinate Legislation Committee, 10 Sep 2002

Meeting date: Tuesday, September 10, 2002

Official Report 120KB pdf

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Executive Responses

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Scottish Secure Tenants (Compensation for Improvements) Regulations 2002<br />(SSI 2002/312)

Does the committee agree that we should draw the regulations to the attention of the lead committee on the grounds of failure to comply with proper drafting practice in regulation 2, doubt as to whether regulation 4 is technically intra vires and defective drafting in regulation 4(b)(iii), regulation 7 and regulation 8(2). "Defective drafting" always sounds more condemnatory than it might be. It could mean that the Executive was a bit sloppy or untidy.

"A bit sloppy" sounds a bit condemnatory to me.

Yes, but I said it with a smile.

We asked the Executive to explain why regulation 2 includes a definition of "the 1987 Act", given that the term is already defined within the parent act. The Executive acknowledges that that definition is unnecessary. That is a matter of proper drafting practice. The Executive was perhaps trying to over-egg the pudding, but it departs from normal drafting practice.

Section 30(4) of the Housing (Scotland) Act 2001 states that compensation is not payable in the circumstances that are set out in paragraphs (a) to (c) of that subsection. The regulation-making power in section 30(4) is to prescribe the circumstances in which a tenancy comes to an end for the purposes of the subsection and the amount of compensation for the purposes of paragraph (c) of the subsection. The Executive was asked to explain why regulation 4 is drafted as prohibiting the payment of compensation, rather than prescribing the matters referred to in the enabling power. That is quite important for someone at the receiving end of all of this. The Executive concedes that there was no need to refer to the fact that compensation was not payable, thanks the committee very much for raising the point and says that it will introduce a clarificatory amendment. We will also draw the question of whether the provision is intra vires to the attention of the lead committee and Parliament.

It is good that the Executive is willing to amend the provision when the opportunity arises.

We should also draw points of possible defective drafting in regulation 4 and regulation 7 to the attention of the lead committee and the Parliament.

We also asked whether the Executive meant to stipulate that people who were making oral representations under the regulations had to be accompanied by a responsible person. Obviously, it did not. It concedes that its intention might have been more clearly expressed and confirms that it will lodge an amendment at a convenient opportunity to clarify the regulation. We will draw that case of defective drafting to the lead committee and the Parliament.

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Scottish Secure Tenancies (Abandoned Property) Order 2002 (SSI 2002/313)

This order needed to be cleared up a little, and much of the Executive's explanation does that. We should draw to the lead committee's attention the fact that the Executive has helpfully provided a full response.

Yes. Lollipops all round.

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Scottish Secure Tenancies (Exceptions) Regulations 2002 (SSI 2002/314)

On these regulations, we raised two points of possible defective drafting in relation to technicalities in the wording. However, the Executive has put its hands up and said that it will introduce an amending instrument. We must thank it for that and draw its response to the attention of the lead committee.

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Scottish Secure Tenants (Right to Repair) Regulations 2002 (SSI 2002/316)

The committee will refer these regulations to the lead committee and the Parliament. We believed that the Executive's meaning could have been clearer on several points, and it has now supplied that clarification. Moreover, there were quite a number of cases of defective drafting.

We should accept the legal team's comments on the response and refer everything to the lead committee.

As the regulations relate to tenants' rights, they are very close to the application of and the policy intentions behind the Housing (Scotland) Act 2001. As a result, we will ask the lead committee to note our comments, please.

We could also draw to the lead committee's attention the Executive's explanation that it has basically replicated existing regulations that are well understood by those who are affected by them.

We are talking about the application of policy, and it is up to the lead committee to work these things out.

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Housing (Right to Buy) (Houses Liable to Demolition) (Scotland) Order 2002 <br />(SSI 2002/317)

We asked the Executive to clarify whether "the applicant" and "the tenant" mentioned in article 3(c)(iv) are the same person, and if so, why a different term has been used. Such a detail might seem like nit-picking to people who are not familiar with the committee's ways. However, we have to be consistent in how we describe the person who is affected by the order. If the Housing (Scotland) Act 1987, as amended by the Housing (Scotland) Act 2001, refers to a "tenant", the subordinate legislation should do so as well. We can draw that matter to the attention of the lead committee and the Parliament on the grounds that the provision might not be intra vires.

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Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc) Order 2002<br />(SSI 2002/318)

The same points apply to this order. I have to say that we keep raising the same points about the failure to comply with proper drafting practice, possible defective drafting, lack of clarity and whether a provision is intra vires. Is that because the Executive is building on previous legislation and is simply trying to make things consistent? I do not know. We seem to be raising the same points time and time again. However, we will refer the order to the lead committee and the Parliament on the ground that, as the Executive has acknowledged, article 4(2)(b) and (c) are defectively drafted.

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Environmental Impact Assessment (Scotland) Amendment Regulations 2002 (SSI 2002/324)

The Executive has acknowledged that regulation 2(3) is defectively drafted and has undertaken to introduce an amending instrument. We thank it for doing so. As the effect of the regulations as drafted is wholly unclear, we welcome the Executive's proposal to amend them as soon as possible.

I should mention that the regulations refer to ROMP applications. However, they are much less exciting than it would appear at first glance—ROMP stands for "review of an old mineral possession".

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Common Agricultural Policy (Wine) (Scotland) Regulations 2002 (SSI 2002/325)

The committee will recall that we discussed these regulations last week. Did we decide that we had a wine commission for Scotland? I think that the European Union regulations state that every country, whether it makes wine or not, has to have such a commission. I stand to be corrected, but I am sure that we have a body that looks after wine.

We all have a body that looks after wine.

We will consult on that. Indeed, I meant to check before I came to the committee this morning. There would certainly be some queue to join that body.

The regulations may contain defective drafting and questionable style, and we still require an explanation of the Executive's meaning on one point. The regulations contain references to a huge amount of European Community legislation and we have noted an inconsistency in the way in which regulation 2 defines Community legislation. Some references are included in the body of the text whereas others are consigned to a schedule. We suggested that it might be more reader friendly to list all the relevant provisions in a schedule. We asked the Executive to agree to our suggestion, but it did not. I am not prepared to fight with it about that. I am sure that, in this case, the Executive knows best, although I might not understand its reason.

Words are missing from regulation 11(2), and the Executive has agreed that that was a mistake. We can draw the attention of the lead committee and the Parliament to regulation 11(2), on the ground of that defective drafting, which the Executive has acknowledged.

Our regulations should follow the English regulations—they should be the same. Sometimes that does not matter, but in the case of European regulations and directives, it does matter. The Common Agricultural Policy (Wine) (Scotland) Regulations 2002 differ from the English regulations, and we should ask the Executive to explain why.

The Executive gave that explanation.

What did it say?

It gave a good reason—court practices—for that difference.

That is right. I am sorry—I completely missed that point. That was my fault.

We could draw the Executive's explanation to the attention of the lead committee and the Parliament.

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Late Payment of Commercial Debts<br />(Rate of Interest) (Scotland) Order 2002 (SSI 2002/336)

Members will recall that we raised a point about sub-delegation in relation to this order. We asked whether such sub-delegation was intra vires. The explanation that we received from the Executive is perfectly reasonable, although I thought that it got a wee dig in at us when it said that the order is the fourth statutory instrument to be made under the relevant power. It did not say that we had not noticed the other three statutory instruments, but I felt that that was what it implied.

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Education (Disability Strategies) (Scotland) Regulations 2002 (SSI 2002/391)

I do not know about other members of the committee, but I felt that, for whatever reason, the Executive did not want to acknowledge that it had not been specific enough in the regulations.

Section 1(2) of the Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002 says

"an accessibility strategy is a strategy for, over a period"—

The phrase "over a period" is also used in section 2(1). However, "over a period" is not a precise term. We asked the Executive to tell us specifically when the provision will come into effect, as that would be helpful to people who are seeking that information. Although the Executive gave us an answer to that question, it was not satisfactory, because, in my view, a mistake was made in the drafting of the act. Do members have any comments?

We can only point that out to the lead committee.

The difficulty is whether the phrase "up to three years" counts as a prescribed period. In logical terms, it is quite clear that it does not, as that is not precise enough.

I sympathise with what the Executive is trying to achieve in policy terms.

The Executive is trying not to be dogmatic about a specific moment in time, but that is what the act appears to ask for. Personally, I would not get uptight about this point, but, in strict drafting terms, there is a complication and I do not think that the Executive's note gets it out of that complication. I do not think that it is a wicked mistake.

I am sure that, in policy terms, the Executive does not mean to be wicked. I have every sympathy with the Executive's policy. The drafting was not very good, but the Executive did not agree with us and tried to stand on its point. We will draw the regulations to the attention of the lead committee and the Parliament.

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Late Payment of Commercial Debts (Interest) Act 1998 (Commencement No 6) (Scotland) Order 2002 (SSI 2002/337)

I will not test members on this order. We will simply draw it to the attention of the lead committee and the Parliament. It is doubtful whether the order should have taken the form of an instrument, because—

There are various technical reasons for that. We could refer those reasons to the lead committee and the Parliament, so that they can look into them.

We should warn them that if they think about the order for too long, they will be taken away by men in white coats—they will be carried out of the room screaming.

We will include that comment as an informal footnote in our report to the convener of the lead committee.