Instruments subject to Negative Procedure
National Health Service Superannuation Scheme etc (Miscellaneous Amendments) (Scotland) Regulations 2012 (SSI 2012/163)
I welcome members to the 16th meeting in 2012 of the Subordinate Legislation Committee. As usual, I ask members to switch off mobile phones.
Regulation 1 appears to be defective as it does not specify 1 April 2008 as the date from which regulation 28 will have effect, which is the Scottish Government’s intention. Instead, since specific provision is not made as regards the effect of regulation 28 in regulations 1(3) to 1(10), regulation 1(2) provides for regulation 28 to have effect from 28 June 2012.
It is particularly important to specify clearly whether it is intended that regulations should have retrospective effect. The committee may therefore consider that, for regulation 28 to have effect as the Scottish Government intended, regulation 1 requires to be amended to make specific provision for the correct date when regulation 28 is to take effect.
Does the committee therefore agree to draw the regulations to the attention of the Parliament on reporting ground (i) as the drafting appears to be defective?
It is very important that the Government amends the regulations so that they reflect the purpose that they were designed for—they do not appear to express that.
The Scottish Government response states:
“Regulations 27 and 28 are to take effect on 1st April 2008. Regulation 29 is to take effect on 11th August 2011.”
Regulation 28 is supposed to take effect from 28 June. Forgive me, convener, but I would have thought that there should have been a more detailed explanation. I have concerns that we are seeing a bit of sloppiness creeping back into drafting this stuff. We should know why, rather than the Government just saying, “Okay. The point you’ve made is fine. Regulations 27 and 28 are now to take effect on the first of April 2008.” Are people getting sloppy again?
I am sure that the people who drafted the regulations will have got the message. I hesitate to say that they were being sloppy, but clearly the regulations could have been better drafted. I do not think that that is in dispute. The Government’s response seems to be a convoluted way of saying that it thinks that what the regulations say comes up to the right answer. Nonetheless, it is plain and obvious that if something is to be retrospective, that should be said in those terms. I think that that is the point that we would like to make.
That would be helpful, but I would like the Government to come up with the right answer the first time.
I agree with your point and I suspect that the Government would as well.
There is also a drafting error in new regulation T3(10) of the National Health Service Superannuation Scheme (Scotland) Regulations 2011 (SSI 2011/117), which is inserted by regulation 7 and which refers to
“section 273C of the 2004 Act”
rather than section 237C of the 2004 act. The committee is invited to accept the Scottish Government’s view that, notwithstanding that typographical error, regulation T3(10) is likely to be construed as intended, not least because the section that is referred to as it is written does not exist.
Is the committee content also to draw the regulations to the attention of the Parliament under the general reporting ground, as they contain a drafting error?
Members indicated agreement.
Does the committee further agree to welcome the fact that the regulations remedy drafting errors that the committee reported on in relation to the National Health Service Superannuation Scheme etc (Miscellaneous Amendments) (Scotland) Regulations 2011 (SSI 2011/364)?
Members indicated agreement.
Parole Board (Scotland) Amendment Rules 2012 (SSI 2012/167)
Rule 7 appears to be defectively drafted. It amends rule 14(2) of the Parole Board (Scotland) Rules 2001 (SSI 2001/315) so that the chairman of the parole board may appoint any two members of the board to deal with a case. However, it appears that the Scottish ministers’ policy intention was to enable the board to sit with a quorum of two, and hence with more than two members in certain circumstances.
Does the committee therefore agree to draw the rules to the attention of the Parliament on reporting ground (i) as they appear to be defectively drafted?
Members indicated agreement.
In so doing, does the committee welcome the Scottish ministers’ commitment urgently to lay a corrective instrument that will revoke and replace rule 7 to address the issues identified by the committee?
Members indicated agreement.
Licensed Legal Services (Interests in Licensed Providers) (Scotland) Regulations 2012 (SSI 2012/154)
No points have been raised by the legal advisers on the regulations. However, members will note that our legal advisers exchanged correspondence on the meaning of certain terms.
Does the committee agree to welcome the intention of the Scottish ministers to consider whether they could expand on the meaning of the terms “loan creditor” and “trustee of any settlement under which the individual has a life interest (in England and Wales a life interest in possession)” in guidance to be issued under section 46 of the Legal Services (Scotland) Act 2010?
I have never heard of the term “loan creditor”. I have never seen it in any financial instruments that I have had a look at. The term is either lender or creditor; I do not know what loan creditor means. The Scottish Government’s response exacerbates the confusion about the term when it states that
“rights ... as a loan creditor are to be disregarded for the purposes of ascertaining their rights as an investor.”
A loan creditor, or lender or creditor, is not an investor. There might be complementary activity on both sides of the balance sheet.
In addition, the Government’s response in the first full paragraph on page 2 of paper SL/S4/12/16/2 confuses the whole thing even more when it states:
“Defining the term with reference to the definition in the Corporation Tax Act 2010 was not considered to be appropriate as this seeks to limit the ordinary meaning of the term for tax purposes”.
It needs total clarification.
That is what we are asking for, and you have emphasised that that is what is needed. Thank you.
The Scottish ministers provided a helpful response to the committee’s question on the regulations. Does the committee therefore agree to call on the Scottish Government to make that response readily available to users of the regulations by incorporating its substance into the guidance that it plans to issue?
Members indicated agreement.
Notwithstanding those comments, is the committee content with the regulations?
Members indicated agreement.
Adults with Incapacity (Requirements for Signing Medical Treatment Certificates) (Scotland) Amendment Regulations 2012 (SSI 2012/170)
Our legal advisers have raised no points on the regulations. However, members will note that our legal advisers inquired informally as to why the Scottish Government chose to amend rather than replace the Adults with Incapacity (Requirements for Signing Medical Treatment Certificates) (Scotland) Regulations 2007 (SSI 2007/105).
The Scottish Government’s legal directorate explained that its client department holds a stock of pre-printed forms that refer to the 2007 regulations. To allow the continued use of those forms, the 2007 regulations have been amended rather than replaced. Although that approach does not promote transparency, it might offer some administrative savings in the short term. Do members have comments on that?
I am beginning to sound liverish. I am not sure what is being said—is sound, good law to depend on a department’s buying activities and the inventory that it builds up? Are we saying that we will apply the law once the inventory has been totally depleted? I have never heard so much rubbish in my life.
The point has been made that most regulations come with ancillary forms or leaflets that refer to them. What has been said sounds like a copper-bottomed excuse for never consolidating provisions and always amending an instrument.
I suggest that the copper-bottomed answer is to get people to buy things in quantities that relate to their expected usage rather than to pretend that bulk buying is sensible.
That point will probably be noted.
The committee might consider that an appropriate decision was made in this case but might be concerned if it indicated a trend against consolidating, for reasons of administrative convenience. That is a diplomatic way of putting what we have just said. Does the committee agree to raise the matter with Scottish Government officials as part of our long-term work on consolidation?
Members indicated agreement.
Is the committee otherwise content with the regulations?
Members indicated agreement.
Sports Grounds and Sporting Events (Designation) (Scotland) Amendment Order 2012 (SSI 2012/164)
Town and Country Planning (Development Management Procedure) (Scotland) Amendment Regulations 2012 (SSI 2012/165)
European Fisheries Fund (Grants) (Scotland) Amendment Regulations 2012 (SSI 2012/166)
National Health Service (Travelling Expenses and Remission of Charges) (Scotland) (No 2) Amendment Regulations 2012 (SSI 2012/171)
Individual Learning Account (Scotland) Amendment Regulations 2012 (SSI 2012/172)
Poultry Health Scheme (Fees) (Scotland) Regulations 2012 (SSI 2012/176)
Animal By-Products (Miscellaneous Amendments) (Scotland) Regulations 2012 (SSI 2012/179)
Property Factors (Registration) (Scotland) Regulations 2012 (SSI 2012/181)
Leader Grants (Scotland) Amendment Regulations 2012 (SSI 2012/182)
Marine Licensing (Fees) (Scotland) Amendment Regulations 2012 (SSI 2012/183)
The committee agreed that no points arose on the instruments.
It might be worth while trying to stimulate interest in the Sports Grounds and Sporting Events (Designation) (Scotland) Amendment Order 2012 (SSI 2012/164), on which our briefing says:
“The football matches to be played in Scotland as part of the Olympic Games would not be caught by any of the present classes”.
We should try to catch some, so that we can get audiences at those games.