Subordinate Legislation Committee

Meeting date: Tuesday, June 12, 2012

Official Report 296KB pdf

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Instruments not subject to Parliamentary Procedure

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Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No 10 and Saving Provisions) Order 2012 (SSI 2012/160)

We come to agenda item 2. There are two issues to consider in relation to the order. First, the order’s meaning could be clearer. The plain meaning of article 3 contradicts the saving provision that is made by article 4(2). Article 3 applies the commencement of sections 168 and 171 of the Criminal Justice and Licensing (Scotland) Act 2010 on 25 June 2012 to criminal proceedings that are commenced on or after that date, in relation to offences that were committed before that date. Article 4(2) disapplies the commencement of section 168, in so far as it inserts section 51B of the Criminal Procedure (Scotland) Act 1995, on diminished responsibility, and section 171, in so far as it abolishes the plea of diminished responsibility, in relation to proceedings when the offence was committed before 25 June 2012. Does the committee therefore agree to draw the order to the attention of the Parliament on reporting ground (h), as the meaning could be clearer?

Members indicated agreement.

14:45

Secondly, the committee may wish to comment on the procedure used for the order. We are going back over familiar ground.

In relation to the Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No 6, Transitional and Savings Provisions) Order 2010 (SSI 2010/413), the session 3 committee reported that

“in general where an enabling Act provides for a particular power to make transitional or savings provisions in connection with the coming into force of the provisions of the Act (such as in section 205(1)), then the Committee would expect that power to be used to make such provisions, rather than any more general powers (such as in section 201(2)(a)). The Committee notes that, as a result of the Scottish Government’s choice of power, there is no Parliamentary scrutiny of the ancillary provisions, when had section 205(1) been used the provisions would have been subject to negative procedure.”

While the committee can accept that the order is intra vires, it notes that, in making the order, the Scottish Government has not followed the expectation in that report. The committee may wish to reiterate the terms of the report and note that, again, as a result of the Scottish Government’s choice of power, there is no parliamentary scrutiny of the saving provisions in article 4. Had section 205(1) been used, the provisions would have been subject to negative procedure.

Does the committee therefore agree to draw the order to the attention of the Parliament on the general reporting ground?

Members indicated agreement.

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Bluetongue (Scotland) Amendment Order 2012 (SSI 2012/184)

Members will see from the briefing that the order was laid on 6 June, despite coming into force on 5 June. Members will also have seen the explanation provided by the Scottish Government in a letter to the Presiding Officer.

Does the committee agree to draw the order to the Parliament’s attention under reporting ground (j), as there has been a failure to lay the order before it has come into force, as required by section 30(2) of the Interpretation and Legislative Reform (Scotland) Act 2010?

Members indicated agreement.

However, in doing so, does the committee find the Scottish Government’s explanation for that failure, provided in the letter to the Presiding Officer of 6 June 2012, to be acceptable?

Members indicated agreement.

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Property Factors (Scotland) Act 2011 (Commencement No 2 and Transitional) Order 2012 (SSI 2012/149)

The order is not subject to parliamentary procedure apart from being laid, but the Scottish Government produced a useful Executive note for it. Does the committee agree to welcome the production of the Executive note for the order?

Members indicated agreement.

Is the committee content with the order?

Members indicated agreement.