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Local Government Pension Scheme (Scotland) Amendment Regulations 2001 (SSI 2001/460)
We come to another lulu: the Executive's response to our questions on the regulations, which concern the pension rights of people who were transferred from Scottish Homes to the Scottish Executive. We are not arguing that those staff should not have been accommodated—of course that should have happened—but there may be a doubt over whether the Executive has used the correct powers. I cannot recollect the specific power under the Scotland Act 1998 that would allow the Executive to issue an appropriate order, but it has interpreted the legislation as allowing it to do so. However, the area of civil service pensions is wholly reserved, so the question is whether the Executive can do what it has done.
It would be fair to say that our legal adviser is still concerned about the vires of the regulations. Although we have already raised the issue and have received a response from the Executive, we need to put our concerns on record.
We are out of time, because the 20 days will expire two weeks from today. In any event, we do not have time to revisit the issue properly. We must put on record at least our query whether the matter has been dealt with correctly, because the regulations deal with public servants' pensions and therefore must be transparently and absolutely right. For that reason alone, we should say to the Executive that its responses have not absolutely convinced us that it has dealt with the matter in the best way.
This is a constitutional grey area.
Yes.
It is a possible constitutional grey area.
No—it really is a difficult area.
I am not stirring it.
I am not going for anyone, but there are difficulties with lots of issues in these regulations. There are always ways of getting round those difficulties and we are wondering whether the Executive has done so in the best possible way.
Okay.
We should also note that, from our legal briefing, it would seem that the proposals may benefit the people affected. The Executive is not eroding their pension rights and the intention of the regulations is worthy. The only question that has been raised is whether the regulations are legally watertight and, obviously, the Executive believes that they are. We note that the intention is honourable and that the Executive believes that it has the power to allow certain people to remain members of the local government pension scheme. The Executive is not transferring civil servants into that scheme—it is allowing people who were previously employed by Scottish Homes to remain in that scheme.
That is not in our remit.
In any other circumstance in which members of staff transfer with higher pension rights, one would not expect—and the Parliament would not want—an erosion of their rights.
I am not arguing for a levelling down of pension rights.
We are all perfectly agreed that we want the best for the employees. All that we are saying is that there appears to be a mildly constitutional grey area that bothers our legal adviser. If I were to raise a constitutional issue, I would hit members with it head on—I would not footer about with it.
All that we can do is to ensure that the Executive is alive to the problem that has been suggested, although it might say, "Yes—thanks very much. We have thought about and are alive to it"—
But, "and we are ignoring you."
No—"and we think that, for the following reasons, technically we are okay." To be frank, half the time it is beyond us to know whether, technically, the Executive is right or not. I defy any member who says that they are an expert on such statutory interpretation—I certainly know that I am not. All that we can do is to point out the problem and acknowledge that the Executive has made up its mind. If someone challenges the regulations, the decision will be made in another place. I do not think that we have the competence to turn round and say, "Well, we've made up our minds—you're wrong." Perhaps we could do so sometimes, but certainly not in a situation such as this one. [Interruption.] What is wrong?
Nothing—we are absolutely amazed at how eruditely you put that point.
I am amazed that you are amazed.
This is not the first time that we have raised a query over how something has been done, and it will not be the last time. In fact, it is probably the committee's job to point out that this is another of those times.
Housing (Scotland) Act 2001 (Commencement No 3, Transitional Provisions and Savings) Order 2001<br />(SSI 2001/467)
Do we wish to draw the order to the attention of Parliament on the ground that it does not follow good drafting practice? The explanatory note that accompanies the order is not adequate.
Good. People should be able to read the explanatory note.
Ethical Standards in Public Life etc (Scotland) Act 2000 (Commencement No 2 and Transitional Provisions) Order 2001<br />(SSI 2001/474)
We need raise no points on the order as the Executive's response to our inquiries was helpful. Do members agree?
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