Official Report 360KB pdf
Local Government Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/87)
A number of points have been raised on the amendment regulations by our legal advisers.
First, the drafting appears to be defective in that there are two errors that the Scottish Government has acknowledged to be errors and that the committee may consider impede the intended operation of the regulations or fail to give effect to the policy intention. The committee may therefore wish to report the regulations on ground (i), as the drafting appears to be defective.
Secondly, there are two further provisions the meaning of which could be clearer. Accordingly, the committee may wish to report the regulations under reporting ground (h).
Finally, there are a further five drafting errors that the committee may consider, on balance, do not impede delivery of the Government’s policy intentions but fall to be reported under the general ground.
Does the committee therefore agree to draw the regulations to the attention of the Parliament under reporting grounds (i) and (h) and the general reporting ground?
Members indicated agreement.
The committee may wish to note that the Scottish Government has indicated that the errors will be corrected by an amending instrument, to be made after 1 April 2015 but having retrospective effect from that date.
Reservoirs (Scotland) Regulations 2015 (SSI 2015/90)
Regulation 10 specifies the period of appointment of engineers as additional information that must be set out in the controlled reservoirs register. However, section 9(2)(f) of the Reservoirs (Scotland) Act 2011 already requires that information to be included in the register. The additional specification of an existing legal requirement is not necessary and could cause confusion.
The committee may consider that, when a statutory charge is imposed, the person on whom it is to be imposed should be clearly identified. Regulation 17(2) could more clearly distinguish the liability of the former manager for payment of the cessation fee from the liability of the new manager for payment of the new manager fee.
Does the committee therefore agree to draw the regulations to the attention of the Parliament under reporting ground (h), as the meaning of regulations 10 and 17 could be clearer?
Members indicated agreement.
I am not certain whether the Government intends to do anything about the issue in relation to regulation 17(2), which I find disappointing. It is quite a serious error, in as much as the liability for who pays what is definitely unclear. I am disappointed that, from my understanding, the Government is not prepared to do anything about that.
Maybe we could roll that up with other issues.
Regulation 8 is intended to specify the structures that are road and railway embankments. However, the expression “roads and railway embankments”, which has a different natural meaning, is used in error.
Does the committee therefore agree to draw the regulations to the attention of the Parliament under the general ground, as there is a drafting error in regulation 8?
Members indicated agreement.
The Government has agreed to address the matters reported in relation to regulations 8 and 10 at the next opportunity. To follow on from what John Scott has said, the committee may wish to ask the Government to clarify the drafting of regulation 17(2) at the same time.
Members indicated agreement.
That would be very welcome.
National Health Service Pension Scheme (Scotland) Regulations 2015 (SSI 2015/94)
A number of points have been raised on the regulations by our legal advisers.
First, the drafting of the regulations appears to be defective in that there are seven errors that the Scottish Government has acknowledged to be errors and that the committee may consider impede the intended operation of the regulations or fail to give effect to the policy intention. The committee may therefore wish to report the instrument on ground (i), as its drafting appears to be defective.
There is a further provision the meaning of which could be clearer. Accordingly, the committee may wish to report the instrument under reporting ground (h).
There are a further seven drafting errors that the committee may consider, on balance, do not impede delivery of the policy intentions but fall to be reported under the general ground.
Does the committee therefore agree to draw the regulations to the attention of the Parliament under reporting grounds (i) and (h) and the general reporting ground?
Members indicated agreement.
The committee may wish to note that the Scottish Government has indicated that the errors will be corrected by an amending instrument to be made after 1 April 2015 but having retrospective effect from that date.
The committee may also wish to note that, although the Scottish Government has explained in its response the limited timing available for the drafting and completion of the regulations, it is very unsatisfactory for the instrument to have been laid before the Parliament containing the number of errors identified above. In particular, several of the errors relate to discrepancies in defined expressions, the omission of definitions or omitted or patently incorrect wording, which, it appears, should have been picked up by the Scottish Government checking procedures.
Do members have any comments?
You used the phrase “limited timing available”. I assume that that starts with the Treasury and that the timing is not entirely under the control of the Scottish Government. I accept that that does not excuse the Scottish Government entirely; others might want to comment on that.
If we recognise that the Treasury has not allowed sufficient time, how can we encourage it to allow sufficient time in future?
I think that the point is fairly made.
Without wishing to be unreasonable, I think that it is fair to say that the Scottish Government is liable for getting right its workload on all the instruments on pension provision. In my view, it would have been reasonable for it to have foreseen the need to make provision for the instruments to be properly checked at the appropriate time, albeit that that might have involved a truncated timescale. It is fair to say that the instruments are a mess and that quality control procedures do not appear to have been put in place, or any such procedures that have been put in place are not working—take your pick.
It appears to be falling to our highly valued clerks and legal advisers to pick up the elementary mistakes that the quality control procedures that the Scottish Government allegedly has in place should pick up. That burden should not be placed on our legal advisers.
I suppose that I am asking how we can change this for the future. Is it just totally out of our control to do that? Can we encourage the Government to speak to the Treasury? I presume that we cannot speak to the Treasury directly.
I think that your suggestion about us encouraging the Government to speak to the Treasury is right, because the Treasury is not responsible to us and would not respond to us. The obvious thing to do is to write to the Minister for Parliamentary Business to point out things that he will already know and to encourage him to try to get a better working relationship with the United Kingdom Government. Fundamentally, it is an issue of timing.
Absolutely.
Do members agree to write to the Minister for Parliamentary Business about the collection of errors in all these instruments?
Yes, I certainly agree that we should do that. Throughout the instruments in question, there is a series of errors that are not hugely complicated but should have been picked up in the quality control process. The fact that they do not appear to have been picked up leads me to the conclusion that the quality control process has not been used.
In which case, we will write accordingly.
National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015 (SSI 2015/95)
The regulations contain a minor drafting error, as regulation 38(1) refers in two places to “transitional member” rather than “transition member”, which is the expression that is defined in regulation 2.
Does the committee therefore agree to draw the regulations to the attention of the Parliament on the general ground?
Members indicated agreement.
The committee may wish to note that the Government has undertaken to address the error by way of an amending instrument, as and when the regulations are subsequently amended for another purpose.
National Health Service Superannuation Scheme (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/96)
The drafting of the regulations appears to be defective in two places. First, there is an error in regulation 25(a), as the provision should have inserted
“for the scheme year 2015-16”
instead of
“for the scheme year 2014-15”
in regulation 2.C.2 of the National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013 (SSI 2013/174).
Secondly, regulation 25(c) omits regulation 2.C.2(3) and (4) of the principal 2013 regulations. An error has been made, as regulation 2.C.2(5) has been retained. It refers to the determination of pay bands and contribution rates by the Scottish ministers in respect of each scheme year in accordance with the omitted provision in regulation 2.C.2(4). Regulation 2.C.2(5) provides that, before determining those bands or rates, the Scottish ministers must consider the advice of the scheme actuary.
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?
Members indicated agreement.
The committee may wish to note that the Scottish Government has undertaken to correct the errors by means of an instrument that would further amend the National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013. The instrument would be made after 1 April but have retrospective effect from that date.
Teachers’ Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/97)
In the amendment that is made by regulation 32(a) of the instrument, the reference to
“if sub-paragraph (1) or (2) applies”
should read
“if sub-paragraph (1A) or (1B) applies”.
Does the committee therefore agree to draw the instrument to the attention of the Parliament on the general reporting ground, as it contains a minor drafting error?
Members indicated agreement.
I would be grateful if that error could also be corrected. The note that we have suggests that the Scottish Government has “undertaken to correct” the error in the instrument. However, I believe that all the instruments should be corrected at the same time, and not haphazardly. The notes for the different instruments appear to suggest that some instruments will be corrected as a matter of urgency and some will not. I suggest that the instruments are all reviewed and corrected at the same time; we would then have pension schemes that are fit for purpose.
Indeed. I am sure that John Scott will recognise that the corrections will not all come through in the same amending regulation—
Of course.
But I take his point.
Teachers’ Superannuation (Scotland) Amendment Regulations 2015 (SSI 2015/98)
Three minor drafting errors have been identified in relation to the instrument by our legal advisers.
First, in the amendment that is made by regulation 5, the inserted text should read:
“regulations G6, G12, G17 or G23”
instead of
“regulations G6, G12, G17 and G23”.
Secondly, the amendment made by regulation 11(b) should substitute a reference to
“regulation G9, G14, G21 or G24”,
not
“regulation G8(2), G13(2), G20(2) or G24(3)”.
Finally, regulation G24, inserted by regulation 13, should cross-refer to part 3 of schedule 12, and not to part 2 of that schedule.
Does the committee therefore agree to draw the instrument to the attention of the Parliament under the general reporting ground as it contains three minor drafting errors?
Members indicated agreement.
The committee may wish to note that the Scottish Government has undertaken to address those errors by way of an amending instrument.
Food (Scotland) Act 2015 (Consequential and Transitional Provisions) Order 2015 (SSI 2015/100)
Article 2, when read with paragraph 8 of the schedule, directs an amendment to the definition of “the Agency” in regulation 2(1) of the Genetically Modified Organisms (Deliberate Release) (Scotland) Regulations 2002.
It appears that the amendment should, however, be to the definition of “the Food Standards Agency”. It further appears that to substitute the term “Food Standards Scotland” for “Food Standards Agency” within that definition renders it insensible. That is because “the Food Standards Agency” is defined as
“the Food Standards Agency as established under section 1 of the Food Standards Act 1999”.
The definition does not work with the substituted words “Food Standards Scotland”, as the latter body is established under the Food (Scotland) Act 2015.
Does the committee therefore agree to draw the instrument to the Parliament’s attention under reporting ground (i), as it appears to be defectively drafted?
Members indicated agreement.
Some further points have been raised on the instrument by our legal advisers. First, article 2 defines the terms “the Act”, “the 2015 Act”, “the 1991 Act” and “the Agency”. [Interruption.] I apologise; I should have said the “1999 Act” and not “1991 Act”—this is one of those mornings. None of those terms is used further in the order, and they are therefore superfluous.
Secondly, article 2 provides that the regulations specified in the schedule are amended by substituting “Food Standards Scotland” for “Food Standards Agency”. The reference to “Food Standards Agency” should be to “the Food Standards Agency”, in order that the amended regulations read sensibly.
Finally, paragraph 26 of the schedule, read in accordance with article 2, directs an amendment to regulation 13(2)(a)(ii)—[Interruption.] I am not having a good morning—how can I read “16” as “13”? Paragraph 26 refers to regulation 16(2)(a)(ii) of the Transmissible Spongiform Encephalopathies (Scotland) Regulations 2010. However, no such regulation exists.
It appears that the reference is a duplication of the later reference to paragraph 16(2)(a)(ii) of schedule 7 to the 2010 regulations. It is, therefore, otiose. Does the committee agree to draw the instrument to the Parliament’s attention on the general reporting ground?
Convener, you have just illustrated the difficulty of ensuring accuracy in our doing what we do and in drafters doing what they do. Article 2 of the instrument does not appear to be anyone’s finest hour, as it ranges from the superfluous to a complete lack of sense. I encourage everyone to go back and have another go at making sense of article 2.
Is it agreed that we will draw the instrument to the attention of the Parliament?
Members indicated agreement.
National Health Service (Clinical Negligence and Other Risks Indemnity Scheme) (Scotland) Amendment Regulations 2015 (SSI 2015/102)
No points have been raised by our legal advisers on the regulations. Is the committee content with them?
Members indicated agreement.
Alien and Locally Absent Species in Aquaculture (Scotland) Regulations 2015 (SSI 2015/103)
No points have been raised by our legal advisers on the regulations. Is the committee content with them?
Members indicated agreement.