Delegated Powers and Law Reform Committee

Meeting date: Tuesday, June 18, 2013

Official Report 324KB pdf

---

Instruments subject to Negative Procedure

---

National Library of Scotland Act 2012 (Consequential Modifications) Order 2013 (SSI 2013/169)

In making changes to requirements that are set out in the Scottish Statutory Instruments Regulations 2011 (SSI 2011/195), the order erroneously refers to those requirements as being contained in regulation 11(1)(b) of the 2011 regulations when, in fact, they are set out in regulation 11(2)(b). Although the error is fairly minor, it arises in the operative part of a short instrument. The Scottish Government considers that the point can be addressed by way of a correction slip.

Does the committee agree to draw the instrument to the attention of the Parliament under the general reporting ground, as it contains a drafting error?

Members indicated agreement.

---

European Union (Amendments in respect of the Accession of Croatia) (Scotland) Regulations 2013 (SSI 2013/177)

The amendments that paragraph 11 of the schedule makes to the St Mary’s Music School (Aided Places) (Scotland) Regulations 2001 (SSI 2001/223) should also amend the definition of “European Economic Area” in paragraph 1(1) of schedule 1 to the 2001 regulations and the reference to the “EEA Agreement” in paragraph 3(2) of that schedule, to reflect the removal of the definition of “EEA Agreement”. The committee may wish to note that the Scottish Government has given a commitment to correct those errors when the 2001 regulations are next amended, which is scheduled to happen in March or April 2014.

Does the committee agree to draw the instrument to the attention of the Parliament under the general reporting ground, as it contains minor drafting errors?

Members indicated agreement.

Does the committee also agree to note that the Scottish Government has given a commitment to correct those errors when the 2001 regulations are next amended?

Members indicated agreement.

---

James Watt College (Transfer and Closure) (Scotland) Order 2013 (SSI 2013/181)

The meaning of article 3(3) could be clearer in providing for the transfer to and vesting in the Ayr College board and the Clydebank College board “jointly and severally” of certain property and rights. It is unclear what is meant by the term “jointly and severally” in the context of its intended application to interest in property and to other rights, so it is difficult to predict what effect, if any, that might have on the order’s operation, although it is possible that it might affect its operation so far as the provision in question is concerned.

Does the committee agree to draw the instrument to the attention of the Parliament under reporting ground (h), as the meaning of article 3(3) could be clearer?

Of course, I agree to that, but I must declare a constituency interest, as the order affects Ayr College, which is in the heart of my constituency. I want all pieces of legislation, but particularly this one, to be properly drafted.

The order needs to be more clearly drafted, as it appears not to be possible to hold assets—as opposed to liabilities—“jointly and severally” under Scots law, and the term is used repeatedly. I would like matters to be clearer so that, from the outset, there is no doubt.

The briefing note that we have been provided with suggests that a court might make a reasonable interpretation of what is intended in relation to the transfer of assets, but I would not wish Ayr College—or any other organisation—to be put to the expense of having to go to court to obtain a definition when a clear definition could be provided in the first place, at this stage. I hope that the issue will be addressed.

Do members agree to draw the instrument to the attention of the Parliament?

Members indicated agreement.

---

Sea Fishing (Illegal, Unreported and Unregulated Fishing) (Scotland) Order 2013 (SSI 2013/189)

The meaning of the extent provision in article 1(2) could be clearer. The provision contains two contradictory statements. It says that the order is to extend

“to Scotland and the Scottish zone only and insofar as it extends beyond Scotland and the Scottish zone it does so only as a matter of Scots law.”

No indication is given of how the reader is to reconcile those two statements. Normal practice would indicate that the first statement was qualified by the second. The committee may wish to note that the Scottish Government has agreed to clarify the drafting in a future instrument.

Does the committee agree to draw the instrument to the attention of the Parliament under reporting ground (h), as the meaning of the extent provision in article 1(2) could be clearer?

Members indicated agreement.

Does the committee also agree to note that the Scottish Government has agreed to clarify the drafting in a future instrument?

Members indicated agreement.

---

Adam Smith College, Fife (Transfer and Closure) Order 2013 (SSI 2013/179)

The committee agreed that no points arose on the instrument.