Chamber and committees

Delegated Powers and Law Reform Committee

Meeting date: Tuesday, January 19, 2016

Attendance
Instruments subject to Negative Procedure
Instruments not subject to Parliamentary Procedure
Transplantation (Authorisation of Removal of Organs etc) (Scotland) Bill: Stage 1
“The work of the Delegated Powers and Law Reform Committee in 2014-15”

Instruments subject to Negative Procedure

Public Contracts (Scotland) Regulations 2015 (SSI 2015/446)

The Convener (Nigel Don)

I welcome members to the third meeting in 2016 of the Delegated Powers and Law Reform Committee, and I ask them to switch off mobile phones.

I welcome James Kelly as a substitute member for this morning’s meeting.

James Kelly (Rutherglen) (Lab)

Thank you, convener.

The Convener

The first instrument for consideration is the Public Contracts (Scotland) Regulations 2015 (SSI 2015/446). Its purpose is to revoke and replace the Public Contracts (Scotland) Regulations 2012 (SSI 2012/88) and to transpose into domestic law directive 2014/24/EU on public procurement.

The regulations could be clearer in the following respect. Regulation 2 defines the term “central government authority” as

“the authorities listed in Schedule 1 and, where any such authority is succeeded by another authority which is itself a contracting authority, their successors”.

Regulation 2 also defines the term “contracting authority” as

“the state, a regional or local authority, body governed by public law or association formed by one or more such authorities or bodies”.

Directive 2014/24/EU defines “central government authorities” as the contracting authorities that are listed in annex 1, but the definition of “central government authority” in regulation 2 refers not to “contracting authorities” but only to “authorities”. The central government authorities that are listed in schedule 1 of the regulations are intended to be contracting authorities for the purposes of the regulations, but the definition of “central government authority” as set out in regulation 2(1) does not make that policy intention clear.

The regulations also contain a number of cross-referencing errors. Paragraphs (5), (6) and (7) of regulation 4 refer to, respectively, paragraphs (5)(a), (5)(b) and (5)(c). The references should instead be to paragraphs (4)(a), (4)(b) and 4(c). Regulation 38(1) refers to paragraph (9)(a), but there is no paragraph (9) in regulation 38. Regulations 85(3)(a) and 85(3)(b) refer to, respectively, regulations 43(11) and 43(10). The references should instead be to regulations 43(14) and 43(13). Regulation 91(2) refers to paragraph (10)(b). The reference should instead be to regulation 92(1)(b).

Regulation 99(5) defines the term “the Utilities amendments” as the amendments made to the Utilities Contracts (Scotland) Regulations 2012 (SSI 2012/89)—which are defined as “the UCR”—by paragraph 9 of schedule 6. The reference to paragraph 9 should instead be to paragraph 8. Finally, the new paragraphs (10)(1)(b) and 10(2) of schedule 3 to the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 (SSI 2013/50) as substituted by paragraph 10 of schedule 6 to the regulations refer to regulation 80 when they should refer to regulation 79.

Do members have any comments?

John Scott (Ayr) (Con)

Given the Government’s apparent willingness—which I welcome, of course—to correct the cross-referencing errors, I think that, when it re-lays the instrument, it ought to take the opportunity to remove from regulation 2 the ambiguity that the convener explained. It seems reasonable that the difference between “authorities” and “contracting authorities” should be made clear.

For the life of me, I cannot see why the Government would not want to take the opportunity to remove the ambiguity that our legal advisers tell us exists. If they perceive it, I am certain that, in future, other legal advisers, solicitors and lawyers will also perceive it, so why would we not take the opportunity to make the legislation clear when we have it?

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

When there is potential doubt about the instrument that is before us and there is an amending instrument coming, there appears to be no downside in making the position clearer, and I think that we should seek to have the Government make the necessary change.

The Convener

That is clearly the view of the committee.

Does the committee agree to draw the instrument to the attention of the Parliament under reporting ground (h), as the meaning of regulation 2(1) could be clearer, and the general reporting ground, given the cross-referencing errors?

Members indicated agreement.

The Convener

We would like the Government to deal with both.

Local Government Pension Scheme (Scotland) Amendment (No 2) Regulations 2015 (SSI 2015/448)

The Convener

Regulation 29(e) inserts a definition of

“the Transitional and Savings Regulations 2014”

in schedule 1 to the Local Government Pension Scheme (Scotland) Regulations 2014 (SSI 2014/164). However, the Scottish Government has confirmed that the policy intention was to insert a definition of “the Transitional Provisions and Savings Regulations 2014” in that schedule.

The committee may wish to note that the Scottish Government has undertaken to correct the error by a further amending instrument, which is to come into force on 2 February 2016.

Does the committee agree to draw the instrument to the Parliament’s attention under the general reporting ground?

Members indicated agreement.

Public Bodies (Joint Working) (Integration Joint Board Establishment) (Scotland) Amendment Order 2016 (SSI 2016/2)

The Convener