Subordinate Legislation Committee

Meeting date: Tuesday, February 21, 2012

Official Report 263KB pdf

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Instruments subject to Negative Procedure

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Non-Domestic Rate (Scotland) Order 2012 (SSI 2012/27)

The committee agreed that no points arose on the instrument.

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Non-Domestic Rates (Levying) (Scotland) Regulations 2012 (SSI 2012/28)

Convener, I appreciate your giving me the opportunity to talk to the regulations. I will not go into the policy issue—I know that that is not what the committee is here to do—but I will focus on the appropriateness of using secondary legislation to introduce a new tax. I do not think that that is appropriate and it does not sit well with the Parliament’s democratic principles. Such an issue should be discussed before the Parliament. The Government is consulting on issues that have been raised by those who would normally be consulted on the order and it sets a bad and dangerous precedent that something as fundamental as the introduction of a new tax could be pushed through using negative procedure.

In a letter of June 2011, the Scottish Government said that there were no intentions to create this tax, but here it is, without having come directly before the Parliament as a separate tax issue. No business or regulatory impact assessment has been made of the proposed levy. The budget was passed on 8 February and the regulations have come before the committee within two weeks of that, but there has been no separate debate in the Parliament. The regulations will be implemented one week after the final version is delivered. There is no provision whatever for those on whom the tax will be levied to make plans or to raise concerns about its technicalities.

I am concerned that those who will be impacted on—the retailers who will have to implement the legislation and their staff, who have been represented by the Union of Shop, Distributive and Allied Workers, which has expressed its concerns—have had no chance to see the regulations debated, to be consulted on them, or to raise any issues. I will not get into whether we should have the levy—there are other committees that can debate that. Although the Parliament has approved it, I do not believe that this tax should be implemented using the negative procedure.

Does anyone else have any comments to make?

I will speak in support of Michael McMahon. In truth, I had not thought about the matter before, but I share his concern about the process and what I understand to be a lack of consultation and think that it is probably right to raise the matter. As Mr McMahon said, no one is disputing that the Parliament passed the measure, but I share his concern about the implementation process.

My understanding is that this is simply the working out of a decision of the Parliament that we are implementing. That is where we are, but you have put your points clearly on the record.

Is there any precedent for tax-raising powers being implemented in this way? If so, I am happy to withdraw my remarks.

I am certainly not in a position to comment on that.

All I can say is that Scottish statutory instrument 2012/28 does very similar things to an instrument that was considered last year.

What happened last year?

No motion to annul was lodged.

So there is a precedent. We are not talking about policy here.

No. Clearly, that is what was done. Am I right in concluding that there is no motion to annul before us?

Yes.

So there is nothing to vote on.

Thank you, though, for giving me the opportunity to speak, convener.

Your points have been made and understood. That is appreciated.

In our legal brief, it says in the third paragraph of the “Background” section:

“The Regulations provide for a reduction in rates, on a sliding scale.”

That is fine. However, the brief then refers to

“the cumulative value of a business’s properties”.

Should that not be “cumulative rateable value”?

That is correct.

It was just a question of clarification.

We move on to the next instrument.

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Non-Domestic Rates (Levying) (Scotland) (No 2) Regulations 2012 (SSI 2012/29)

Do members have any points on the regulations?

I will not rehearse the arguments that I made with regard to the previous instrument. All that I will say is that I have the same concerns about these regulations.

I expected as much. Does Mr Scott wish to reiterate his point?

Given that a precedent for this has come to light, I do not wish to say any more on the matter.

In that case, we will leave the matter there. I point out that the legal advisers have raised no legal issues on either SSI 2012/28 or SSI 2012/29.

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Title Conditions (Scotland) Act 2003 (Conservation Bodies) Amendment Order 2012 (SSI 2012/30)

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Home Energy Assistance Scheme (Scotland) Amendment Regulations 2012 (SSI 2012/34)

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Potatoes Originating in Egypt (Scotland) Amendment Regulations 2012 (SSI 2012/37)

The committee agreed that no points arose on the instruments.