Chamber and committees

Delegated Powers and Law Reform Committee

Meeting date: Tuesday, February 23, 2016

Attendance
Land and Buildings Transaction Tax (Amendment) (Scotland) Bill: Stage 1
Bankruptcy (Scotland) Bill: Stage 2
Instruments subject to Affirmative Procedure
Instruments subject to Negative Procedure
Instruments not subject to Parliamentary Procedure
Land Reform (Scotland) Bill: After Stage 2

Instruments subject to Negative Procedure

Utilities Contracts (Scotland) Regulations 2016 (SSI 2016/49)

The Convener

Scottish statutory instrument 2016/49 contains drafting errors. First, “services contract” is a significant term in the regulations and is mentioned in regulation 2(1) in relation to the definition of “contract”, and in regulations 35(3)(c), 61(1)(a), 77(10), 85(4)(b) and 85(8)(a) and (b). Those provisions should have referred to “service contract”, which is the term defined in regulation 2(1).

Secondly, there is a minor error in regulation 3(1), which introduces the subject matter and application of the regulations. The reference to

“procedures for procurement for the award of a contract, or to the organisation of a design contest”

is an error. The Scottish Government intends that “to” should be read as “for” in the provision. It is not self-evident, however, that that particular word should be read into the provision.

Does the committee agree that the errors should be corrected by means of an amending instrument, rather than by means of a correction slip, as soon as possible?

Stewart Stevenson

I am always uncomfortable when something that appears to be substantive—this is a case in which it could be—is dealt with simply by correction slip on the narrow ground that that denies the Parliament the opportunity to see, first, that such a change is being made and, secondly, why the change is being made. The committee should ask that the correction be effected by an amending instrument rather than simply by a correction slip that would pass many people by—it would certainly pass the Parliament by.

John Scott

I support what Stewart Stevenson says. I think that it would be welcomed if the Government were able to bring forward an amending instrument rather than a correction slip as soon as possible.

The Convener

If I catch the mood aright, members feel that a correction slip should deal with a patent error whereas something about which there is manifest ambiguity and in relation to which it is not at all obvious what is meant should not be corrected by a correction slip.

Stewart Stevenson

You have used the correct word, convener. There is a manifest error, but the manifestly correct solution to the error is not manifest.

The Convener

I take it that the committee agrees that the regulations should be corrected.

Members indicated agreement.

The Convener

Does the committee therefore agree to draw the regulations to the attention of the Parliament on the general reporting ground, as they contain drafting errors?

Members indicated agreement.

Police Service of Scotland (Senior Officers) (Performance) Regulations 2016 (SSI 2016/51)

The Convener

The regulations contain two drafting errors. First, there is an error in regulation 17 in that the references to “the chief constable” in paragraph (8)(a) and (b) should instead be references to “the senior officer”.

Secondly, there is an omission in that the reference to the “Conduct Regulations” in the definition of “misconduct hearing” in rule 2 of the Police Appeals Tribunals (Scotland) Rules 2013—hereinafter to be known as “the rules”—requires to be updated to refer instead to the “2014 Conduct Regulations”. That is required in consequence of other changes to the rules made by the regulations.

The Scottish Government has undertaken to lay an amending instrument to deal with those points as soon as is reasonably practicable. Does the committee agree to draw the regulations to the attention of the Parliament on the general reporting ground, as they contain two separate drafting errors?

Members indicated agreement.

Concession Contracts (Scotland) Regulations 2016 (SSI 2016/65)

The Convener

The regulations contain various errors. The following provisions appear to be defectively drafted. First, paragraph 2 of the preamble narrates that the instrument makes ambulatory references to 11 directives, Council regulations or Commission decisions, so that those measures are to be construed as amended from time to time. The operative provisions of the instrument have omitted to make all those ambulatory references apart from one, in regulation 32(18) relative to directive 1999/93/EC.

Secondly, the definition in regulation 2(1) of “contracting body” should have been a definition of “contracting entity”, meaning a contracting authority or utility. “Contracting entity” is an expression that is used many times in the regulations.

Thirdly, regulation 63(1) makes transitional provision when a procurement was commenced before 18 April 2016. The provision contains an exception that refers to regulation “47(1)(a) to (3)”. That exception should have covered the circumstances that are set out in regulation 47(1)(a), (2) and (3)—on termination of concession contracts—and so not the circumstances that are set out in regulation 47(1)(b) and (c).

Fourthly, regulation 63(2) makes a saving provision when a procurement was commenced before 18 April 2016. The provision contains an exception in respect of a “service concession contract”. It was intended to refer to a “services concession contract” as defined by regulation 3(3). A “service concession” has a different meaning, which is contained in the concession contracts directive—directive 2014/23/EU—and that meaning is applied by virtue of regulation 2(2).

Furthermore, the following provisions contain other drafting errors. In regulation 51(5), “GPS economic operator” is defined, but the term that is used in the regulation is “GPA economic operator”. Regulation 64(2) makes a transitory provision before the full commencement of regulations 32(1) to (7), which contain rules as to the electronic means of communication. There is a patent error, as the provision applies during a period beginning on 18 April “2106” rather than 2016, which is the commencement date of most of the provisions of the regulations.

The Scottish Government has undertaken to lay an amending instrument to correct those errors, and the amendment would also come into force on 18 April 2016. Does the committee agree to draw the regulations to the attention of the Parliament, as they contain various drafting errors?

Stewart Stevenson

As part of my on-going campaign for the use of plain English in parliamentary procedures and processes, I wonder whether the committee could have an explanation of the term “ambulatory references”.

The Convener

I might be able to help you. Ambulatory means walking, and they are therefore references that walk on to the stage every time that we need to see them. They are actors who appear on the stage at the moment they are referred to, so they are references that apply wherever they fit into the law at that point in time. I am looking at the lawyers who will be able to tell me whether I am right or wrong.

Colin Gilchrist (Legal Adviser)

That is essentially correct, convener. The European instrument has to be read as amended from time to time, so any amendments to the European instrument will be taken into account over time.

The Convener

Are you happy with that explanation?

Stewart Stevenson

Forgive me, convener, but I want to be absolutely clear that our issue with the omission of ambulatory references is that the provisions are fixed at a particular version of a European instrument, whereas the legal intention is that they should continue to refer to that instrument as amended or replaced thereafter. Is that what we are saying?

Colin Gilchrist

Yes, that is correct. Without the ambulatory reference, the reference to the European instrument is fixed at the point of making the instrument. It does not take into account any subsequent amendments.

Stewart Stevenson

I think that I have got it. We are saying that it should be drafted in a way that makes clear that it refers to the instrument and all successors or amendments to that instrument, and that without that reference it does not have that effect.

Colin Gilchrist

Yes.

Stewart Stevenson

Right, I think that I am better informed. I hope that readers of the Official Report will be similarly informed. Thank you, convener.

The Convener

You are welcome. Are there any other comments?

John Scott

Taken together, there seem to be quite a lot of mistakes in the regulations, which is disappointing. The mistakes are quite serious, particularly the ambulatory references. We can only hope that there is time to correct all the stuff that needs to be corrected and to bring the instrument into force on 18 April.

The Convener

Indeed, but my information is that the Government has agreed that it will do so. Let us hope that it has the means. Nonetheless, does the committee agree to draw the regulations to the attention of the Parliament in the normal way in relation to the various drafting errors?

Members indicated agreement.

The Convener

Does the committee agree to report the defective drafting points on ground (i) and to report the other drafting errors on the general reporting grounds?

Members indicated agreement.

Seed (Licensing and Enforcement etc) (Scotland) Regulations 2016 (SSI 2016/68)

The Convener

Paragraphs (2), (6) and (7) of regulation 15 appear to be defectively drafted. Those paragraphs require ministers to take certain steps in relation to a “licence holder”. The policy intention, however, is that certain of those steps are required to be taken in relation to persons who are not licence holders, having regard to the definition of that term in regulation 2, but who have simply applied for a licence under regulation 4. To the extent that paragraphs (2), (6) and (7) of regulation 15 fail to refer to the latter group of persons, those paragraphs do not appear to fully deliver the intended policy.

The committee may wish to note the Scottish Government’s intention to amend regulation 15 to correct the errors at the earliest available opportunity, and the committee may also wish to encourage the Scottish Government to do that as soon as possible, and in any event prior to the commencement of the regulations on 1 July 2016.

Does the committee agree to draw the instrument to the attention of the Parliament under reporting ground (i), as paragraphs (2), (6) and (7) of regulation 15 appear to be defectively drafted?

Members indicated agreement.

Education (Fees, Awards and Student Support) (Miscellaneous Amendments) (Scotland) Regulations 2016 (SSI 2016/82)

The Convener

The regulations contain a drafting error. New paragraphs (2) and (3) of regulation 2 of the Education Maintenance Allowances (Scotland) Regulations 2007, as inserted by regulation 12, each refer to “paragraphs (1)(a)”. The correct references should be to “paragraphs 1(a)”, without the brackets around “1”.

The committee may wish to welcome the Scottish Government’s commitment to amending the error at the next available opportunity. Does the committee nonetheless 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.

Council Tax Reduction (Scotland) Amendment Regulations 2016 (SSI 2016/81)

The Convener

Our legal advisers have suggested that the regulations raise a question of whether they relate to matters that are reserved by section F1 of part II of schedule 5 to the Scotland Act 1998, and as such the committee may wish to report the regulations as raising a devolution issue.

The matter has been raised several times before in connection with previous instruments that amended the Council Tax Reduction (Scotland) Regulations 2012 and the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012, which I will refer to as “the principal regulations”. Each time our legal advisers were of the same view—that a devolution issue had been raised. The Scottish Government’s view is that the principal regulations do not relate to any of the reserved matters that are described in section F1 of part II of schedule 5 to the Scotland Act 1998, and that therefore no devolution issue is raised. The Government’s view has remained the same each time the committee has considered the issue in relation to the principal regulations and amending regulations. Each time the committee has considered the matter in relation to the principal regulations and the amending regulations, a majority of members have preferred the Scottish Government’s view. I invite members’ comments.

Stewart Stevenson

I concur with the Scottish Government’s position that this is not an issue that is covered by section F1 of part II of schedule 5 to the Scotland Act 1998 on the basis that this cannot be held to be a benefit in legal terms because it is merely a reduction in a charge.

My difficulty, which I have articulated previously, is that if we were to accept that this is a devolution issue that is caught by schedule 5 of the 1998 act, we would get ourselves into the difficulty of capturing other reductions in charges, in particular the bus travel concession scheme, in which the reduction in the charge may be even more substantial, and which would be deemed to be a benefit. Clearly, we have not taken that position previously.

I respect and read with interest the legal advice that we get, but it is precisely that—advice—so it is for us, as members of the committee, to decide what to do on the basis of that advice. In this case, I will once again accept the Government’s view rather than that advice.

John Scott

In terms of consistency, you will not be surprised that, once again, I will not adhere to the position that my colleague Stewart Stevenson has outlined, but instead prefer the advice of the committee’s legal advisers.

We are all aware that this is the 11th instrument that has raised a devolution issue. I suggest that the regulations do not have a proper legal basis. That has certainly been suggested, and suggested sufficiently strongly to put doubt in everyone’s minds. A court that was asked to decide on the matter would, in all probability, hold the regulations to be ultra vires because the regulations relate to matters that are within the reservation of a social security scheme, as outlined in section F1, on social security schemes, of part II of schedule 5 to the 1998 act. Essentially, it is a benefit in kind and is not within the gift of the Scottish Government. I prefer to take the advice of our committee advisers to that of the Scottish Government.

11:15

Lesley Brennan (North East Scotland) (Lab)

I duly note, and agree with, the advice from the committee’s legal advisers. Moreover, I note that the committee is dealing with the process and procedures relating to the regulations. Although I may not accept the Scottish Government’s legal advice, I support the policy. Therefore, if this comes to a vote, I will abstain.

The Convener

That is fine. Clearly, we are going to come to a vote. We will come to that in just a moment.

We need to have a proposition to put to the committee. I am proposing from the chair that the regulations do not engage a devolution issue. In other words, we will vote on the negative proposition that the regulations do not raise a devolution issue. On that basis, does anybody want to say anything else, or should we just go to a vote? Members seem to be comfortable that everything that needs to be said has been said.

In that case—and contrary to the advice of our legal advisers—the proposition is, that the committee considers that the regulations do not raise a devolution issue and should not be drawn to the attention of the Parliament. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Don, Nigel (Angus North and Mearns) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

Against

Scott, John (Ayr) (Con)

Abstentions

Brennan, Lesley (North East Scotland) (Lab)

The Convener

The result of the division is: For 3, Against 1, Abstentions 1.

That is duly noted. The proposition that the Council Tax Reduction (Scotland) Amendment Regulations 2016 do not raise a devolution issue is agreed to.

Gender Recognition (Marriage and Civil Partnership Registration) (Scotland) Regulations 2016 (SSI 2016/66)

The Convener