Subordinate Legislation Committee, 24 Jun 2003

Meeting date: Tuesday, June 24, 2003

Official Report 164KB pdf

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Draft Instruments Subject to Approval

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Draft Instruments Subject <br />to Approval

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Housing Grants (Assessment of Contributions) (Scotland) Regulations 2003 (draft)

There are quite a few points to make on the regulations, on which we might wish to seek clarification from the Executive, so bear with me as I go through them.

First, we might ask why the draft regulations appear to define a number of terms with reference to legislation that has now been repealed. For example, the regulations use the terms "disabled persons tax credit", "employed earner" and "severe disablement allowance". In the case of the definition of "employed earner", the footnote makes no reference to the relevant amendment made by schedule 6 to the Income Tax (Earnings and Pensions) Act 2003. The point relates to the new tax credit legislation. Have the changes all been taken into account, and how? We seek a full explanation of how the regulations relate to the new legislation.

The second point is allied to that. Why does regulation 14(1) refer to sections 257(6) and (7) of the Income and Corporation Taxes Act 1988—the ICTA—which no longer appear to exist, by virtue of section 33 of the Finance Act 1988? Furthermore, section 259 of the ICTA, which is also referred to in regulation 14, was repealed under schedule 20 of the Finance Act 1999. It is a matter of the Executive checking out those two matters.

The third point relates to drafting. Regulations 18 to 21 and regulation 23 include the phrase "and this regulation" after "regulation 6". The purpose of that phrase is not clear—except perhaps in relation to regulation 23. We seek a bit more clarity on that. It is noted that that phrase does not appear in regulation 22(1). The Executive could be asked to explain the effect of those words; to state whether they are considered necessary in the other regulations; and to give the reason for their omission in regulation 22(1). Is that agreed?

Members indicated agreement.

The fourth point is that the regulations exclude certain payments from named charitable trusts, such as the Macfarlane trusts, from computations of income and capital under the regulations. There is no specific mention of the Eileen trusts or of any of the new trusts that were set up earlier this year to make payments in respect of sufferers of new variant CJD, for example. Other regulations that provide for the calculation of income for the purposes of means-tested benefits mention such funds specifically, so we need to know why there are such omissions. Is that agreed?

Members indicated agreement.

That is important. The inclusion or exclusion of such funds will determine the amount of grant that is payable and that could make an enormous difference to someone.

The next point concerns the fact that regulation 23(b) does not seem to fit in context. It seems in part to be a free-standing provision and some clarification of that would be welcome.

The final point concerns regulation 28. In the definition of "refurbishment scheme", we think that the reference to regulation 33(d) should be to regulation 33(2)(d). Again, clarification seems to be required.

I agree.

On a practical point, that information was quite complex and we followed it only because we have the briefing paper that is available only to the committee. Might we give a copy of that to the Official Report to help the reporters with the brackets, inverted commas and so on? That would render the published version of our discussion much more intelligible.

That is done as a matter of course.

Fine.

Are we agreed that we will make those points to the Executive?

Members indicated agreement.

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Housing Grants (Minimum Percentage Grant) (Scotland) Regulations 2003 (draft)

We might want to ask the Executive why, in items 1 and 2 of the schedule to the regulations, it was considered necessary to include definitions of the terms "improvement grant" and "repairs grant", when those definitions simply reproduce the definitions of the terms in section 338 of the Housing (Scotland) Act 1987. Do we agree to do that?

Members indicated agreement.

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Civic Government (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation) Amendment Order 2003 (draft)

Are there any points in relation to this order?

There was a question whether it was competent to introduce new criminal offences and penalties relating to houses in multiple occupation by modification or whether it should be done by a free-standing instrument. I understand that, if it is done by a free-standing instrument, the maximum penalty that can be imposed is a scale 4 penalty, whereas it is proposed that it should be a scale 5 penalty, which could be imposed only if the new penalties were introduced by modification.

Given the seriousness of the need to control the regulations regarding houses in multiple occupation and to ensure that people do not get around those regulations, it is important that the new penalties are introduced. However, we need to be absolutely sure that the order is drafted so as to ensure that the correct powers will be in place and that it is acceptable to impose the penalties by modification. Again, we are talking about something that might appear in a criminal court. In that case, and most similar cases, someone will be examining the provisions carefully and challenging their validity, legality and appropriateness. We should ask the questions that will enable us to be sure that the system will work correctly.

We will ask about the power of modification. We could also ask about the vires of the offence provisions in article 6(a), which is linked to that. Is that agreed?

Members indicated agreement.

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Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2003 (draft)<br />Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) (No 2) Order 2003 (draft)

No points arise on these instruments.

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Welfare of Farmed Animals (Scotland) Amendment Regulations 2003 (draft)

We come to the regulations that Christine May mentioned earlier. Do you want to raise some points, Christine?

I will start with the issue that is probably the most striking. There is a provision in the draft regulations that specifies the size of a stall for a pig. However, the European directive in question says simply that the animal should be able to turn round, not that the length of the stall should be 75 per cent of the length of the pig squared or whatever. That is because it might be possible for a stall to be constructed to the specified dimensions, but for the animal not to be able to turn round because of the way in which the space had been constructed. That part of the draft regulations is probably poor drafting and should not be there.

There are a number of other points, including the issue of tethers, for example, and the references in the draft document to directives that have been repealed. Again, that is evidence of poor drafting. We need to ensure that the correct and current references are included in regulations, as we said earlier.

Finally, the directives that are implemented by the regulations should have been brought into force on 1 January. As they are late, are they competent? Are we entitled to implement them late without having specific permission to do so? If we are not entitled to implement them late, are they likely to be subject to challenge?

Those are important points and we should bring them to the attention of the relevant committee and the Scottish Executive.

Are we agreed to raise the reason for the delay and the issue of the Executive's reassurance that the provisions of the regulations accurately reflect the requirements of the directive, particularly in relation to the stall and the tethers, which links to paragraphs 4 and 5 of the new schedule 3A?

Members indicated agreement.

This is utterly beyond me.

I am pleased about that. That gives me hope.

It is the geometry that is difficult—I am trying to do it in my head. I would have thought that the provisions in the regulation were better than those in the directive. Our legal briefing paper tells us that schedule 6 of the regulation says:

"The internal area of such pens must not be less than the square of the length of the pig and no internal side can be less than 75% of the length of the pig."

Can a pig turn round in a space that is less than 75 per cent of its length?

That is not right. If one side is less than 75 per cent, the other one must be much longer, to make the square. For example, if the pig is 3ft long, the area would have to be 9ft2, as nine is the square of three. If one side is only 75 per cent of the length of the pig, the other must be much longer.

This would be a lot easier if it were a 4ft pig.

If you make one side less than the length of the pig, the other side has to be very much longer.

Surely it is simpler and clearer in the directive, which says only that the pig must be able to turn round.

I am not so sure, because in that case one could argue about what constitutes easy. For example, one could ask the pig "How easy are you finding things?" whereas if measurements were stipulated we could guarantee that the pig could turn round easily. Otherwise, the pens could be much shorter, which would open the debate about whether the pig can turn around. Indeed, including measurements would ensure that the directive is implemented. That is my theory about pigpens—I only hope that no one I know reads this.

I would love to be there when the pig answers you.

As long as the Official Report is able to reflect your comments, Gordon, we will ask the Executive for clarification on that matter.

I do not believe that Gordon Jackson has high hopes that no one he knows will read this. He will have it all around Babbity Bowster later in the week.

The main point is that, if I have picked up Gordon Jackson correctly, his suggestion could well be an improvement on the European directive.

It will guarantee that the pig can turn easily in its pen.

We will ask the Executive about that matter.

That brings us nicely to the end of agenda item 3, which will probably be our one bit of excitement for this morning.