Subordinate Legislation Committee, 25 Apr 2006

Meeting date: Tuesday, April 25, 2006

Official Report 128KB pdf

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Delegated Powers Scrutiny

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Crofting Reform etc Bill: Stage 1

As members are aware, the Crofting Reform etc Bill seeks to modernise crofting and creates a new constitution for the Crofters Commission. It contains a number of delegated powers and a number of other powers that appear to be of legislative character.

Section 1 inserts new section 1A into the Crofters (Scotland) Act 1993, on the Crofters Commission's general duties, setting out the functions of the commission. New section 1A(1)(b) authorises ministers to confer other "general duties" on the commission. Those duties will not be incorporated in a Scottish statutory instrument, but there is a requirement that they be communicated to the commission "in writing". It is suggested that there are two issues for consideration by the committee. First, would the power to add to the general functions benefit from publication in the form of an SSI to allow Parliament the opportunity for scrutiny, perhaps through the negative procedure, if members think that appropriate? Secondly, does the committee wish to ask the Executive how it is envisaged that the power will be used, given that the term "general duties" is nowhere defined?

We should write to the Executive raising both those points. We should ask it to clarify what it needs the power for and whether it would agree to using an SSI as the procedure for directing the commission, rather than just doing so "in writing"?

Are we all agreed with that?

Yes. This seems rather odd. We have seen plenty of previous SSIs that involved adding to lists in primary legislation. We would benefit from a better understanding of why the Executive thought that unnecessary in this case.

Fine—we will do that.

Section 2 of the bill inserts new section 2A, "Regulating crofting: local policy", into the 1993 act. It gives the commission the power to set policies for separate local areas, following consultation on boundaries, and to establish local policy panels to advise the commission. It also provides that the arrangements for consulting, setting up local panels and so on will be specified in regulations and must be approved by ministers. It is proposed that the powers be subject to the negative procedure. Are members content with that?

Members indicated agreement.

Section 2 of the bill also inserts new section 2B, "Directions by the Scottish ministers", into the 1993 act. The new section confers a power on ministers to direct the commission on the discharge of its functions. The power is similar to that in section 1(3) of the 1993 act, which is replaced by section 1 of the bill. The significant difference is that the original power was restricted to directions of a general nature, whereas the new power enables ministers to give specific directions to the commission. The power is precedented. Are members content with the proposal?

Members indicated agreement.

That takes us to section 4, which inserts new section 42A, "Power of the Commission to make schemes and arrangements for grants", into the 1993 act. The new section confers power on the commission to make schemes and arrangements for grants to crofters and others. Although the schemes are subject to the approval of ministers, they are not subject to parliamentary scrutiny. Members will be aware from paragraph 18 of the legal brief that a similar power in the 1993 act is exercisable in the form of a statutory instrument subject to the negative procedure, whereas in this case there is no provision for parliamentary scrutiny. The issue, therefore, is whether there should be some form of parliamentary scrutiny, perhaps through an SSI, which is something that we could raise with the Executive if members felt that that was appropriate.

I think that that is entirely appropriate, particularly given that there is no comment in the Executive's delegated powers memorandum, leaving us with no understanding of why there seems to have been a shift in its thinking. It would be helpful if we could get an explanation of that.

We will add that to our letter. The briefing also raises a style point that we can raise in our letter.

Section 5 inserts new section 58A, "Obtaining Commission approval or consent", into the 1993 act. That new section sets down the process by which the majority of applications to the commission will be determined. The power to amend the general and special conditions by means of a statutory instrument enables ministers to change the conditions if in future it is found that they require to be changed. The power is subject to the affirmative procedure.

A number of issues arise, the first of which is whether that is an appropriate delegation of legislative power. If we are agreed that that is the case, the next issue is whether we are happy with the affirmative procedure. Do members have any points?

You rightly question whether this should be subordinate legislation or part of the bill. The process by which applications are determined by the commission is central to the bill, and we should query the Executive's decision to take this into subordinate legislation rather than putting it in a bill.

Do other members agree that we should query the decision?

We should certainly ask the Executive the question and, more important, we should also flag up the matter to the lead committee, because the issue seems to concern the policy itself. The Executive can suggest why it thinks that the matter could or should be dealt with in subordinate legislation. However, given how central it is, that would mean that subordinate legislation could change one of the key aspects of the legislation, and it is important that the lead committee is aware of that and is aware of our concerns about such a central part of an act being subject to change by subordinate legislation.

We will hold flagging it up to the lead committee until we conclude our views on the matter, in the light of the Executive's response.

That may well be appropriate, as it may be complex and there could be changes. At this stage, we simply want to ask the question and get a fuller explanation of the thinking behind it.

Should we also hold over the question about the procedure to be used until we have the Executive's response?

I think so.

We are all agreed on that.

Section 8 inserts new section 41A, "Maps and scheme of charges", into the 1993 act. The new section would allow ministers to make regulations to confer on the commission powers to require the supply of maps, and specifies that they should be held in the register of crofts. The issue for us to decide is whether we are content with the power and content that it is subject to the negative procedure. We should also consider a further item relating to section 8, which would insert new section 41B into the 1993 act, whereby ministers would, after consultation with the commission, have powers to make an instrument containing the rules governing fees to be charged for searching in the register of crofts and for providing information from the register. New section 41B also confers powers on the commission to make a scheme for charging fees in respect of the maintenance of the register. Unlike the earlier powers, however, there is no requirement for the scheme to be incorporated in a statutory instrument or for its approval.

It is all straightforward, except for the fees issue. Our legal advice is that subordinate legislation is the best way to deal with maps and schemes of charges, although it is quite complex. I think that it would be normal practice for a fees scheme to be made as a statutory instrument and subject to approval, so I would like to ask the Executive why the scheme is not made as an SSI.

Are we happy to do that?

Members indicated agreement.

That takes us to section 10, which will insert new section 3A, "New crofts", into the 1993 act. The section will empower the Crofters Commission to constitute land or a holding as a croft in response to an application from the owner or tenant of the land. That can be done only outwith the crofting counties in an area specified by an order that is subject to the affirmative procedure. The Executive has indicated that the exercise of the power could prove highly controversial and that it will provide the Subordinate Legislation Committee and the lead committee with a draft SSI in connection with this provision before stage 2 of the bill.

There are a number of issues here, including whether a case has been made for the use of delegated powers, and the level of scrutiny.

On balance, the proposed powers probably should be exercised by subordinate legislation. The controversy will surround policy matters rather than the area with which we deal. There is a suggestion of using the super-affirmative procedure, but I am not sure that that would necessarily be an improvement or make the issue more substantive. The issue is more of a policy one, but I am happy for it to be dealt with through subordinate legislation. The affirmative procedure will probably be enough.

What do you make of the fact that, under this power, there would apparently be no statutory requirement for prior consultation before an order was laid?

I am not sure about that. I would prefer to have further explanation of the Executive's thinking on this one. It is difficult to envisage a situation in which there would not be an exchange and discussion of views prior to an order being laid. There might not be a statutory requirement for that, but I am not sure that there necessarily needs to be one. Again, that strays into the policy area of how important the lead committee feels the issue is. I am not on the lead committee and I do not know enough about the bill, so I hesitate to say anything about that.

The Executive recognises the sensitivity of section 10. It is not trying to create crofts all over Scotland, but it wants the ability to create crofts. I always thought that there were crofts in West Lothian. Perhaps I have been labouring under a misapprehension. I will have to find out one day.

There might be a "Croft Bar".

That is not part of the crofting regulations.

Do you wish any work to be done on that?

I will spare the clerks that.

Obviously, when crofting legislation is imposed, it makes quite a change to land-holding rights that affect landowners, property holders, tenant farmers and so on. The Executive recognises that the power to create crofts is important; I would have thought that we would always want to consult on that. I cannot imagine a situation in which we would think of deeming an area suitable for applying crofting legislation without consulting everybody who would be affected by that. I do not think that there would be a problem with imposing a statutory requirement for consultation.

As I said, the Executive has flagged up that it is aware of the sensitivity of section 10; the lead committee will also be aware of that. Perhaps we can make the point to the Executive that prior consultation and the super-affirmative procedure seem to us to be the appropriate mechanisms in this situation. We can ask for the Executive's response to that. I take it that we will have a second go at this when the draft SSI is prepared for us.

We will have a second go in two weeks' time.

I agree with Ken Macintosh that we need to raise the question of consultation. It is interesting that the Executive will produce a draft SSI. Discussing that should particularly help the lead committee to tease out the issues.

We are therefore agreed that the use of delegated powers is reasonable. We are interested in the level of scrutiny and wish to explore with the Executive the advantage of using a super-affirmative procedure. In any event, we wish to raise with it the question of consultation and ask why it has not considered statutory consultation given that, as Ken Macintosh says, it is hard to imagine any circumstances in which it would not consult in practice. That will flush out some statement about consultation that might satisfy our requirements when we look at the matter a second time in a couple of weeks.

Section 12, "Complaint as respects breach of the statutory conditions", proposes to insert new section 5B into the 1993 act. New sections 5B(10) and 5B(11) give ministers the power to amend by order the definition of the word "neglects" in the event that the provisions of the regulations to which they refer become redundant, are superseded or are substantially modified.

However, the power is wider than simply updating references and could be used to alter the nature of what constitutes "neglects" in more radical ways that might have implications for both tenant and landlord. We must consider whether a case has been made for the use of delegated powers. It is suggested in the legal briefing that we could ask the Executive for its views on whether it might be possible to achieve the policy objective by way of a more general provision, which would avoid the need to use delegated powers. We also need to consider the level of scrutiny.

Why do we not just put that very point to the Executive?

Are members content to do that?

Members indicated agreement.

That takes us to section 30, "Use of common grazing". The section proposes to introduce a number of changes connected with common grazings and their uses. The power in new section 50A(8)(b)(ii) in relation to specifying grants is subject to the negative procedure.

Are members happy with the power and that it is subject to the negative procedure?

Members indicated agreement.

Section 36 inserts new section 46A, "Regulations concerning loans", into the 1993 act. The new section would provide for ministers to make regulations governing the provision of loans to crofters, cottars and owners of holdings.

New section 46A(2)(f) provides for the arrangements for recovery of any part of a loan when the borrower dies. It is not clear why death has been singled out, and whether there are other circumstances where part of the loan can be recovered. It is also unclear whether the reference to the recovery of "part" of the loan precludes recovery of the whole loan. It is suggested that the section is otherwise straightforward, but that we might wish to seek clarification from the Executive on the implications of subsection (2)(f). Are we agreed?

Members indicated agreement.

Section 45, "Transitional provision etc", would give ministers power to make SSIs to deal with incidental, supplemental and other minor consequences of the bill.

There is a technical drafting point that we should raise about section 45(4) and the use of the words "any enactment", subject to members' agreement.

Members indicated agreement.

Section 47, on commencement, is straightforward. Are we all happy with it?

Members indicated agreement.

We come to schedule 1, paragraphs 3(1)(d) and 3(2), on general powers. The provision would give the commission power to charge for services. Are we content with the power and that it should be subject to the negative procedure?

Members indicated agreement.