Instruments subject to Negative Procedure
Police Service of Scotland Regulations 2013 (SSI 2013/35)
We come to agenda item 2.
Regulation 32(2)(a) refers to
“a dependent territory within the meaning of the British Nationality Act 1981”.
That definition, from section 50(1) of the 1981 act, was repealed by the British Overseas Territories Act 2002 on 26 February 2002. Given that, prior to that repeal, the territories in schedule 6 were dependent territories and, on that date, became known as British overseas territories, it appears that regulation 32(2)(a) fails to take account of the modifications to the British Nationality Act 1981 by the 2002 act, and, to the extent that it relies on the repealed definition of “dependent territory” instead of its replacement “British overseas territory”, is defectively drafted.
Does the committee agree to draw the regulations to the Parliament’s attention on reporting ground (i), as the drafting appears to be defective?
Members indicated agreement.
In regulation 2(1), the definition of “qualifying examination” with cross-reference to the Police Service of Scotland (Promotion) Regulations 2013 (SSI 2013/39) could be clearer. Those regulations do not contain such a definition but instead contain four related definitions of “qualifying examination A (elementary)”, “qualifying examination A (advanced)”, “qualifying examination B” and “qualifying examination C”. The Scottish ministers contend that the reference in the regulations is intended to refer to all those qualifying examinations.
Does the committee agree to draw the regulations to the Parliament’s attention on reporting ground (h), as the meaning could be clearer?
Members indicated agreement.
Several points have been raised by the legal advisers about drafting errors. First, regulation 7(4) specifies the different circumstances in which the fixed-term appointment of the chief constable or a deputy chief constable might be terminated early. However, it makes provision about a term of appointment coming to an end
“on promotion, dismissal, the conclusion of disciplinary proceedings and regulation 10.”
The ordinary effect of the word “and” would be to make those circumstances cumulative rather than alternative, which produces an absurd result. The committee might wish to recommend that the Scottish ministers amend the provision at the first possible opportunity to address that drafting error.
Secondly, regulation 24(1)(a) refers to entitlement to incapacity benefit under the Social Security (Incapacity for Work) Act 1994, when entitlement to that benefit properly arises under section 30A of the Social Security Contributions and Benefits Act 1992. The Scottish Government has agreed to consider amending that reference at the next available opportunity in the interests of clarity, and members might wish to recommend that they do so.
Thirdly, regulation 32(2)(a) refers to
“a colony, protectorate or protected state within the meaning of the British Nationality Act 1948”.
Those terms are no longer defined by that act, nor have they been since their repeal on 1 January 1983. Accordingly, it appears that the terms, having no meaning in the British Nationality Act 1948 as it is presently in force, can therefore have no meaning in the regulations.
Finally, in schedule 3, paragraph 20 purports to revoke regulations 12(7) and 12(8) of the Scottish Crime and Drug Enforcement Agency (Scotland) Regulations 2011 (SSI 2011/61). However, there are no such paragraphs in regulation 12 and it appears that the Scottish ministers instead intended to revoke regulations 13(7) and 13(8). Ministers have undertaken to revoke those erroneous references at the next available opportunity.
Does the committee therefore agree to draw the regulations to the attention of the Parliament on the general reporting ground in respect of the aforementioned drafting errors?
There are likely to be a number of other regulations in the general area of the new police service. Perhaps it should be considered that the opportunities to address some of the matters to which we are drawing attention exist in early course, and that they should be taken if at all possible.
Indeed.
We should emphasise that point. There is no timetable or schedule, so it would be helpful if those matters could be addressed early. That would make sense.
I concur with the previous two speakers that the work should be done sooner rather than later. Perhaps we should suggest that an early opportunity should be sought, rather than saying that it should be done at the earliest opportunity.
It is tempting to think that, once we get through this raft of police regulations, there might be some sense in having a tidy-up at the end, because I am afraid that there will be a few more to consider as we go along. We shall see.
In regulation 5(7)(a), the phrase
“member of that individual’s or constable’s family”
includes dependants. That term is undefined, it apparently being the Scottish ministers’ intention that it refer to any person who relies on the individual or constable for his or her maintenance, in order that regulation 5 may be construed broadly. Given that regulation 5 imposes restrictions on the private lives of constables and their families and dependants, the lead committee might want to consider whether it is appropriate that the provision be given that broad construction.
Although not formally reporting the matter, does the committee agree to refer it to the lead committee?
Members indicated agreement.
I add that we are living in changed times. Family circumstances have changed and the lead committee should take that into account.
I am sure that it will. We might return to a similar point in considering another instrument.
Non-Domestic Rating (Unoccupied Property) (Scotland) Amendment Regulations 2013 (SSI 2013/37)
Regulation 6, which inserts a new regulation 4 into the Non-Domestic Rating (Unoccupied Property) (Scotland) Regulations 1994 (SI 1994/3200), makes provision for rating relief to be available to lands and heritages, or rating units, that meet certain conditions. The conditions include, in new regulation 4(1)(b), that:
“either—
(i) when last previously occupied the lands and heritages were in use as office premises or in use as shop premises, or
(ii) where the lands and heritages have never previously been occupied, they are in”
such use.
Where lands and heritages form part of a building, it is intended that the requirement for sole or principal use as a shop or office relates to those lands and heritages, and not to the building of which they form a part.
The meaning of the definitions of “use as office premises” and “use as shop premises” in regulation 3 could more clearly provide for that intention, as I suspect that that sentence or two has just demonstrated.
Does the committee agree to draw the regulations to the attention of the Parliament on reporting ground (h), as the meaning could be clearer?
Members indicated agreement.
The new regulation 4(2) of the 1994 regulations that is inserted by regulation 6 is made in reliance on the powers contained in section 2(2) of the European Communities Act 1972, mention of which is omitted from the preamble.
Does the committee agree to draw the regulations to the attention of the Parliament on the general reporting ground, as the preamble does not follow proper drafting practice?
Members indicated agreement.
Police Service of Scotland (Special Constables) Regulations 2013 (SSI 2013/43)
Regulation 7(2)(h) provides for inclusion in a special constable’s personal record a record of whether the special constable passed or failed any qualifying examination at which the special constable was a candidate. As neither the Police (Promotion) (Scotland) Regulations 1996 (SI 1996/221) nor the Police Service of Scotland (Promotion) Regulations 2013 (SSI 2013/39) apply to special constables, that provision appears to have been included in error. The Scottish Government has undertaken to adjust the provision at the next appropriate opportunity.
Does the committee agree to draw the regulations to the attention of the Parliament on the general reporting ground?
Members indicated agreement.
In regulation 4(4)(b), the reference to
“member of that individual’s or special constable’s family”
includes dependants. That term is undefined, it apparently being the Scottish ministers’ intention that it refer to any person who relies on the individual or special constable for his or her maintenance, in order that regulation 4 may be construed broadly. Given that regulation 4 imposes restrictions on the private lives of constables and their families and dependants, the lead committee may wish to consider whether it is appropriate that the provision be given that broad construction.
Additionally, in regulation 17(2), the lead committee may wish to consider whether it thinks that the provisions of regulation 17 adequately provide for the removal of a special constable who refuses to resign in accordance with a requirement to do so under regulation 17(2)(b).
Although the committee is not making a formal report on the regulations, does it agree to refer the aforementioned matters to the lead committee?
Members indicated agreement.
I refer to my earlier comment about lifestyles, because we no longer live in rigid family structures.
The point is that this is exactly the same reference as before and I am sure that the same policy considerations apply.
Yes. Thank you, convener.
Council Tax Reduction (Scotland) Amendment Regulations 2013 (SSI 2013/48)
As members will note, our legal advisers have suggested that the regulations raise the question whether they relate to matters that are reserved by section F1 of part II of schedule 5 to the Scotland Act 1998; as such, the committee may wish to report the regulations as raising a devolution issue. The same issue was raised in relation to the Council Tax Reduction (Scotland) Regulations 2012 (SSI 2012/303), the principal regulations that these regulations amend and which the committee has previously considered.
The Scottish Government’s view is that the principal regulations do not relate to any of the reserved matters described in Section F1 of part II of schedule 5 to the Scotland Act 1998. When the committee considered the principal regulations, a majority of committee members preferred the Scottish Government’s view. It is of course for the committee to decide whether it wishes to report the regulations or whether, as with the Council Tax Reduction (Scotland) Regulations 2012, it is content that no devolution issue has been raised.
I imagine that members may have comments.
As before, the matter should be drawn to the Parliament’s attention; I still believe it to be a devolution issue.
I have previously argued that the matter that our advisers have brought to our attention relates to a matter that is intra vires. I think that the Government’s position is quite clear on that. Having examined the regulations and schedule 5 to the Scotland Act 1998, I see why the Government has come to that conclusion. I propose that the committee consider the regulations to be intra vires.
Stewart Stevenson proposes that we consider the regulations to be intra vires. Are there any other comments?
10:45
The issue obviously also applies to the next regulations—the Council Tax Reduction (State Pension Credit) (Scotland) Amendment Regulations 2013 (SSI 2013/49). I presume that whatever we decide will apply to both sets of regulations.
If we recognise that we are doing that, it would be helpful. Both sets of regulations are on precisely the same subject. We clearly have two different points of view, which we have debated previously. Does anybody want to push it to a vote? The proposal is that the regulations are intra vires.
I am happy to push it to a vote.
As no one has any other comments, we will vote on the proposition, as we did before. As Stewart Stevenson said, the proposition is that the committee considers that the regulations are intra vires and should not be drawn to the attention of the Parliament. Are we agreed?
Members: No.
There will be a division.
For
Don, Nigel (Angus North and Mearns) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Against
Malik, Hanzala (Glasgow) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Scott, John (Ayr) (Con)
The result of the division is: For 4, Against 3, Abstentions 0. The proposition is agreed to.
Council Tax Reduction (State Pension Credit) (Scotland) Amendment Regulations 2013 (SSI 2013/49)
Our legal advisers raised precisely the same points on these regulations as they did on SSI 2013/48, which we have just discussed and voted on. Can I take it that we reach the same conclusion?
Members indicated agreement.
Can we confirm that there is no need to push it to a vote again—that we have decided the issue from the first vote?
I am happy that the vote covers both sets of regulations. We do not need to rehearse the argument twice.
I am advised that the previous vote can refer only to SSI 2013/48, so we will vote again.
The proposition is that the committee considers that the regulations are intra vires and should not be drawn to the attention of the Parliament. Are we agreed?
Members: No.
There will be a division.
For
Don, Nigel (Angus North and Mearns) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Against
Malik, Hanzala (Glasgow) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Scott, John (Ayr) (Con)
The result of the division is: For 4, Against 3, Abstentions 0. The proposition is agreed to.
Personal Injuries (NHS Charges) (Amounts) (Scotland) Amendment Regulations 2013 (SSI 2013/53)
The committee agreed that no points arose on the instrument.