Instruments subject to Negative Procedure
Council Tax Reduction (Scotland) Regulations 2012 (SSI 2012/303)
We come to item 2. The brief that members have received suggests that the regulations raise a devolution issue. The question is whether the regulations relate to matters that are reserved under section F1 of part II of schedule 5 to the Scotland Act 1998, or whether they are considered to have the purpose of determining liability for council tax other than for social security purposes.
The regulations have as their objective the establishment of a scheme that replicates existing entitlements to council tax benefit support for persons who have not reached the qualifying age for state pension credit and for persons who have reached that age and receive income support or income-based jobseekers allowance for the financial year commencing 1 April 2013 and subsequent years.
Do members have any comments on what has been recommended?
On the question whether what is proposed is a benefit under section F1 of part II of schedule 5 to the 1998 act, it has been suggested that the proposal might be considered as a benefit but I note that, although section F1 talks about benefits being a reserved matter, the interpretation says:
“‘Benefits’ includes pensions, allowances, grants, loans and any other form of financial assistance”
and then goes on to describe some of those forms of financial assistance. For us, the assistance in question is
“in relation to ... housing costs or liabilities for local taxes.”
If we were to consider this proposal for a reduction in local taxes as a benefit, the very real difficulty is that that immediately catches other reductions already in force, such as the reduction in council tax for a single person dwelling in a house and reductions for second homes. It is clear that those elements are not deemed to be “financial assistance” in those terms.
Why is what is being proposed different from what has gone before? What went before—and was operated by the United Kingdom—is caught by this, because it can lead directly to money being put into people’s hands if the benefit that is being given to people is greater than the council tax that they might pay. That does not apply in this case, so there are no circumstances under the legislation before us in which money is directly paid to any council tax payer. It is merely another form of reducing the liability for local taxes in addition to those we already have and therefore does not pass the
“any other form of financial assistance”
test set out in section F1 of part II of schedule 5 to the 1998 act.
In considering our legal advisers’ advice—and it is entirely proper for them to invite us to discuss the matter—we should conclude that this is not
“any other form of financial assistance”
and therefore that we should not refer the regulations to the lead committee, as is suggested by our advisers. My primary reason for making that suggestion is that such a move creates potential threats to two other important forms of reduction in liability for local taxes and might cause serious difficulties. Of course, as this discussion will form part of the Official Report of the committee’s meeting, it is perfectly open to others to consider the matter further if they so wish, but I do not believe that the committee should refer the matter to the lead committee.
I regret to say that I take a different view to Mr Stevenson. This is not about whether the proposal is a good or bad thing or about reductions; it is about whether the right process has been followed.
Apparently the Government takes a different view from those who advise us. However, my view is that we should support our advisers in this regard, simply because we are here to hold the Government to account. If the Government feels a requirement to explain further the point that Mr Stevenson is seeking to make on its behalf, that is of course a matter for it. We should take the advice that has been offered.
Just to be clear: I do not speak on behalf of the Government; I speak as a member of this committee. An important point of principle is involved. It is proper and right that the legal advice is put in front of us to discuss, but if our role is always just to accept and pass on our legal advisers’ recommendations, that much diminishes the role of this committee in engaging on a wide range of important issues. I will support our legal advisers’ other recommendations on the regulations; I do not seek to remove them all.
10:45
I am delighted to hear that you will do that.
Although you are not of the Government, you are of the party of Government and this is about a point of principle—about holding the Government and, indeed, the party of Government to account. That is one of the things that this committee exists to do.
I agree with Mr Stevenson. I think that his comments are reasonable and that it is appropriate that we do as he indicated. What we are suggesting is for the betterment of the regulations. I think that that is our role and I am quite happy for what has been suggested to be passed on.
I probably tend to agree with Mr Scott with regard to the process. Mr Stevenson has made good points, but whenever an element of doubt is raised by our legal advisers, the least that we should do is to explore that and get a definitive response back from the Government in that respect. I understand that there is an important process that we should go through. I do not think that we should always agree with what our legal advisers say, but for something as important as these regulations, it is only right that we should go forward with our legal advisers’ recommendation.
I observe that we have the Government’s response and that a definitive response from the Government is not possible—I am sure that that is not what John Pentland meant—because a definitive response comes from the courts. Clearly, we do not wish to be anywhere near there, because the whole purpose of the Parliament is to ensure that we never go anywhere near the courts, at least in the case of parliamentary scrutiny.
We seem to have some disagreement on the recommendation. I confess that I am inclined to side with Stewart Stevenson’s view, because I think that we need to accept the regulations, in this respect, as being the way forward. We have the Government’s view, which is that we will not finish up in the courts.
We will not get unanimity on this recommendation, so we will have to vote on it. I cannot remember when we previously had a vote in this committee.
The basic proposition is that we accept the Government’s view that the regulations are intra vires and have been laid on that basis, and that we therefore see no need to report them in that respect. The alternative is that we feel that there might be an issue and wish to report the regulations. Does anybody have any other comments?
I am astounded that we are not prepared to accept the view that the regulations might be illegal. I will certainly vote for the legal advisers’ recommendation.
If there are no further comments, the positive proposition is that we accept the Government’s view and that we therefore see no need to report the regulations.
Just to be clear: the matter is limited absolutely to the devolution issue recommendation; other recommendations are not covered.
Indeed. Other recommendations are not covered and will come up later.
The proposition is, that we see no need to report the regulations on the basis of a devolution issue. Are we agreed?
Members: No.
There will be a division.
For
Don, Nigel (Angus North and Mearns) (SNP)
Eadie, Jim (Edinburgh South) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Against
Pentland, John (Motherwell and Wishaw) (Lab)
Scott, John (Ayr) (Con)
The result of the division is: For 5, Against 2, Abstentions 0. The proposition is agreed to.
We have to consider several other recommendations on the regulations. First, in schedule 7, paragraphs 1(2), 2 and 4, consequential amendments are made to the Council Tax (Administration and Enforcement) (Scotland) Regulations 1992 (SI 1992/1332), the Council Tax (Reductions for Disabilities) (Scotland) Regulations 1992 (SI 1992/1335), and the Council Tax (Reduction of Liability) (Scotland) Regulations 1994 (SI 1994/3170), which add references to the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012 (SSI 2012/319).
The powers contained in section 113(2) of the Local Government Finance Act 1992 permit the Scottish ministers to make consequential provisions that they consider necessary or expedient, but only those that are consequential on making these regulations. Those powers do not enable provisions in these regulations that are in fact consequential on the making of the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012 (SSI 2012/319), which regulations were not made at the date of making these regulations.
Does the committee therefore agree to draw the regulations to the attention of the Parliament on reporting ground (e) as there is a doubt as to whether the provisions are intra vires?
Members indicated agreement.
There will be a test later.
There appears to be defective drafting in paragraph (3)(j)(iv) of regulation 20. That head (iv) requires a student to be one in respect of whom a grant for living or other costs has been made under regulation 38 of the Education (Student Support) Regulations 2011 (SI 2011/1986), regulation 25 of the Assembly Learning Grants and Loans (Higher Education) (Wales) (No 2) Regulations 2011 (SI 2011/886 (W.130)) “and” regulation 5 of the Education (Student Support) (No 2) Regulations (Northern Ireland) 2009 (SR 2009/373), when it is intended that those references to regulations should be alternatives.
Does the committee therefore agree to draw the regulations to the attention of the Parliament on reporting ground (i) as the drafting is defective?
Members indicated agreement.
At the same time, does the committee welcome the fact that the Scottish Government has undertaken to correct that error by laying an amending instrument, and does the committee consider that this should be done as soon as possible?
Members indicated agreement.
The meaning of “academic year” as defined in regulation 2(1) could be clearer. The reference to
“according to whether the course in question begins in the winter, the spring, the summer or the autumn respectively”
could be made clearer by defining for the purposes of this provision what the commencement dates for each season are, and whether those dates coincide with the dates that are specified, when the “academic year” is held to commence.
Does the committee therefore agree to draw the regulations to the attention of the Parliament on reporting ground (h) as the meaning of “academic year” as defined in regulation 2(1) could be clearer?
Members indicated agreement.
Finally, the regulations contain some minor drafting errors. First, in the definition of “additional statutory paternity pay” in regulation 2(1), the insertion of “(a)” after the reference to section 171ZEA is an error.
Secondly, the inclusion of regulation 4(3) is a drafting error in respect that it was not intended to apply the extension of the definition of “young person”, which is made by that paragraph, in each case where “young person” is mentioned in the regulations.
Thirdly, in regulation 41(4)(c), the reference to
“regulation 17A(7) of those Regulations”
is an error. It is intended to refer to the “Jobseeker’s Allowance Regulations” but the title of the regulations previously stated in regulation 39(4) is the
“Employment and Support Allowance Regulations”.
Lastly, in regulation 64(3), “family” is omitted from the phrase
“that applicant or a member of the applicant’s is liable”.
Does the committee agree to draw the regulations to the attention of the Parliament on the general reporting ground, in relation to minor drafting errors?
Members indicated agreement.
Does the committee also welcome the fact that the Scottish Government has undertaken to correct those errors by laying an amending instrument, and does the committee again consider that this should be done as soon as possible?
Members indicated agreement.
Although the committee does not report on the matter, does it also welcome the fact that the Scottish Government has undertaken to clarify, in regulation 48(4)(b), the reference to regulation 17A(7) of “those Regulations” by also amending that provision? The amendment will expressly refer to the “Jobseeker’s Allowance Regulations”.
Members indicated agreement.
Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Amendment Revocation Regulations 2012 (SSI 2012/306)
There has been a failure to lay this instrument at least 28 days before it comes into force, as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.
As the instrument was not laid at least 28 days before it comes into force, does the committee agree to draw the instrument to the Parliament’s attention under reporting ground (j)?
Members indicated agreement.
Given that this instrument has been brought forward to allow the Scottish Government to address the serious concerns raised by this committee and by the Infrastructure and Capital Investment Committee regarding the amendment regulations, does the committee find the explanation provided by the Scottish Government for this failure to be acceptable?
Members indicated agreement.
Does the committee therefore welcome the prompt action that the Scottish Government has taken to address the defects in the amendment regulations?
Will you clarify why these regulations are here and why we are going through the motion of making this declaration? What is the benefit?
The benefit is to record that we have registered that the Scottish Government has responded to what we said. It will give credit where credit is due, on the grounds that we will then find it easier to be more critical when the Government does not respond.
I see this kind of thing quite often in papers and I just wonder whether we need to do it in that way. We could just note that the Scottish Government has amended the regulations rather than going through the motion of “welcoming” the action. Surely, the Scottish Government is just doing its job. I do not understand why we are giving it a pat on the back for correcting a mistake. I just want you to think about that, convener; I am not asking you to respond to it now.
If Hanzala Malik feels that the present and future form of our response to the Government under these circumstances should be to “note”, I would not wish to divide the committee on that.
Thank you.
I think that the point is understood.
Criminal Legal Aid (Scotland) (Fees) Amendment (No 2) Regulations 2012 (SSI 2012/305)
Rural Development Contracts (Rural Priorities) (Scotland) Amendment Regulations 2012 (SSI 2012/307)
Diligence against Earnings (Variation) (Scotland) Regulations 2012 (SSI 2012/308)
No points have been raised by our legal advisers on the instruments. However, our advisers note that the rural development contracts regulations in SSI 2012/307 are now on their 10th amendment. If our advisers are finding it difficult to work out what the 10th amendment means, we should probably suggest to the Government that it considers some consolidation.
Hear, hear.
That is not so much because the regulations have reached the 10th amendment but because we have been advised that they might be giving problems, even at that level.
Is the committee otherwise content with the instruments?
Members indicated agreement.