Subordinate Legislation Committee, 29 Nov 2005

Meeting date: Tuesday, November 29, 2005

Official Report 208KB pdf

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Executive Responses

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Private Landlord Registration (Information and Fees) (Scotland) Regulations 2005 <br />(SSI 2005/558)

At last, we come to agenda item 3, which is Executive responses. We raised five points with the Executive on the regulations. The first was about the meaning of the word "should" in regulation 2(2). Are members happy with the Executive's response on that?

We would have preferred the word "must" or "shall", so we should let the lead committee know that.

That was the recommendation that we made. I suggest that we report the regulations on the ground of defective drafting. Do members agree?

Members indicated agreement.

Secondly, the Executive was asked whether the requirement in paragraph 3 of schedule 1 is intended to be subject to section 4 of the Rehabilitation of Offenders Act 1974. The Executive confirmed that that is the intention and that applicants will not have to disclose spent convictions under the 1974 act. Should we draw that response to the attention of the lead committee and the Parliament?

Members indicated agreement.

Thirdly, the committee asked for an explanation of what the "other legal requirements" in paragraph 4 of schedule 1 are intended to be. The Executive states that the phrase is intended to indicate the range of requirements in housing, rent and other legislation that already affects the letting of houses. Are members happy that we pass that point on to the lead committee?

Members indicated agreement.

Perhaps we should pass on to the lead committee our concern that the Executive should be more specific about the legal requirements.

Yes, absolutely. There should be clarification.

Fourthly, the Executive was asked for further explanation of what was meant by "identity" of any other owner and what particulars would have to be supplied. The Executive has explained that "identity" requires a statement of the name of the person as well as any other information necessary to identify them. The other joint owners should also register, and the intention is to be able to link them together.

Shall we pass those points on to the lead committee and to Parliament on the ground of defective drafting, with the explanations that have been given?

Okay.

Fifthly, we asked for clarification of the phrase,

"Where the applicant has been declared under section 83(1)(c)",

as there is no mention of any declaration in that section of the Antisocial Behaviour etc (Scotland) Act 2004. The Executive replied that the phrase refers to any person who is included in an application by a relevant person because of the requirement in section 83(1) of the 2004 act. The Executive accepts that it might have been more appropriate to reflect the wording of that section but considers that the provision is clear, as the requirement under section 83(1)(c) is to "specify" such a person, which amounts to a declaration. We can pass on our belief that the wording could have been much clearer.

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Firefighters' Pension Scheme Amendment (Scotland) Order 2005 (SSI 2005/566)

We had a few points about the order. We asked what plans, if any, the Executive has to amend the firefighters' pension scheme to take account of civil partnerships. That was the big issue.

The Executive responded with a full explanation of the position in relation to amending the scheme. Due to doubts as to vires under the Scotland Act 1998, the relevant amendments are being effected through a UK instrument—the Firefighters' Pension Scheme (Civil Partnership Amendments) (England And Scotland) Order 2005 (SI 2005/3228); members will have read that in the briefing—which was made on 22 November and is due to come into force on 5 December.

Shall we draw the Executive's response to the attention of the lead committee and to Parliament?

Members indicated agreement.

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Registration of Independent Schools (Scotland) Regulations 2005 (SSI 2005/571)

The committee noted that the regulations do not appear to reflect the enabling power of section 98(3) of the Education (Scotland) Act 1980, which obliges ministers to prescribe information to be supplied to the registrar by the proprietors of independent schools and the manner in which it is to be provided. In particular, the committee asked the Executive to explain the vires of regulation 4.

The Executive has provided a full explanation of the background to the provision and has confirmed that section 98(3) is the enabling power for regulation 4. I suggest that we report regulation 4 on the ground of defective drafting.

Do members wish to add anything about the vires issue? Perhaps we could write to the Executive about our concerns about the vires of regulation 4.

That is fine.

The regulation is defectively drafted.

Is this the one on which the Executive wrote back? Perhaps it misunderstood our question. Its explanation is not clear, as it does not answer the question that we asked in the first place, so there are still doubts over the vires.

Yes. That is my summary. Shall we write to the Executive along those lines?

Members indicated agreement.

The committee also asked for an explanation of the omission of a provision reflecting section 98(3)(c), as its requirements appear to the committee to be mandatory. Interestingly, the Executive has explained that it anticipated the repeal of section 98(3)(c) under schedule 2 to the School Education (Ministerial Powers and Independent Schools) (Scotland) Act 2004, and that is why there was an omission.

Shall we draw the Executive's response to the attention of the lead committee and to the Parliament for information?

Indeed.

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Civil Partnership Act 2004 (Modification of Subordinate Legislation) Order 2005 <br />(SSI 2005/572)

We raised a number of points on this order. First, we asked the Executive for further information on why it chose to use the general power of section 259 of the Civil Partnership Act 2004 instead of a more specific one. It has replied that the power in section 255 could have been used; however, given the order's generic nature and the wide-ranging powers that section 259 confers, it was satisfied that the powers were sufficient. Shall we draw that response to the attention of the lead committee and Parliament?

Yes. We should draw attention to the fact that the power is general and that the Executive should have used a specific power.

In our previous discussion, we said that it was an unusual way of addressing the matter, and it has been suggested that a vires issue might remain. However, it might be enough to say that the Executive has explained that it simply took a different approach to the issue. Are members agreed?

Members indicated agreement.

We also asked the Executive to confirm whether the order is intended to encompass all the amendments to subordinate legislation that are currently identified as necessary. In providing that confirmation, it has said that the order should not be regarded as the sole vehicle of modification of subordinate legislation in relation to civil partnerships. Members will recall that, last week, we tried to secure clarification of whether the order would address all aspects of civil partnerships. I suggest that we pass the response to the lead committee and Parliament for information.

Thirdly, we asked the Executive why the preamble to the order does not refer to section 259(4) of the enabling act, which appears to be relevant. Although it agrees that there should have been such a reference, it says that it is satisfied that the omission does not invalidate the order at all. I suggest that we report that to Parliament on the ground of failing to follow proper legislative procedure.

Fourthly, we sought clarification on why no amendment had been made to the heading of form G in regulations 3 and 4 of the Cremation (Scotland) Regulations 1935. The Executive has indicated that, generally, headings are not regarded as part of the instrument and so are not amended. However, it has noted our point, and will make the relevant amendments at the next opportunity. I believe that, after checking out the matter, the Executive found that there were no similar headings, which meant that confusion would not arise. However, it does not seem the best way of addressing the matter.

Do members agree to pass those comments on to the lead committee and the Parliament?

Members indicated agreement.

We also asked the Executive to confirm whether, in amending the Scottish parliamentary pensions scheme in articles 26 to 30, it intended to omit an amendment to article N2(a). It says that it is satisfied that the amendment to article 28 is sufficient in that regard. However, we should report the matter to the lead committee and Parliament on the ground of an unusually limited use of the power. Are members agreed?

Members indicated agreement.

The committee also asked for confirmation that the wording of article 48 in relation to the amendment to the Education Maintenance Allowances (Scotland) Regulations 2004 (SSI 2004/273) is correct. The Executive agrees that there was an omission and that it will rectify the situation at the earliest opportunity. I suggest that we report that to the lead committee and Parliament on the ground of defective drafting. Are members agreed?

Members indicated agreement.

We also asked the Executive why the word "(Scotland)" had been missed out in the title of the order and the citation provision in article 1. It has acknowledged the error, but it says that it is satisfied that the order is still valid. I was astounded that it did not say that it would rectify the error. Anyway, we will pass on the response to the lead committee and Parliament. Are members agreed?

Members indicated agreement.

I am really sorry that we have so much business today, but we will press on.

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Antisocial Behaviour etc (Scotland) (Commencement and Savings) Amendment Order 2005 (SSI 2005/553)

The committee noted that the title of the order amended by this order had been incorrectly cited in article 2 and in the explanatory note. Although the Executive does not think that the order's validity has been affected, it has confirmed that it will take steps to correct the error with a correction slip to ensure that the correct versions are published on the Office of Public Sector Information website and in the official printed volume. That is a good outcome. We will pass the response to the lead committee and the Parliament on the ground of defective drafting. Are members agreed?

Members indicated agreement.