Subordinate Legislation Committee
Meeting date: Tuesday, April 30, 2013
Official Report
331KB pdf
Transitional Provisions
Item 6 is consideration of an update on litigation. For the record, the case reference is Davies and another, trading as All Stars Nursery v the Scottish Commission for the Regulation of Care [2013] UKSC 12. The case concerns the transitional arrangements for the transfer of regulation of care services from the Scottish Commission for the Regulation of Care to Social Care and Social Work Improvement Scotland, under the Public Services Reform (Scotland) Act 2010.
In 2012, the judges in the inner house of the Court of Session were divided in their interpretation of the manner in which two orders concerning transitional arrangements dealt with regulatory notices that had been served by the commission but remained under dispute at the time when the commission was dissolved. The court—in particular, Lord Marnoch, the judge in the minority—was critical of the drafting of the orders and the scrutiny that had been applied by the Parliament. The case was appealed to the Supreme Court, which agreed with Lord Marnoch and identified a gap in the transitional provisions.
Prior to the Davies case, the courts had identified a similar transitional gap in IO and LO v Aberdeen City Council. In his judgment, Lord Hardie criticised the scrutiny that the Scottish Parliament had applied to an instrument and suggested that procedures for considering transitional provisions should be reviewed by the then Scottish Executive and the Scottish Parliament.
In light of the IO and LO v Aberdeen City Council case, the Scottish Government committed to providing the committee with Executive notes—now policy notes—to accompany commencement orders that contain complex transitional provisions. The Scottish Government also undertook to provide a full 40 days between the making date and the appointed day for commencement orders that contain such complex provisions, to allow as much time for scrutiny as possible.
The arrangements appear to be working satisfactorily thus far, but the committee might think it appropriate to ask the Scottish Government to comment on the outcome of the Davies case and say whether it intends to review further its practice with regard to transitional arrangements. Further to that, the committee might want to consider how the issue can be highlighted more widely in the Parliament. For example, it might be helpful if I raised the issue at a Conveners Group meeting, in the first instance, with a view to the committee’s legal advisers providing a briefing to conveners.
Do members have comments?
Perhaps we could share the level of importance that we give particular items. That might help committee members in their consideration of the documents that come before them.
This is a serious issue for the Parliament. Lord Hardie’s comments were really quite withering.
Let us endeavour to learn from the experience. There was an unusual set of circumstances at the time when the transitional provisions orders in question were under scrutiny, at the end of session 3. Subject committees and this committee had an unusually large workload. To be fair, the legislation stood examination by the courts right up to the Court of Session, which agreed by a majority, notwithstanding that the Supreme Court overturned that court’s judgment.
There is no doubt that the Davies case has put a lot of people and a lot of parties to great expense. We should endeavour to take the positives from the case and learn from it. We should continue to emphasise to all committees the importance of the Subordinate Legislation Committee’s comments. In 2009—we were not members of the committee at the time—the committee pointed out that the matter was complicated, but perhaps it did not place enough emphasis on the difficulties of implementation, which has led to problems.
10:15
I endorse what John Scott said. In the context of parliamentary and Government process, the agreement that policy notes will accompany orders that contain complex transitional arrangements and that the Parliament will have 40 days to consider such orders is to be welcomed.
There is evidence of greater awareness of the significance of issues that the Subordinate Legislation Committee draws to the Parliament’s attention via other committees and in other ways, but such cases illustrate the need for continued vigilance and care about what we do. We should take up the suggestion that we write to the Scottish Government. I expect that we will hear that what can be done has already been agreed, but there is now the context of the Supreme Court’s decision.
Does the committee agree to write to the Scottish Government to invite its view on the outcome of the Davies case and ask whether it is reviewing its practice in relation to transitional arrangements as a result?
Members indicated agreement.
Does the committee also agree to raise the profile of the issue in the Parliament, in the first instance by raising the issue with the Conveners Group? That seems to be a way forward.
Members indicated agreement.
In passing, I will say that another good thing came out of the Davies case in that the Supreme Court noted that, if it takes five years for a case to get to it, people will have been seriously inconvenienced. That was an extremely good observation—I hope that it will work on that.
10:17
Meeting continued in private until 10:22.