Enterprise and Lifelong Learning Committee, 13 Sep 2000

Meeting date: Wednesday, September 13, 2000

Official Report 301KB pdf

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Subordinate Legislation

Item 5 is subordinate legislation. We have two matters to resolve. Members will have received additional notes this morning about both. We will deal first with the Education (Student Loans) Amendment (Scotland) Regulations 2000 (SSI 2000/240). We were waiting for an update on this from the Subordinate Legislation Committee, which has now arrived as part of the additional letter on the regulations.

At the previous meeting, the committee decided that it did not have any observations to offer on the regulations. The Subordinate Legislation Committee will report on two issues. First, it will refer to the very tight time scale, which we had also noted. Secondly, it intends to raise some technical issues of drafting. It is making no other comment to Parliament.

Does that apply to both instruments?

No—only to the first one, on student loans.

The committee had no other comments last week. It appears that no issues arise under the Education (Student Loans) Amendment (Scotland) Regulations 2000, so I assume that the committee has nothing to report to the Parliament on that subject. Is that agreed?

Members indicated agreement.

The second instrument is the Education and Training (Scotland) Regulations 2000 (SSI 2000/292). We considered those regulations at our previous meeting.

We did, but subsequently the gentlemen who are sitting before us—David Stewart, Allan Wilson and Jim Logie—have written to us, in particular on regulation 7(4), on travel and other expenses. I received a letter that included a copy of a letter that has been sent to the Subordinate Legislation Committee.

There are some ultra vires issues that relate to the payment of expenses in connection with individual learning accounts, which do not seem to be allowed for under the Education and Training (Scotland) Act 2000. That has been accepted by the Executive and I understand that a solution is being sought.

The Subordinate Legislation Committee raised another issue in relation to regulation 7(5), which sets a limit of 100,000 individual learning accounts under the first set of circumstances. The Subordinate Legislation Committee has accepted that there is an implied power in the act to allow that, although it intends to draw the attention of Parliament to that unusual or unexpected power. However, the first issue that I have mentioned is the more substantive one.

I have with me Allan Wilson and Jim Logie. We apologise for the error in regulation 7(4). We thought that that point was in order when we spoke to you last week, but we have since been advised that it is not. As the clerk has indicated, the error does not affect the implementation of the ILAs themselves, but it does affect the piloting of the discretionary travel and other costs in Lochaber and the Borders.

Ministers have therefore decided to make amendment regulations as soon as possible to seek legislative cover for the piloting of the discretionary costs. In the meantime, we shall arrange for notes of interest to be taken from anyone in Lochaber or the Borders who is likely to be eligible for that discretionary funding. They will be told what additional help they may be able to get in due course, once the amendment regulations are in force.

You said that the error does not affect the implementation of individual learning accounts and that it affects only the pilots. Is that because the pilots are happening now? Can people who apply for discretionary travel support to go with individual learning accounts get that support under the law as it stands?

People can get an individual learning account and support for that. That is all in competent order. If they sought to get additional discretionary help for travel or whatever in the pilot areas, there would be a problem in relation to the statutory instrument.

Let us move beyond the pilot areas. If I live in Perthshire and I want an individual learning account and discretionary travel support, will I get it?

No. As the minister said during the passage of the bill, such discretionary support is being piloted in two areas—Lochaber and the Scottish Borders.

So, if I was not in a pilot area, I could not get discretionary support. Was that legal advice available to ministers when they were discussing the subject in Parliament? Were they told that it would be ultra vires?

No. The problem arose when the words "conditions of eligibility" were put into the final version of the statutory instrument. The Subordinate Legislation Committee pointed out that that was ultra vires in terms of sub-delegation. In relation to the rest of the scheme, the bill provides that conditions may be as determined by ministers. In relation to the additional provision about discretionary travel and other costs, there is no such provision in the main bill.

We are back to issues about which we were given assurances in Parliament. Amendments were lodged by Mr Ewing and supported by others, but we were told specifically that they were not necessary in primary legislation because they could be dealt with in regulations. Upon what basis did ministers say in Parliament that it would be possible to deal with the matter in regulations, when it is now patently the case that it is not?

The attitude is that it is possible to deal with it in regulations, but not in the manner in which we have done it.

I am sorry, Mr Logie, but I simply cannot take that at face value. Mr Stewart has just said that there is a need for a legislative solution and you have just said that the matter can be handled in regulations by dealing with it differently from what has been proposed. Those statements are inconsistent.

In relation to the substantive ILAs, there is general provision in the legislation and there is provision for the detail to be in regulations. Some of that detail is in the regulations and other points are determined by ministers because the legislation allows for that. For the main ILAs, there is a generic power in the legislation, more in the regulations and there are certain things that ministers may determine.

On the discretionary travel arrangements, it was our intention that the regulations should give cover for the pilot schemes as ministers intended and that the details of the scheme, such as conditions of eligibility, would be determined as an administrative matter outwith the regulations by ministers. Because the Subordinate Legislation Committee has pointed out that that is not correct—that it is defective in terms of drafting—we will have to introduce amendment regulations to put into those regulations some of the detail that we had intended would be dealt with administratively.

Are you saying that there is no need for primary legislation?

That is correct.

So new regulations will be brought forward to amend the bill that went through Parliament?

No. They will not amend the bill; they will amend the regulations.

But am I right in thinking that there is absolutely no need for primary legislation?

Yes.

Mr Stewart, what is it that makes this ultra vires? Is it the text of regulation 7(4)?

Yes. It is the use of the words "conditions of eligibility" in regulation 7(4). The Subordinate Legislation Committee pointed out that the conditions of eligibility in terms of the Education and Training (Scotland) Act 2000 needed to be spelt out in the regulations. We could not reserve to Scottish ministers the discretion to determine for themselves the conditions of eligibility; they had to be specified in regulations. Hence, we propose to bring forward amending regulations that will spell out those conditions of eligibility.

So it is purely a drafting revision.

Effectively.

I speak as a member of the Subordinate Legislation Committee and an occasional contributor to its debates. Are you saying that the error was to create in delegated legislation the power of sub-delegation and that that is not competent?

Yes.

Is it true that if an amendment had been accepted in the primary legislation, the problem would not have arisen?

I cannot remember the text of the relevant amendment. I think that the difficulty might have arisen, depending on whether the wording of the amendment reserved to the Scottish ministers the power to determine conditions of eligibility for travel grants.

If regulation 7(4), as drafted by your good selves, had been in the primary legislation, the problem would not have arisen. Is that correct?

Yes, I think that that would be correct.

Given that the error was one of principle—establishing a power of sub-delegation that was not competent—should not that have been foreseen and avoided?

With the benefit of hindsight, I would say yes.

We all make mistakes—I am certainly no exception—but it seems unfortunate, especially as the minister made the concession in the course of the debate and made me feel rather guilty for pressing the amendment to a vote.

You mentioned the position of the pilot schemes. The pilot schemes are not so much to do with the ILAs, but with working out how best to provide for payment of travel and other costs that might arise in rural Scotland to ensure that there is a level playing field across Scotland. We all agreed with that principle. Am I right in thinking that no payments can be made of grants, even in the pilot schemes? Have the pilot schemes been aborted at the moment?

At present, given the defect in the regulation, it is not possible to pay additional discretionary payments in respect of travel. That is why I indicated that the intention was to take a note of anyone who might want that support and work out what their entitlement might be. Once the powers are available, such payments could be made competently for the period thereafter.

When will the new statutory instrument that deals with this mischief and with providing a scheme for travel and other costs—in accordance with the minister's concession—be brought before the Subordinate Legislation Committee and the Parliament?

We hope to draft that SSI in the next fortnight. The main issues are to ensure that it has an element of detail in it and that the definitions fit in with the relevant definitions in social security legislation and so on. If the SSI comes to Parliament in that time scale, allowing for the 21-day rule and the October recess, that means that it would come into force around the end of October.

We want progress to be made on the steps that have been outlined by officials. I also want the committee to express its concern that concessions were given in Parliament when the issue was raised and that there is some difficulty in implementing them. We will report on that basis.

That concludes our meeting.

Meeting closed at 13:07.