Enterprise and Culture Committee, 20 Apr 2004

Meeting date: Tuesday, April 20, 2004

Official Report 246KB pdf

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Subordinate Legislation

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Individual Learning Account (Scotland) Regulations 2004 (SSI 2004/83)

Agenda item 2 is to consider under the negative procedure the Individual Learning Account (Scotland) Regulations 2004 (SSI 2004/83). We have taken evidence on the matter previously. We have with us officials from the Enterprise, Transport and Lifelong Learning Department and the Executive's legal team, should members wish to ask further questions on the issue. Do members have any further points to raise?

You will recall, convener, that the Subordinate Legislation Committee made detailed comments, particularly on aspects of determining what might or might not be a suitable person or organisation to deliver individual learning accounts. Given that you are my colleague on that committee, do you feel that we should pursue the issue, or should we simply accept the responses that we were given?

Because the regulations are being considered under the negative procedure, the only courses that are available to us, other than questioning the officials who have kindly agreed to appear before us, are to lodge a motion to annul the instrument or simply to take no further action. Although the points that the Subordinate Legislation Committee raised are of interest, and the Executive in its response said that it would consider them, nobody would take the view that they should be fatal to the regulations. However, the points raise interesting issues about the interaction between domestic and Community law—I suspect that the lawyers are even now poring over them.

I flagged up the issue merely because I felt that it was right that the committee should know that the Subordinate Legislation Committee commented on the regulations, in case members had missed that in their briefing papers.

I want to mention question 5 in the Subordinate Legislation Committee's report. On the issue of the treatment of European Union citizens, the report mentions

"doubts, acknowledged by the Executive, as to whether"

the regulations are

"wholly compatible with Community law."

The report mentions

"the Executive's undertaking to look further at the point and to bring forward amending legislation if necessary."

However, I am not sure that simply amending the regulations in future would be appropriate. Should we proceed with legislation when we know before it is introduced that it may well need to be amended?

At this point, I will introduce our two witnesses, who are Laura Barjonas from the Enterprise, Transport and Lifelong Learning Department and Colin Gilchrist from the Executive's legal team. I ask whether they wish to address that point.

The Subordinate Legislation Committee raised a doubt as to whether the restriction on UK working of European Economic Area nationals is in compliance with Community law. We investigated the point and found general grounds for doubt in article 12 of the treaty of Rome—the prohibition of discrimination on the ground of nationality—and in provisions in Council regulation 1612/68 that say that European Union nationals should have the same ability as UK nationals to access vocational training and retraining centres. It is not clear cut that a limitation on UK working in the regulations necessarily breaches those general provisions. The Executive has acknowledged the doubts that the Subordinate Legislation Committee expressed, but we do not take the view that the provision necessarily contravenes EU provisions.

It struck me that a relationship existed. When legislation to end student tuition fees was introduced, a clear distinction was made on the Executive's ability to deny students who are resident in England, Wales or Northern Ireland free tuition and not to deny it to those who are resident in the Republic of Ireland, France or Germany, for obvious reasons. Does a similar situation arise with the regulations?

The limitation on UK working is slightly different from residence criteria. In the recent case of Collins, which was about jobseekers allowance residence criteria, the European Court of Justice held that if residence criteria are based on objective grounds, irrespective of nationality, they can be justified. The regulations that we are discussing impose a UK working limitation, which is different from a residence limitation.

Does the committee agree to take no further action on the instrument?

Members indicated agreement.

I thank the witnesses for attending and I am glad that we could put you to some use.