Delegated Powers and Law Reform Committee
Meeting date: Tuesday, March 7, 2017
Official Report 330KB pdf
Contents
- Attendance
- Instruments subject to Affirmative Procedure
- Instruments subject to Negative Procedure
- Instruments not subject to Parliamentary Procedure
- Child Poverty (Scotland) Bill: Stage 1
- Contract (Third Party Rights) (Scotland) Bill: Stage 1
Instruments subject to Negative Procedure
Council Tax Reduction (Scotland) Amendment Regulations 2017 (SSI 2017/41)
The regulations make further amendments to the Council Tax Reduction (Scotland) Regulations 2012 (SSI 2012/303) and the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012 (SSI 2012/319), which I will refer to as the principal regulations.
The Scottish Government introduced the principal regulations in January 2013 to reduce the council tax liability of people who have a low income, following the United Kingdom Government’s decision to abolish council tax benefit from April 2013. From April 2013, people who were previously in receipt of council tax benefit received a reduction in their liability for council tax—provided that their circumstances remained the same—that was equivalent to the support that they would have received by way of council tax benefit.
Our legal advisers suggest that the regulations that are before us raise a devolution issue for the same reasons as the committee considered to apply to the Council Tax Reduction (Scotland) Amendment (No 2) Regulations 2016 (SSI 2016/253). Our legal advisers consider that these regulations raise a devolution issue, as they might relate to matters that are reserved by section F1—“Social security schemes”—of part II of schedule 5 to the Scotland Act 1998. In other words, there is a doubt about whether the regulations are within devolved competence. It is recognised that the Scottish Government takes a contrary view.
Since September last year, a new exception—exception 10—to the social security reservation has given the Scottish Parliament powers to create new benefit schemes in areas of devolved responsibility when the requirements of the exception, including the requirement that a new scheme must be funded from the Scottish consolidated fund, are satisfied.
Following the committee’s guidelines on when a consolidating instrument might be useful, it can be noted that the principal 2012 regulations are much in need of consolidation, as SSI 2017/41 is the 11th amending instrument. Therefore, we might wish to suggest to the Scottish Government that framing a new, discrete scheme in a consolidating set of regulations could avoid the committee’s concern, if that scheme were to comply with the requirements of exception 10. Do members have any comments?
I have listened to what you said and have read the paperwork, and I agree with the Scottish Government that it has the power in question. Some of the arguments on exception 10 have validity, but I believe that the Scottish Government has the power to act in the proposed way.
That is fair enough. You and your colleagues have adhered to that position over a number of years.
Does anyone else have anything to say?
I have some concerns. I hear what Stuart McMillan says, and I appreciate what has gone before, but we have taken legal advice. As I am not a lawyer, I seek legal advice and take that advice on board. My reading is that there is a validity question and that the regulations raise a devolution issue.
It seems that the committee might not agree on the regulations, as happened with SSI 2016/253.
Does the committee wish to draw the regulations to the Parliament’s attention on reporting ground (f), on the basis that they raise a devolution issue?
Members: No.
In that case, we will vote on the proposition that the regulations raise a devolution issue, if everyone is happy with that way of proceeding.
The proposition is, that the committee considers that the regulations raise a devolution issue and should be drawn to the attention of the Parliament on that basis. Are we agreed?
Members: No.
There will be a division.
For
Harris, Alison (Central Scotland) (Con)
Lennon, Monica (Central Scotland) (Lab)
Scott, John (Ayr) (Con)
Against
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 3, Against 2, Abstentions 0.
The proposition is agreed to, so we will proceed on the basis that the regulations raise a devolution issue.
Does the committee wish to suggest to the Scottish Government that framing a new, discrete scheme could avoid the committee’s concern, if that scheme were to comply with the requirements of exception 10?
Members indicated agreement.
Finally, does the committee agree to suggest to the Scottish Government that there would be a further benefit of accessibility to readers if consolidated regulations could be produced that complied with the requirements of exception 10?
Members indicated agreement.
No points have been raised by our legal advisers on the following six instruments.
Participation Request (Procedure) (Scotland) Regulations 2017 (SSI 2017/39)
Non-Domestic Rating (Unoccupied Property) (Scotland) Amendment Regulations 2017 (SSI 2017/43)
Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Outer Hebrides) Order 2017 (SSI 2017/48)
Scottish Road Works Register (Prescribed Fees) Regulations 2017 (SSI 2017/49)
Sale of Tobacco and Nicotine Vapour Products by Persons Under 18 (Scotland) Regulations 2017 (SSI 2017/50)
Sale of Tobacco (Register of Tobacco Retailers) (Scotland) Amendment Regulations 2017 (SSI 2017/51)
Is the committee content with the instruments?
Members indicated agreement.