30th Report, 2012 (Session 4): Subordinate Legislation

SP Paper 142 (Web Only)

SL/S4/12/R30

30th Report, 2012 (Session 4)

Subordinate Legislation

Remit and membership

Remit:

The remit of the Subordinate Legislation Committee is to consider and report on—

(a) any—

(i) subordinate legislation laid before the Parliament;

(ii) [deleted]

(iii) pension or grants motion as described in Rule 8.11A.1;

and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation;

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;

(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and

(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Chic Brodie
Nigel Don (Convener)
James Dornan (Deputy Convener)
Mike MacKenzie
Michael McMahon
John Pentland
John Scott

Committee Clerking Team:

Clerk to the Committee
Irene Fleming

Assistant Clerk
Rob Littlejohn

Support Manager
Daren Pratt

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 29 May 2012, the Committee agreed to draw the attention of the Parliament to the following instrument—

Fire and Rescue Services (Framework) (Scotland) Order 2012 (SSI 2012/146).

2. The Committee’s recommendations in relation to that instrument are set out below.

3. The instruments that the Committee determined that it did not need to draw the Parliament’s attention to are set out at the end of this report.

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Fire and Rescue Services (Framework) (Scotland) Order 2012 (SSI 2012/146) (Justice Committee)

4. This Order is intended to bring into effect the Transitional Fire and Rescue Framework for Scotland 2012 on 29 June 2012. Under section 40 of the Fire (Scotland) Act 2005, a framework document prepared by the Scottish Ministers setting out priorities and objectives for fire authorities only has effect when it is brought into force by them by order. Such an order is subject to the negative procedure, offering the Parliament the opportunity to reject the framework proposed if it chooses to do so.

5. This Order was made by the Scottish Ministers on 16 May and laid before the Parliament on 18 May. It comes into force on 29 June and brings the framework document into effect on that date. Separately, the Scottish Ministers published the framework document on their website on 18 May.

6. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 1.

7. Article 2 of the Order expressly refers to “The document prepared by the Scottish Ministers under section 40(1) of the Fire (Scotland) Act 2005 entitled ‘Transitional Fire and Rescue Framework for Scotland 2012’ which was published in June 2012” [emphasis added]. The Scottish Ministers concede that they published a document of that name on 18 May 2012, and not in June 2012.

8. The Scottish Ministers contend that the words “which was published in June 2012” are “otiose, and can in our view be ignored as having no effect or statutory purpose”. However, the Committee does not agree with the Scottish Ministers’ view that these words are otiose. It appears to the Committee that they serve an important function in identifying the external document to which reference is made and to which the statutory requirements of sections 41 and 42 of the 2005 Act are to apply. The entire purpose of this Order is to give effect to that document. It is accordingly necessary that it be properly identified.

9. On the face of it, this Order purports to give effect to a document with a particular name which was published in June 2012. In the Committee’s view, no such document exists at present. If the Order is intended to give effect to the framework document published by the Scottish Ministers on 18 May 2012, then the Committee does not consider that it properly identifies or refers to that document. Accordingly, the instrument appears to be defectively drafted for two reasons: first, it purports to bring into effect a document which does not exist, and, secondly, it does not properly identify the framework document which has been published.

10. The Committee does not consider that the Scottish Ministers’ intention to “re-publish” in June in order to assist persons to find the document resolves the problem. It is concerned that the Scottish Ministers’ proposed remedy involves the Parliament scrutinising this instrument when the framework document which it purports to give effect to has not yet been published (but will be at some point during June after the Parliament has scrutinised the instrument). As it is by scrutiny of this instrument that the Parliament is enabled to scrutinise the framework document itself (which is not otherwise laid or subject to any parliamentary procedure), proceeding in this manner would appear to render that scrutiny ineffective.

11. The Committee draws the instrument to the attention of the Parliament on reporting ground (i) as it appears to be defectively drafted. It purports to bring into effect a document entitled the “Transitional Fire and Rescue Framework for Scotland 2012” which was published in June 2012 when no such document exists. It appears to the Committee that the instrument was intended to bring into effect a document of that name which was instead published on 18 May 2012, but the Order does not properly identify that document. The Committee considers that, for the Order to have proper effect, it is necessary that it properly identifies the intended document.

12. The Committee also draws the instrument to the attention of the lead Committee since it is concerned by the proposal from the Scottish Government that this issue may be resolved by re-publishing the framework document in June 2012, as the Parliament would then be required to consider this instrument (which gives effect to a document to be published in June 2012) without having seen the final published version of the document.

NO POINTS RAISED

13. At its meeting on 29 May 2012, the Committee also considered the following instruments and determined that it did not need to draw the attention of the Parliament to any instrument on any grounds within its remit:

Education and Culture Committee

Fundable Bodies (Scotland) Order 2012 [draft] (SSI 2012/draft)

Infrastructure and Capital Investment Committee

A823(M) Pitreavie Spur Trunk Road (Variable Speed Limits) Regulations 2012 (SSI 2012/145)

M9/A90/M90 Trunk Road (Kirkliston to Halbeath) (Variable Speed Limits and Actively Managed Hard Shoulder) Regulations 2012 (SSI 2012/147)

Private Rented Housing (Scotland) Act 2011 (Commencement No. 3) Order 2012 (SSI 2012/150 (C.13))

Private Landlord Registration (Information and Fees) (Scotland) Amendment Regulations 2012 (SSI 2012/151)

Justice Committee

Legal Services (Scotland) Act 2010 (Ancillary Provision) Regulations 2012 [draft] (SSI 2012/draft)

Licensed Legal Services (Specification of Regulated Professions) (Scotland) Regulations 2012 [draft] (SSI 2012/draft)

Act of Sederunt (Summary Cause Rules Amendment) (Personal Injuries Actions) 2012 (SSI 2012/144)

Legal Services (Scotland) Act 2010 (Commencement No. 2 and Transitional Provisions) Order 2012 (SSI 2012/152 (C.14))

Licensed Legal Services (Complaints and Compensation Arrangements) (Scotland) Regulations 2012 (SSI 2012/153)

Licensed Legal Services (Maximum Penalty and Interest in respect of Approved Regulators) (Scotland) Regulations 2012 (SSI 2012/155)

Rural Affairs, Climate Change and Environment Committee

Code of Practice on Non-Native Species (SG 2012/87)

Wildlife and Natural Environment (Scotland) Act 2011 (Consequential Modifications) Order 2012 [draft] (SSI 2012/draft)

Snares (Training) (Scotland) (No. 2) Order 2012 (SSI 2012/161)

APPENDIX 1

Fire and Rescue Services (Framework) (Scotland) Order 2012 (SSI 2012/146)

On 18 May 2012, the Scottish Government was asked:

1. Article 2 of the Order purports to give effect to a document prepared by the Scottish Ministers under section 40(1) of the Fire (Scotland) Act 2005 entitled “Transitional Fire and Rescue Framework for Scotland 2012” which was published in June 2012. The Scottish Ministers made this Order on 16 May 2012. The date of making the Order accordingly precedes the nominal date of publication of the document, regardless of when the instrument comes into force. The Scottish Government is accordingly asked to explain why it is competent to purport to make an Order giving effect to something which, at the date of making the Order, was not in existence?

2. Separately, it appears that the “Transitional Fire and Rescue Framework for Scotland 2012” (which is referred to in a footnote to the Order and in the Explanatory Note as being published on the Scottish Government’s website) was in fact published on 18 May 2012. On the reverse of the document, it states “Published by the Scottish Government, May 2012”. Is that document the one which the Order is intended to refer to? If that is the case, on what basis does the Scottish Government consider that they have correctly designed it in the Order?

The Scottish Government responded as follows:

1. In reply to question 1, we highlight that section 40(4) of the Fire (Scotland) Act 2005 enables the Scottish Ministers to make an order bringing a framework document into effect. In preparing the document, the consultation requirements set out in section 40(5) and (6) must be followed.

2. In this context, as noted in the preamble, the framework document was prepared (and so to adopt your language, existed) and the necessary consultation carried out, in advance of the making of the order on 16 May 2012. The document as duly prepared was published on the Scottish Government’s website on 18 May.

3. In reply to question 2, as you say, the framework document was published on 18 May. This gave fair notice to those likely to be affected by its terms in due course. Strictly speaking, the words in article 2 of the order ‘which was published in June 2012’ are otiose and can in our view be ignored as having no effect or statutory purpose. That said, in order to assist users in finding the framework document, we propose to republish it in June, updating the reverse of the document to refer to publication in ‘June 2012’.

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