27th Report, 2013 (Session 4): Subordinate Legislation

SP Paper 318 (Web Only)

SL/S4/13/R27

27th Report, 2013 (Session 4)

Subordinate Legislation

Remit and membership

Remit:

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

(a)

(i) subordinate legislation laid before the Parliament;

(ii) any Scottish Statutory Instrument not laid before the Parliament but classed as general according to its subject matter;

and, in particular, to determine whether the attention of 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;

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Nigel Don (Convener)
Jim Eadie
Mike MacKenzie
Hanzala Malik
John Pentland
John Scott
Stewart Stevenson (Deputy Convener)

Committee Clerking Team:

Clerk to the Committee
Euan Donald

Assistant Clerk
Elizabeth White

Support Manager
Daren Pratt

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 7 May 2013, the Committee agreed to draw the attention of the Parliament to the following instruments—

Police Service of Scotland (Amendment) (No. 2) Regulations 2013 (SSI 2013/125)

Late Payment of Commercial Debts (Scotland) (No. 2) Regulations 2013 (SSI 2013/131)

2. The Committee’s recommendations in relation to these instruments are set out below.

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

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Police Service of Scotland (Amendment) (No.2) Regulations 2013 (SSI 2013/125) (Justice Committee)

4. This instrument corrects a number of defects and drafting errors identified by the Committee in the Police Service of Scotland Regulations 2013, the Police Service of Scotland (Police Cadets) Regulations 2013, the Police Service of Scotland (Special Constables) Regulations 2013, the Police Service of Scotland (Conduct) Regulations 2013 and the Police Service of Scotland (Performance) Regulations 2013.

5. The Regulations are due to come into force on 18 May 2013.

6. In considering the instrument, the Committee asked the Scottish Government to clarify why it had not issued this instrument free of charge in accordance with the Scottish Government’s usual policy when issuing purely corrective instruments. The Minister’s reply indicates that it considers the “instrument corrects two defects while the majority of its provisions are instead clarificatory amendments. The Scottish Government decided on this occasion not to issue this instrument free of charge.” The correspondence is reproduced at Appendix 1.

7. The Committee draws the instrument to the attention of the Parliament on the general reporting ground.

8. This instrument corrects several instances of defective drafting, lack of clarity and drafting errors identified by the Committee in the Police Service of Scotland Regulations 2013, the Police Service of Scotland (Police Cadets) Regulations 2013, the Police Service of Scotland (Special Constables) Regulations 2013, the Police Service of Scotland (Conduct) Regulations 2013 and the Police Service of Scotland (Performance) Regulations 2013. It does not make any other substantive provision.

9. It is the usual practice of the Scottish Ministers to issue corrective instruments free of charge to all known recipients, and to include a headnote disclosing this fact. The Ministers have not done so in this case. The Committee is not persuaded by the Ministers’ arguments as to why this instrument is not a corrective instrument.

10. The Committee recognises that Ministers have a discretion in this matter but considers that the purpose of the practice is to promote accessibility of legislation and to ensure that end users are not put to additional expense in gaining access to legislation where corrective action is required. The Committee considers it is this principle that should be applied when considering whether a corrective instrument should be issued free of charge or not. The guiding principle is not whether the Ministers themselves consider individual corrections among those which are made are necessary or not.

11. Applying this principle to the current instrument the Committee considers that it is clear that the primary objective of this instrument was to correct acknowledged defects. The Committee notes in particular that amendments were required to the Police Cadets Regulations in order for them to have the legal effect the Government intended. The Committee previously reported its dissatisfaction with the Scottish Government’s decision not to consolidate the existing Police Cadet Regulations but to apply them with modifications. The Committee considered that this approach hindered access by affected persons to the legislation as it is in force.

12. In these circumstances the Committee would have expected the Government to mitigate the additional inconvenience to those affected by providing this instrument to them free of charge.

Late Payment of Commercial Debts (Scotland) (No. 2) Regulations 2013 (SSI 2013/131) (Economy, Energy and Tourism Committee)

13. This instrument corrects an error in amendments to the Late Payment of Commercial Debts (Interest) Act 1998 (the 1998 Act) made by the Late Payment of Commercial Debts Regulations 2013 (SSI 2013/77).

14. In SSI 2013/77 an additional 30 days for payment has been allowed in error in relation to contracts where there is a procedure for acceptance or verification that the goods or services conform to the terms of the contract.

15. The standard period allowed by the Directive is 30 days. Due to an error in the complex manner in which the Directive has been implemented the total period allowed under the Act as amended by 2013/77 is 60 days from the day on which the process is completed but the Directive only permits an extended period of 60 days for certain public authorities. This instrument reduces the total period in all cases to 30 days.

16. The change does not affect contracts entered into before 3 May 2013 which is the day when the instrument comes into force.

17. As there has been a failure to comply with the laying requirements in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, the Scottish Ministers provided a letter to the Presiding Officer explaining that failure. The correspondence is reproduced at Appendix 2.

18. The Committee draws the instrument to the attention of the Parliament on reporting ground (j).

19. There has been a failure to lay the instrument at least 28 days before it comes into force, as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.

20. The Committee finds the breach of the 28 day rule acceptable in this case since it is important to ensure that Scots law properly implements Directive 2011/7/EU as quickly as possible.

NO POINTS RAISED

21. At its meeting on 7 May 2013, the Committee considered the following instrument and determined that it did not need to draw the attention of the Parliament to it on any grounds within its remit:

Finance

Freedom of Information (Amendment) (Scotland) Act 2013 (Commencement and Transitional Provision) Order 2013 (SSI 2013/136 (C.10)).

APPENDIX 1

Police Service of Scotland (Amendment) (No. 2) Regulations 2013 (SSI 2013/125)

On 25 April 2013, the Scottish Government was asked:

1. As the policy note indicates, this instrument makes corrections and clarifying amendments to the Police Service of Scotland Regulations 2013, the Police Service of Scotland (Police Cadets) Regulations 2013, the Police Service of Scotland (Special Constables) Regulations 2013, the Police Service of Scotland (Conduct) Regulations 2013 and the Police Service of Scotland (Performance) Regulations 2013. The policy note further indicates that these amendments are being made after consideration of comments made by the Subordinate Legislation Committee (with the exception of the amendment to the Police Service of Scotland (Conduct) Regulations 2013, although we observe that that amendment addresses a minor point raised by the legal advisers to the Committee). It appears to us that, in the circumstances, it would be to usual to include a headnote indicating that this instrument is being made to correct errors in the aforementioned instruments, and that it is being issued free of charge to all known recipients of those instruments. Could you please explain why this has not been done in this case?

The Scottish Government responded as follows:

The Scottish Government thanks the Committee for its question. The instrument in question is a mixture of both corrections of errors and amendments to clarify the law in the amended instruments. The Scottish Statutory Instrument Drafting Manual provides that where an instrument “is issued to correct defects in an earlier instrument then it may be issued free of charge” [emphasis added]. The instant instrument corrects two defects while the majority of its provisions are instead clarificatory amendments. The Scottish Government decided on this occasion not to issue this instrument free of charge and consequently no headnote was required.

The Scottish Government acknowledges that there is a balance to be struck in such mixed instruments between the number of defects being corrected as against any other amendments being made; distinguishing the former as those which are necessary to ensure the instrument being amended can operate as intended. On this occasion the Scottish Government chose to make a clarificatory instrument rather than wait to make adjustments until other amendments were being made to the instruments and, as part of that, chose to include a small number of amendments which corrected defects. The Scottish Government does not regard the clarificatory amendments as necessary for the proper operation of the instruments and given the small number of error correcting amendments does not consider the instrument merits being provided free of charge.

APPENDIX 2

Late Payment of Commercial Debts (Scotland) (No. 2) Regulations 2013 (SSI 2013/131)

Breach of laying requirements: letter to Presiding Officer

The above instrument was made on 24th April 2013 under section 2(2) of the European Communities Act. It is being laid before the Scottish Parliament on 26th April 2013 and comes into force on 3rd May 2013.

Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 has not been complied with. In accordance with section 31(3) of that Act, this letter sets out why it is necessary to lay the instrument less than 28 days before it is brought into force.

The Regulations correct an error in the Late Payment of Commercial Debts (Scotland) Regulations 2013 (SSI 2013/17) which amended the Late Payment of Commercial Debts (Interest) Act 1998 so as to implement Directive 2011/7/EU on combatting late payment in commercial transactions.

One part of the first SSI introduced a period of up to 30 days for the purchaser to confirm that the goods or services they have received conform with the contract before the payment period commences, as required by the Directive. Unfortunately the wording has the effect of adding an additional (unnecessary) period of 30 days to this acceptance and verification procedure. This new SSI, which is very short, removes the unnecessary words. Similar Regulations are being made at Westminster for England, Wales and Northern Ireland.

As our legislation is not at present in conformity with the Directive we wish to make this correction as soon as possible. The new SSI will therefore come into effect 7 days after it has been laid rather than the normal 28 days for a negative SSI.

The Scottish Government regrets that on this occasion it has been unable to lay the Regulations within a period which would allow scrutiny by the Parliament before it comes into force, and will endeavour to ensure that a breach is avoided in future.

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