31st Report, 2013 (Session 4): Subordinate Legislation

SP Paper 327 (Web Only)

SL/S4/13/R31

31st Report, 2013 (Session 4)

Subordinate Legislation

Remit and membership

Remit:

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

(a) any—
(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;
(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.

Membership:

Christian Allard
Nigel Don (Convener)
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 28 May 2013, the Committee agreed to draw the attention of the Parliament to the following instruments—

Mobile Homes Act 1983 (Amendment of Schedule 1) (Scotland) Order 2013 [draft]

2. The Committee’s recommendations in relation to this 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.

Mobile Homes Act 1983 (Amendment of Schedule 1) (Scotland) Order 2013 [draft] (Infrastructure and Capital Investment Committee)

4. This instrument amends the statutory contractual terms which apply to any agreement between the resident of a mobile home and the owner of the site on which the home is situated.

5. If the Order is approved it will come into force on 1 September 2013.

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

7. The Committee sought clarification of the circumstances in which it was possible to review the pitch fee after the review date. The review date is the date specified in the written statement given to the occupier as the date on which the pitch fee will be reviewed each year.

8. New paragraph 19 provides rules about when the pitch fee may be reviewed “at a date after the review date”. The Committee assumes that it was intended that such a review could only take place if there had been no review carried out at the review date. However, paragraph 19 does not make this clear.

9. In its response the Scottish Government confirms that the intention is only to permit a review after the review date if no review took place on that date. The Government accepts that this could have been stated more clearly. The Government considers it unlikely that this admitted lack of clarity will cause a practical problem. The Government has agreed that it will consider amending paragraph 19 if evidence is presented to it that there are practical difficulties caused.

10. The Committee does not consider this response to be satisfactory. The Government is using this instrument to modify statutory contractual terms which are set out in primary legislation. The Committee considers that such terms should be content that the terms it has prescribed are clear and unambiguous. This is particularly the case given that the stated purpose of the regulations is to prevent the exploitation of ambiguity or loopholes in the current contractual terms.

11. The Scottish Government relies on the view that a court would adopt the interpretation of the provision which the Government intends should an occupier apply to it to fix a revised pitch fee. The Committee considers that it is not appropriate to expect owners to rely on defending court actions in order to ensure that no additional review takes place where clear legislation would put the matter beyond doubt. Defending an action will incur costs and inconvenience even if the defender is ultimately successful.

12. The Committee draws the instrument to the Parliament’s attention under reporting ground (h) as the drafting of paragraph 19 to be inserted into Part 1 of Schedule 1 to the Mobile Homes Act 1983 could be clearer.

13. Paragraph 19 is intended only to permit a review of the pitch fee for a mobile home after the “review date” if no review took place on the review date. However paragraph 19 does not restrict subsequent reviews to circumstances where a review did not take place on that date. The Government accepts that the provision could be more clearly drafted to reflect their intention.

NO POINTS RAISED

14. At its meeting on 28 May 2013, the Committee considered the following instruments and determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:

Infrastructure and Capital Investment

Home Energy Assistance Scheme (Scotland) Regulations 2013 (SSI 2013/148)

Justice

Sexual Offences Act 2003 (Notification Requirements) (Scotland) Regulations 2013 [draft]

ANNEX 1

Mobile Homes Act 1983 (Amendment of Schedule 1) (Scotland) Order 2013 [draft]

On 16 May 2013, the Scottish Government was asked:

1. The Scottish Government is asked to explain the matters it has taken into account in reaching the view expressed in paragraph 14 of the EIA that the interference with site owners’ property rights under Article 1 of the First Protocol to the European Convention on Human Rights is justified in the public interest and is proportionate. Specifically why is it considered proportionate to create a presumption that reviews of the pitch fee will follow changes in the RPI rather than reflect market conditions in relation to the market in mobile homes which is to be adjusted in favour of the occupier by increasing the freedom to sell and gift homes?

2. The Scottish Government is also asked to explain why it considers the different treatment of gypsy and traveller occupiers as a class is justified in accordance with Article 14 of the ECHR.

3. The Scottish Government is asked to explain whether new paragraphs 8(2B) or 9(6) of Schedule 1 is broad enough to prevent the owner from requiring payment of arrears due by the occupier at the time of a sale or gift of a mobile home, and if so, why this is considered proportionate.

4. The Scottish Government is asked whether new paragraph 19 intended to permit a review under that paragraph only if no review has taken place at the “review date” and, if so, is this sufficiently clear.

The Scottish Government responded as follows:

1. In reaching the view expressed in paragraph 14 of the EIA, the Scottish Government has considered the demands of the general interest of the community and the protection of individuals’ fundamental rights including the balance to be struck between the property rights of the occupier and the site owner.

The Scottish Government is aware of evidence that the requirement for owner approval to assignation has enabled some owners to block sales unfairly and to harass or pressure residents into selling at unduly low prices should the resident wish to move off park. Without the ability to assign the right to station the mobile home on the same plot of land, the ability to sell the mobile home can be severely restricted. In some cases sale is impossible as the “mobile home” is in practice difficult to move and only has significant value at its location. The Scottish Government is therefore satisfied that a social need exists to justify the removal of the implied term requiring site owner consent to assignation.

If an owner’s right to approve the assignation is in existence by virtue of an existing agreement and is in itself a possession for the purpose of Article 1 of the First Protocol (A1P1) to the European Convention on Human Rights then the Scottish Government considers that the removal of a right to approve does not present an excessive burden on that site owner. As long as the new occupier pays the site fees and complies with the site rules it is unlikely to matter to the site owner who lives on the pitch, so any A1P1 rights the owner has are largely unaffected.

Whilst paragraphs 8 and 9 of Schedule 1, as amended and substituted, will remove the requirement for the site owner to approve the person to whom the assignation of the site agreement is made, the site owner will still be able to require the payment of commission for approving the resale up to a maximum commission rate which is currently set at 10% of the sale price by virtue of the Mobile Homes (Commissions) Order 1983 (S.I. 1983/748).

The increased freedom to sell and gift the mobile home and assign the agreement will not affect any obligations to pay pitch fees. The initial level of pitch fee is agreed with the site owner and this too will remain unaffected by this Order. What is being adjusted is the mechanism for making changes to the pitch fee. Pitch fees are designed to enable site owners to maintain and provide services on site and where required to the pitches. The presumption set out in new paragraph 23(1)(a) that the pitch fee will follow changes in the RPI is only a presumption which can be disregarded if it is unreasonable when taking into account the matters specified in new paragraph 22(1). The provisions are designed to ensure that the site owner will continue to recover the costs of existing services and also to recoup the costs of any improvements carried out. At the same they balance the interests of the occupiers by ensuring that the pitch fee only reflects the costs of improvements which are for the benefit of the occupiers.

2. The Order has been framed to reflect the distinctive requirements of the gypsy and traveller occupiers on local authority and registered social landlord sites. For example, in relation to these sites the Scottish Government is aware that sometimes gypsies and travellers rent and occupy accommodation provided by local authorities and registered social landlords. The terms of new paragraphs 8 and 9 of Schedule 1 (on assignation and gifts of mobile homes and pitches) are of little relevance to this community, as they either do not own caravans or their caravans are usually of a type which can be sold and gifted relatively easily, because these caravans are mobile. The mobility of persons in this community means that the ability to assign the site agreement on a local authority or registered social landlord site is of little importance.

3. The new paragraphs 8(2B) and 9(6) of Schedule 1 refer to payment to be made “in connection with” the sale or gift respectively of the mobile home and the assignation of the related site agreement. The Scottish Government does not consider that the payment of arrears due by the occupier is “in connection with” the sale or gift and related and assignation, or gift and assignation. The occupier’s obligations are set out in new paragraph 24 and are unaffected by a sale or gift of this type. The duty to pay remains with whoever was liable to pay at the particular time, and the site owner’s legal remedies to recover money due is not altered by sale or gift of the mobile home.

4. The intention is that new paragraph 19 will permit a review of a pitch fee under that paragraph only if no review has taken place at the “review date”. The Scottish Government accepts that this intention could have been stated more clearly. However it is highly unlikely that a site owner would seek more than one annual pitch review, as little is likely to have changed so significantly that it would alter the review outcome. It is unlikely that the occupier would agree to a second review in the same year and contractual terms might in any event be relevant if a site owner attempted such review. Any dispute would be dealt with by a court and the terms that courts can imply into agreements (under Part 2 of Schedule 1) continue to include that there will be annual review. If the Scottish Government is presented with any evidence after the Order comes into force that there are difficulties as a consequence of reviews being undertaken more often than annually then it will consider amending paragraph 19.

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