24th Report, 2008 (Session 3)

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;

(ii) Scottish Statutory Instrument not laid before the Parliament but classified as general according to its subject matter,

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; and

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

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Jackie Baillie
Jackson Carlaw
Helen Eadie
Ian McKee
John Park
Gil Paterson (Deputy Convener)
Jamie Stone (Convener)

Committee Clerking Team:

Clerk to the Committee
Shelagh McKinlay

Senior Assistant Clerk
David McLaren

Assistant Clerk
Jake Thomas

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 3 June 2008 the Committee determined that it did not need to draw the attention of Parliament to the instruments listed in the Annex to this report on any of the grounds within its remit.

2. The report is also addressed to the following committees as the lead committees for the instruments specified:

Draft Instruments subject to approval

The Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) Order 2008 (SSI 2008/draft)

1. On 27 May 2008, the Committee asked the Scottish Government––

(a) why it is considered that the preamble to the Order need not expressly refer to section 50(2) of the Crime (International Co-operation) Act 2003, given that that sub-section enables the order to make different provision for different purposes, and that article 2 of the Order designates the USA as a participating country only for the purposes of 5 sections of the 2003 Act?

(b) if the view is taken that this is an omission, what is the effect of the omission (if any) considered to be?"

2. The Government’s response is reproduced at Appendix 1.

3. The Committee noted that Article 2 of the draft Order designates the USA as a participating country under Part 1 of the 2003 Act only for the purposes of sections 37, 40, 43, 44 and 45 of the 2003 Act.

4. It further noted that section 50(2) contains a specific enabling provision that the order may make different provision for different purposes. Section 51(2)(b), which is cited in the preamble, provides that a participating country, in relation to any provision of Part 1, means any other country designated by order. Initially, it was not wholly clear to the Committee that section 51(2)(b) is a power which enables the USA to be designated only for the purposes of particular sections of the 2003 Act. The Committee considered that section 50(2) is the express enabling power permitting different provisions for different purposes.

5. Whilst the Committee finds the Government’s response useful, the Committee takes the view there is some ambiguity as to the scope of section 51(2)(b). It could either be intended to mean that the country should be defined for any, each and all provisions (without specifying them); or it can be intended to mean what the Government contends – that the term "any" means the Government can select the particular provisions in the Act for which the USA shall be a designated country.

6. The Committee notes that section 50(2) generally enables different provision to be made for different purposes in the order. The Committee considers that this could be of assistance given the ambiguity referred to above.

7. However, the Committee notes that this is not a matter affecting the validity or operation of the instrument. The preamble includes the usual reference to all other enabling powers to make the instrument, which by implication includes reference to powers which are required to make the order, and have not been cited. In the possibly unlikely event of a dispute arising as to whether section 51(2)(b) is a sufficient power to make this order, the reference to other enabling powers is enough, in the Committee’s view, to add a reference to section 50(2) by implication.

8. Given that the Committee considers that the issue in relation to section 51(2)(b) is one of an ambiguity in interpretation, and that arguments could be put either way, it does not conclude that in this instance there has been a failure to follow normal drafting practice.

9. In conclusion, the Committee is satisfied with the Government’s response on the use and citation of the enabling powers, and draws this instrument to the attention of the lead committee and Parliament on this basis.

Instruments subject to annulment

The Mobility and Access Committee for Scotland Revocation Regulations 2008 (SSI 2008/187)

10. On 27 May, the Committee asked the Scottish Government why it has not repealed or revoked the references to the Mobility and Access Committee for Scotland in the enactments listed below in accordance with normal drafting practice and whether it intends to do so.

11. The references are as follows––

• The Public Appointments and Public Bodies etc. (Scotland) Act 2003
  
  
• The Ethical Standards in Public Life etc. (Scotland) Act 2000 (Codes of Conduct for Members of certain Scottish Public Authorities) Order 2006 (SSI 2006/26)
  
  
• The Race Relations Act 1976 (Statutory Duties) (Scotland) Amendment Order 2006 (SSI 2006/467)
  
  
• The Race Relations Act 1976 (Statutory Duties) (Scotland) Order 2002 (SSI 2002/62).

12. The Scottish Government’s response is reproduced at Appendix 2.

In its response, the Government pointed out that there are alternative ways of achieving the desired result. It states that it would prefer to make the consequential amendments to remove references to MACS throughout the statute book through the individual schemes in which they appear because a higher level of scrutiny and consultation requirements would be engaged through that method.

13. The Committee agrees with the Government that there is no issue in terms of the legal effect of the obsolete references remaining on the statute book in the interim. Its question related to normal drafting practice and its purpose was to obtain an explanation from the Scottish Government as to how it proposed to "tidy up" the statute book in light of the abolition of the Committee. The Committee is content that a satisfactory explanation had been received.

14. The Committee draws this instrument to the attention of the lead committee and Parliament on the grounds that it is satisfied with the Government’s response. It also welcomes the undertaking given by the Government to remove obsolete references at the next legislative opportunity.

ANNEX

Instruments subject to annulment

The Licensing (Transitional Provisions) (Scotland) Order 2008 (SSI 2008/194)

The Strategic Development Planning Authority Designation (No. 1) (Scotland) Order 2008 (SSI 2008/195)

The Strategic Development Planning Authority Designation (No. 2) (Scotland) Order 2008 (SSI 2008/196)

The Strategic Development Planning Authority Designation (No. 3) (Scotland) Order 2008 (SSI 2008/197)

The Strategic Development Planning Authority Designation (No. 4) (Scotland) Order 2008 (SSI 2008/198)

The National Scenic Areas (Scotland) Regulations 2008 (SSI 2008/202)

The Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2008 (SSI 2008/203)

APPENDIX 1

The Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) Order 2008 (SSI 2008/draft)

1. On 27^th May 2008 the Committee asked the Scottish Government––

(a) Why it is considered that the preamble to the Order need not expressly refer to section 50(2) of the Crime (International Co-operation) Act 2003, given that that sub-section enables the order to make different provision for different purposes, and that article 2 of the Order designates the USA as a participating country only for the purposes of 5 sections of the 2003 Act; and

(b) if the view is taken that this is an omission, what is the effect of the omission (if any) considered to be.

The Scottish Government responds as follows––

Question (a)

The Scottish Government take the view that the power in section 51(2)(b) is sufficient to make the provision found at article 2 of the Order. That power is a power to designate a country in relation to ‘…any provision…’ of that part of the Act. It is the Scottish Government’s position that the reference to ‘any provision’ allows them to designate a country in relation to specific sections of Part I of the Crime (International Co-operation) Act 2003 ("the 2003 Act") without reference to the power in section 50(2). Although the drafting of article 2 of the Order uses the word ‘purpose’ in relation to the specified sections it does not seem to us that the use of this term is particularly of the essence. The effect of the article is simply that the United States of America is designated for those sections.

The Scottish Government would submit that the power at section 50(2) would have been needed in relation to this Order if the territory in question was to be designated, for example, for the purposes of a limited category of offences. However, given that the United States is simply designated for the particular sections in question then the Government takes the view that reliance on section 50(2) is not required.

Question (b)

If this is an omission, which as discussed above the Scottish Government do not think it is, then we would suggest that the omission of a reference to section 50(2) from the preamble to the Order is of no significant consequence. The Scottish Government takes the view that the general enabling reference (‘…all other powers enabling them to do so.’) in the preamble would be sufficient, in this instance, to allow reliance on the un-cited section 50(2).

APPENDIX 2

The Mobility and Access Committee for Scotland Revocation Regulations 2008 (SSI 2008/187)

3. On 27^th May 2008 the Committee asked the Scottish Government––

"why it has not repealed or revoked the references to the Mobility and Access Committee for Scotland in the enactments listed below in accordance with normal drafting practice and whether it intends to do so––

The Public Appointments and Public Bodies etc. (Scotland) Act 2003

The Ethical Standards in Public Life etc. (Scotland) Act 2000 (Codes of Conduct for Members of certain Scottish Public Authorities) Order 2006 SSI 2006/26

The Race Relations Act 1976 (Statutory Duties) (Scotland) Amendment Order 2006 SSI 2006/467

The Race Relations Act 1976 (Statutory Duties) (Scotland) Order 2002 SSI 2002/62."

4. The Scottish Government responds as follows––

We thought it more appropriate that the repeal or revocation of the references be made by Orders under the related Acts, particularly bearing in mind that one of these Orders would be subject to affirmative procedure and another would be subject to a consultation requirement. We will ensure that the adjustments are made at the next relevant legislative opportunities.

In the meantime, we consider that leaving the references to the Mobility and Access Committee for Scotland in the legislation mentioned is not problematic as the references will be made redundant and of no effect.