28th 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 17 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 Licensing of Animal Dealers (Young Cats and Dogs) (Scotland) Regulations 2008 (SSI 2008/draft)

3. At its meeting on 10 June the Committee considered the above instrument and agreed to and ask the Scottish Government for an explanation on a number of matters.

Commission of Offences
4. The Regulations provide for various offences and penalties. The Committee considered that there appeared to be some discrepancies between the various provisions and that this conflict led to a lack of clarity and transparency. The Committee was concerned that it was not clear in some cases as to the conduct which will amount to an offence.

5. In particular, the position regarding the offences specifically created by regulation 4(3), 12(6), 17(1) and 17(2) were not clear. Sections 4(3) and 17(1) appear to be offences of strict liability. The offence under 12(6) applies to wilful conduct only. The offences under regulation 17(2)(a) and (b) require knowledge or recklessness as to the false nature of the statements made.

6. Each of these provisions create individual offences which could be prosecuted however, no maximum penalty is set to be applied in the event of a conviction. In the absence of a maximum penalty it appeared to the Committee that the prosecutor will bring proceedings instead under regulation 17(3) which separately (and in addition to the individual provisions mentioned above) makes any contravention or failure to comply with the regulations an offence and applies a maximum penalty. The Committee was unclear as to the purpose and intended effect of the repetition in regulation 17(3). In addition, the Committee noted that regulation 17(3) provides for a “reasonable excuse” defence in relation to any failure. We considered that it was not clear whether it was intended that this excuse should apply to what were apparently stand alone offences of strict liability under regulations 4(3) and 17(1). The Committee therefore sought an explanation from the Scottish Government.

7. The Scottish Government responded as follows––

it is intended that––

(i) the penalty imposed by regulation 17(3) applies to the offences in regulations 4(3), 12(6), 17(1) and 17(2); and

(ii) the prosecution must prove such offences are committed “without reasonable excuse” as provided in regulation 17(3).

8. The Government advised that regulation 17(3) is intended to apply a penalty to the offences contained in regulation 4(3), 12(6), 17(1) and 17(2) and that the prosecution must prove these acts were committed without reasonable excuse. No explanation as to the interaction between these provisions or the repetition was given however.

9. The Committee considers that conduct which gives rise to criminal liability should be clearly expressed and unambiguous. In this case we find the drafting approach to the constitution of offences and penalties confused and not sufficiently transparent. It may be possible to prosecute successfully for failures to comply, but the Committee is left unclear as to the original intention of the drafter and certain provisions appear to be rendered redundant by the construction of the instrument as a whole.

10. The Committee therefore draws this instrument to the attention of the Parliament on the grounds that the meaning and effect of the offence provisions as a whole could be clearer.

11. The Committee is also surprised that “reasonable excuse” is to be permitted as a defence in respect of knowingly making a false statement or being reckless in making a false statement under regulation 17(1). However, we consider this to be a policy matter and as such outside the Committee’s remit. We therefore think it appropriate to bring it to the attention of the lead committee for their interests.

12. The Committee draws this instrument to the attention of the lead committee in respect of the suitability of the “reasonable excuse” defence being applied to the offence of making false statements.

Application of Regulations to premises outside Scotland
13. The Committee considered that it is unclear how it is intended that requirements in relation to premises outside Scotland, including the application of standard conditions, will be enforced, or indeed if they are intended to be enforced. The Committee therefore sought an explanation from the Scottish Government.

14. The Government responded as follows––

these Regulations extend to Scotland only, so the requirements for inspection and powers of inspection imposed under regulations 7(3) and 12 do not apply to or in respect of premises situated outside Scotland;

15. The Government has therefore made clear in its response that the inspection powers are not intended to apply to, or in respect of, premises situated outside Scotland. The Committee notes that the regulations impose a licensing regime. It is clear that persons who sell puppies and kittens in Scotland are to be subject to that regime regardless of where their premises may be. But the licensing regime requires a report to be prepared prior to an application for a licence being granted. An inspection under regulation 7(3) is mandatory prior to reporting. (It is necessary to be satisfied on the welfare matters set out in regulation 7(1).) In our view it is unclear how the licensing scheme will operate effectively in relation to persons with premises outside Scotland but who sell animals in Scotland if premises cannot be inspected and welfare considerations properly assessed. Accordingly, it is not clear to the Committee that regulation 7 as drafted will operate effectively in relation to persons outside Scotland and how such persons will be properly regulated.

16. The Committee therefore draws this instrument to the attention of the Parliament on the grounds that its drafting appears to be defective in so far as it purports to provide for a licensing regime involving inspection to persons whose premises are outside Scotland.

Sheriff’s power to vary conditions and mandatory conditions
17. Regulation 10 sets out a number of mandatory conditions that a licensing authority is obliged to impose on all licences. There is a provision for the licence holder to request a review of and then appeal (on a point of law) against any condition imposed in a licence. In the event of an appeal to the sheriff court regarding a licence or the terms of any condition imposed, regulation 15(3) provides the sheriff may give any direction with respect to the conditions of a licence as he or she thinks proper.

18. The Committee considered that it is not clear from the Regulations if it is intended that the sheriff has discretion to vary mandatory conditions. In order to clarify the relationship between regulations 10 and 15(3) the Committee sought an explanation from the Scottish Government.

19. In their response the Scottish Government confirmed that the intention is that the power of the sheriff is intended to override the mandatory licence conditions, stating––

the power of the sheriff to give directions with respect to conditions under regulation 15(3) is intended to override all conditions including the mandatory licence conditions in regulation 10;

20. The Committee is satisfied with the clarification provided by the Scottish Government. Whether it is appropriate that the sheriff should have an open discretion on appeal on points of law as to whether or not to impose conditions which are set down as mandatory in the regulations is a policy matter outside the remit of this Committee.

21. The Committee therefore draws this instrument to the attention of the lead committee in respect of the power of the sheriff to override mandatory licence conditions.

Enforcement powers of Scottish Ministers
22. Regulation 19(2) permits the Scottish Ministers to direct that enforcement of the Regulations in relation to a particular category of case or cases is to be discharged by the Scottish Ministers instead of the local authority. The Committee noted that the regulations did not expressly confer power on Ministers to appoint inspectors with enforcement powers equivalent to local authority inspectors. The Committee therefore asked for an explanation from the Scottish Government.

23. The Scottish Government responded as follows––

if the Scottish Ministers make a direction under regulation 19(2) then they are exercising the enforcement duties imposed on the local authority, and those duties include the function of appointing an inspector under regulation 12, who will if appointed by the Scottish Ministers have the powers of an inspector under regulation 16.

24. The Government’s view therefore is that in adopting the enforcement duties of the local authority they will acquire the functions of appointing inspectors under regulation 12 with the powers under regulation 16.

25. However, the Committee remains of the view that it would be appropriate to expressly confer power on the Scottish Ministers to appoint inspectors with suitable powers to enforce in the event that they assume the place of the local authority. The Committee also notes that the power given to Ministers in regulation 19 is restricted to adopting the enforcement duties of the local authority. Whether that includes particular enforcement powers is a matter of statutory construction for the courts.

26. The Committee therefore draws this instrument to the attention of the lead committee and Parliament on the grounds that the meaning of regulation 19 could be clearer as to the investigatory powers available to Ministers such that could have an effect on the operation of the instrument.

The Diseases of Animals (Approved Disinfectants) (Scotland) Order 2008 (SSI2008/219)

27. On 10 June 2008, the Scottish Government was asked for an explanation of the following matter––

“The Committee considered the above instrument at its meeting on 10 June and asks the Scottish Government, in relation to article 13(2), how the Scottish Ministers intend to enforce the Order in the event of their making a direction they shall enforce instead of the local authority, in the absence of powers to appoint enforcement officers or inspectors with appropriate powers of entry and inspection etc.

This is given that section 52 and Part V of the Animal Health Act 1981 contain powers of local authorities to appoint inspectors and other officers for enforcement.”

28. The Scottish Government responded as follows––

“Under section 89 of the Animal Health Act 1981, “inspector” is defined as a person appointed to be an inspector for the purposes of that Act by the Minister (i.e. the Scottish Ministers) or by a local authority, and this Order is made for the purposes of that Act. The Scottish Ministers are therefore able, if necessary, to appoint an inspector for the purposes of this Order. Section 63 sets out the general powers of such an inspector, including powers of entry.”

29. The Committee notes that the Government’s response helpfully clarifies that the term “inspector” in this context includes a person appointed as such by Ministers for the purposes of this Order. It also clarifies that section 63 of the 1981 Act sets out the general powers of an inspector.

30. The Committee is satisfied with the Government’s response and draws the instrument to the attention of the Parliament on this basis.

ANNEX

Instruments subject to annulment

the Academic Awards and Distinctions (UHI Millennium Institute) (Scotland) Order of Council 2008 (SSI 2008/212);

the Title Conditions (Scotland) Act 2003 (Conservation Bodies) Amendment Order 2008 (SSI 2008/217);

the Official Feed and Food Controls (Scotland) Amendment Regulations 2008 (SSI 2008/218);

the Academic Awards and Distinctions (Additional Powers of the University of Aberdeen) Order of Council (SSI 2008/220);

the Offenders Assisting Investigations and Prosecutions (Substituted Sentences) (Scotland) Order 2008 (SSI 2008/232);

the High Court of Justiciary Fees Amendment Order 2008 (SSI 2008/237);

the Adults with Incapacity (Public Guardian’s Fees) (Scotland) Amendment Regulations 2008 (SSI 2008/238);

the Roads (Scotland) Act 1984 (Fixed Penalty) Regulations2008 (SSI2008/243); and

the Road Works (Fixed Penalty) (Scotland) Regulations2008 (SSI 2008/244).

Instruments not laid before the Parliament

the Glasgow Commonwealth Games Act 2008 (Commencement No.1) Order 2008 (SSI 2008/245).

APPENDIX

The Licensing of Animal Dealers (Young Cats and Dogs) (Scotland) Regulations 2008 (SSI/2008/draft)

1. On 10 June 2008 the Scottish Government was asked for an explanation of the following matters––

“(a) given that regulations 4(3), 12(6), 17(1) and 17(2) specify offences but no maximum penalty on conviction is specified in relation to those offences,

i. whether it is intended that the penalties imposed by regulation 17(3) applies to those offences as it applies to all other offences under these regulations (other than as provided for by regulation 17(4)); and

ii. if so, whether it is intended that the prosecution must prove that such offences are committed “without reasonable excuse” as provided in regulation 17(3);

(b) whether the requirement for inspection and powers of inspection imposed under regulations 7(3) and 12 respectively are intended to apply in respect of premises used in connection with the sale of young cats or dogs which are situated outside Scotland;

(c) whether the power of the sheriff to give directions with respect to the conditions to which a licence is subject on appeal under regulation 15(3) is intended to override the mandatory licence conditions set out in regulation 10; and

(d) how the Scottish Ministers intend to enforce these Regulations in the event of their making a direction under regulation 19(2) that they do so in the absence of a power to appoint enforcement officers with appropriate powers of entry and inspection similar to those conferred on the local authority by regulations 12 and 16 respectively.”

2. The Scottish Government responded as follows––

(a) it is intended that––

i. the penalty imposed by regulation 17(3) applies to the offences in regulations 4(3), 12(6), 17(1) and 17(2); and

ii. the prosecution must prove such offences are committed “without reasonable excuse” as provided in regulation 17(3);

(b) these Regulations extend to Scotland only, so the requirements for inspection and powers of inspection imposed under regulations 7(3) and 12 do not apply to or in respect of premises situated outside Scotland;

(c) the power of the sheriff to give directions with respect to conditions under regulation 15(3) is intended to override all conditions including the mandatory licence conditions in regulation 10; and

(d) if the Scottish Ministers make a direction under regulation 19(2) then they are exercising the enforcement duties imposed on the local authority, and those duties include the function of appointing an inspector under regulation 12, who will if appointed by the Scottish Ministers have the powers of an inspector under regulation 16.

The Diseases of Animals (Approved Disinfectants) (Scotland) Order 2008 (SSI/2008/219)

3. On 10 June 2008 the Scottish Government was asked for an explanation of the following matter––

“The Committee considered the above instrument at its meeting on 10 June and asks the Scottish Government, in relation to article 13(2), how the Scottish Ministers intend to enforce the Order in the event of their making a direction they shall enforce instead of the local authority, in the absence of powers to appoint enforcement officers or inspectors with appropriate powers of entry and inspection etc.

This is given that section 52 and Part V of the Animal Health Act 1981 contain powers of local authorities to appoint inspectors and other officers for enforcement.”

4. The Scottish Government responded as follows––

Article 13(2)

Under section 89 of the Animal Health Act 1981, “inspector” is defined as a person appointed to be an inspector for the purposes of that Act by the Minister (i.e. the Scottish Ministers) or by a local authority, and this Order is made for the purposes of that Act. The Scottish Ministers are therefore able, if necessary, to appoint an inspector for the purposes of this Order. Section 63 sets out the general powers of such an inspector, including powers of entry.