29th 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 24th 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:

Instruments subject to annulment

The National Health Service Pension Scheme (Scotland) Regulations 2008 (SSI 2008/224)

3. At its meeting on 17th June, the Committee and agreed to ask the Scottish Government for clarification on a number of matters.

4. The Scottish Government’s response is reproduced at Appendix 1.

5. These Regulations establish new pension arrangements for people employed in the NHS in Scotland on or after 1st April 2008, wishing to join the NHS Superannuation Scheme for Scotland. It also covers people wishing to join who were in such employment immediately before that date, but not already members of that scheme, under the pension arrangements contained in the National Health Service Superannuation Scheme (Scotland) Regulations 1995 (SI 1995/365).

6. The Regulations will come into force on 28th June 2008. The Executive Note contains further details on the background and objectives of the Regulations. The main changes under the new pension scheme are a move from a normal benefit age of 60 to 65, and the accrual rate moving from 1/80th to 1/60th.

7. The Committee agreed to draw this instrument to the attention of the Parliament and to the lead committee on the grounds that––

(a) in the definition of “commissioned services” in regulation 2.A.1(1), there is an error in so far as the reference to “section 16(1)(3)” should be to “section 16(1)”. The Government has indicated that this will be corrected within forthcoming consequential regulations. The Committee does not consider this error to affect the validity or operation of the instrument as a whole;

(b) in regulations 2.B.1(6)(b)(v), 2.H.1(2)(e) and 3.H.1(3)(3), the term “the 2006 Act” is used but is not defined in the Regulations. As such, the Committee considers the meaning of these regulations could be clearer. The Government has indicated its intention to insert a definition of “the 2006 Act” into these regulations through forthcoming consequential regulations;

(c) the drafting of regulation 2.D.7(8)(b) is defective in so far as the reference to “regulation 2.D.6(1)(c)” should be to “regulation 2.D.6(1)(b)(ii)”. Again, the Government has indicated that this will be corrected within forthcoming consequential regulations. The Committee considers that this error may affect the operation of the instrument since, even if the informed reader might be required to make the connection to regulation 2.D.6(1)(b)(ii) it is not clear whether 2.D.6(1)(b)(ii) is to be read as contained in that provision, or as modified by 2.D.7.(5), for the purposes of 2.D.7.(8)(b). It would be helpful for this to be clarified;

(d) regulation 2.H.6(2) contains an error as the reference to “regulation 2.H.(4)” should be to “regulation 2.H.4”. The Government has agreed to correct this error by correction slip;

(e) the definition of “active member” in regulation 3.A.1(1), contains an error as the reference to “regulation 3.D.5(9)” should be a reference to “3.D.5(8)”. The Government has indicated that this shall be corrected within the forthcoming consequential Regulations. The Committee does not consider this error affects the validity or operation of the instrument as a whole, as it is accepted that this reference is explanatory in nature and does not affect the operation of 3..D.5(8).

(f) regulation 3.A.8(8), contains an error as the reference to “paragraph (3)(a)” should be a reference to “paragraph 5(b)”. This will be corrected in the forthcoming consequential Regulations. The Committee does not consider that this error affects the validity or operation of the instrument as a whole; and

(g) the meaning of regulation 3.D.6(1)(b)(i) could be clearer. The Government has indicated this shall also be addressed in the forthcoming consequential Regulations.

The National Health Service Superannuation Scheme (Additional Voluntary Contributions, Injury Benefits and Compensation for Premature Retirement) (Scotland) Amendment Regulations 2008 (SSI 2008/225)

Background

8. These Regulations, which are subject to negative resolution procedure, are due to come into force on 28th June 2008 but are due to have effect from 1st April 2008. The enabling act permits retrospective effect.

9. These Regulations amend the following three sets of Regulations––

• The National Health Superannuation Scheme (Scotland) (Additional Voluntary Contributions) Regulations 1998 (the “AVC Regulations”);
• The National Health Service (Scotland) (Injury Benefits) Regulations 1998 (the “Injury Benefits Regulations”); and
• The National Health Service (Compensation for Premature Retirement) (Scotland) Regulations 2003 (“the Compensation Regulations”).

10. The amendments insert new definitions in the AVC and Injury Benefits Regulations and amend the Compensation Regulations so as to specify the amount of compensation payable by way of an annual allowance.

11. On 17th June 2008, the Committee agreed to ask the Scottish Government––

(a) in relation to regulation 2(11)(d), which inserts a new paragraph (10)(a) into paragraph 10 of regulation 15 of the National Health Superannuation Scheme (Scotland) (Additional Voluntary Contributions) Regulations 1998, to explain whether the reference to regulation E2A(7) of the National Health Superannuation Scheme (Scotland) Regulations 1995 is an error in so far as no such regulation appears to exist? If the view is taken that this is an error, what is the correct reference, and what is the effect of the error considered to be; and

(b) to explain why regulation 3(5)(b) refers to the substitution of the words “widow, widower or surviving civil” with the word “surviving” in both cases where occurring in regulation 7(1) of the National Health Service (Scotland) (Injury Benefits) Regulations 1998 given that the words “widow, widower or surviving civil” appear only once and explain the effect of the drafting.

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

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

The National Health Service Superannuation Scheme (Scotland) Amendment Regulations 2008 (SSI 2008/226)

Background

14. This instrument amends the NHS Superannuation Scheme (Scotland) Regulations 1995 (SI 1995/365) (the principal Regulations). The principal regulations will continue to apply to (essentially) NHS staff who are in employment up to and including 1st April 2008. The new scheme Regulations will apply to NHS staff employed on or after 1st April 2008 who wish to join the NHS pension scheme or to staff employed before that date but who are not members of the scheme established under the principal Regulations.

15. This instrument is due to come into force on 28th June 2008 but will have effect from 1st April 2008. It accordingly has retrospective effect, which is permitted under the Superannuation Act 1972 (the 1972 Act). This instrument parallels an English instrument (SI 2008/654) which was made on 11th March and came into force on 1st April 2008. Accordingly it did not require to have retrospective effect.

Notice of intention to buy additional service

16. Regulation 46 amends provision in the principal Regulations relating to rights to buy additional service¹, setting out the conditions which must be satisfied before a member may increase his benefits by buying additional service. One of the new conditions is that notice of the member’s intention to exercise that right must be received by his employing authority or scheme administrator on or before 31st March 2008.

17. However, the Committee was concerned that this condition was impossible to fulfil since, in short, although in law this instrument can and does have effect retrospectively, pension scheme members cannot go back in time and send notice (as now required) before 31st March 2008.

18. Secondly, if the condition is impossible to perform, the question arises as to whether it is enforceable. At its meeting on 17 June, the Committee agreed to ask the Scottish Government to clarify––

in relation to regulation 46(2) which inserts new Q1(1A)(b) into the 1995 Regulations, (1) how this condition can be fulfilled, given that (a) it is not clear how members will have known about that condition in advance of 31st March 2008 (b) the condition did not have legal effect until the day after the condition was to have been fulfilled; (2) how this condition will be applied by scheme administrators and (3) what if any prejudice may be caused to members;

19. The response of the Scottish Public Pensions Agency on behalf of the Scottish Government is reproduced at Appendix 3.

20. The response points out that members of the scheme were informed in November 2007 by a circular, and in their payslip, that this entitlement would cease on 31 March. The Scottish Government’s view therefore, is that amending the regulations with retrospective effect has not resulted in any prejudice being caused to pension scheme members, since the SPPA advised members in advance of the deadline for buying additional service.

21. However, there is still the question of the legal position to consider. The Committee considers that it is good regulatory practice to change the law, and therefore the scheme, in advance of changes taking effect, (albeit that Ministers have power to make retrospective provision). That has not happened in this case.

22. While existing members were informed of the proposed change in time to exercise their right to buy additional service, the legal basis for bringing that right to an end was not put into effect on the day on which it was intended this would take place – 1 April 2008., That is only being recorded as a matter of law after the fact. It is not clear to the Committee what position members who joined the scheme after 31st March, but before these regulations were made, are in prior to these regulations coming into force. The Scheme as legally constituted² during that period does not indicate that the election to buy additional service must be exercised before 31st March. It is not clear whether they were informed that this right would be affected retrospectively.

23. The Committee continues to have concerns that ending the right to buy additional service has been given legal effect significantly later than the date on which that right ceases to be exercisable and then applied retrospectively. It would not have been necessary to do so had these Regulations been made in March. The Committee therefore considers that this is an unusual use of enabling powers and draws this instrument to the attention of the lead committee and Parliament on this basis.

Altering Figures by Determination

24. The regulations contain a number of provisions which confer functions on Scottish Ministers (and others). New paragraphs D1(2F) and 2(G) as inserted by regulation 9 enable Ministers to make certain determinations relating to periods of part time employment in relation to individual members. However, new paragraph D1(2) enables Ministers to substitute different pay bands in the table used to prescribe contribution percentage rates or to fix the rate of contribution if the circumstances in paragraph (1B) apply. These are rates which apply generally to the scheme and are integral to how members’ contributions are levied and collected. A similar issue arises in relation to medical and dental practitioners in the amendment to Schedule 1 paragraph 10(2A) made by regulation 63 of these Regulations.

25. The instrument therefore seeks to permit Ministers to make determinations, which will have the effect of revising pension contributionrates. The Committee was concerned that the instrument effectively provides for Ministers to alter contributions generally under the Scheme by an administrative process, rather than through a transparent and accountable legislative process.

26. At its meeting on 17th June the Committee therefore agreed to ask the Scottish Government to clarify––

given new D1(2) and Schedule 1, para 10(2A) of the 1995 Regulations (inserted by regulations 9 and 63 respectively) empower Scottish Ministers to make determinations altering the figures to which those provisions apply, (1) why it was considered competent and appropriate to do so by means of determination rather than amending the 1995 Regulations from time to time and (2) how such determinations are to be made transparent and accessible to readers of the 1995 Regulations.

27. The response from the Scottish Government sets out its view that Schedule 3 of the Superannuation Act 1972 (“the 1972 Act”) permits the Scottish Ministers to sub-delegate a power to determine contribution rates to the pension scheme. The response goes on to state that it is more appropriate that such administrative changes are made by determination rather than rather than through legislation, as contribution rates may reflect pay rate changes more quickly.

28. The Committee remains concerned at the approach taken here. In its view the powers (of sub-delegation) contained in Schedule 3 of the 1972 Act should be strictly construed and it notes that the specific powers relate to individual determinations specific to one member. In its view the more general power under paragraph 11 of that Schedule should be similarly construed. In contrast, the power delegated to Scottish Ministers in this instrument is to make determinations of a general and legislative nature in relation to the scheme as a whole.

29. The Committee notes that this instrument inserts into the Principal Regulations, tables setting out the percentage contribution to a pension scheme which apply to incomes falling within certain bands. These figures are, therefore, being set by regulations, i.e. through legislation. However, the instrument also seeks to provide for Ministers to vary these figures through determination i.e. an administrative process.

30. While the Committee accepts that sub-delegation is expressly authorised³ there remains a question as to the limits of what is permitted to be delegated and whether it is competent or appropriate to rely on it in this context. The power authorising sub-delegation does not expressly extend to enabling variation of regulations. If it was considered appropriate to specify figures in this instrument, the Committee is not clear why it is appropriate to change them in another way (i.e. by determination).

31. Therefore, the Committee draws this instrument to the attention of the lead committee and Parliament on the basis that there appears to be a doubt as to whether it is intra vires.

Staff who have joined between 1April 2008 and 4 June 2008

32. The Committee was also concerned that, given the retrospective operation of this instrument, there is a question as to how staff who joined the scheme between 1 April 2008 and 4 June will know what the elements of the new scheme are. The Committee therefore wishes to draw this instrument to the attention of the lead committee for its interests.

Consolidation

33. The Committee also recommends that the principal Regulations be considered by the Consolidation Working Group as a possible candidate for consolidation as this is the 17th occasion on which the principal regulations have been amended.

The Teachers’ Superannuation (Scotland) Amendment Regulations 2008 (SSI2008/227)

34. These regulations amend the Scottish Teachers’ Superannuation Scheme (STSS - contained in the Teachers’ Superannuation (Scotland) Regulations 2005 - the 2005 Regulations). They also amend the Teachers’ Superannuation Additional Voluntary Contributions) (Scotland) Regulations 1995 and the Teachers’ (Compensation for Premature Retirement and Redundancy) (Scotland) Regulations 1996.

35. At its meeting on 17th June, the Committee agreed to ask the Scottish Government the following questions––

(a) given that Regulation 16(3) and (4) govern the application of the textual amendment to the 2005 Regulations made by regulation 16(1) but do not do so as a textual amendment, to clarify the reasons for that approach and whether it would have been clearer to readers to have made those provisions as textual amendments; and

(b) how members and other readers of this instrument will be made aware of the availability of the right to make an election under regulation 30.

36. The Committee is concerned that the decision not to make textual amendments to the 2005 regulations, but rather to place new provisions within this instrument, reduces the transparency and accessibility of the consolidated version of the 2005 Regulations. Under regulation 30, where a person is placed in a worse position following this instrument than they would otherwise have been, they may elect by 1 September 2008 that the relevant provision should not apply to them. Clearly the accessibility of the regulations is of particular importance to individuals in this position. It is expected that the Scottish Public Pensions Agency will inform scheme members of the impact of this instrument, but that is a distinct issue from whether the required standard of accessibility has been achieved by the regulations themselves.

37. The Scottish Government’s response is reproduced at Appendix 4.

38. The Scottish Government’s response states that the provisions are very limited in their application and that this had informed their decision not to amend the instrument itself. The Committee acknowledges that there is also an argument that the 2005 regulations could become cluttered with provisions which quickly expire if provision along the lines of regulation 30 was inserted following every amending instrument.

39. The Committee therefore considers that, on balance, the drafting approach adopted is competent and not wholly unreasonable.

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

The Local Government Pension Scheme (Administration) (Scotland) Regulations 2008 (SSI 2008/228)

41. At its meeting on 17th June 2008, the Committee asked the Scottish Government to explain whether the reference to the European Assembly Elections Act 1978 in regulation 8(3)(b) is an error, given that the 1978 Act has been repealed by the European Parliamentary Elections Act 2002 and, if so, explain the effect of the reference to the 1978 Act.

42. The Scottish Government’s response is reproduced at Appendix 5.

43. The Committee notes that the Government has acknowledged that the reference in regulation 8(3)(b) to “European Assembly Elections Act 1978” (which was repealed by the Parliamentary Elections Act 2002) is an error, and has undertaken to correct this error prior to these Regulations coming into force on 1st April 2009.

44. The Committee draws this instrument to the attention of the lead committee and Parliament on the grounds that, in relation to regulation 8(3)(b), there is an instance of defective drafting in so far as the provision refers to the European Assembly Elections Act 1978 which has been repealed and the provision refers to “acting returning officer” rather than “returning officer”.

The Local Government Pension Scheme (Transitional Provisions) (Scotland) Regulations 2008 (SSI 2008/229)

45. At its meeting on 17th June 2008, the Committee agreed to ask the Scottish Government for an explanation on a number of matters (these are set out in Appendix 6).

46. The Scottish Government’s response is also reproduced at Appendix 6.

47. The Committee agreed to draw this instrument to the attention of the lead committee and Parliament on the following grounds––

(a) in paragraph 1 of Schedule 2, the reference to “subject to paragraph 7” is an error in so far as there is no paragraph 7 in Schedule 2. The Government has undertaken to correct this error prior to these Regulations coming into force. The Committee does not consider that this error affects the validity or operation of the instrument because, in the circumstances where there is no paragraph 7, the reference has no legal effect;

(b) in paragraph 1 of Schedule 2, the reference to “regulation 18(2)” rather than “regulation 18(3)” of the Local Government Pension Scheme (Benefits, Membership and Contributions) (Scotland) Regulations 2008 is an error. The Government has undertaken to correct this error prior to these Regulations coming into force. The Committee does not consider that this error is likely to affect the operation of the instrument;

(c) in paragraph 4(1) of Schedule 2, the reference to “regulation 14” rather than “regulation 13” of the Local Government Pension Scheme (Administration) (Scotland) Regulations 2008 is an error. The Government has undertaken to correct this error prior to these Regulations coming into force. The Committee does not consider that this error is likely to affect the operation of the instrument;

(d) paragraph 6(3) of Schedule 2 contains an error in so far as it repeats the effect of paragraph 3(1)(b) combined with paragraph 3(2) of Schedule 2. The Government has undertaken to correct this error prior to these Regulations coming into force. The Committee does not consider that this error affects the validity or operation of the instrument; and

(e) the meaning of regulation 15(2)(b) could be clearer in so far as it refers to the “1987 Regulations” which is not defined in these Regulations. The Committee is pleased to note that the Government has undertaken to make appropriate amendments to the Regulations to address this omission before they come into force.

The Local Government Pension Scheme (Benefits, Membership and Contributions) (Scotland) Regulations 2008 (SSI 2008/230)

48. At its meeting on 17th June 2008, the Committee asked the Scottish Government to explain whether the reference to the definition of “pension member” in regulation 2 should be to “pensioner member” in the circumstances where this is the term defined in section 124(1) of the Pensions Act 1995 and, if so, to explain the effect of this error.

49. The Scottish Government’s response is reproduced at Appendix 7.

50. The Committee notes that the Government has acknowledged that the reference to “pension member” rather than “pensioner member” is an error, and that it has undertaken to correct this prior to the Regulations coming into force.

51. The Committee draws this instrument to the attention of the lead committee and Parliament on the grounds that the definition of “pension member” rather than “pensioner member” in regulation 2 is an error but which is not likely to affect the operation of the instrument; and welcomes the Government’s undertaking to correct the error prior to the Regulations coming into force.

The Rural Development Contracts (Rural Priorities) (Scotland) Amendment Regulations 2008 (SSI 2008/233)

52. At its meeting on 17th June 2008, the Committee agreed to ask the Scottish Government, in relation to paragraph (2) of Column 2 of the Schedule for Option 74, for an explanation of the following––

(a) whether a definition of “unfavourable condition” in Schedule 1 to the principal Regulations is either required or would be useful to the readers; and

(b) if it is considered that this definition should have been added, what is the effect of the omission considered to be.

53. The Scottish Government’s response is reproduced at Appendix 8.

54. The Committee noted that regulation 6 adds a definition of “favourable condition” to Schedule 1. This is, in relation to the features for which SSSI sites or European sites are designated that such sites are (1) in satisfactory condition as determined by SNH, or (2) recovering, with the necessary management measures in place, such that SNH predicts that such sites will in due course reach satisfactory condition.

55. For Option 74 (removal of vegetation/debris from SSSI Sites), the Committee noted that one criterion used in 2 places within the eligibility conditions set out in the Schedule is “unfavourable condition”. It further noted that this term is not defined in Schedule 1 to the principal Regulations, nor is it added by these Regulations. Strictly therefore, the requirements that sites must be, or be at risk of falling into, “unfavourable condition” are not further defined by the Regulations.

56. In the Committee’s view, it is not clear from the Government’s response whether the term “unfavourable condition” is intended to have the opposite meaning to the definition of “favourable condition” in regulation 6, or whether it is intended to mean unsatisfactory condition (as assessed at the discretion of Scottish Natural Heritage). The Committee considers that it would have been clearer if a definition of “unfavourable condition” had been included in Schedule 1, or to have stated to the effect that the term means the opposite of “favourable condition” as defined. The Committee accepts however that this does not appear to affect the validity or operation of the instrument, taking account of the Government’s response.

57. The Committee draws this instrument to the attention of the lead committee and Parliament on the grounds that the meaning of the term “unfavourable condition” in paragraph (2) of Column 2 of the Schedule (in respect of Option 74), could be clearer, but does not consider that this affects the validity or operation of this instrument.

The Court of Session etc. Fees Amendment Order 2008 (SSI 2008/236)

58. At its meeting on 17th June, the Committee agreed to ask the Scottish Government, in relation to the fees stated in Part I, paragraph G9 of Schedules 1, 2 and 3, to explain why these entries are appropriate, given that section 9 of the Conveyancing Amendment (Scotland) Act 1938 was repealed by schedule 15 to the Title Conditions (Scotland) Act 2003.”

59. The Scottish Government’s response is reproduced at Appendix 9.

60. The Committee notes that in Part I, paragraph G9 of the Table of Fees in each of Schedules 1, 2 and 3, the fee is for “acknowledgement of receipt of an offer under section 9 of the Conveyancing Amendment (Scotland) Act 1938.” This fee is £40 from 1 August 2008.

61. The Committee notes that the Government’s response acknowledges that the provision for this particular fee in Schedules 1, 2, and 3 is not appropriate, because it refers to a fee for a procedure which was repealed by the Title Conditions (Scotland) Act 2003. The Committee welcomes this confirmation therefore that the fee is no longer charged, and that the Government has undertaken to delete paragraph G9 in the Schedules when the Court of Session etc Fees Order 1997 is next amended.

62. The Committee draws this instrument to the attention of the lead committee and Parliament on the general reporting ground (which does not impinge on the substance of the instrument or the policy behind it), on the basis that the fees stated in Part I, paragraph G9 of Schedules 1, 2 and 3 of the instrument are redundant provisions; and that the Government has undertaken to delete those references to paragraph G9 in the Schedules, when the Court of Session etc. Fees Order 1997 is next amended.

The Sheriff Court Fees Amendment Order 2008 (SSI 2008/239)

63. At its meeting on 17th June, the Committee agreed to ask the Scottish Government –

in relation to the Note contained in paragraph 33, Column 1, of Schedule 3–

(a) if the paragraph to which it refers should be paragraph 38, rather than paragraph 37; and

(b) if so, what the effect of this error is considered to be.

64. The Scottish Government’s response is reproduced at Appendix 10.

65. The Committee notes that the response acknowledges that the reference to paragraph 37 is not correct and that the reference should have been to paragraph 38. The Committee does not consider however that this error affects the validity or operation of the instrument.

66. The Committee further notes that the provision does not come into effect until 1 April 2010, and welcomes the Government’s undertaking to amend it at the next opportunity, and prior to the Schedule being implemented.

67. The Committee draws this instrument to the attention of the lead committee and Parliament on the basis that there is a drafting error in the Note contained in paragraph 33, Column 1, of Schedule 3, which does not affect the validity or operation of the instrument, since it does not come into force until 1 April 2010; and that the Scottish Government has undertaken to correct the error by future amendment before that date.

The Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008 (SSI 2008/240)

68. At its meeting on 17th June, the Committee agreed to ask the Scottish Government the following questions––

(a) in relation to the entries in the new Schedule 1B (at paragraphs 1, 2, 5-7, and 11) which state various payments for types of assistance by way of representation in summary criminal proceedings, whether the lack of specification of an amount in the columns 1 or 2 means that no payment is permitted for the work carried out, or that the type of work narrated is not applicable, or whether there is some other explanation for not stating an amount or “nil”; and

(b) given that the Explanatory Note is very brief and does not contain a summary explanation of particular regulations, what other steps would the Government propose taking to publicise an explanation of the meaning and effect of the various provisions for readers, for example, producing unofficial consolidations of the Regulations being amended, or issuing guidance on the provisions.

68. The Scottish Government’s response is reproduced at Appendix 11.

Question (a)

70. The Committee welcomes the Government’s clarification that the relevant blank entries for fee amounts payable, in Schedule 1B, mean that no fee is payable in respect of any work done in the court to which the column refers, for that item of work. It considers that the drafting would have been wholly clear if “nil” had been used in the relevant places in the columns, rather than leaving blanks, although it accepts that a blank entry can be interpreted as no fee payable.

71. The Committee is satisfied with the response from the Scottish Government and draws this instrument to the attention of the lead committee and Parliament on this basis.

Question (b)

72. The Committee was concerned to note that the Explanatory Note to this instrument is very brief, and yet the instrument makes a series of complex amendments to 3 sets of criminal legal aid and advice and assistance Regulations, and other provisions.

73. The Government’s response has usefully clarified the additional steps which it will take to publicise explanations of the Regulations (including the preparation of further guidance), and the Executive Note is a detailed document which is published with the instrument on the Office for Public Sector Information (OPSI) website. However, the Committee considers that the Explanatory Note for this instrument should contain some summary explanation of particular regulations. It is considered that the brevity of this Explanatory Note is not in accordance with normal drafting practice.

74. The Committee therefore draws this instrument to the attention of the lead committee and Parliament on the basis that the brevity of the Explanatory Note (while not part of the instrument) is not considered to be in accordance with normal drafting practice.

Instruments not laid before the Scottish Parliament

The Bluetongue (Scotland) Amendment Order 2008 (SSI 2008/234)

75. At its meeting on 17th June, the Committee agreed to ask the Scottish Government––

(a) whether in extending the definition of “animals” in the principal Order to include camelids it is relying on powers under section 87(2) of the Animal Health Act 1981 (“the 1981 Act”) and if so, what it considers the failure to refer to this power in the preamble means;

(b) whether the prohibition in article 22A of the principal order inserted by this Order is intended to cover all vaccine or only vaccine against bluetongue, and if the latter meaning is intended why it considers this is sufficiently clear from the Order as drafted; and

(c) who is empowered to give the authorisation referred to in Article 22A and why it considers this is sufficiently clear from the Order.

76. The Scottish Government response is reproduced at Appendix 12.

Question (a)

77. The Government confirmed that it relied on the powers under section 87(2) of the enabling Act to extend the definition of animals for the purpose of this amendment to the principal Order. The Committee accepts the Government’s argument that in line with the principles set out in Vibixa Ltd v Komori UK Ltd & Ors [2006] EWCA Civ 536)⁴, they may rely on this reference to invoke section 87(2) as an enabling power. While it is normal drafting practice to refer explicitly to all enabling powers, the Committee agrees that this omission has no impact on the validity of the instrument. The Committee is satisfied with the Scottish Government’s response and draws this instrument to the attention of the Parliament on this basis.

Questions (b) and (c)

78. The Government confirmed that the reference to “vaccine” is to be read as a reference to vaccine against bluetongue only. The Committee notes that it has also confirmed that it is only the Scottish Ministers who may authorise it being obtained.

79. The Committee notes that article 22A prohibits the obtaining of “vaccine” without “authorisation”, and that contravention of this prohibition is an offence punishable under the 1981 Act. The Committee has consistently taken the view that it is important for provisions which engage a criminal penalty to be clearly expressed and transparent in their effect. The Committee had considered that a sufficient level of clarity and transparency had not been achieved in this case. Nevertheless, it accepts that the prohibition requires to be read in the context of the principal Order as amended when considered as a whole and as against its purpose – the control of outbreaks of bluetongue by the Scottish Ministers. Accordingly, the Committee agrees with the Government that “vaccine” in this context should be read as vaccine against Bluetongue or which would have an effect as regards the control of Bluetongue.

80. The Committee is less clear as regards the identity of the person giving “authorisation”. However, on balance, it considers that the Government’s contention that this function should be read as in the hands of the Scottish Ministers as the body primarily responsible for regulation of animal health and disease outbreaks in Scotland would be supported by a court seeking to give effect to article 22A.

81. On the basis that the Government has undertaken to clarify these matters at the first available opportunity, the Committee is prepared to accept the Government’s explanation as satisfactory. The Committee therefore draws this instrument to the attention of the Parliament on the basis that it is satisfied with the Scottish Government’s response.

ANNEX

Draft instruments subject to approval

The Legal Profession and Legal Aid (Scotland) Act 2007 (Transitional, Savings and Consequential Provisions) Order 2008 (SSI 2008/draft)

The Mental Health (Absconding patients from other jurisdictions) (Scotland) Regulations 2008 (SSI 2008/draft)

Instruments subject to annulment

The Electricity Works (Environmental Impact Assessment) (Scotland) Amendment Regulations 2008 (SSI 2008/246)

The Mobility and Access Committee for Scotland Revocation Regulations 2008 Revocation Regulations 2008 (SSI 2008/247)

The Public Transport Users’ Committee for Scotland Amendment Order 2008 Revocation Order 2008 (SSI 2008/248)

APPENDIX 1

The National Health Service Pension Scheme (Scotland) Regulations 2008 (SSI2008/224)

1. On 17th June the Committee asked the Scottish Government for an explanation of the following––

(a) in regard to the definition of “commissioned services” in regulation 2.A.1, whether the reference to “section 16(1)(3)” of the National Health Services (Scotland) Act 1978 (“1978 Act”) is an error in so far as no such subsection exists? If the view is taken that this is an error, what is the correct reference, and what is the effect of the error considered to be?

(b) to clarify what the meaning of the reference to the “2006 Act” in regulations 2.B.1(6)(b)(v), 2.H.1(2)(e) and 3.H.1(3)(e) is in the circumstances where “2006 Act” is not defined in the Regulations?

(c) in regard to regulation 2.D.7(8)(b), whether the reference to “regulation 2.D.6(1)(c)” is an error, so far as that subparagraph does not exist in the Regulations? If the view is taken that this is an error, what is the correct reference, and what is the effect of the error considered to be?

(d) in regard to regulation 2.H.6(2), whether the reference to “regulation 2.H.(4)” is an error, so far as that paragraph does not exist in the Regulations? If the view is taken that this is an error, what is the correct reference, and what is the effect of the error considered to be?

(e) (i) in regard to the definition of “active member” in regulation 3.A.1(1), whether the reference to “regulation 3.D.5(9)” is an error, in respect that that sub-paragraph does not appear in the Regulations?

(ii) if the view is taken this is an error, to clarify what provision is intended to be referred to, and whether the provision is better included within the text of the definition, or included in a footnote?

(f) (i) in regard to regulation 3.A.8(8), whether the reference to “paragraph (3)(a)” is correct, in respect that it appears that paragraph 3(a) defines how pensionable earnings will be calculated, and paragraph 3(b) appears to define circumstances where a member is treated as having continued to receive pensionable earnings, after their earnings are reduced or cease?

(ii) if the view is taken this is an error, to clarify what provision is intended and what the effect of the error is considered to be?

(g) to clarify what the meaning and effect of regulation 3.D.6(1)(b)(i) is, and whether it is considered that the meaning and effect of this provision could be made clearer?

2. The Scottish Public Pensions Agency, on behalf of the Scottish Government, responds as follows––

(a) This is a typographical error which should read "section 16(1)". The Government is grateful to the Parliament for pointing this error out which will be corrected in forthcoming consequential regulations. It is considered however that the meaning of the definition is clear despite the error, and has the desired effect.

(b) The reference to "the 2006 Act" in regulations 2.B.1(6)(b)(v), 2.H.1(2)(e) and 3.H.1(3)(e ) is to the National Health Service Act 2006 (c. 41). This is set out in regulation 3.B.1(6)(b)(v) which is the equivalent for practitioners to regulation 2.B.1(6)(b)(v). The Government will take the opportunity of the forthcoming consequential regulations to insert a definition of 2006 Act. Although "the 2006 Act" is not defined it is considered that it is clear this refers to the National Health Service Act 2006 (c. 41) in the context of regulation 3.B.1(6)(b)(v).

(c) The reference to "2.D.6(1)(c)" is an error. This regulation does not exist - the reference should read "2.D.6(1)(b)(ii)". The Government thanks the Parliament for pointing out the error and will amend the reference in the forthcoming consequential regulations. It is considered however that the meaning of regulation 2.D.7(8)(b) is clear as reference to the member’s pensionable pay not reducing, in that regulation, can only be to regulation 2.D.6(1)(b)(ii).

(d) The reference to "2.H(4)" is a typographical error and should read "2.H.4". The Government thanks the Parliament for pointing this out and will deal with this point by correction slip.

(e) (i)The reference to "3.D.5(9)" is an error. It should read "3.D.5(8)".

(ii)There is not considered to be any legal effect as the incorrect reference is explanatory text rather than a substantive provision. It is not considered to be incorrect to put explanatory text in the provision rather than in a footnote. The Government will amend the instrument to correct the error in the forthcoming consequential regulations.

(f) (i) The reference to "paragraph 3(a)" is incorrect and should be "paragraph 5(b)" which deals with the circumstances where a member is treated as having left pensionable employment.

(ii) The Government thanks the Parliament for pointing this error out and will amend the instrument to correct the error in the forthcoming consequential regulations. However it is considered that the meaning of the regulation is clear despite this error.

(g) Regulation 3.D.6. deals with the situation where a member's pensionable earnings increase following the exercise of an option under regulation 3.D.5.

Regulation 3.D.5 allows a member who has reached the age of 55 to take part of his or her pension and continue working whilst building up further pension. To be eligible to be able to take part of his or her pension, the member’s salary must have reduced by at least 10%.

Regulation 3.D.6(1)(b)(i) provides that regulation 3.D.6 applies, after an option under regulation 3.D.5 has been exercised, where the member's engagement in relevant employment increases to more than 90% of the level it was before the option was exercised.

The Government considers the meaning of the provision could be improved by substituting "increasing" for "is increased" and will make that change in the forthcoming consequential regulations.

APPENDIX 2

The National Health Service Superannuation Scheme (Additional Voluntary Contributions, Injury Benefits and Compensation for Premature Retirement) (Scotland) Amendment Regulations 2008 (SSI 2008/225)

3. On 17th June the Committee asked the Scottish Government for an explanation of the following––

(a) in relation to regulation 2(11)(d), which inserts a new paragraph (10)(a) into paragraph 10 of regulation 15 of the National Health Superannuation Scheme (Scotland) (Additional Voluntary Contributions) Regulations 1998, explain whether the reference to regulation E2A(7) of the National Health Superannuation Scheme (Scotland) Regulations 1995 is an error in so far as no such regulation appears to exist? If the view is taken that this is an error, what is the correct reference, and what is the effect of the error considered to be?

(b) to explain why regulation 3(5)(b) refers to the substitution of the words “widow, widower or surviving civil” with the word “surviving” in both cases where occurring in regulation 7(1) of the National Health Service (Scotland) (Injury Benefits) Regulations 1998 given that the words “widow, widower or surviving civil” appear only once and explain the effect of the drafting.

4. The Scottish Public Pensions Agency, on behalf of the Scottish Government, responds as follows––

(a) the reference to regulation E2A(7) of the National Health Superannuation Scheme (Scotland) Regulations 1995 is not an error as that regulation is inserted into the National Health Superannuation Scheme (Scotland) Regulations 1995 by regulation 13 of S.S.I. 2008/226 which is intended to come into force on the same day as this instrument.

(b) the words "widow, widower or surviving civil partner" do appear twice in regulation 7(1) of the National Health Service (Scotland)(Injury Benefits) Regulations 1998 (the 1998 Regulations) hence use of the words "(in both cases where it occurs)" in regulation 3(5)(b) of this instrument is correct. The original wording in regulation 7(1) of the 1998 Regulations was "widow or widower" which appears twice. These words were replaced by "widow, widower or surviving civil partner" by regulation 38(b) of S.S.I. 2005/544.

APPENDIX 3

The National Health Service Superannuation Scheme (Scotland) Amendment Regulations 2008 (SSI 2008/226)

5. On 17th June the Committee asked the Scottish Government for an explanation of the following––

(a) in relation to regulation 46(2) which inserts new Q1(1A)(b) into the 1995 Regulations, (1) how this condition can be fulfilled, given that (a) it is not clear how members will have known about that condition in advance of 31st March 2008 (b) the condition did not have legal effect until the day after the condition was to have been fulfilled; (2) how this condition will be applied by scheme administrators and (3) what if any prejudice may be caused to members; and

(b) given the new D1(2) and Schedule 1, paragraph 10(2A) of the 1995 Regulations (inserted by regulations 9 and 63 respectively) empower the Scottish Ministers to make determinations altering the figures to which those provisions apply, (1) why it was considered competent and appropriate to do so by means of determination rather than amending the 1995 Regulations from time to time and (2) how such determinations are to be made transparent and accessible to readers of the 1995 Regulations.

6. The Scottish Public Pensions Agency, on behalf of the Scottish Government, responds as follows––

(a) Under regulation Q1 of the 1995 Regulations members have been able to buy additional pensionable service. As part of the pension reforms brought in by this instrument (new regulations Q8 to Q17) a new way of purchasing additional pension is introduced from 1 April 2008. Notification that the availability of buying additional pensionable service under regulation Q1 would come to an end on 31st March 2008 was given by SPPA to members by way of a leaflet with pay slips in November 2007 and also by SPPA circular in October 2007. Information was also available on the SPPA website (www.sppa.gov.uk). The narration of this in new regulation Q1(1A) is therefore explanatory although additional contributions may be made in respect of the election exercised before 31st March 2008, from 1 April, in compliance with regulation Q(1A)(d).

The condition does not therefore require to be applied by the scheme administrator other than in relation to regular additional contributions from 1 April 2008.

It is not considered that any prejudice has been caused to members in light of the notification process carried out by SPPA.

(b) It is considered that Schedule 3 to the Superannuation Act 1972, which is narrated in the preamble to this instrument as an enabling power, provides at paragraphs 5 and 11 the power, and therefore competence, for Scottish Ministers to determine contribution rates to the pension scheme. Paragraph 5 provides that regulations may include provision for the making by such persons as may be prescribed by the regulations of payments towards the provision (otherwise than under the regulations) of pensions, allowances or gratuities in such cases as may be determined in accordance with the regulations. Paragraph 11 provides that regulations may make provision for conferring on such persons as may be prescribed by the regulations such functions as the Scottish Ministers consider necessary or expedient for purposes of the regulations.

New regulation D1(2A)(b) requires that Scottish Ministers, before making a determination in this case, take the advice of such employee and employer representatives as they consider appropriate in accordance with regulation U4(cost sharing).

It is considered appropriate for Scottish Ministers to determine contribution rates to the pension scheme, as pay bands in the table in regulation 9, introducing new regulation D1(1D) into the 1995 Regulations, are based on Agenda for Change (the single pay system in operation in the NHS) and consultant pay rates at August 2007. Pay rates are likely to change in August 2008 and the table will require to be adjusted accordingly. It is thought more appropriate that such administrative changes are made by determination (subject to the constraints in new regulation D1(2A)(b) rather than through legislation as contribution rates may thereby reflect pay rate changes more quickly.

Any change in contribution rates made by determination will be notified to members in the usual way e.g. notes on pay slips, circulars and available to the public on the SPPA website (www.sppa.gov.uk).

APPENDIX 4

The Teachers’ Superannuation (Scotland) Amendment Regulations 2008 (SSI2008/227)

7. On 17th June 2008 the Committee asked the Scottish Government for clarification on the following points––

(a) given that regulation 16(3) and (4) govern the application of the textual amendment to the 2005 Regulations made by regulation 16(1) but do not do so as a textual amendment, to clarify the reasons for that approach and whether it would have been clearer to readers to have made those provisions as textual amendments; and

(b) how members and other readers of this instrument will be made aware of the availability of the right to make an election under regulation 30.

8. The Scottish Government responds as follows––

The Scottish Government notes the Committee’s concerns regarding the ability of a reader of a consolidated version of the 2005 Regulations to discern the application of the amendment to those Regulations made by regulation 16(1) of the instrument. As it was considered necessary to provide for the amendment to apply where a pension was payable to a scheme member on or after 6th April 2006 (regulation 16(3)) it was also considered necessary to provide that the amendment did not apply where pension payments have already been determined on the basis of the existing definition of “a teacher’s child” in the 2005 Regulations prior to the instrument coming into force (regulation 16(4)). As the Scottish Public Pensions Agency is not, at this time, aware of any scheme members who are affected by the amendment to the definition during the period, the Scottish Government is of the view that the provisions of regulation 16(3) and (4) are extremely limited in their application and that rather than include them as textual amendments to the 2005 Regulations, the more appropriate place for the provisions is within regulation 16 of the instrument itself.

The Scottish Public Pensions Agency intends to make scheme members aware of the availability of the right to make an election under regulation 30 in a circular which will be issued as soon as the instrument comes into force.

APPENDIX 5

The Local Government Pension Scheme (Administration) (Scotland) Regulations 2008 (SSI 2008/228)

9. On 17th June 2008 the Committee asked the Scottish Government to explain whether the reference to the European Assembly Elections Act 1978 in regulation 8(3)(b) is an error, given that the 1978 Act has been repealed by the European Parliamentary Elections Act 2002 and, if so, explain the effect of the reference to the 1978 Act.

10. The Scottish Government responds as follows––

The Government thanks the Committee for pointing out this error which the Government undertakes to correct prior to the coming into force of these Regulations.

It is considered that, as the incorrect reference is contained in explanatory text rather than in a substantive provision, it has no legal effect in relation to the general reference to “an acting returning officer”. However the Government accepts that, under the 2002 Act, the correct reference for Scotland is to “a returning officer” and not to “an acting returning officer”. It follows that the Regulations do not currently include as additional duties of a returning officer at European Parliamentary Elections.

APPENDIX 6

The Local Government Pension Scheme (Transitional Provisions) (Scotland) Regulations 2008 (SSI 2008/229)

11. On 17th June 2008 the Committee asked the Scottish Government to––

(a) explain why paragraph 1 of Schedule 2 begins “subject to paragraph 7” in the circumstances where there is no paragraph 7 of Schedule 2 and to explain the effect of this reference;

(b) explain whether the reference in paragraph 1 of Schedule 2 to regulation 18(2) rather than regulation 18(3) of the Local Government Pension Scheme (Benefits, Membership and Contributions) (Scotland) Regulations 2008 is an error and, if so, explain the effect of this error;

(c) explain whether the reference in paragraph 4(1) of Schedule 2 to regulation 14 rather than regulation 13 of the Local Government Pension Scheme (Administration) (Scotland) Regulations 2008 is an error and, if so, explain the effect of this error;

(d) explain whether paragraph 6(3) of Schedule 2 adds anything in the circumstances where it appears to be repetition of paragraph 3(1)(b) combined with paragraph 3(2) of Schedule 2; and

(e) in the circumstances where regulation 15(2)(b) refers to the “1987 Regulations” but this is not a defined term in the Regulations, explain the meaning and effect of this reference.

12. The Scottish Government responds as follows––

In relation to paragraph (a), the Government thanks the Committee for pointing out this error which the Government undertakes to correct prior to the coming into force of these Regulations. It is considered that, as there is no paragraph (7) to which paragraph (1) of Schedule 2 could be subject to, these words have no legal effect.

In relation to paragraph (b), the Government thanks the Committee for pointing out this error which the Government undertakes to correct prior to the coming into force of these Regulations. It is considered however that the meaning in paragraph 1 of Schedule 2 is clear as reference to reduction of benefits can only be to regulation 18(3).

In relation to paragraph (c), the Government again thanks the Committee for pointing out this error, and undertakes to correct this prior to the coming into force of these Regulations. It is considered however that the intention in paragraph 4(1) is made clear by the accompanying description of the regulation intended to be referred to.

In relation to paragraph (d), the Government again thanks the Committee for pointing out this error and undertakes to correct prior to the coming into force of these Regulations. It is considered that as paragraph 6(b) is a repetition of paragraph 3(1)(b) and (2), but is not in any way incompatible with those provisions, paragraph 6(b) does not add anything and has no additional legal effect.

In relation to paragraph (e), the Government thanks the Committee for pointing out this omission and undertakes to make the appropriate amendments to the Regulations prior to their coming into effect. The reference to the “1987 Regulations” is intended to be to the Local Government Superannuation (Scotland) Regulations 1987 (SI 1987/1850). It is considered however that the intention is clear as (i) the “1987 Regulations” are defined in the Local Government Pension Scheme (Administration) (Scotland) Regulations 2008 (SSI 2008/228), which these Regulations must be read in conjunction with and (ii) there is a definition of “the 1987 Scheme” in these Regulations which is defined as the occupational pension scheme constituted by the Local Government Superannuation (Scotland) Regulations 1987

APPENDIX 7

The Local Government Pension Scheme (Benefits, Membership and Contributions) (Scotland) Regulations 2008 (SSI 2008/230)

13. On 17th June 2008 the Committee asked the Scottish Government to explain whether the reference to the definition of “pension member” in regulation 2 should be to “pensioner member” in the circumstances where this is the term defined in section 124(1) of the Pensions Act 1995 and, if so, to explain the effect of this error.

14. The Scottish Government responds as follows––

The Government thanks the Committee for pointing out this error which the Government undertakes to correct prior to the coming into force of these Regulations.

The term used throughout these Regulations and the Local Government Pension Scheme (Administration) (Scotland) Regulations 2008 (with which these Regulations must be read) is “pensioner member” and it is considered therefore that the intention of the provision is clear and that its effect is achieved despite the technical inaccuracy.

APPENDIX 8

The Rural Development Contracts (Rural Priorities) (Scotland) Amendment Regulations 2008 (SSI 2008/233)

15. On 17th June 2008 the Committee asked the Scottish Government, in relation to paragraph (2) of Column 2 of the Schedule for Option 74, for an explanation of the following––

(a) whether a definition of “unfavourable condition” in Schedule 1 to the principal Regulations is either required or would be useful to the readers; and

(b) if it is considered that this definition should have been added, what is the effect of the omission considered to be.

16. The Scottish Government responds as follows––

First and second questions

The Committee’s concerns over the issue of a definition of “unfavourable condition” are noted. However, the Scottish Government point out that paragraph (2) of Column 2 makes it clear that under this option, Scottish Natural Heritage (SNH) are to carry out the assessment of whether the relevant features on Sites of Special Scientific Interest (SSSI) are in “unfavourable condition” or at risk of falling into “unfavourable condition”.

Further, Option 74 only applies to SSSIs and therefore would only be relevant and open to land managers with land in such a site. It is the case that all land managers of land receive a “site management statement” from SNH once land is notified as being a SSSI. This statement clearly indicates whether the site is in unfavourable condition or not. Readers of this option would therefore be in no doubt as to the requirements of the option.

APPENDIX 9

The Court of Session etc. Fees Amendment Order 2008 (SSI 2008/236)

17. In its letter of 17th June, the Committee asked the Scottish Government––

in relation to the fees stated in Part I, paragraph G9 of Schedules 1, 2 and 3, to explain why these entries are appropriate, given that section 9 of the Conveyancing Amendment (Scotland) Act 1938 was repealed by schedule 15 to the Title Conditions (Scotland) Act 2003.

18. The Scottish Government responds as follows––

The continued inclusion of this paragraph in all three Schedules in this fees order was an oversight on our part. Section 9 of the Conveyancing Amendment (Scotland) Act 1938 was quite an obscure and very rarely used application and so had not been identified as being redundant when the fees were being reviewed. Reference to this occurs in paragraph G9 of Schedules 1, 2 and 3 and these references should be deleted as these entries are no longer appropriate given that the section was repealed by schedule 15 to the Title Conditions (Scotland) Act 2003.

Given that the section has been repealed, this fee is no longer charged. The Government will delete paragraph G9 when the Court of Session etc Fees Order 1997 is next amended.

APPENDIX 10

The Sheriff Court Fees Amendment Order 2008 (SSI 2008/239)

19. In its letter of 17th June, the Committee asked the Scottish Government––

in relation to the Note contained in paragraph 33, Column 1, of Schedule 3–

(a) if the paragraph to which it refers should be paragraph 38, rather than paragraph 37; and

(b) if so, what the effect of this error is considered to be.

20. The Scottish Government responds as follows––

The Government is grateful to the SLC for bringing this error to our attention. The reference should be to paragraph 38, rather than 37. The effect of the error is that paragraph 38 does not read correctly because recording fees are found in paragraph 38 and not 37; paragraph 37 provides for search and reporting fees. The correct reference is contained in Schedules 1 and 2. Given that Schedule 3 does not come into force until 1 April 2010, there is no immediate impact.

The Government will amend this error when the Sheriff Court Fees Order 1997 is next being amended and prior to Schedule 3 of the 2008 Order coming into force.

APPENDIX 11

The Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008 (SSI 2008/240)

21. On 17th June 2008, the Committee asked the Scottish Government the following questions––

(a) in relation to the entries in the new Schedule 1B (at paragraphs 1, 2, 5-7, and 11) which state various payments for types of assistance by way of representation in summary criminal proceedings, whether the lack of specification of an amount in the columns 1 or 2 means that no payment is permitted for the work carried out, or that the type of work narrated is not applicable, or whether there is some other explanation for not stating an amount or “nil”?

(b) given that the Explanatory Note is very brief and does not contain a summary explanation of particular regulations, what other steps would the Government propose taking to publicise an explanation of the meaning and effect of the various provisions for readers, for example, producing unofficial consolidations of the Regulations being amended, or issuing guidance on the provisions?

22. The Scottish Government responds as follows––

(a) Where there is no entry in a particular column of Schedule 1B, then no fee is payable in respect of work done in the court to which the column refers. Paragraph 1 therefore contains a fee that may only be charged in respect of initial work done in the Sheriff Court or in the JP court before a stipendiary magistrate. Paragraph 2 contains a fee that may only be charged in respect of initial work done in the JP court (other than before a stipendiary magistrate).

Where there are blanks in column 1 of paragraphs 5 to 7 and 11 of Schedule 1B this signifies that no additional fee is payable in the JP court (other than before a stipendiary magistrate) for the work specified in the relevant paragraph.

(b) The Scottish Legal Aid Board intends to provide, as usual, updated legislation and guidance notes on the provisions on its website by way of its Criminal Legal Assistance Handbook. Existing legislation and guidance can be accessed at http://www.slab.org.uk/profession/handbook/Criminal%20handbook/wwhelp/wwhimpl/js/html/wwhelp.htm. The Board is also preparing application and accounts guidance to cover new or altered administrative procedures cons

APPENDIX 12

The Bluetongue (Scotland) Amendment Order 2008 (SSI 2008/234)

In its letter of 17th June the Committee asked the Scottish Government––

(a) whether in extending the definition of “animals” in the principal Order to include camelids it is relying on powers under section 87(2) of the Animal Health Act 1981 and if so, what is considers the failure to refer to this power in the preamble means;

(b) whether the prohibition in article 22A of the principal Order inserted by this Order is intended to cover all vaccine or only vaccine against bluetongue, and if the latter meaning is intended why it considers this is sufficiently clear from the Order as drafted; and

(c) who is empowered to give the authorisations referred to in Article 22A and why it considers this is sufficiently clear from the Order.

24. The Scottish Government responds as follows––

(a) It is acknowledged that the preamble to the Order should indeed have contained a reference to section 87(2), in addition to the other powers which are cited. It is however considered that this oversight, while regrettable, does not affect the validity of the Order. In that regard we would refer to the latter part of the preamble which states that the Order is made by the Scottish Ministers in exercise of the specific powers cited, ‘and all other powers enabling them to do so’.

(b) It is confirmed that the prohibition in article 22A of the principal Order inserted by this Order is intended to cover only vaccine against bluetongue. It is considered this is sufficiently clear from the Order as drafted, the context for inserted article 22A being vaccination against bluetongue, that being the focus of the amending Order, generally, and the group of provisions of which article 22A forms part, in particular.

(c) Article 22A takes the form of a short article which has been inserted, taking into account the context for vaccination as set out elsewhere in the amending Order, to make plain that no one can obtain vaccine unless they are authorised to do so. It is acknowledged that it would have been preferable to specify which authority has the function of authorising the obtaining of vaccine but it is noted that all comparable functions are vested in the Scottish Ministers, and it is considered sufficiently clear from the terms of the principal Order as amended that this function also vests in them. The principal Order will however be clarified in response to the points raised by the Committee at the first available opportunity, which is likely to be later this year when it is expected that further amendments will be needed in response to the developing disease situation.equential to the Regulations.

Footnotes: