Scottish Register of Tartans Bill at Stage 1

The Committee reports to the lead Committee as follows—

Introduction

1. At its meetings on 29 April and 13 May 2008, the Subordinate Legislation Committee considered the delegated powers provisions in the Scottish Register of Tartans Bill at Stage 1. The Committee submits this report to the Economy, Energy and Tourism Committee, as the lead committee for the Bill, under Rule 9.6.2 of Standing Orders.

2. The Member in charge provided the Parliament with a memorandum on the delegated powers provisions in the Bill¹.

3. The Committee’s correspondence with the Member in charge is reproduced in Annexes 1 and 2.

Delegated Powers Provisions

4. The Committee considered each of the delegated powers provisions in the Bill. The Committee approves sections 4 and 18 without further comment.

Section 14: Fees

The Committee is content that the powers taken to fix fees for the following functions listed in the Bill:

Section 4(3)(a) – the inspection of documents or physical things held by the Keeper or the copying of any such document;

Section 4(3)(c) request for information or research;

Section 4(3)(d) – such other services to the public in relation to the Register as the Keeper thinks fit

Section 6(10) – making an application for an entry in the Register

Section 8(2)(c) – a request to reconsider an application following its refusal by the Keeper (fee refundable if request granted);

Section 9(5) – obtaining a copy of a certificate of registration;

Section 10(6) – a request to amend an entry in the Register; and

Section 13(3) - obtaining a copy of an amended certificate of registration.

and that additional matters in relation to the Register in respect of which a fee may be made payable in the future, are suitable to be exercised under delegated powers.

6. The Committee requested an explanation however from Mr McGrigor in relation to the provisions contained in sections 14(4)(b) and 14(5). Section 14(4) provides that different fees may be specified (by order) for different purposes and the order may also specify the circumstances in which no fee is payable. Section 14(5) empowers the Keeper to waive a fee which has been specified by order under the Bill in such circumstances as the Keeper may specify with the approval of the Scottish Ministers. The Delegated Powers Memorandum does not explain why both provisions are necessary and how it is intended they will be used.

7. The Committee found the response provided by Mr McGrigor to be very helpful in explaining the intention behind these provisions and how it is proposed that they will operate in practice.

8. The Committee is content for Ministers to have the ability to exempt fees in particular circumstances. While the effect of waiving fees would increase the burden on the public purse, the Parliament would have the sanction of annulment of the order if it found this to be objectionable.

9. The Committee also considers that it is appropriate to provide discretion to the Keeper to waive fees in individual circumstances. A reasonable example of circumstances in which the Keeper may choose to exercise that discretion is given in Mr McGrigor’s response. The Committee notes that the exercise of this power of waiver requires the consent of Ministers. Although Parliament has no role to play in that process, having consented to it on the face of the Bill, the Committee is content that this seems to be an administrative matter which can properly be left in the hands of Ministers and the Keeper as the administrator of the register.

10. The Committee draws these provisions to the attention of the lead committee on the basis that in light of the response received from Mr McGrigor it is content with the powers available under section 14 and that they are subject to negative procedure.

Section 16: Ancillary provision

11. Section 16(1) of the Bill provides that the Scottish Ministers may, by order, make such consequential or incidental provision as they consider necessary or expedient for the purposes of, in consequence of or for giving full effect to, any provision of this Act.

12. Section 16(2) provides that such an order may make different provision for different purposes, and may modify any enactment.

13. Section 16(3) and (4) provides that such an order shall be subject to negative resolution procedure, except where it adds to, replaces or omits the text of an Act, when the order shall be subject to affirmative procedure.

14. The Committee is content with the scope of the ancillary powers as these are framed only to enable consequential or incidental provisions for the purposes of, in consequence of, or for giving full effect to, the provisions of the ASP.

15. In relation to the procedure applied, the Committee agrees with the view in the Delegated Powers Memorandum that the separation between negative procedure and affirmative procedure (for ancillary modifications of enactments) is appropriate. However, the Committee noted that the Bill provided for affirmative procedure only in respect of modifications which add to, replace or omit any part of the text of the Act in question. Such a restriction would permit future modifications of the effect or application of an Act, other than by textual amendment, by negative procedure.

16. The Committee observed that the Act itself would make a number of modifications to enactments without making actual textual amendments. It considered that it could transpire at a later date that there are other provisions concerning the Keeper’s existing statutory duties which should be disapplied and which, in contrast, the Parliament would not have the opportunity to approve. The Committee therefore asked for an explanation as to why affirmative procedure should not also apply in the circumstances where the ancillary provisions provide for the modification or disapplication of Acts without making textual amendments.

17. In his response, Mr McGrigor stated “In this case, however, any changes to primary legislation (whether textual or not) will be minor because of the narrow limits of the power in section 16(1). In these cases it is arguable that draft affirmative procedure even for textual amendment does not strike the correct balance. If the Committee agrees, I would be happy to consider amending the Bill to remove section 16(4) so that all exercises of the power in section 16(1) are subject to negative procedure.”

18. While there is a general presumption in favour of affirmative procedure where power is taken to amend primary legislation the Committee accepts that this is not an absolute rule. As in relation to any delegated power, it considers that a balance requires to be struck between administrative efficiency, expediency, best use of Parliamentary time and proper scrutiny of the content of the measures brought forward having regard to its significance or effect.

19. The Committee notes that the subject matter of this Bill in essence concerns the creation of a particular register which has a narrow purpose. The ancillary powers available under section 16(1) relate to making consequential or incidental provision necessary or expedient for the purpose of giving full effect to the Bill. There must therefore be some clear connection to the purposes of the Bill and the register before the ancillary powers are available and the Committee accepts that the scope of the ancillary powers in this case are therefore restricted in scope. Nevertheless, in relation to amendments to the text of primary legislation, there is to be added to the factors to be weighed in considering any departure from the general presumption, the value of Parliament (as the source of primary legislation) being afforded the opportunity to consent to changes to it.

20. The Committee remains of the view that draft affirmative procedure should apply to textual amendment of primary legislation arising out of the exercise of ancillary powers under this Act. The Committee is however persuaded that modifications of the application of primary legislation may be subject to negative procedure given the restricted scope of the power.

21. The Committee draws these provisions to the attention of the lead committee on the basis that –

(a) it is content with the scope of the ancillary powers as these are framed only to enable consequential or incidental provisions for the purposes of, in consequence of, or for giving full effect to, the provisions of the Act;

(b) it is content that justification has been provided in this case for the departure from the general presumption that modifications of the application of primary legislation should be subject to affirmative procedure; it remains of the view however that textual amendment of primary legislation should be subject to affirmative procedure; it does not agree with Mr McGrigor’s suggestion that all modifications to primary legislation should be subject to negative procedure.

ANNEX 1

Letter from the Subordinate Legislation Committee to Jamie McGrigor MSP

1. The Subordinate Legislation Committee considered your Bill today and seeks further information from you in relation to the delegated powers in Sections 14 and 16.

Section 14: Fees

2. The Committee asks why it is thought necessary to provide for both––

the circumstances in which fees provided by order are not payable (section 14(4)(b)); and

the power of the Keeper to waive a fee which has been specified by order (section 14(5); and

for an explanation as to the circumstances in which the member envisages each of these powers being exercised.

Section 16: Ancillary provision

3. The Committee also asks why the draft affirmative procedure should not apply in the circumstances where the ancillary provisions modify or disapply any enactment (without a textual amendment of the Act), given that the Bill contains examples of such provision and more may subsequently be required.

ANNEX 2

Response from Jamie McGrigor MSP

1. Thank you for your letter of 29th April. I welcome the Subordinate Legislation Committee’s consideration of my Bill. You are seeking further information in relation to the delegated powers in sections 14 and 16.

Section 14: Fees

2. The Committee asks why it is thought necessary to provide for both––

the circumstances in which fees provided by order are not payable (section 14(4)(b)); and

the power of the Keeper to waive a fee which has been specified by order (section 14(5); and

for an explanation as to the circumstances in which the member envisages each of these powers being exercised.

3. I would respond as follows––

4. These provisions are not mutually exclusive. Section 14(4)(b) enables Ministers to identify circumstances where a person does not have to pay a fee which would otherwise be required under section 14(1) (in effect, creating an exemption or exception to the general matter so specified). In relation to the inspection of documents and other physical things underpinning the register for which a fee is payable (section 4(3)(a)(i)) the power in section 14(4)(b) might be used to exempt school children or pensioners or the inspection of all documents and other physical things on certain days, for example for “open days”, exhibitions or other promotional activity planned by the Keeper.

5. Section 14 (5), by contrast, operates where a fee is payable, i.e. in relation to a matter specified by order as chargeable and where no exemption or exception has been provided for. Subsection (5) gives the Keeper discretion to waive the fee, perhaps to ensure equity in the circumstances of a particular case (but of course only with Ministers’ approval). We suggest this could apply where the Keeper has received a request to amend the register under Section 10 to correct minor errors to an existing entry or to update an entry, perhaps where an applicant has subsequently noticed an administrative, clerical or other minor error, either in the application or the registration. It could be argued that a fresh request – and fee - is unwarranted and disproportionate in such instances.

Section 16: Ancillary provision

6. On ancillary provision, the Committee asks why the draft affirmative procedure should not apply in the circumstances where the ancillary provisions modify or disapply any enactment (without a textual amendment of the Act), given that the Bill contains examples of such provision and more may subsequently be required.

7. I would respond by saying that the power in section 16(1) is more limited than equivalent powers in many Acts of the Scottish Parliament (ASPs) in that it permits only consequential or incidental provision to be made. Negative procedure would normally be considered appropriate for such a limited power.

8. It is common for ASPs conferring ancillary powers to require draft affirmative procedure to apply where the powers are exercised so as to textually amend primary legislation. This is done as it is considered appropriate to allow the Parliament the opportunity to consider and vote on any proposed changes to primary legislation.

9. In this case, however, any changes to primary legislation (whether textual or not) will be minor because of the narrow limits of the power in section 16(1). In these cases it is arguable that draft affirmative procedure even for textual amendment does not strike the correct balance. If the Committee agrees, I would be happy to consider amending the Bill to remove section 16(4) so that all exercises of the power in section 16(1) are subject to negative procedure.

10. I trust this answers the points raised by the Committee and please let me know if there is further information the Committee would find useful.

Foootnotes: