Delegated Powers and Law Reform Committee

Meeting date: Tuesday, October 3, 2017

Official Report 426KB pdf

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Instruments not subject to Parliamentary Procedure

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Private Housing (Tenancies) (Scotland) Act 2016 (Commencement No 2 and Saving Provision) Regulations 2017 (SSI 2017/293 (C 21))

The regulations commence the remaining provisions of the Private Housing (Tenancies) (Scotland) Act 2016 on 1 December 2017, with the exception of paragraph 5 of schedule 4, and they make saving provision for existing short assured tenancies. However, no provision appears to have been made to reflect the terms of paragraph (a) or (b) of section 79(4) of the 2016 act in relation to the commencement of section 1 of that act. The Scottish Government has confirmed that that is an oversight and that it intends immediately to bring forward an amending instrument to make provision that reflects the terms of section 79(4).

Does the committee agree to draw the instrument to the Parliament’s attention under reporting ground (g), on the basis that it was made by what appears to be an unusual or unexpected use of the powers conferred by the parent statute?

Members indicated agreement.

Does the committee agree to welcome the Scottish Government’s undertaking to bring forward an amending instrument immediately to make provision that reflects the terms of section 79(4)?

Members indicated agreement.

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Land Reform (Scotland) Act 2016 (Commencement No 6, Transitory and Saving Provisions) Regulations 2017 (SSI 2017/299 (C 23))

A main purpose of the regulations is to commence a number of provisions of part 10 of the Land Reform (Scotland) Act 2016 on 30 November 2017. The regulations make provision, until the coming into force of section 92 of the 2016 act for all purposes, for various specified enactments to be read as if references to certain words that are expressed in quotation marks in each regulation were omitted. Those words are “a repairing tenancy” and “repairing tenancies”.

Our legal advisers suggest that the provisions could be more clearly expressed if the precise wording that falls to be omitted or modified in each enactment were quoted, so that the provisions as modified read sensibly. In the case of regulations 5 to 11, regulation 12(a) to (j), regulation 12(m), regulation 12(n) in respect of section 77(4) of the Agricultural Holdings (Scotland) Act 2003 and regulation 13, the precise wording is not quoted in the provisions.

The Scottish Government has undertaken to lay an amending instrument before the Parliament to correct an error in regulation 1(2) at the earliest opportunity, and before the regulations come into force on 30 November 2017.

Does the committee agree to draw the regulations to the Parliament’s attention on reporting ground (i), as there appears to be defective drafting in regulation 1(2), where a “limited duration tenancy” is defined for the purposes of the regulations as having the same meaning as in section 93 of the Land Reform (Scotland) Act 2016, but the definition is in section 93 of the Agricultural Holdings (Scotland) Act 2003; and on reporting ground (h), as the meaning of various transitory provisions in regulations 5 to 11, regulation 12(a) to (j), regulation 12(m), regulation 12(n) in respect of section 77(4) of the 2003 act and regulation 13 could be made clearer in a particular respect?

Members indicated agreement.

Given the Scottish Government’s undertaking to lay an amending instrument to correct the error in regulation 1(2), and its indication that it might have been clearer to have drafted the transitory provisions in the way that has been indicated, does the committee agree to call on the Government to so clarify the provisions by means of the amending instrument?

Members indicated agreement.