Delegated Powers and Law Reform Committee

Meeting date: Wednesday, November 8, 2017

Official Report 625KB pdf

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Instruments subject to Negative Procedure

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First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2017 (SSI 2017/328)

The Tribunals (Scotland) Act 2014, under which the regulations were made, created a new structure for tribunals that deal with devolved matters, and provided for a first-tier tribunal and an upper tribunal. Within that structure, the first-tier tribunal has been divided into chambers according to subject matter, and one of those is the housing and property chamber. The regulations make provision for the rules of procedure for that first-tier tribunal.

Our legal advisers have drawn our attention to 10 errors in the regulations, three of which are recommended for reporting on significant grounds. The committee might wish to comment that, although it notes the explanation that has been given for each of the errors in the Scottish Government’s response, it is highly unsatisfactory for the regulations to have been laid before the Parliament in their present form. The committee’s role is not to provide a substitute for internal checking by the relevant Scottish Government department. It is worth noting that the Government has already responded to the questions raised by our legal advisers by laying an amending instrument.

The committee expressed considerable concern about the previous package of instruments relating to tribunals. In that context, it is very disappointing that an improvement has not been made. We have just been discussing the likelihood of a substantial increase in statutory instruments. I urge the Government to examine its quality control procedures in order to avoid laying instruments that contain so many errors in the future.

I will now set out where our legal advisers consider that there are errors in the rules in the schedule to the regulations, to which the committee might wish to draw the Parliament’s attention.

On reporting ground (e), there appears to be a doubt as to whether rule 37(3)(a) is intra vires—that is, within the scope of the powers in the parent Tribunals (Scotland) Act 2014. In particular, the rule appears to preclude an appeal that is permitted by section 46(1) of the 2014 act in relation to a decision arising from a re-decided matter that has been made by the first-tier tribunal on review.

On reporting ground (i), the instrument appears to be defectively drafted in two respects. First, rule 86 refers to the “lessor” making an application under section 76 of the Rent (Scotland) Act 1984 and requires that the application must be signed and dated by the

“lessor or a representative of the lessee”.

However, as applications under section 76 of the 1984 act are made by the lessee, the references to “lessor” should be to “lessee”. That seems a basic point. Secondly, rules 106(a)(iv) and (v) do not make provision in relation to applications made by landlords under section 14(2) of the Private Housing (Tenancies) (Scotland) Act 2016.

On reporting ground (h), the meaning of the instrument could be clearer in three respects. First, the term

“assured tenancy reference to the First-tier Tribunal”

in rule 1 could more clearly align to the words “assured tenancy reference” in the remainder of the schedule. Secondly, it could be clearer in rule 10(4) that anything that is permitted or required under a practice direction or order may be done by a lay representative on behalf of a party. Thirdly, in rules 44(4) and 53(4), it could be clearer that sufficient notice of an inspection should be given in writing by the first-tier tribunal to both parties rather than to “the party”.

On the general reporting ground, there are four issues. First, subparagraph (f) of the list in rule 43(1) unnecessarily duplicates the requirement in section 17(2) of the Property Factors (Scotland) Act 2011, which is already referred to in rule 43(1). Secondly, the reference in rule 69 to an application under section 36(6A) or (6B) of the Housing (Scotland) Act 1988 is incorrect. Thirdly, rule 92(g) in chapter 8 of the schedule appears to be unnecessary in so far as it refers to an application made under section 92(2) of the Rent (Scotland) Act 1984 in circumstances where chapter 8 does not make substantive provision in relation to that section. Fourthly, the requirements in rules 97(1) and (2) for the first-tier tribunal to notify “both parties” in relation to the variation or revocation of a letting agent enforcement order are inconsistent with rule 96(c), which refers to more than two parties.

I bet that members are grateful that they are not sitting in my place and having to read out all these mistakes.

Does the committee wish to draw the regulations to the Parliament’s attention on those grounds?

Members indicated agreement.

Does the committee wish to welcome the fact that the Scottish Government agreed to make an amending instrument to address those points?

Members indicated agreement.

No points have been raised by our legal advisers on the following instruments.

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Development of Water Resources (Designated Bodies: Modification) (Scotland) Regulations 2017 (SSI 2017/347)

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Water and Sewerage Services to Dwellings (Collection of Unmetered Charges by Local Authority) (Scotland) Amendment Order 2017 (SSI 2017/348)

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Rent Regulation and Assured Tenancies (Forms) (Scotland) Regulations 2017 (SSI 2017/349)

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Town and Country Planning (Fees for Monitoring Surface Coal Mining Sites) (Scotland) Regulations 2017 (SSI 2017/350)

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Section 70 (Procedure) (Scotland) Regulations 2017 (SSI 2017/353)

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Additional Support for Learning (Collection of Data) (Scotland) Regulations 2017 (SSI 2017/355)

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Additional Support for Learning Dispute Resolution (Scotland) Amendment Regulations 2017 (SSI 2017/356)

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Pensions Appeal Tribunals (Scotland) (Amendment) Rules 2017 (SSI 2017/367)

Is the committee content with the instruments?

Members indicated agreement.