Subordinate Legislation Committee

Meeting date: Tuesday, December 15, 2009

Official Report 261KB pdf

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Instruments subject to Annulment

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Less Favoured Area Support Scheme (Scotland) Amendment Regulations 2009 (SSI 2009/412)

The committee might wish to report that an explanation has been sought from and provided by the Scottish Government about the temporary effects of regulations 3(b), 3(d) and 6. The committee might also note that the Government has confirmed that it intends to make new principal regulations in March 2010 that will bring in new rates to be paid for less favoured area support for the scheme year 2010. Is that agreed?

Members indicated agreement.

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Control of Salmonella in Turkey Flocks (Scotland) Order 2009 (SSI 2009/417)

The order is unusual. It was laid as subject to negative resolution procedure but, following the committee’s challenge to that view, the Government has confirmed that the correct procedure that applies is that the order is not laid. We should therefore report that there has been a failure to follow proper legislative process. Is that agreed?

Members indicated agreement.

We should also note that, although that failure has no effect on the validity or operation of the provisions in the order—the resulting error is contained in the italicised heading, which is not part of the operative provisions—the committee is highly critical of the absence of adequate quality control of the drafting process in relation to the order. Is that agreed?

Members indicated agreement.

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Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2009 (SSI 2009/428)

This is another first, because, if the committee agrees, we will use a reporting ground that has not been used since devolution. Under rule 10.3.1(a) of the standing orders, the Subordinate Legislation Committee may report an instrument on the ground

“that it imposes a charge on the Scottish Consolidated Fund or contains provisions requiring payments to be made to that Fund”.

It is suggested that the committee might report the regulations on the following grounds. First, new regulation 47C of the Public Contracts (Scotland) Regulations 2006 (SSI 2006/1) and new regulation 45C of the Utilities Contracts (Scotland) Regulations 2006 (SSI 2006/2), as inserted by regulations 2(12) and 4(12) of the 2009 regulations, provide that the Scottish ministers shall pay into the Scottish consolidated fund any financial penalty ordered to be paid by them or recovered by them, when such a financial penalty is ordered by the court to be paid by a contracting authority under the regulations. However, in its response, the Scottish Government states that civil financial penalties that might be paid into the Scottish consolidated fund by virtue of new regulations 47C and 45C are not designated receipts for the purposes of sections 64(5) to 64(7) of the Scotland Act 1998. They are viewed, therefore, as payments into the fund, but not charged on the fund as designated receipts.

Secondly, regulations 2(4)(b)(i) and 2(5)(b)(i) are defectively drafted. Those provisions should refer to the word “ensure” where it first appears in regulations 17(23) and 18(23) of the Public Contracts (Scotland) Regulations 2006, rather than where it second appears. The Government intends to lay an amending instrument to ensure that the 2006 regulations are amended correctly on 20 December 2009 when the regulations come into force. Is that agreed?

Members indicated agreement.

That was truly a historic moment. We made history and we did not even know it.