Subordinate Legislation Committee

1st Report, 2011 (Session 4)

Subordinate Legislation

SP Paper 5 Web only Session 4 (2011)

©Parliamentary copyright. Scottish Parliamentary Corporate Body 2011.

Applications for reproduction should be made in writing to the Information Policy team, Office of the Queen's Printer for Scotland, Admail ADM4058,Edinburgh, EH1 1NG, or by e-mail to: [email protected].

OQPS administers the copyright on behalf of the Scottish Parliamentary Corporate Body.

Printed and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by RR Donnelley.

Subordinate Legislation Committee

1st Report, 2011 (Session 4)

Subordinate Legislation

Published by the Scottish Parliament on 16 June 2011

Subordinate Legislation Committee

Remit and membership

Remit:

The remit of the Subordinate Legislation Committee is to consider and report on—

(a) any—

(i) subordinate legislation laid before the Parliament;

(ii) [deleted]

(iii) pension or grants motion as described in Rule 8.11A.1;

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;

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;

(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and

(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Chic Brodie Nigel Don James Dornan

Kezia Dugdale Mike MacKenzie John Scott Drew Smith

Committee Clerking Team:

Clerk to the Committee Irene Fleming

Assistant Clerk Euan Donald

Support Manager Lori Gray

SL/S4/11/R1

Subordinate Legislation Committee

1st Report, 2011 (Session 4)

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 14 June 2011, the Committee agreed to draw the attention of the Parliament to the following two instruments:

Aquatic Animal Health (Scotland) Amendment Regulations (SSI 2011/259); and

Act of Sederunt (Jurisdiction in Respect of Parental Responsibility and Measures for the Protection of Children Rules) (SSI 2011/192)

2. The Committee’s recommendations in relation to each of these instruments are set out in turn below.

NEGATIVE PROCEDURE

Aquatic Animal Health (Scotland) Amendment Regulations (SSI 2011/259) (Rural Affairs, Climate Change and Environment Committee)

3. The Regulations are subject to negative procedure. The purpose of the Regulations is to give effect to European Commission Decision 2011/187/EU which allows the UK to take national measures to make the “Oyster Herpes Virus” a notifiable disease.

4. European Commission Decision 2011/187/EU applies throughout the UK from 1 May 2011 and has already been implemented in England, Wales and Northern Ireland through separate instruments.

5. These Regulations were laid on 24 May, and came into force on 27 May and as such failed to comply with section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. Section 28(2) provides that a Scottish statutory instrument which is subject to negative procedure must be laid before Parliament as soon as practicable after it is made, and in any event at least 28 days before the instrument comes into force.

SP Paper 5 1 Session 4 (2011)

Subordinate Legislation Committee, 1st Report, 2011 (Session 4)

6. A failure to comply with section 28(2) does not render the instrument invalid, but the Scottish Government must write to the Presiding Officer to explain why the laying requirements have not been complied with.

7. In compliance with this requirement, the Scottish Government wrote to the Presiding Officer explaining that as Decision 2011/187/EU became applicable during the Parliament’s dissolution period it was decided to delay laying these Regulations until after the Parliament resumed.

8. Furthermore, the Scottish Government’s letter explains that it was considered appropriate not to wait 28 days before bringing the Regulations into force because any further delay would mean that “the Scottish shellfish industry, and the rest of the UK, would continue to be vulnerable to imports of Pacific oysters infected with oyster herpes virus which do not require to be accompanied by a health certificate.

9. Given the failure to comply with section 28(2), the Committee draws the attention of the Parliament to this instrument under reporting ground 10.3.1(j) of standing orders (that there appears to have been a failure to lay the instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act). However, the Committee has considered the letter from the Scottish Government and is satisfied by the reasons set out in it.

10. The Committee therefore draws this instrument to the attention of the Parliament on the basis that it has failed to comply with the terms of section 28(2), but in so doing intimates that it is satisfied with the reasons provided by the Scottish Government for the failure to do so.

2 Subordinate Legislation Committee, 1st Report, 2011 (Session 4)

NOT LAID

Act of Sederunt (Jurisdiction in Respect of Parental Responsibility and Measures for the Protection of Children Rules) (SSI 2011/192)

11. This instrument was not laid before the Parliament as it was made before the new SSI procedures came into force on 6 April 2011. It establishes rules of court which apply to the raising of cases in the Sheriff Court under the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the Convention”).

12. In particular, the instrument sets out the form which applications to the court must take, and the information which they must contain. It also specifies the duties of the court, for example in cases when the matter is to be referred to a foreign court for consideration.

13. Correspondence between the Committee and the Lord President’s Private Office (“LPPO”) is reproduced in the Appendix.

14. Ratification of the Convention is the event which triggers its coming into force (three months later). In turn, this instrument and other related instruments will come into force at the same time. LPPO has confirmed that work towards ratification is ongoing. Publicity will be given to the coming into force date by its publication in the Edinburgh Gazette.

15. LPPO advised that the Postal Services Act 2000 provides certain “glosses” – provisions which alter the interpretation of other legislation – which assist in interpreting this instrument. References to “registered post”, for example, are to be read as references to any postal service which has the characteristics of registered post.

16. Following further discussions, LPPO advised that it understands sheriff clerks use Royal Mail’s International Signed For service when sending documents abroad under similar provisions in other Rules. LPPO considers that sheriff clerks could comply with the provisions of this instrument by using this service. However, LPPS accepts that it would have been simpler to refer directly to services which are currently available, rather than referring to “registered post” and relying on the glosses in the Postal Services Act 2000 to achieve this result.

17. Whilst mindful of the explanation provided, the Committee considers that the meaning of the instrument in this regard could have been clearer.

18. The Committee notes that rules 4(2)(b), 5(3)(b) and 7(2)(b) prescribe the use of a defunct postal service as the means of serving documents. The Committee is concerned that the rules rely on interpretation provisions in the Postal Services Act 2000 to identify a current postal service which may be used, when the instrument might have referred directly to that current service to avoid confusion. The Committee therefore draws the instrument to the attention of the Parliament on ground 10.3.1(h) of Standing Orders (that for any special reason its form or meaning could be clearer).

3 Subordinate Legislation Committee, 1st Report, 2011 (Session 4)

19. At the same meeting, the Committee also considered the following instruments and determined that it not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:

Education and Culture

Education Maintenance Allowances (Scotland) Amendment Regulations 2011 (SSI 2011/261)

Health and Sport Committee

National Health Service Central Register (Scotland) Amendment Regulations 2011 (SSI 2011/265)

General Pharmaceutical Council (Continuing Professional Development and Consequential Amendments) Rules Order of Council 2011 (SI 2011/1367)

Rural Affairs, Climate Change and Environment Committee

Rural Development Support Measures (Control Procedures and Miscellaneous Amendments) (Scotland) Regulations 2011 (SSI 2011/260)

Crofting Counties Agricultural Grants (Scotland) Amendment Scheme 2011 (SSI 2011/262)

Not Laid

Act of Sederunt (Rules of the Court of Session Amendment No. 3) (Miscellaneous) 2011 (SSI 2011/190)

Act of Sederunt (Valuation Appeal Rules Amendment) 2011 (SSI 2011/191)

Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2011 (SSI 2011/193)

Act of Adjournal (Criminal Procedure Rules Amendment No. 3) (Miscellaneous) 2011 (SSI 2011/194)

4 Subordinate Legislation Committee, 1st Report, 2011 (Session 4)

APPENDIX

Act of Sederunt (Jurisdiction in Respect of Parental Responsibility and Measures for the Protection of Children Rules) (SSI 2011/192)

On 11 May 2011 the Lord President’s Private Office was asked:

1. This Act of Sederunt comes into force at the same time as the Parental Responsibility and Measures for the Protection of Children (International Obligations) (Scotland) Regulations 2010, and the 2010 Regulations, in terms of regulation 1(2), come into force on the day on which the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children of 19 October 1996 enters into force for the United Kingdom, which date is to be notified in the London, Edinburgh and Belfast Gazettes. Has such a date as yet been identified, or is it likely to be identified in the near future?

2. To explain whether the reference in paragraph 1(6) to “paragraph (5)”, and the like references 5(3)(a), 6(2) and 7(2)(a) to “paragraph (1)” should instead be references to the respective subparagraphs, by analogy with the reference in paragraph 9(1) to “the following subparagraph”?

3. To explain how it is possible for a sheriff clerk to intimate or send certified copy interlocutors to foreign authorities in terms of paragraphs 4(2)(b), 5(3)(b) and 7(2)(b), given that registered post is a service no longer provided by the Royal Mail, and that the first class recorded delivery service is an inland (United Kingdom, Channel Islands and Isle of Man) service only? Reference is made to annotations 16.4.5 and 16.4.6 of the Annotated Rules of the Court of Session, and to the comments of Sheriff Veal on the distinction between registered post and Special Delivery in Ross & Bonnyman Ltd v. Hawson Garner Ltd 2001 SLT (Sh. Ct.) 134.

The Lord President's Private Office responds as follows:

1. The Lord President's Private Office has been advised by the Scottish Government that the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children of 19 October 1996 has not yet been ratified by the United Kingdom. However, it is understood that work towards UK ratification is continuing. Under Article 61, the Convention will enter into force for the UK on the first day of the month following the period of three months after ratification.

2. The Act of Sederunt consists of a self-contained set of Rules. The references to “paragraph (5)” and “paragraph (1)” in the rules referred to are therefore considered appropriate. The reference in rule 9(1) to “the following subparagraph” should accordingly have been a reference to “the following paragraph”. However, the Private Office is of the view that there can be no doubt as to which provision is being referred to in rule 9(1) and, accordingly, that the courts can be relied upon to apply any necessary rectifying construction.

5 Subordinate Legislation Committee, 1st Report, 2011 (Session 4)

3. The Lord President's Private Office takes the view that the references in the relevant rules to first class recorded delivery and registered post are to be read along with the provisions in Part I of Schedule 8 to the Postal Services Act 2000; hence, the reference to first class recorded delivery is to be read as a reference to a postal service which provides for the delivery of the document or other thing by post to be recorded and the reference to registered post is to be read as a reference to a requirement or authorisation for a document or other thing to be sent by a registered post service (as that term is defined in section 125 of the 2000 Act). The effect of these provisions is that the references in the Act of Sederunt are not dependent on the names which Royal Mail gives to its services: it is the nature of the service which is relevant. Nor is the scope of those references confined to Royal Mail services alone: services provided by other postal operators are also included. It is considered that the options open to the sheriff clerk require to be considered against that background. The Lord President's Private Office confirms that, if making rules along similar lines in the future, it will seek to mirror the more general references which are set out in Part I of Schedule 8 to the 2000 Act; namely, a registered post service as defined in section 125 of the 2000 Act and a postal service which provides for the delivery of a document or other thing by post to be recorded.

6 Members who would like a printed copy of th is Numbered R eport to be forwarded to them should give notice at the Document Supply Centre.

Published in Edinburgh by RR Donnelley and available from:

Blackwell’s Bookshop Blackwell’s Scottish Parliament Documentation Scottish Parliament Helpline may be able to assist with additional information on 53 South Bridge publications of or about the Scottish Parliament, their availability All documents are available on the Edinburgh EH1 1YS and cost: Scottish Parliament website at: 0131 622 8222 Telephone orders and inquiries www.scottish.parliament.co.uk Blackwell’s Bookshops: 0131 622 8283 or 243 -244 High Holborn 0131 622 8258 For more informa tion on the Parliament, London WC1 7DZ or if you have an inquiry about Tel 020 7831 9501 Fax orders information in languages other than 0131 557 8149 English or in alternative formats (for example, Braille; large print or audio), All trade orders for Scottish Parliament E-mail orders, Subscriptions and standing orders please contact: documents should be placed through [email protected] Blackwell’s Edinburgh. Public Information Service The Scottish Parliament And through other good boo ksellers Edinburgh EH99 1SP

Telephone: 0131 348 5000 Fòn: 0131 348 5395 (Gàidhlig) Textphone users may contact us on 0800 092 7100 We also welcome calls using the Text Relay service. Fax: 0131 348 5601 E-mail: [email protected]

We welcome written correspondence in any language.

ISBN 978-1-4061-7560-8 ISBN 978-1-4061-7560-8

9 7 8 1 4 0 6 1 7 5 6 0 8