36th Report, 2008 (Session 3)

Subordinate Legislation

Remit and membership

Remit:

1. The remit of the Subordinate Legislation Committee is to consider and report on-

(a) any-

(i) subordinate legislation laid before the Parliament;

(ii) Scottish Statutory Instrument not laid before the Parliament but classified as general according to its subject matter,

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; and

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

 (Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Jackson Carlaw
Malcolm Chisholm
Helen Eadie
Tom McCabe
Ian McKee
Gil Paterson (Deputy Convener)
Jamie Stone (Convener)

Committee Clerking Team:

Clerk to the Committee
Shelagh McKinlay

Assistant Clerk
Jake Thomas

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 7 October 2008 the Committee determined that it did not need to draw the attention of Parliament to the following instruments on any of the grounds within its remit:

Education and Lifelong Learning Committee

The Provision of School Lunches (Disapplication of the Requirement to Charge) (Scotland) Order 2008 (SSI 2008/draft)

Finance Committee

The Pre-release Access to Official Statistics (Scotland) Order 2008 (SSI 2008/draft)

Justice Committee

The International Criminal Court (Remand Time) Order 2008 (SSI 2008/draft)

Instruments subject to annulment

The Energy Performance of Buildings (Scotland) Regulations 2008 (SSI 2008/309)

2. The Committee considered this instrument on 30 September and agreed to write to the Scottish Government seeking further information and clarification in relation to the meaning and effect of regulation 17(2). This regulation provides for circumstances in which a penalty notice may be given in relation to a failure to make an energy performance certificate available to a prospective buyer or tenant within 9 days of the request. The Committee was not clear whether it was intended that this power should apply to requests made orally.

3. On 30 September 2008, the Committee asked the Scottish Government––

(a) to explain in relation to the meaning and effect of regulation 17(2), where an oral request has been made, how an enforcement authority shall obtain sufficient evidence to establish that the requirements of regulation 17(2)(a) are satisfied, such that a penalty charge notice may be issued. (It appears that a request for an energy performance certificate made to the owner within that provision refers to a request by a prospective buyer or tenant, and it appears that a request (not being a “notice” under regulation 22) may be made orally, and may require production of an energy performance certificate within 9 days);

(b) if it would consider that additional provision for such matters could make the meaning and effect of regulation 17(2)(a) clearer, for example, by providing for how a request shall properly be established.

4. The Scottish Government’s response is reproduced in Appendix 1.

5. The response clarifies the effect of regulation 17(2), in relation to regulation  20(4). It makes clear that the policy intention is that an alleged failure to comply with an oral request by a prospective buyer or tenant of a building for a copy of an energy performance certificate may lead to the incurring of a penalty charge enforced by the local authority.

6. The Committee was content, in light of the Government’s response, that the instrument is to be read as having this effect, and is therefore satisfied with the response, in so far as it clarifies the intended meaning and effect of regulation 17(2).

7. Having obtained that clarification, the effect of the regulation is a matter of policy and substance, outwith the remit of this Committee. The Committee therefore draws the issues set out below with which it has concerns to the attention of the lead Committee.

8.  Given that a penalty charge may be incurred and enforced by a local authority in circumstances where an oral request has not been complied with, the Committee notes that it may be possible that no recorded evidence may be available to confirm that the circumstances have arisen for a penalty charge notice to be issued. In a case of dispute, it appears to the Committee that the issue may become one of assessing the credibility of competing witnesses, where it is disputed whether an oral request has been made.   

9. The effect of the provisions appears to be that a penalty charge notice may be given at the discretion of the local authority. The Committee notes that owners who wish to dispute a penalty notice may apply for a local authority review. Where the local authority is satisfied on review that, in the circumstances, it was not reasonable to serve the penalty notice, the authority must withdraw it¹. If the notice is not withdrawn on review then an appeal is available to the sheriff, on the ground that “in the circumstances of the case it was not reasonable for a penalty charge notice to be given to the recipient.”² 

10. The Committee notes, in relation to the meaning and effect of this provision, that it does not provide further guidance on what may be considered reasonable circumstances (by either a local authority on a review, or the sheriff on appeal) for a failure to respond to an oral request not to incur a penalty charge.   The Committee suggests that the lead committee may wish to consider whether non-statutory guidance might be issued as to what circumstances may amount to reasonableness in this context.
 
11. The Committee reports to Parliament and the lead committee that it is satisfied with the clarification provided.

12. The Committee also draws the substance of the explanation to the attention of the lead committee for its policy interests.

The Inshore Fishing (Prohibition on Fishing) (Lamlash Bay) (Scotland) Order 2008 (SSI 2008/317)

13. On 30 September 2008, the Committee asked the Government to confirm that the area described in article 2(1) to the Order is within Scottish inshore waters as defined in section 9(1) of the Inshore Fishing (Scotland) Act 1984.”

14. The Scottish Government’s response is reproduced in Appendix 2.

15. While the Committee understood that the area regulated by this Order fell within Scottish inshore waters, as the Government’s response indicates, it was not clear from the drafting of the Order that this was the case. The Committee is now content with the clarification provided in the Government’s letter.

16. The Committee therefore reports this instrument to the lead committee and the Parliament that this further clarification has been sought and received.

APPENDIX 1

The Energy Performance of Buildings (Scotland) Regulations 2008 (SSI 2008/309)

The Committee asked the Scottish Government––

(a) to explain in relation to the meaning and effect of regulation 17(2), how an enforcement authority shall obtain sufficient evidence to establish that the requirements of regulation 17(2)(a) are satisfied, where there has been an oral request, when a penalty charge notice may be issued. (This is given that it appears that a request for an energy performance certificate made to the owner within that provision refers to a request by a prospective buyer or tenant, and it appears that a request (not being a “notice” under regulation 22) may be made orally, and may require production of an energy performance certificate within 9 days.)

(b) if it would consider that additional provision for such matters could make the meaning and effect of regulation 17(2)(a) clearer, for example, by providing for how a request shall properly be established.

The Scottish Government responds as follows––

Question (a)

Regulation 17(2) states that a penalty charge notice may not be given unless the owner of the building has failed to make an energy performance certificate available to a prospective buyer or tenant within a period of 9 days following a request for such a certificate.  Such a request may be made orally or in writing. 

Regulation 15(2) places a general duty on every local authority to enforce the regulations in their area.  Each local authority will determine how to fulfil this duty.  It is anticipated that many of the enforcement cases that arise will do so because a prospective buyer or tenant complains to the local authority and provides details of the request made to the owner.  It will be for the local authority to establish whether regulation 5 has been complied with.  If the regulation has not been complied with, they may decide to issue a penalty charge notice.

The recipient of a penalty charge notice has the right to request a review of the enforcement authority’s decision to give a penalty charge (regulation 19).  Following this review, if the recipient remains dissatisfied, they may appeal to the Sheriff Court on specified grounds, which include regulation 20(4)(a), that the recipient did not commit the breach and 20(4)(c), that in the circumstances, it was unreasonable for the notice to be given.  These provisions allow the recipient to challenge the evidence in a court hearing.

Question (b)

In light of the response to question (a) above, it is not considered that additional provisions are required.

APPENDIX 2

The Inshore Fishing (Prohibition on Fishing) (Lamlash Bay) (Scotland) Order 2008 (SSI 2008/317)

3. On 30 September 2008 the Committee asked the Scottish Government for an explanation of the following matter––

“The Committee considered the above instrument at its meeting on 30 September and asks the Scottish Government to confirm that the area described in article 2(1) to the Order is within Scottish inshore waters as defined in section 9(1) of the Inshore Fishing (Scotland) Act 1984.”

4. The Scottish Government responds as follows––

It is recognised that the enabling power in section 1 of the Inshore Fishing (Scotland) Act 1984 gives the Scottish Ministers the power to make Orders regulating fishing for sea fish in Scottish inshore waters, and that Article 2(1) of the Order refers to such fishing being prohibited within the prescribed area of the Scottish zone. Nevertheless we can confirm that the area prescribed by article 2(1) of the Order is in fact within Scottish inshore waters as defined by section 9(1) of the Inshore Fishing (Scotland) Act 1984.

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