Back to the Scottish Parliament Subordinate Legislation Committee Report
Archive Home

Business Bulletin 1999-2011

Minutes of Proceedings 1999-2011

Journal of Parliamentary Proceedings Sessions 1 & 2

Committees Sessions 1, 2 & 3

Annual reports

SP Paper 255
SL/S2/04/R44

44th Report, 2004 (Session 2)

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) 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:

Dr Sylvia Jackson (Convener)
Mr Adam Ingram
Gordon Jackson (Deputy Convener)
Mr Stewart Maxwell
Christine May
Mike Pringle
Murray Tosh

Committee Clerking Team:
Ruth Cooper
Bruce Adamson
Catherine Fergusson

Subordinate Legislation Committee

44th Report 2004 (Session 2) 

 Subordinate Legislation

The Committee reports to the Parliament as follows—

  1. At its meetings on 16 and 23 November and 7 December 2004, the Subordinate Legislation Committee considered the delegated powers provisions in the Edinburgh Tram (Line One) Bill and the Edinburgh Tram (Line Two) Bill. The Committee reports its findings to the Parliament.

Introduction

  1. The Subordinate Legislation Committee considered both of the bills as falling within its general remit to consider delegated powers in primary legislation. The promoter to the bills helpfully provided a subordinate legislation memorandum, which the Committee used to assist its consideration (reprinted at Annex A). The Committee raised points in correspondence with the promoter and the responses received are reprinted at Annex B. The Committee examined all of the delegated powers contained in the bill and reports the following considerations to Parliament.

  2. Section 39 Extension of time

  3. Section 38 of the bill provides that the powers to compulsorily acquire land and other property may be exercised only during the period of five years from the date of coming into force of the bill. Section 39 confers an unlimited power on the Scottish Ministers to extend this period by order. The Committee noted that the Order would be made by statutory instrument and would be subject to negative procedure.

  4. The Committee acknowledged the promoter’s need for flexibility in this provision but the unlimited power to extend the time limit for acquisition caused the Committee some concern. The Committee adopted the view that the extent of the power in section 39 meant that the order should be subject to affirmative procedure.

  5. In correspondence with the Committee, the promoter explained that the inclusion of the power is considered necessary to prevent unforeseen delays holding back the construction of the project. However, the promoter indicated that it would be content to answer the Committee concerns and bring forward an amendment to make the Order subject to affirmative procedure. The Committee welcomes the undertakings of the promoter in this respect and recommends that this amendment be brought forward at the bill’s consideration stage.

  6. The promoter understood the Committee’s concern that the power to extend the period for compulsory acquisition is unlimited in terms of time. The promoter therefore additionally proposed an amendment to the effect that the period for compulsory acquisition cannot be extended beyond 15 years, should the Committee consider this a necessary step. It was the promoter’s preference not to set such a limit because the potential still existed for delays or obstructions to extend beyond this deadline, although it would be less likely. The Committee welcomed the promoter’s willingness to address the Committee’s concerns in relation to this but considers it a matter for the private bill Committees to reach a final view on this proposal and reports to Parliament in these terms.

  7. Section 44(3) Amount of penalty fare

  8. The Committee noted that section 44 sets the level of penalty fare as the greater of £40 or 10 times the amount of the full single fare, which can be increased by order made by Scottish Ministers.

  9. The Committee examined the Scottish Ministers’ power to amend the penalties at section 44(3) and noted that although this was a power to allow secondary legislation to amend primary legislation, a Henry VIII power, it was subject to negative procedure. The Committee would normally expect that the type of power at section 44(3) would either be subject to limitations on the face of the bill or would attract affirmative procedure and questioned the promoter on this basis. The Committee also raised questions on the drafting of the provision and requested clarification as to whether the intention was to amend the multiplier of 10 or the fixed penalty fare of £40, or both, by order.

  10. The promoter explained to the Committee that the intention was that either or both the multiplier and fixed penalty fare could be raised to reflect changes in penal policy or concerns about the effectiveness of the penalty fare. However, the promoter acknowledged the Committee’s concerns and offered to introduce an amendment at the consideration stage. The proposed amendment would have the effect that the penalty fare would be 25 times the fare with no right to increase the multiplier and no fixed penalty. This would be set out on the face of the bill and would remove the need for an order to adjust the penalty.

  11. The Committee reports the promoter’s undertaking to remove this delegated power to Parliament as answering its concerns in relation to this power.

  12. Section 63(2) Repeal of sections 61 and 62

  13. The Committee was content with the substance of the power at section 63, which allows the repeal of section 61 (insulation against noise) and 62 (orders for insulating new buildings) by order, should later legislation render them redundant. However, the Committee noted that the power at 63(2) appeared to overlap in scope with section 79(2).

  14. The promoter in correspondence acknowledged this point and undertook to introduce amendments to remove section 63(2). The Committee reports this undertaking to the Parliament.

ANNEX A

SUBORDINATE LEGISLATION COMMITTEE

Edinburgh Tram (Line One) Bill1

Delegated Powers Memorandum

 

  1. The promoter has been asked to set out the delegated powers that are proposed in the Edinburgh Tram (Line One) Bill and the justification for them. This document sets out the extent of each power and its justification in the form of a table.

  2. For the purposes of this document, a delegated power is a provision in an Act giving power to a person or organisation to create legislation at a later date without requiring a further Act of the Scottish Parliament. Statutory instruments are an example of such legislation, and are made by Scottish Ministers, but delegated powers are not limited to these. This Bill, for example, confers a power to make byelaws on the authorised undertaker (i.e. the body that is constructing or operating the tram system).

  3. The procedure for all statutory instruments under the Act is set out at section 79, which means that the instrument will come into force unless a motion is passed by the Parliament annulling it (commonly called the ‘negative’ procedure). The procedures for byelaws and for noise insulation grant schemes are set out at the relevant sections, 59 and 61 respectively.

Delegated legislation powers in the Edinburgh Tram (Line One) Bill

Section

Title

Who

Extent of power

Justification

39

Extension of time

Scottish Ministers

Extension, or further extension, of the time limit for acquiring land under the Bill beyond five years.

The power to acquire land is to be exercised within five years of the Bill receiving royal assent in the first instance. However, if the authorised undertaker persuades Scottish Ministers that there is a good reason for extending this time, this is allowed to happen by means of a statutory instrument. The reason is likely to be related to events outside the authorised undertaker’s control. A similar power is contained in the City of Edinburgh (Guided Busways) Order Confirmation Act 1998, section 59.

42

Operation of Part 3

Scottish Ministers

Bringing Part 3 of the Bill (provisions relating to penalty fares) into force.

This is essentially a power of commencement. The remaining provisions of the Bill come into force upon the receipt of royal assent. The part of the Bill concerned with penalty fares is self-contained and it is intended to be brought into force only when Scottish Ministers are satisfied that the tram system is ready for it.

44(3)

Amount of penalty fare

Scottish Ministers

Increasing the maximum amount of a penalty fare from the original limit of £40 or ten times the fare, whichever is the greater.

This is a common use of delegated powers to allow increases in financial limits in line with inflation or changes in penal policy. The limit could be index-linked but this would be more cumbersome.

59

Power to make byelaws

Authorised undertaker

Making byelaws to regulate the use of the tram, subject to confirmation by Scottish Ministers. Among other things, the power allows offences to be created punishable by a fine of up to level 3 on the standard scale (currently £1000).

It is a common provision that the operator of a transport undertaking (whether a tram or light rail system, harbour or toll bridge) should be allowed flexibility to regulate its undertaking. This is subject to approval by the Scottish Ministers to ensure that the byelaws are appropriate.

61

Insulation against noise

Authorised undertaker

With the approval of the Council, making a scheme for payment of grants towards the insulation of buildings against noise affected, or expected to be affected, by the tram system

This power is a useful addition for tackling the effect of noise on those living close to the tram. It will mean that if noise problems occur they can be addressed. Similar provisions are in force in relation to the Leeds and Nottingham trams.

62

Order for insulation of new buildings

Scottish Ministers

Requiring new buildings in the area and of the type covered by a scheme under section 61 to be adequately insulated for noise.

Where section 61 applies to existing buildings, this section allows Scottish Ministers to require new buildings to be adequately insulated. If implemented it should address noise problems with new buildings before they occur.

63

Repeal of sections 61 and 62

Scottish Ministers

Repealing sections 61 and 62.

If a national scheme is brought into force for insulating buildings in a similar way to sections 61 and 62, then it would be appropriate for those sections to be abolished so that two similar, but unlikely to be identical, schemes are not in existence at the same time.

ANNEX B

Response 1 18 November 2004

Subordinate Legislation Committee

Edinburgh Tram (Line One) Bill at Preliminary Stage

Edinburgh Tram (Line Two) Bill at Preliminary Stage

Response to letter of 16 November requesting further explanation of various Sections and powers in the Bills

1 Thank you for your letter of 16 November in which you ask for a response to the Committee’s request for further information on certain of the delegated powers contained in the Bills.

Section 39

2 The Committee is concerned that the power to extend the time limit for compulsory acquisition is unlimited, and is of the view that it would be more suitably exercised by means of the ‘affirmative’ procedure.

3 As was acknowledged by Committee members at this week’s meeting, the inclusion of a power to extend the period for compulsory acquisition per se is justified, to prevent unforeseen delays or obstructions following the passing of the Bill thwarting its implementation. The promoter also reminds the Committee that it possesses a similarly unlimited power in relation to the City of Edinburgh (Guided Busways) Order Confirmation Act 1998 (section 59). However the promoter understands the Committee’s concern that the power to extend the deadline is unlimited in terms of time. It would therefore be prepared to undertake to introduce an amendment at Consideration Stage (in each Bill Committee) to the effect that the period for compulsory acquisition cannot be extended beyond fifteen years. This does have the potential for delays or obstructions once again to extend beyond this ‘back stop’ deadline, although it would be less likely. The promoter would therefore prefer not to have such a limit, but if the Committee was of the view that the necessity of having a limited power was greater than the potential risk to the scheme, then it would respect the Committee’s decision.

4 On the issue of which procedure should be used, the promoter is content to undertake to introduce amendments at Consideration Stage to alter this from the negative to affirmative procedure.

Section 44(3)

5 The Committee is concerned that the power to amend the maximum penalty fare does not make it clear whether this applies to the fixed amount of £40 or the multiplier of ten times the maximum fare, or both (or indeed whether both must be adjusted at once).

6 The intention of the subsection was that either the fixed amount or the multiplier (or both) could be raised if desired, to reflect changes in penal policy or concerns about the effectiveness of the penalty fare as a deterrent, not just to compensate for inflation. Again, the power is one already possessed by the promoter in relation to the City of Edinburgh (Guided Busways) Order Confirmation Act 1998 (also section 44(3)). If the Committee would prefer that the power should be exercised by means of the affirmative procedure, it would be content to undertake to introduce amendments at Consideration Stage to this effect.

Section 63

7 The Committee is concerned that sections 63(2) and 79(2) appear to overlap in scope while not being identical. The promoter is grateful for bringing this to its attention and undertakes to introduce amendments at Consideration Stage to remove section 63(2).

Response 2 2 December 2004

Subordinate Legislation Committee

Edinburgh Tram (Line One) Bill at Preliminary Stage

Edinburgh Tram (Line Two) Bill at Preliminary Stage

Response to letter of 24 November seeking further clarification in relation to Section 44(3) of the Bill

1 Thank you for your letter of 24 November in which you ask for further clarification from the promoter in relation to Section 44(3) of the Bill.

Section 44(3)

2 It is noted that the Committee is not unsympathetic to the promoter's position but has asked for clarification as to why there is a need for both the fare multiplier and the fixed penalty to be open to increase.

3 As advised previously, the intention of the subsection was that either the fixed amount or the multiplier (or both) could be raised if desired, to reflect changes in penal policy or concerns about the effectiveness of the penalty fare as a deterrent, not just to compensate for inflation. Again, the power is one already possessed by the promoter in relation to the City of Edinburgh (Guided Busways) Order Confirmation Act 1998 (also section 44(3)).

4 However the promoter understands the Committee's concerns and on reflection would be prepared to undertake to introduce an amendment at the Consideration Stage (in each Bill Committee) to the effect that the penalty fare will be 25 times the maximum single adult cash fare with no right to increase the multiplier and no fixed penalty of £40. The promoter considers that the level of multiplier will act as a deterrent and the inflationary increase in the maximum single adult cash fare would ensure that the penalty will increase over time.

5 Consequential amendments would also be required to Section 44(2) and 44(3) would be removed.

1 The delegated powers provisions covered in this document are identical to those for the Edinburgh Tram (Line Two) Bill. This memorandum therefore applies equally to that Bill as to the Edinburgh Tram (Line One) Bill.