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SL/S3/11/R5

5th Report, 2011 (Session 3)

Long Leases (Scotland) Bill

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;

(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; 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:

Bob Doris (Deputy Convener)
Helen Eadie
Rhoda Grant
Alex Johnstone
Ian McKee
Elaine Smith
Jamie Stone (Convener)

Committee Clerking Team:

Clerk to the Committee
Irene Fleming

Assistant Clerk
Jake Thomas

Support Manager
Lori Gray

Long Leases (Scotland) Bill

The Committee reports to the Parliament as follows—

1. At its meetings on 21 December 2010 and 25 January 2011, the Subordinate Legislation Committee considered the delegated powers provisions in the Long Leases (Scotland) Bill at Stage 1. The Committee submits this report to the Justice Committee as the lead committee for the Bill under Rule 9.6.2 of Standing Orders.

overview of the bill

2. The Long Leases (Scotland) Bill (“the Bill”) was introduced in the Parliament on 10 November 2010 by the Cabinet Secretary for Justice, Kenny MacAskill MSP.

3. The Scottish Government provided the Parliament with a memorandum on the delegated powers provisions in the Bill (“the DPM”).1

4. Correspondence between the Committee and the Scottish Government is reproduced in the Annexe. This relates to the delegated powers contained in section 21(3) and section 75(5).

5. The Committee determined that it did not need to draw the attention of the Parliament to the delegated power in sections: 7(2), 13(3)(a), 16(4)(a), 23(3)(a), 24(2)(a), 25(2)(a), 26(2)(a), 27(3)(a), 28(3)(a), 37(2), 37(4)(b), 48(4)(b) and (c), 52(3)(b) and (c), 54(3)(a) and (c), 55(2)(a) and (b), 62(b), 65(1)(b), 66(2)(b), 68(1)(c)(ii), 71(3)(a) and (b), 72(2)(b), 78(1) and 80(2).

Delegated powers provisions

Section 21(3) - Power to prescribe a period during which a person may oppose or make representations in relation to an application to the Lands Tribunal to dispense with the need for a conversion condition to be met when converting a leasehold condition to a real burden

Power conferred on: Scottish Ministers

Power exercisable by: regulations made by statutory instrument

Parliamentary procedure: negative resolution of the Scottish Parliament

6. The Committee considered this provision to be of some importance, setting out as it does a means to oppose or make representations in relation to applications for conversion of leasehold conditions to real burdens. In the event that a short time limit were to be set, by virtue of an exercise of the regulation making power in section 21(3) then this might have significant implications with regard to a person’s ability to oppose or make representations.

7. The Committee noted that the reason for taking the power in section 21(3) is set out only briefly in the DPM, it being stated that the purpose is to ensure the Tribunal can deal with any cases without unnecessary delays. Negative procedure is to apply.

8. The Committee was unclear as to the need for this power, and why it was not possible to specify, upon the face of the Bill, a period within which a person could oppose or make representations in relation to an application

9. The response makes comparison firstly with similar provision made in other primary legislation, in particular the Abolition of Feudal Tenure etc. (Scotland) Act 2000. The Committee considers that it must examine each case on its own merits, and its views are not constrained by an approach taken within 2000 legislation, the particular circumstances of which are not in any event known to the Committee.

10. It is stated that the advantage of not laying down a period on the face of the Bill is that it reduces interference with the Tribunal’s procedure. It is further indicated that it is anticipated that applications to the Lands Tribunal should occur in small and manageable numbers, and that the Bill does not need to be detailed in regard to Lands Tribunal procedures.

11. The response sets out what the Scottish Government considers to be the advantages of the approach taken but does not explore why it would not have been possible for a period to have been specified, on the face of the Bill, within which a person could oppose or make representations in regard to an application. The Committee is unclear why that could not have been done. If need be, the period specified could be accompanied by provision enabling it to be changed, if circumstances require.

12. The Committee does not consider that a compelling case is made for the approach taken. At the same time, in regard to what it considers to be an important provision, the Committee considers that there would be real merit in setting out the period on the face of the Bill, in the interests of accessibility and transparency. Given that, as matters stand, this is to be dealt with by means of secondary legislation, it will be necessary for persons to search for the relevant regulations for confirmation of application timescales, in addition to the primary legislation.

13. The Committee recommends that in relation to the provision contained at section 21(3), in terms of which a tenant can oppose or make representations in relation to an application “within such time as may be prescribed” the Scottish Government gives further consideration to amending the Bill for that period to be set out upon the face of the Bill, if necessary with a power to change the period concerned if circumstances require. The Committee reports this to the lead committee accordingly.

Section 75(5) – power to prescribe a date or period after which notices and agreements determined registrable by the courts or the Lands Tribunal cannot be registered and to provide that applications to the courts or the Tribunal must be made within a specified period for the notices and agreements to be registrable.

Power conferred on: the Scottish Minister

Power exercisable by: order made by statutory instrument

Parliamentary procedure: negative resolution of the Scottish Parliament

14. Section 75 makes provision for certain documents to be registrable despite initial rejection. Section 75(5) provides that in regard to the registration timetable set out at section 75(2) the Scottish Ministers can by order specify a cut-off date after which notices and agreements cannot be registered. Such notices relate to key elements of the Bill, for example, provisions concerned with the conversion of sporting rights or other conditions, and are therefore of some importance.

15. The DPM explained this as being in the nature of a long-stop provision to increase long-term certainty for parties relying on the register. An indication of circumstances in which it might be used are given although the need for the power is not really justified within the DPM. In particular, while the reason for the cut-off and its aim are commented on, it is not really explained why it needs a delegated power to achieve that.

16. Against that background, the Committee sought further clarification from the Scottish Government as to the need for the use of a delegated power at section 75(5) to achieve the aim indicated.

17. The Committee noted the further information provided within the reply concerning the power being used to provide some greater certainty to other users of the Land Register, as to its accuracy. It notes also that the power would not be used so as to affect any actual case but simply as a means of providing clarity and certainty as to the content of the Register.

18. Again, however, in regard to this power, the Committee does not consider that a compelling case is made for the approach taken, regarding a matter which it considers to be of some importance, being concerned with time limits which impact upon rights. The Committee considers that the response, while commenting on the policy principles underlying the approach taken, does not really explain why subordinate legislation must be used to achieve them. It notes that use of the power is discretionary and it is not apparent on the face of the legislation whether there is a limit date.

19. The Committee recommends that, in relation to the provision made at section 75(5), concerning the power to prescribe a date or period after which notices and agreements determined registrable cannot be registered, and to provide that applications must be made within a specified period for the notices and agreements to be registrable, the Scottish Government gives further consideration to amending the Bill so as to make provision concerning those matters on the face of the Bill itself. The Committee reports this to the lead committee accordingly.

20. The Committee has noted the response from the Faculty of Advocates on the Long Leases (Scotland) Bill, with respect to the observations made there on the delegated powers contained in the Bill, which response covers matters of a general nature and also comments on specific provisions within the Bill. The Committee thanks the Faculty for its response.

ANNEXE

Correspondence with the Scottish Government

Section 21(3) - Power to prescribe a period during which a person may oppose or make representations in relation to an application to the Lands Tribunal to dispense with the need for a conversion condition to be met when converting a leasehold condition to a real burden

Can the Scottish Government explain more fully the need for the use of a delegated power as set out in section 21(3) to achieve the stated aim of ensuring the Tribunal can deal with cases without unnecessary delays, given the absence of any detailed justification within the DPM. Why is it not possible for a period within which a person could oppose or make representations in relation to an application to be set out upon the face of the Bill, if necessary with a power to change that if circumstances require?

Section 75(5) - Power to prescribe a date or period after which notices and agreements determined registrable by the courts or the Lands Tribunal cannot be registered and to provide that applications to the courts or the Tribunal must be made within a specified period for the notices and agreements to be registrable

Can the Scottish Government explain more fully the need for the use of a delegated power at section 75(5) to achieve the aim referred to in the DPM with respect to this provision, given the absence of any detailed justification for such power within the DPM itself.

Response from the Scottish Government

Section 21(3) - Power to prescribe a period during which a person may oppose or make representations in relation to an application to the Lands Tribunal to dispense with the need for a conversion condition to be met when converting a leasehold condition to a real burden

Paragraphs 35 to 37 of the Delegated Powers Memorandum outlines the provision, the reason for taking the power and the choice of procedure.

You asked for a fuller explanation and, in particular, why is it not possible for a period to be set out on the face of the Bill, with a power to change that if required.

The power in section 21(3) of the Bill is along the same lines to previous similar powers in relation to applications to the Lands Tribunal. Section 21 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 refers to “within such time as may be so prescribed”.

The advantage of not laying down a period on the face of the Bill is that this reduces interference with the Tribunal’s procedures. The power to prescribe a period would only be used if it appeared that regulations were necessary. Generally, the Government expects that the details of the Tribunal’s procedures can be dealt with through the existing Lands Tribunal for Scotland Rules or through the Tribunal’s discretion. Paragraph 4.45 of the Scottish Law Commission report on Conversion of Long Leases2, on which the Bill is based, notes that the “relatively small number of leases eligible for conversion means that applications to the Lands Tribunal should occur in small and manageable numbers”. The Government agrees with the Commission and, therefore, is of the view that the Bill does not need to be detailed in relation to Lands Tribunal procedures.

Section 75(5) - Power to prescribe a date or period after which notices and agreements determined registrable by the courts or the Lands Tribunal cannot be registered and to provide that applications to the courts or the Tribunal must be made within a specified period for the notices and agreements to be registrable.

You asked for a fuller explanation of the need for the use of a delegated power at section 75(5).

Paragraphs 44 and 45 of the Delegated Powers Memorandum provide details on the reasons for the powers.

The key point is that the Land Register needs to be accurate: paragraph 8.10 of the Scottish Law Commission report provides more detail on this.

If the Keeper of the Registers should refuse to register a notice or agreement, it is right that an aggrieved party should be able to challenge this refusal in the ordinary courts or in the Lands Tribunal, as outlined in the first sentence of paragraph 8.12 of the Commission’s report. Ultimately, however, the Register needs to be accurate so that it can be relied upon.

To achieve this end, section 75(5)(b) empowers Ministers to make an order laying down a period during which applications to the court or the Tribunal for a determination that a notice or agreement is registrable may be made. This power means that, if needed, Ministers can stop applications being made long after the Keeper has taken a decision: late applications could raise questions as to whether or not the Register has comprehensive information.

Section 75(5)(a) empowers Ministers to specify a date or period after which notices cannot be registered after the court or Tribunal determines that they are registrable. Again, the aim is to be able to prescribe a long-stop period or date so that parties can have confidence in the accurate and comprehensive nature of the Register.

The purpose of the power is to provide a degree of certainty to other users of the Land Register. Once the power is used to specify a particular date, then anyone who looks at the Register after that date would know (without needing to check for outstanding cases before the courts or the Tribunal or otherwise taking account of the provisions of the Bill) that the Register can be relied upon.

Our expectation is that the power would be used some time after any reasonable application should have been determined, i.e. it would be used on the basis that it wouldn't affect any actual case but would simply provide certainty.


Footnotes:

2 The Scottish Law Commission report is at http://www.scotlawcom.gov.uk/download_file/view/251/