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7th Report, 2011 (Session 3)
Remit and membership
1. The remit of the Subordinate Legislation Committee is to consider and report on-
(Standing Orders of the Scottish Parliament, Rule 6.11)
Bob Doris (Deputy Convener)
Committee Clerking Team:
Clerk to the Committee
1. At its meeting on 25 January 2011, the Committee determined that it did not need to draw the attention of the Parliament to the following instruments on any of the grounds within its remit:
The Disposal of Court Records (Scotland) Amendment Regulations 2011 (SSI2011/draft)
The Retention of Samples etc. (Children's Hearings) (Scotland) Order 2011 (SSI2011/draft)
The Restriction of Liberty Order and Restricted Movement Requirement (Scotland) Regulations 2011 (SSI 2011/3)
Local Government and Communities Committee
The Public Appointments and Public Bodies etc. (Scotland) Act 2003 (Amendment of Specified Authorities) (No.2) Order 2011 (SSI 2011/draft)
The Scottish Public Services Ombudsman Act 2002 Amendment Order 2011 (SSI2011/draft)
The Council Tax (Discounts) (Scotland) Amendment Order 2011 (SSI 2011/5)
The Children's Hearings (Scotland) Act 2011 (Commencement No.1) Order 2011 (SSI 2011/8 (C.2))
The Interpretation and Legislative Reform (Scotland) Act 2010 (Commencement) Order 2011 (2011/4 (C.1))
The Interpretation and Legislative Reform (Scotland) Act 2010 (Commencement No. 2 and Transitional Provision) Order 2011 (SSI2011/17C.3))
The Community Payback Orders (Prescribed Persons for Consultation) (Scotland) Regulations 2011 (SSI 2011/1) (Justice Committee)
2. Local authorities are required under the Criminal Procedure (Scotland) Act 1995 to consult “prescribed persons” about the nature of unpaid work and other activities to be undertaken by offenders upon whom community payback orders are imposed. This instrument sets out a list of prescribed persons that must be consulted by local authorities so as to satisfy the obligation on them under the Act.
3. The relevant order making provision is set out at section 227ZL of the Criminal Justice (Scotland) Act 1995. Subsection (1) provides that each local authority must, for each year, consult prescribed persons about the nature of unpaid work and other activities to be undertaken by offenders residing in the local authority’s area on whom community payback orders are imposed. Section 227ZL(2) states that, with reference to subsection (1), “prescribed persons” means such persons, or class or classes of person, as may be prescribed by the Scottish Ministers by regulations made by statutory instrument. The Committee asked whether the descriptions which are set out at paragraphs (e) to (g) of regulation 2, in referring to “one or more” (body) properly refer to a person or class of person for the purposes of section 227ZL(2).
4. The Government’s response clarifies that the use of the expression “one or more” within paragraphs (e) to (g) of regulation 2 reflects the policy intention. The intention is that the requirement to consult can be fulfilled by consulting only one each of the bodies referred to in paragraphs (e) to (g). The response does not however answer the question which had been asked as to whether a reference in the terms provided for at paragraphs (e) to (g) properly prescribes a person or class of person.
5. The Committee considers that the terms of the power set out in section 227ZL are limited. It can only be used to prescribe those persons who are to be consulted either individually or by reference to a particular class. In relation to the provision made at paragraphs (e) to (g) of regulation 2, the Committee considers that the approach taken seeks to modify the effect of the primary legislation in a manner which narrows the consultation requirement made within the primary legislation. To that extent, the reference to “one or more” of the bodies referred to represents what appears to be an unusual or unexpected use of the powers conferred by the parent statute.
6. The Committee reports this instrument on the basis that the use of the expression “one or more” which is used at regulation 2(e) to (g), in the context of the intended prescription of persons, or a class or classes or person, for the purposes of section 227ZL(2) of the Criminal Procedure (Scotland) Act 1995, appears to represent an unusual or unexpected use of the powers conferred by the parent statute.
The Community Payback Orders (Prescribed Persons for Consultation) (Scotland) Regulations 2011 (SSI 2011/1)
On 14 January 2011 the Scottish Government was asked:
The Scottish Government is asked to explain the significance of the expression “one or more” which is used at regulation 2(e) to (g) in the prescription of persons set out in that regulation, and whether it considers that it properly refers to a person or class of person for the purposes of section 227ZL(2).
Taking the example of regulation 2(e), can “one or more community council” be said to be a “prescribed person” for section 227ZL(2) purposes , and should reference not have been made to “any community councils” or to “community councils” (which is also the approach taken within paragraphs (c) and (d) of regulation 2)?
The Scottish Government responds as follows:
The expression “one or more” was used at regulation 2(e) to (g) to clarify that the requirement to consult can be fulfilled by consulting only one of each of these classes of person. Taking into consideration comments received during the consultation that was carried out before these Regulations were made, the Scottish Government decided not to refer to “any community council” or “community councils”, because of the perceived implication among stakeholders that this meant that all community councils within a local authority area must be consulted. This was a concern in some areas such as the Northern Community Justice Authority where community councils number into the hundreds. The Scottish Government has drawn up guidance to accompany this SSI to make clear that while local authorities are encouraged to consult more widely, only one of each of the bodies referred to in paragraphs (e) to (g) of regulation 2 must be consulted to fulfil the legal requirement.