 I welcome members to the 24th meeting in 2014 of the Delegated Powers and Law Reform Committee. I invite members to switch off any mobile phones, please, and to note that we have received apologies from Richard Baker. Gender item 1 is instruments subject to negative procedure. No points have been raised by our legal advisers on the food hygiene and official feed and food control Scotland amendment regulations 2014, SSI 2014 213, nor on the Town and Country Planning Fees for Applications and Deemed Applications Scotland Amendment Regulations 2014, SSI 2014 214. Is the committee content with these instruments, please? Gender item 2 is instruments not subject to any parliamentary procedure. The Marriage and Civil Partnership, Scotland Act 2014, Commencement No. 2 and Saving Provisions Order 2014, SSI 2014 212. Our legal advisers have raised a couple of points in relation to this instrument. The word on has been omitted before commence, sorry, in between commence and or after that date in Article 3-2A. The effect is that the version makes a saving in respect of any marriages or purported marriages entered into before the 1st of September 2014 and any prosecution in relation to such marriage or purported marriages where proceedings commence or after that date rather than where proceedings commence or after that date. Does the committee, therefore, agree to draw this instrument to the attention of the Parliament and reporting ground H as there is a lack of clarity in the meaning of Article 3-2A? The instrument also fails into force for a limited purpose in sections 12-1, 13-1, 14-1 and 24-1 of the Marriage and Civil Partnership, Scotland Act 2014 and paragraph 1-1 of schedule 1 to that Act. These provisions introduce the various amendments which order seeks to bring into force and specify which Act is being amended. Commencing the amendments without the introductory provisions, the instrument may create uncertainty for users of the legislation. Does the committee, therefore, agree to draw the instrument to the attention of the Parliament under the general reporting ground? Does the committee also agree to note, however, that Scottish Government has laid an amending instrument before the Parliament in order to remedy both of these points raised on the instrument? No points have been raised by our legal advisers on the Victims and Witnesses, Scotland Act 2014, Commencement No. 2 and Transitional Provision Order 2014, SSI 2014-210. However, the committee, we wish to note that Article 3 of the Order contains complex transitional provisions which enable persons with rights prior to the 13th of August to receive information in relation to offences under the Criminal Justice Scotland Act 2003 as amended to benefit from the enhanced information and representation provisions commenced by the Order. Given the complexity and length of these provisions, it would have been useful to the scrutiny of the Order, had the policy note or the explanatory note contained more detail as to the effects and purpose of the existing legislation affected by Article 3 and the effects of the article. It might have been useful, had the planned timing of this instrument allowed a longer period than 19 days between the date when it was laid before Parliament and the date when the provisions are brought into force. Given that Scottish Government aims where possible to allow a period of 40 days, rather, where an instrument contains complex transitional provisions. Do members have any comments to make? Stuart, thank you. Thank you. 19 days, even with the 40 days, it's happenstance because we are normally at this time of year in recess, so I'm glad we've had the opportunity to consider this. The most substantial point is that the policy note not explaining the substantial complexities and that is the only public record of how this legislation is intended to work. I understand that further information has been supplied, but there hasn't been a reissue of the policy note that would put into the public domain that enhanced description of the effect of quite complex changes that are being made. I think it would be appropriate for this committee to consider whether it should encourage the Government to reissue the policy note in its full and more adequate description of the policy that they're introducing, so that lawyers who are operating within this framework or indeed the courts have the benefit of that more full explanation when they're applying this legal provision. John. Thank you, convener, and I, too, agree with what Stuart has said. I think the length of time is not reasonable for our legal assistance to have had the opportunity to consider this bill, or at least these provisions, and given that they are complex, so I'm concerned about that. I think I'm concerned about this process almost breaking down, although there is no fault to be found with the provisions, after a bit of to-ing and fro-ing have they been explained. Therefore, I think there's a process issue here, and could I suggest that perhaps we write to the Standards Committee about this as part of their investigation into the processes of Parliament with a view to making, improving on them? Do Members agree that we should at least draw that part of it to understand the procedures committee's attention? Yes, thank you. I think I'm also concerned that we've got a complex provision which has, as Stuart has said only, as a matter of happens, come in front of us and there's not what in front of the Policy Committee because it won't see it before it comes into force tomorrow. That doesn't sound like a good procedure, albeit I think we're recognising that we believe this is okay. I also have to say absolutely with Stuart Stevenson that if the policy note was inadequate for our legal advisers and they had to go back and ask other questions, then it's plainly inadequate for any legal adviser outside. Therefore, if there is more explanation, it does seem sensible that that should be in the public domain for those who may have to advise their clients, which seem to be a good way of legislating. I think I'm going to suggest to the committee that I might write to the government along those lines and we will also write to the Standards and Procedures Committee suggested. That name will be two letters then, one of the government and one to the standards. Absolutely, that will be one. Do you members, having had those comments, otherwise register their contentment with the instrument? I agree. Thank you. Right, agenda item three is the Revenue Scotland and Tax Powers Bill, item of businesses consideration of delegated powers provisions in this bill after stage two. Members will have noted that the Scottish Government has provided a supplementary delegated powers memorandum and will have seen the briefing paper. Stage three consideration of the bill is due to take place on Tuesday the 19th of August, that is next week. The committee may therefore wish to agree its conclusions today. There are a number of powers to which the committee is invited to give particular consideration. The committee may wish to note that Section 46, as amended, provides that the Scottish Tax Tribunal Rules would be made by Scottish Ministers by regulations rather than by the Court of Session by Act of Starrant. Section 46, as amended, puts in place a similar arrangement to that enacted by paragraph four of Schedule nine to the Tribunals at Scotland Act 2014. That paragraph is a transitional provision which enables the Scottish Ministers to make tribunal rules by regulations until the Scottish Civil Justice Council and the Court of Session are involved in making the rules. The committee may also wish to note that until the Scottish Tax Tribunals become judicially administered by the Scottish Courts and Tribunals Service with rules drafted under the auspices of the Scottish Civil Justice Council, the tax tribunal rules will be made by the Scottish Ministers rather than by the Court of Session. In that regard, Section 46-3 is not framed as a transitional arrangement. Accordingly, it appears that the intended position that tax tribunal rules would in future be made by the Court of Session would be dependent upon an appropriate provisions being enacted in future under the powers of the Tribunal of Scotland Act 2014 to achieve that position. Now, we agreed to note the matters which I've outlined in relation to amendment, sorry, to amended Section 46 and report them accordingly. Thank you. The powers in Section 71D-2B, 159A-2B, 166A-2B, 180A-2B, 181G-2B and paragraph 5D-2B to schedule 3 enable provision or further provision about the amounts of several penaltas which are specified in the Bill. Specifically, they enable Scottish Ministers to charge penalty and change penalty amounts with no limit upon the extent to which they may be changed. The committee may consider that as a matter of principle and expressed by the committee in relation to previous bills, the bill should state suitable maximum levels of permitted increasing amounts of penalties beyond which any amount specified in the regulations could not go. Specific level of these caps is a policy matter and therefore not for this committee to make a recommendation on. However, the committee may wish to report that it does not consider appropriate to confer upon Scottish Ministers and that it considers the setting of maximum penalties is a matter on which Parliament should legislate in the Bill to members wish to make any comments. John. I would just say that it seems perhaps unreasonable that there are no caps on these amounts. Now, that may be the policy intention for there to be a deterrent effect that it's unlimited the level of penalties that may be applied, but if that is the intention it perhaps should be made clearer because at the moment I'm left with the feeling that it is at best unclear. Do you remember any other comments? Do you? I support the general thrust of what John Scott is saying. It is not particularly constraining it seems to me that I read the Bill that's before us for the Bill to contain specified limits that are passed by Parliament at the outset because 71d2b 71d1 et cetera Scottish Ministers may my regulation make provision or further provision about penalties under this chapter so they can subsequently be changed. For which there is a parliamentary procedure and then similarly in relation to schedule 3 at 5d1 again there is a substantial provision that really allows Ministers to bring forward regulations for parliamentary consideration about really anything related to penalties but for us to have a lacuna between the passing of the Bill and the laying of legislation a secondary legislation specifying the amount I think is an unsavastis factory approach to take and it would be far better if there were to be within the Bill a statement as to what the limits are at the point the Bill is passed given that the Government can bring forward orders to make changes to that at a later date. I think that's the position the committee has previously adopted in other context. Perhaps it would be reasonable at the very least to be seeking an explanation why the Government have chosen to do it in this way rather than put it on the face of the Bill. Do you members share my concern that in principle penalties should be specified by Parliament and preferably in primary legislation and the question that I'm therefore coming to is to what extent do we feel in principle it's appropriate that a change to a specified penalty should be in subordinate legislation and do we at least share my view that it must be by an affirmative procedure. I'm trying to put some flesh on the principle which I think we've agreed before but I'm trying to put it in the context of what we have in front of us. Steve. I think the issue is and I'm sure what the Government will be likely to say to us that it will not commence without having indicated what the penalties are to be but the Bill as past has no penalties. A commencement order which could include commencement of the sections of which there are a number that relate to penalties could be brought forward by this Government or a successive Government and commencement orders are not subject to parliamentary procedure. So it is that window through which Parliament can find itself not having had the opportunity to formally agree to moving to a position where there is a regime of no penalties, there is a legal window through which it can go if the commencement order is passed before the ministers have brought forward orders to set the penalties and it is that window which I think is unsatisfactory in the legal process. Now ministers could conclude that they and commit to only bringing forward the commencement order and making it subject to parliamentary procedure but I think that would be a rather unusual approach when the more simple way of dealing with this is for them simply to put an amendment to this Bill which provides for an initial setting of the penalties and setting limits which they have the powers to change at any subsequent point by parliamentary procedure. Can I confess that I am now just a little bit confused and I now need to turn to legal advisers are we in a position where the Government is going to set numerically the limits of these penalties when the Bill is passed? The Bill has no provision for a maximum amount of penalty so that it is the power to make further provision in regulations that would provide for the increased penalty amount so the Bill as it stands has no maximum amount of penalty. So we are not expecting the Bill to have any numbers in terms of a financial penalty for any offence? The Bill specifies the initial penalty amounts So the initial ones are there? The initial ones are there but in terms of a power to amend the penalty and to increase the penalty there is no maximum amount. Yes, that was my understanding and I am not convinced that was necessarily what Stuart Stevens was addressing in that may I stand corrected as I clearly are? Okay, I just want to make sure that we are talking about the same thing so we are in a position where the initial numbers are specified what they are is not are concerned because that is a policy issue at the very least but am I then entitled to remain concerned that they can be changed to any extent by subordinate legislation which is by a verbative procedure? Is that understanding correct? That's correct. Is a parliamentary process that would be required? There is no window through which the effect can be to have unlimited penalty without parliamentary process. That does take me back to the question that I stand with is to what extent the committee feels that in principle that's an acceptable place to be if the original penalties are on the bill face of the bill. I suspect I go back to schedule 3 in section 5D1 given that specifically at 5D2 perhaps it makes 5 provisions can change the circumstances of penalty the amount of penalties procedure for remissioning penalties appealing penalties and enforcing penalties so that there remain unless that were to be changed there always would be the possibility of at a future date changing the amounts of penalties I don't think it would exclude the possibility of there being unlimited penalties but the bottom line is given that it's been made clear and my confusion has now been hopefully somewhat addressed that there is no place where penalties would be unlimited without parliamentary agreeing to it my concerns are substantially less than they were where I was in the more confused position I would have to agree with that too thanks to the further clarification we have had right that does then take me to the other point which is that any changes in those penalties are, as I understand it for any cause whereas again my understanding is that the policy statement we have seen suggests that it's really to deal with the value of money otherwise known as inflation to what extent would the committee share my view that if this power was intended to cover anything that we would call inflation then it might just simply say so because that would appear to be putting on the face of the bill the real intention which is what I would expect us to be putting on the face of a bill convener take a different view I think we're now in a position where it is up to the government to explain when it brings forward an order to change penalties for it at that point whatever the government then is to proffer its explanation for the reasons for doing so and for my part I would be content to move on and not to consider this particular matter further given that we now have an amended bill that has penalties within it as a result of our intervention in the first place Any other comments? With what you're suggesting convener I would consider that would be a policy matter as compared to an actual procedural matter if you wanted to have inflation return to the face of the bill So am I right in thinking that I've talked us into a position perhaps where the committee is content if the initial penalties are on the face of the bill and the government's option for changing those numbers which is bound to be upwards is by affirmative procedure but not subject to any explanation because as I think it's correctly said any government at any point in time may have other reasons and we'll just simply need to give them to parliament at the time Am I right in thinking that's where we've got to? That's my position In which case I think what I've now got us to is a position where actually we're comfortable with what the government is actually proposing which is perhaps not what we were expecting but that's what the discussion's about In which case Right, that's fine Thank you, just give me half a moment while I get my pen through the appropriate words Right In which case the committee may wish to note that section 22183D A seeks to implement the committee's recommendation at stage one as we've just talked about the exercise of the powers in sections 102 should be subject to the affirmative procedure and we're now comfortable with that Thank you Yes that's a different issue When we get to Right, thank you Does the committee agree to report over that paragraph D A should refer to section 102 rather than 101 given that sections 102 and 103 repeatedly refer to the regulations under the whole of section 102 The committee may wish to note that stage one report made recommendations on two other provisions where the Scottish Government undertook to bring forward amendments but the provisions were not so amended at stage two Firstly the committee noted at stage one that Scottish Government would bring forward an amendment to provide that a copy of the ministerial guidance to Revenue Scotland issued in terms of section 81 should be laid before Parliament Secondly, the committee noted that Scottish Government would bring forward an amendment to paragraph 31 of schedule two so that there is a provision for the publication of the rules for the procedures to a fitness assessment tribunal made under the paragraph This would be consistent with the provision of rules under paragraph 21 of that schedule Is the committee agree to report that its recommendations on these provisions remain the same as stage one and in so doing invite the Scottish Government to respond to these recommendations Thank you It's suggested that the committee may wish to be content with all the other provisions in the bill which have been amended at stage two to insert substantially alter or remove provisions conveying powers to make subordinate legislation Are we content to report accordingly Please I think that brings us to the end of that item unless I've missed anything I think it brings us to the end of the agenda and therefore to the end of the meeting Our next meeting will be held next Tuesday the 19th of August and I close this meeting