Administrative matters, eligibility and enforcement
Section 15 - Regulations about support
104.This section enables the Scottish Ministers to make regulations about the provision of support. It is intended to be read with sections 16, 17, 18, and 19 which contain further details about particular aspects of how the power to provide support might be used. This power in section 15 to make regulations provides the basis for the creation of the new payment framework (though the actual power to make the payments itself is contained in section 6).
105.It is anticipated that this regulation-making power will be used in a variety of ways. For example:
to make regulations about support generally, such as how financial support is to be paid to applicants, setting a minimum level for support, the systems that are to be used for the majority of schemes, or steps that can be taken to check compliance with a scheme,
to create particular schemes of support. For example, a set of regulations might provide for a successor scheme to replace the Basic Payment Scheme (BPS),
to create a system of payment entitlements,
to set out requirements around the imposition of conditions in particular circumstances,
to set up systems which monitor how the payment of support is working and inform future plans for the framework.
106.The different purposes for support may be combined in the creation of a scheme (see para 1(2) of schedule 1). This means that, for example, regulations creating a scheme to support forestry and woodland related activities can draw on different purposes in schedule 1 in order to create a comprehensive support framework taking in not only support for establishing woodlands, but also investing in innovation and technology, upskilling the workforce and building networks of landowners and communities.
107.Equally, regulations may establish a scheme independently of other schemes or sharing common components. For example, schemes relating to agriculture should typically have consistent application processes. However, such processes may not be suitable for applications for support rural communities or forestry activities. The power in this section, read with section 35, therefore ensures that it is possible to tailor regulations in that way.
108.The Scottish Ministers must consult such persons as they consider likely to be interested in or affected by provisions in this section before making regulations under this section. The consultation requirements do not specify a fixed set of consultees as the breadth of regulations that may be made under this power means that there is not a single set of stakeholders that will be relevant in all circumstances. However, it would be expected to be appropriate trade and industry representatives and those individuals who wish to contribute to the consultation.
109.The procedure for these regulations is designed to reflect that the provision in question may relate to small administrative matters or minor adjustments of existing regulations up to creating substantial new schemes. Accordingly, anything that the Scottish Ministers consider significant (by reference to the criteria in subsection (5)) is subject to the affirmative procedure whereas more routine matters are subject to the negative procedure. This aims to strike a balance to ensure that appropriate scrutiny is given to the different types of regulations. The criteria in subsection (5) require the Scottish Ministers to consider the number of potential recipients, the amount of land that may be affected, the value of the support. In addition, the affirmative procedure will apply where the Scottish Ministers use the regulations to create a criminal offence.
Section 16 - Eligibility criteria for support
110.This section elaborates on the type of provision that may be made in regulations under section 15. It does not represent a power to make regulations in its own right.
111.The setting of eligibility criteria is an important feature of support schemes and the section clarifies that criteria may be set by reference to a broad range of things – from the activities in question, how they are carried out, the land (or the location of land) on which activities are conducted etc. to the applicant’s personal circumstances (such as a person starting a new farming business or meeting a threshold for turnover from agricultural activity) and the collective nature of an applicant (to enable collective support for joint projects by grazing committees and co-operatives separate from individual support).
112.However, it is worth noting that this list of possible criteria is not exhaustive. There may be other criteria that are appropriate in the range of purposes covered and it is open to the Scottish Minsters to make provision in relation to such criteria. Further, the examples given in parenthesis are included only to aid understanding by giving a flavour of the kind of criteria being described.
Section 17 - Payment entitlements
113.This section elaborates on the type of provision that the Scottish Ministers may make in relation to payment entitlements under section 15. Payment entitlements are part of a system where eligible persons, typically farmers, are allocated an entitlement to a payment under a scheme and are able to claim support for that entitlement provided that they meet a variety of conditions in relation to it. It is envisaged that the Scottish Ministers will use the power to create a new system of payment entitlements which is similar to that which already exists in relation to the BPS.
114.Under the existing system, a farmer participating in the BPS is allocated ‘payment entitlements’. To receive a payment for any given year, the farmer must activate an entitlement against their ‘eligible land’ at the rate of one entitlement per hectare. This is done in an annual claim in the single application form for the particular year. New entrants to farming are eligible to participate in the BPS after receiving an allocation of entitlements from the national reserve, of entitlements that the Scottish Ministers hold. Payment entitlements under current arrangements can also be traded, which enables businesses to buy or sell entitlements, and this provides an alternative route into BPS eligibility for new entrants.
115.Section 17(1) sets out several key aspects of payment entitlements (though this is not an exhaustive list) about which regulations may be made to enable the creation of a replacement system for the one described above. However, the new power may be used to adjust or create a different system that is tailored to the Scottish context.
Section 18 - Checking, enforcing and monitoring support
116.This section elaborates on the type of provision that the Scottish Ministers may make in relation to monitoring compliance, enforcement and related matters under section 15. As with the other provisions of this nature in the Act, it is not exhaustive but is intended to provide further clarity on the type of provision that is expected to be made, particularly where that provision may touch on such topics as powers of entry and the ability to inspect or search premises and seize information that might point to offences, fraudulent claims or non-compliance with conditions.
117.The provision is not solely about compliance however. It also makes clear that regulations may monitor the extent to which the provision of support has achieved its purpose. This may be particularly relevant to schemes which are focused on achieving a particular outcome, such as the restoration of a natural habitat or developing skills in a particular region (like an island community).
Section 19 - Publication of information about support
118.This section elaborates on the type of provision that the Scottish Ministers may make in relation to payment entitlements under section 15. As with other provisions of this nature in the Act it is not exhaustive, but is intended to provide further clarity. In this case, it is intended to ensure that it is possible to publish details of who receives support (including those who own or control a recipient18), the amount of support received and what it is for. The regulations may impose requirements on people (including the Scottish Ministers) and it is expected this will typically be in connection with the provision of information for publication. However, it may also be used to require rectification of incorrect information that has been published in error.
Section 20 - Processing of information
119.This section provides the Scottish Ministers with the power to make regulations about the processing of information for or in connection with the provision of support (under this Act or otherwise) or the carrying out of functions in relation to CPD. Subsection (2) elaborates on the types of things the Scottish Ministers may make provision about. However, subsection (3) provides that the regulations may not require or authorise the disclosure or use of information which would contravene data protection legislation. Any regulations made under this section are subject to the negative procedure and will only be brought forward after appropriate consultation with, among others with an interest, the Information Commissioner.
Section 21 – Monitoring and evaluation of schemes
120.This section provides for monitoring and evaluation of schemes, support provided otherwise than under a scheme, and other relevant assistance (as defined in section 11(4) of the Act).
121.Subsection (1) deals with support schemes. The Scottish Ministers must monitor the impact of each support scheme and prepare one or more reports on the impact and effectiveness of the scheme, having regard to the findings of the monitoring. This is designed to strike a balance between effective monitoring of the main schemes with a lighter touch approach for smaller or less significant schemes.
122.Subsection (2) deals with relevant assistance and other forms of support provided otherwise than under a support scheme. The Scottish Ministers may monitor these forms of support or assistance and prepare one or more reports on the impact and effectiveness of the assistance, having regard to the findings of the monitoring. This is a discretionary power to monitor as it may not always be appropriate to report on support that has, for example, been provided on a one-off or occasional basis.
123.The methodology and length of monitoring are not specified in this section, as the different schemes and methods of support and assistance available mean that there is not a single set of considerations that will be relevant in all circumstances. However, the monitoring must be carried out in such a manner and for such period(s) as the Scottish Ministers consider appropriate for the particular scheme or other support. Similarly, the number and frequency of reports are not specified, but must again be appropriate for the circumstances. Reports produced must be laid before the Scottish Parliament and published.
This will be relevant where there are complex ownership structures such as holding companies or trusts or where a person has significant control over a recipient.
