FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Drummond Young Lord Marnoch	[2012] CSIH 7 XA68 and XA69/11 OPINION OF THE LORD PRESIDENT in Summary Application under Section 20 of the Regulation of Care (Scotland) Act 2001 in the causes MRS SHEILA DAVIES AND ANOTHER t/a ALL STARS NURSERY Pursuers and Respondents; against THE SCOTTISH COMMISSION FOR THE REGULATION OF CARE Defenders and Appellants: _______

Act: Gale, Q.C., Logan; Fyfe Ireland (for Bruce MacDonald & Co., Solicitors, Aberdeen) (Pursuers and Respondents)

Alt: Mitchell, Q.C., Blair; Simpson & Marwick (for Solicitors at SCSWIS, Paisley) (Defenders and Appellants)

Intervener: Lord Advocate: Duncan; Scottish Government Legal Department

24 January 2012

[1] I share Lord Drummond Young's disquiet at the length, to date and prospectively, of the proceedings in the sheriff court. Indeed, I would myself put it more forcibly. It is, in my view, a matter of grave concern that, in a summary application of this kind, the first witness who was examined in chief for four days was then cross-examined for twenty days, the proof with interruptions having extended, so far, from October 2009 until January 2011. There was apparently still a significant amount of evidence proposed to be led when the proof was interrupted by an application on behalf of the pursuers (the present respondents) to, in effect, re-open the evidence in chief of this witness in order to lead from her evidence of the arrangements at the nursery since proceedings were instituted by the present appellants. It is difficult to avoid the conclusion that matters have got out of hand. It should be possible with responsible attitudes being adopted by counsel, combined with firm control by the sheriff, to avoid the extravagant expenditure of time and resources. Where at all possible, matters capable of agreement should be agreed; where matters cannot be agreed, the scope of examination of these should be kept within reasonable bounds. I would expect these observations to be heeded.

[2] The issue before this court is highly technical in nature. It is accepted by all parties that the second and third declaratory findings and the executive order made by the sheriff principal in his interlocutor of 9 May 2011 cannot be supported. The sole issue is whether the Commission remains in existence for the purpose of pursuing the present proceedings, the alternative being that the right to insist in this appeal is vested in Social Care and Social Work Improvement (Scotland) "SCSWIS". Your Lordships have reached different conclusions in that issue. I prefer the approach adopted by Lord Drummond Young, with whose reasoning I agree. I should explain, briefly, why I disagree on this matter with Lord Marnoch.

[3] Section 132 of the Public Services Reform (Scotland) Act 2010 (headed "Ancillary provision") empowered the Scottish Ministers to make by order transitional or saving provision, as well as other provision. By section 52 of the Act the Commission was to be dissolved with effect from the relative commencement date (1 April 2011). Given that certain functions hitherto exercised by the Commission under the Regulation of Care (Scotland) Act 2001 were to be transferred to SCSWIS, it was inevitable that transitional and saving provision would require to be made. The first attempt to do so was by Statutory Instrument 2011 No.121 (the "First Order") made on 18 February 2011 and designed to come into force on 1 April 2011. It was quickly realised that the provision made by the First Order was incomplete. A further order, Statutory Instrument 2011 No.169 (the "Second Order") was made on 28 February 2011, again designed to come into force on 1 April. Article 2(1) of the Second Order provided that in certain specified circumstances (which arose in the present case) "... Part 1 of the 2001 Act will continue to apply for the purposes of the care service ... which is the subject of those appeal proceedings until the final determination of those proceedings". Part 1 of the 2001 Act, which made provision for a then new system of care regulation, included section 1 which established the Commission as a body corporate and required it among other things to "exercise the functions conferred on it by this Act ..." (section 1). Those functions included registration, inspection and enforcement procedures. That saving provision, which is not challenged as ultra vires, had the force of law. In my view, notwithstanding that section 52 of the 2010 Act contains no express qualification of the dissolution of the Commission, that section is implicitly qualified by the saving provision which expressly continues, for the limited purposes identified, the application of Part 1 of the 2001 Act - including the constitution and functions of the Commission. No contradiction with section 52 is involved. No "resurrection" of the Commission occurs - the saving provision comes into force contemporaneously with the new statute.

[4] Mr Gale for the respondents accepted that it was open to Parliament to continue a statutory body in existence for limited purposes, albeit it was otherwise dissolved. That is precisely the effect here, in my view, of the statutory provisions read as a whole. Nor is there any contradiction presented by section 103 of the 2010 Act which transfers the staff of the Commission to the employment of SCSWIS. Section 1(3) of the 2001 Act gave effect to Schedule 1 to that Act, which empowered the Commission to appoint employees. The scheme of the statutory provisions imports that, for the purposes of the saving provision, the staff of SCSWIS may discharge the executive functions required for the limited continuing function of the Commission - including instructing this appeal.

[5] As to Article 21 of the First Order, this had a quite distinct function: section 29 of the 2001 Act had empowered the Scottish Ministers to make regulations and that power had been exercised to make the regulations specified in Article 21(2) of the First Order. In these circumstances it was appropriate to provide that, despite the repeal of the empowering provisions in the 2001 Act, the regulations made under them should (for all purposes) continue in force - though, see now Interpretation and Legislative Reform (Scotland) Act 2010, section 15.

[6] The saving provisions for various purposes made by the First and Second Orders are not in all cases the same. Article 18 of the First Order (urgent cancellation proceedings) is effectively to the same legal effect as Article 2(1) of the Second Order - Part 1 of the 2001 Act (that is, the whole of Part 1) is to continue to apply, for the purposes of the service which is the subject of the application, until the final determination of that application. By contrast, Articles 16 and 17 of the First Order (Care Commission inspections and integrated inspections respectively) continue in force, for the purposes of the respective inspections, only the particular sections authorising such inspections. The distinction is between inspections on the one hand and proceedings on the other. For the latter, where no doubt a range of issues may arise, it has been thought fit that a more wide-ranging saving provision should be made.

[7] Article 19 of the First Order ("Appeal proceedings") deals with a very special situation - where a notice has been given by the Commission within fourteen days prior to the appointed day and thus where the right to appeal against the notice (exercisable within fourteen days of its service) may be exercised after the appointed day. In that circumstance the saving arrangement made is to provide that the appeal is to be treated as an appeal under the 2010 Act. Other provisions in the First Order (for example, Articles 2, 3, 4, 5, 6 and 8) provide that something occurring on or prior to the appointed day is to be "treated as if" occurring under the 2010 Act.

[8] The variety of the transitional and saving techniques employed may be bewildering but the effect of Article 2(1) of the Second Order is, in my view, clear.

[9] For these reasons I agree with the disposal proposed by Lord Drummond Young.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Drummond Young Lord Marnoch	[2012] CSIH 7 XA68 and XA69/11 OPINION OF LORD DRUMMOND YOUNG in Summary Application under Section 20 of the Regulation of Care (Scotland) Act 2001 in the causes MRS SHEILA DAVIES AND ANOTHER t/a ALL STARS NURSERY Pursuers and Respondents; against THE SCOTTISH COMMISSION FOR THE REGULATION OF CARE Defenders and Appellants: _______

Act: Gale, Q.C., Logan; Fyfe Ireland (for Bruce MacDonald & Co., Solicitors, Aberdeen) (Pursuers and Respondents)

Alt: Mitchell, Q.C., Blair; Simpson & Marwick (for Solicitors at SCSWIS, Paisley) (Defenders and Appellants)

Intervener: Lord Advocate: Duncan; Scottish Government Legal Department

24 January 2012

[10] The pursuers operate a nursery, known as the All Stars Nursery, at premises in Aberdeen. Until 2011 the regulation of nurseries was governed by the Regulation of Care (Scotland) Act 2001. The defenders (hereinafter referred to as "the Commission") were the statutory body which was responsible under the Act for the inspection and regulation of care services, including nurseries. They were constituted as a body corporate under section 1 of the 2001 Act. The pursuers were providers of a care service as defined in section 2(1)(m) of the 2001 Act, and as such they were required to apply to the Commission for registration of their service under section 7 of the Act. The pursuers made such an application, which was in due course granted by the Commission under section 9 of the Act.

[11] Under the 2001 Act the Commission had wide-ranging powers to intervene in the running of nurseries and other care services. In addition to authorizing the grant or refusal of registration, the Act empowered the Commission to impose conditions on any such registration if it thought fit (section 9). The Commission was authorized to issue improvement notices to persons providing registered care services, and if any such notice was not complied with to make a proposal to cancel the registration of the relevant care service (section 10). Grounds for cancellation were specified (section 12). These included the ground that the service "is being, or has at any time been, carried on other than in accordance with the relevant requirements", the relevant requirements being those imposed by or under the 2001 Act or any regulations made thereunder. The Commission had power to vary or remove any conditions imposed in relation to registration (section 13). In the event that the Commission decided to make use of the power in section 12 to cancel the registration, it was required to give notice of a proposal to cancel the registration to the person who provided the registered service (section 15(2)), and in that event the recipient was entitled to make representations to the Commission concerning any matter that it wished to dispute (section 16). If the Commission nevertheless decided to implement the proposal to cancel the registration it was required to give the affected person notice of the decision (section 17(3)). Thereafter the affected person was entitled to appeal to the sheriff against the decision (section 20). If such an appeal was made, the decision to cancel the registration would not take effect until the appeal was finally determined or was abandoned (section 17(5)).

[12] Section 20 provided for the right of appeal against a decision to implement a proposal to cancel a registration in the following terms:

"(1) A person given notice under section 17(3) of this Act of a decision to implement a proposal may, within fourteen days after that notice is given, appeal to the sheriff against the decision.

(2) The sheriff may, on appeal under subsection (1) above, confirm the decision or direct that it shall not have effect; and where the registration is not to be cancelled may (either or both) -

(a) vary or remove any condition for the time being in force in relation to the registration;

(b) impose an additional condition in relation to the registration".

The normal method for the cancellation of the registration of care service under the 2001 Act was that specified in sections 12, 15, 16 and 17, subject to the right of appeal in section 20. Special provision was made for cancellation in cases of urgency. This was found in section 18(1), which was in the following terms:

"The Commission may make summary application to the sheriff for an order-

(a) cancelling the registration under this Part of a care service;

(b) varying or removing any condition for the time being in force in relation to the registration; or

(c) imposing an additional condition in relation to the registration,

and if it appears to the sheriff that, unless the order is made, there will be a serious risk to some other person's life, health or well-being the application may be granted".

[13] The Commission became concerned at the way in which the pursuers' nursery was being managed. On 5 March 2008 it served an improvement notice on the pursuers in terms of section 10 of the 2001 Act. The pursuers disputed the factual basis for that notice. Nevertheless the Commission took the view that the notice had not been complied with within the time specified, and on 30 March 2008 it gave notice to the pursuers under section 15 that it proposed to cancel the registration of the pursuers' nursery under section 12 of the Act. Representations in accordance with section 16 were made by the pursuers' solicitors by letter dated 30 June 2008, but the Commission decided to implement its proposal to cancel the registration, as authorized by section 17(3), and gave the pursuers notice to that effect by letter dated 18 August 2008. The pursuers then lodged an appeal to the sheriff under section 20 against the decision to cancel their registration. On 10 October 2008 the Commission gave notice under section 15 of a second proposal to cancel the registration of the nursery in accordance with section 12. Once again, on 24 October 2008, the pursuers made representations under section 16. Nevertheless, the Commission again decided to implement its proposal to cancel the registration, and gave notice to that effect in terms of section 17(3) on 13 March 2009. The pursuers appealed to the sheriff under section 20 against that decision to cancel their registration. The two appeals have proceeded together, although they have not been formally conjoined. The pleadings are voluminous. It is sufficient for present purposes to state that the primary crave in each case is that the sheriff should direct that each of the decisions of the Commission should have no effect, and that the principal ground of action is that the Commission's two decisions were unreasonable and disproportionate and based on inaccurate findings.

[14] The two appeals then proceeded to proof before the sheriff. So far 24 days of evidence have been heard, over a period of 15 months or thereby. All of that evidence has been that of the first named pursuer. A number of witnesses have still to give evidence. After the conclusion of the cross-examination of the first named pursuer, which had lasted for 20 days, counsel for the pursuers made a motion to lead evidence in re-examination as to the current circumstances of the nursery; the previous evidence had been directed towards the manner in which the nursery was run prior to the two notices of cancellation. Counsel for the Commission objected to the leading of such evidence on the basis that the appeals should be decided on the facts as at the dates of the decisions to cancel the nursery's registration, not the current situation. The sheriff upheld the objection and ruled that evidence as to the state of the nursery after 30 March 2009 was inadmissible.

[15] At this stage I should record some disquiet as to the length of the proceedings. Appeals under section 20 of the 2001 Act proceed by way of summary application (rule 1.4 of the Summary Applications and Appeals Rules 1999), and the intention is clearly that they should proceed in a relatively rapid and informal manner. A cross-examination lasting 20 days does not appear consistent with that objective. In making this observation I am conscious that appeals under section 20 raise important issues: on one hand the protection of the public from a deficient care service, and on the other hand the protection of a person's livelihood. Nevertheless effective case management is essential to keep summary proceedings within reasonable bounds. That should normally include ordaining parties to lodge a concise statement of the issues that arise in the appeal. It may also be appropriate to ordain the lodging of detailed written statements from witnesses prior to the hearing, and to have the regulatory authority lead in the hearing of evidence (which if written statements are lodged will consist almost entirely of cross-examination). In addition, it is plainly incumbent on the sheriff to ensure that cross-examination is kept within reasonable limits. Such techniques should allow the crucial issues to be properly considered, in a focused manner, without the proceedings' being unreasonably prolonged.

[16] The pursuers appealed against the sheriff's decision to the sheriff principal. Shortly before the hearing before the sheriff principal, however, the Public Services Reform (Scotland) Act 2010 came into force. That Act was intended to simplify a range of public bodies, and it provided for the dissolution of some of the bodies concerned and the transfer and delegation of the functions of those bodies. One of the bodies affected was the Commission. Under the 2010 Act the Commission's functions were divided between two successor bodies. The functions that were concerned with health care became the responsibility of a new body constituted under the 2010 Act, Healthcare Improvement Scotland. Those concerned with social care and social work, including the regulation of nurseries, were transferred to a new body known as Social Care and Social Work Improvement Scotland (referred to in the Act as "SCSWIS"). SCSWIS was established under section 44 of the 2010 Act. Like the Commission it is a body corporate (2010 Act, Schedule 11, paragraph 1(1)). Part 5 of the 2010 Act conferred on SCSWIS a range of powers to regulate and inspect nurseries which broadly speaking corresponded to the powers that had previously been exercised by the Commission under the 2001 Act. Under section 102 of the 2010 Act all employees, property, rights and liabilities of the Commission were transferred to SCSWIS. Section 52 of the 2010 Act provided that the Commission should be dissolved. It was a matter of agreement that both the constitution of SCSWIS under section 44 and the dissolution of the Commission under section 52 took effect untrammelled by qualifications on 1 April 2011, in terms of paragraph 3(1) and (2) of and the Schedule to the Public Services Reform (Scotland) Act 2010 (Commencement No 4) Order 2011 (2011 SSI 122).

[17] An administrative reorganization such as that found in the 2010 Act obviously requires transitional provisions to deal with existing rights, obligations, powers and liabilities. Sections 132 and 133 of the 2010 Act empowered the Scottish Ministers by order to make such transitional provision as they considered necessary or expedient for the purposes of any provision of the Act. So far as the transfer of the Commission's functions was concerned, two transitional orders were made, the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions Order 2011 (hereinafter referred to as the first Transitional Order) and the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions (No. 2) Order 2011 (hereinafter referred to as the second Transitional Order). The difficulty that has arisen in the present case arises out of the provisions of those Transitional Orders, read in conjunction with the 2010 Act itself. I will consider the detailed terms of those Orders in due course. For present purposes, it is sufficient to record that article 2 of the second Transitional Order made express provision for appeals that had been raised under section 20 of the 2001 Act; in relation to such cases, it stated that Part 1 of the 2001 Act should continue to apply for the purposes of the care service which was the subject of the appeal proceedings until the final determination of the proceedings.

[18] Before the sheriff principal it was argued for the pursuers that the effect of the 2010 Act was that the Commission had been dissolved with effect from 1 April 2011 and replaced by SCSWIS. The result was that the Commission no longer existed, but SCSWIS had no title or interest to enter the proceedings. Consequently the decision that the Commission had made under section 17(3) of the 2001 Act to cancel the pursuers' registration was a nullity. Moreover, because the Commission no longer existed, it could not be a party to the present proceedings. The sheriff principal accepted that argument. He held that section 52 of the 2010 Act dissolved the Commission without qualification, and section 102 of the same Act transferred all its staff, property and liabilities to SCSWIS. Nothing in the two Transitional Orders provided clearly that the Commission should continue to exist even for the limited purpose of opposing the present appeals. Moreover, the power in section 132 of the 2010 Act to make transitional provisions did not permit Ministers to do something which was impossible, namely to maintain in existence for a limited purpose only, without any staff or property, a body corporate which has been declared otherwise to have been dissolved. Because the Commission no longer existed, it was not in a position either to be represented in the present appeals or to oppose them.

[19] That raised the question of what should happen to the two appeals. The sheriff principal held that the result of the dissolution of the Commission was that the decisions made by it under section 17(3) of the 2001 Act to cancel registration of the nursery were nullities. Notwithstanding the provisions of the second Transitional Order, those decisions could not have a life of their own apart from the body that made them, or was deemed to have made them. Nothing in the Transitional Orders treated the decisions to close the nursery as if they had been made by SCSWIS, and consequently those decisions could no longer have any meaning or effect. Consequently, under the second Transitional Order, the nursery would be treated for all purposes as if it had been registered under Part 5 of the 2010 Act. That meant that SCSWIS would have all necessary powers to monitor the situation in regard to the nursery and to take any action necessary to protect the safety, health and well-being of the children cared for in it. The sheriff principal further removed a condition that had been imposed by the Commission to the effect that the first pursuer should not have contact with or access to children enrolled in the nursery; that condition was challenged in the appeal proceedings.

[20] The Commission appealed against the sheriff principal's decision to the Court of Session. The main ground of challenge was that the sheriff principal had erred in concluding that the defenders did not exist; article 2 of the second Transitional Order had the effect that the proceedings would continue until a final determination had been made, and those proceedings would be governed by Part 1 of the 2001 Act. Dealing with continuing court proceedings when a statutory body was dissolved was a well-known issue in statutory drafting, and it would be expected that the transitional provisions governing the move from the 2001 Act to the 2010 Act would have been properly regulated in this respect: McLeod, Principles of Legislative and Regulatory Drafting, 99. Two general techniques existed: either to provide that the new body should carry on existing proceedings in its own name or to provide that the old body should carry on existing proceedings. In the present case the latter route was chosen; that was clear from the terms of the second Transitional Order. Thus the Commission had a continued existence for the purposes of the appeal. Alternatively, if that approach were wrong, SCSWIS should be deemed to have taken the place of the Commission as from 1 April 2011. Furthermore, the sheriff principal's approach treated actings of the Commission prior to 1 April 2011 as nullities, and this meant that the public interest reflected in those decisions was ignored. Counsel for the Commission also challenged the sheriff principal's granting of decree of declarator that SCSWIS had no title or interest to enter the proceedings; SCSWIS had not sought to do so, and consequently no such finding could properly be made.

[21] The appellant applied for and was granted a warrant to intimate the appeal to the Lord Advocate, who decided to intervene in the proceedings in order to make submissions on the principal question that arose, namely whether, as the sheriff principal held, the Commission continued to exist for the limited purpose of completing proceedings such as those currently before the court or whether, as from 1 April 2011, it ceased to exist for all purposes. Counsel for the Lord Advocate submitted that the issue turned on the construction of article 2 of the second Order, read together with the similar provisions found in article 18 of the first Order. These disclosed a clear intention that any continuing appeal should be governed by the 2001 Act until its final determination. The relevant care service would not enter the new statutory regime until the successful determination of the appeal, and if that occurred it would do so automatically under the provisions of articles 2(2) and 3(c) of the second Transitional Order. In the meantime, the care service would be subject to the whole of Part 1 of the 2001 Act. Part 1 included section 1, the section that constituted the Commission; consequently the Commission continued to exist and ought to be party to the proceedings.

[22] Counsel for the pursuers adopted the sheriff principal's reasoning. He submitted that specific provision was made in various provisions of the Transitional Orders for the transfer of functions of the Commission to SCSWIS. If it had been the intention of the Scottish Parliament to transfer existing litigation to SCSWIS, that could easily have been achieved. Nothing in the legislation did so, however; nor did the legislation preserve the existence of the Commission. Consequently the Commission could not appeal against the sheriff principal's decision, because it no longer existed, and the legislation did not permit SCSWIS to stand in its place. If it did, however, counsel adopted the latter possibility as an alternative position. Particular emphasis was placed on section 102 of the 2010 Act, which provided that the whole of the staff of the commission should be transferred automatically to SCSWIS. That made it impossible for the Commission to perform any legal act. That would include any attempt to make SCSWIS its agent for the purpose of continuing with the litigation. The sheriff principal's construction did not, it was submitted, deprive article 2 of the second Transitional Order of any meaning; article 2 identified a specific service (the care service subject to the appeal proceedings) and provided that that service should continue to be subject to the provisions of the 2001 Act. Because the Commission no longer existed, however, it was necessary that enforcement of those proceedings should be by SCSWIS.

[23] In my opinion the sheriff principal's conclusion was incorrect. On a proper construction of the 2010 Act and the two Transitional Orders, I am of opinion that, notwithstanding the terms of section 52 of the 2010 Act, the Commission remains in existence for the purpose of regulating any care service that is the subject of an existing appeal under section 20 of the 2001 Act. That inevitably means that the Commission remains in existence for the purpose of those appeal proceedings, and remains the proper party to those proceedings. That result is specifically contemplated by article 2 of the second Transitional Order, read in the context of the 2010 Act. Consequently the Commission is properly represented in the present proceedings, and those proceedings remain governed entirely by the 2001 Act.

[24] As mentioned above, section 52 of the 2010 Act dissolved the Commission, that provision taking effect free of any qualifications on 1 April 2011. SCSWIS came into existence on the same date, and under section 102 of the 2010 Act the Commission's employees, property, rights and liabilities were transferred to SCSWIS. Nevertheless, articles 2 and 3 of the second Transitional Order make special provision for any pending appeal to the sheriff against a decision of the Commission to cancel the registration of a care service. Article 2, so far as material, provides as follows:

"(1) Where-

(a) a person has been given notice by the Commission under section 17(3) of the 2001 Act of the Commission's decision to implement a proposal in relation to... a notice under section 15 of that Act in respect of a care service...;

(b) that person has raised an appeal in respect of that decision under section 20 of the 2001 Act; and

(c) that appeal has not been finally determined before 1^st April 2011,

Part 1 of the 2001 Act will continue to apply for the purposes of the care service... which is the subject of those appeal proceedings until the final determination of those proceedings.

(2) Article 2(1) of the first Savings and Transitional Order does not apply to any care service to which paragraph (1) applies".

(Article 2(1) of the first Transitional Order provides that on 1 April 2001 any care service registered under Part 1 of the 2001 Act is to be treated for all purposes as if it had been registered under Part 5 of the 2010 Act, and subject to the same conditions). Article 3 of the second Transitional Order provides that, where the final determination of an appeal under section 20 of the 2001 Act is that the registration of a care service is not cancelled, the care service in question is to be treated for all purposes as if it had been registered under Part 5 of the 2010 Act.

[25] The effect of article 2 of the second Transitional Order is accordingly that, where a person providing a care service has received notice of a decision to implement a proposal to cancel its registration in accordance with section 17(3) of the 2001 Act and has appealed to the sheriff against that decision in accordance with section 20 of the Act, Part 1 of the 2001 Act "will continue to apply for the purposes of the care service". It is, moreover, the whole of Part 1 of the 2001 Act that continues to apply; the reference to that Part is not qualified in any way in article 2. That wording makes it quite clear in my opinion that the care service remains regulated exclusively by Part 1 of the 2001 Act, and not by Part 5 of the 2010 Act, until the final determination of the appeal proceedings. Part 1 of the 2001 Act includes section 1, which is the statutory provision constituting the Commission. That inevitably means that, where a care service is the subject of an appeal under section 20, the Commission continues in existence for the purpose of regulating that service and continuing the conduct of the relevant proceedings. Moreover, under article 2(2) of the second Transitional Order, the provision of the first Transitional Order (article 2(1)) that triggers the automatic transfer of a care service from the 2001 regime to the 2010 regime is expressly disapplied. That state of affairs only comes to an end on the final determination of the appeal proceedings. If at that point the registration of the care service is not cancelled, the service is treated for all purposes as if it had been registered under the 2010 Act in accordance with article 2(2) of the second Transitional Order. If on the other hand the registration is cancelled, it is unnecessary that there should be any provision; the registration simply comes to an end under the provisions of the 2001 Act, and the 2010 Act never operates. So far as the present appeal proceedings are concerned, the Commission remains the proper respondent, and all of the issues arising in those proceedings continue to be governed by Part 1 of the 2001 Act. The 2010 Act only comes into operation on the final determination of the appeal if the pursuers' registration is not cancelled.

[26] Articles 2 and 3 of the second Transitional Order were in my opinion properly enacted. The second Transitional Order was made in accordance with the power contained in sections 132 and 133 of the 2010 Act. Section 132 empowers the Scottish Ministers to make "such consequential, supplemental, incidental, transitional, transitory or saving provision as they consider necessary or expedient for the purposes of, or in consequence of, or for the purposes of giving full effect to, any provision of this Act". That wording is very wide, and in my opinion it is clearly habile to authorize articles 2 and 3 of the second Transitional Order. When a regulatory regime is transferred from one statutory body to another, the question of how existing court proceedings are to be dealt with is an obvious issue that confronts the Parliamentary draftsman. Two main techniques exist for dealing with this matter: either the proceedings are transferred in their entirety to the new body, which then becomes the party to the proceedings, or the existence of the old body is continued for the purposes of the proceedings, so that they continue to a conclusion without reference to the transfer of functions to the new body. In the present case it is the latter course that was chosen. The intention of the legislation is clearly that appeal proceedings which were begun under the 2001 Act should remain governed entirely by that Act until they reach a conclusion. To that end, the Commission is kept in existence for the limited purpose of the registration that is the subject of those proceedings, in order that the relevant statutory provisions form a coherent whole; those provisions of course refer throughout to the Commission rather than SCSWIS. An alternative procedure might have been followed, in such a way that the proceedings were transferred to SCSWIS and the registration was transferred into the scheme of the new Act. That could conceivably give rise to complications, however, in that events that took place before the proceedings were started would fall to be adjudicated by reference to legislation that was not then in force. Moreover some effort might be required to translate actions that were performed or assessed under the old legislation into the scheme of the new legislation. Consequently there are practical reasons for retaining the application of the old Act to both the proceedings and the registration of the care service in question until such time as the appeal proceedings are concluded.

[27] I should note two further matters at this stage. First, any order made under sections 132 and 133 takes the form of a statutory instrument, and is subject to annulment in pursuance of a resolution of the Scottish Parliament: section 133(1)(a) and (3). A duly enacted statutory instrument, although subordinate legislation, has the same force of law as primary legislation: Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry, [1975] 1 AC 295, at 349 per Lord Morris of Borth-y-Gest. Secondly, the scheme adopted in articles 2 and 3 of the second Transitional Order is in accordance with that found in sections 15 and 16 of the Interpretation and Legislative Reform (Scotland) Act 2010. Those sections deal with Acts of the Scottish Parliament or Scottish statutory instruments that repeal or revoke earlier legislation. Section 15(2)(a) provides that "the repeal or revocation does not affect... the validity, invalidity, effect or consequences of anything done or suffered under the repealed Act or revoked instrument". Section 16(2) provides that the repeal or revocation "does not affect any investigation, legal proceeding or remedy that relates to an existing right". Section 16(3) provides that "Any investigation, legal proceeding or remedy that relates to an existing right may be instituted, continued or enforced as if the Act had not been repealed or, as the case may be, the instrument had not been revoked". The provisions of the Interpretation Act 2010 essentially provide a default scheme, in that the legislation dealing specifically with the consequences of the repeal of an Act or statutory instrument may make express provision to the contrary. Nevertheless, the fact that the default scheme mirrors the provisions of articles 2 and 3 of the second Transitional Order emphasizes the fundamental coherence of the latter scheme.

[28] The sheriff principal expressed the view that the power in section 132 to make transitional provisions did not permit Scottish Ministers to do something impossible, namely to maintain in existence for a limited purpose a body corporate which is declared to have been dissolved. In my opinion the continuation of the existence of a body corporate for limited purposes only is unquestionably possible. A body corporate is a creation of the law, and the law can determine whether its existence is to be recognized for all purposes or only for certain defined purposes. It is usually appropriate to make the existence of a body corporate of universal application, as occurs with a limited company or the great majority of statutory corporations. Nevertheless, there is nothing impossible or irrational or even unreasonable in providing that a body corporate should exist for limited purposes, provided that these are adequately specified. In such a case it is not strictly correct to say that the body corporate both exists and does not exist; the body corporate exists, but the ambit and relevance of that existence are limited. Thus for any other purpose it is possible to treat the body corporate as if it did not exist. Under article 2 of the second Transitional Order the Commission is maintained in existence for the purpose of the registration of any care service that is the subject of appeal proceedings, and obviously for the purpose of those proceedings themselves, but not otherwise. That result is entirely rational.

[29] The 2010 Act provides for the repeal of Part 1 of the 2001 Act, in paragraph 37 of Schedule 14. That provision took effect without further qualifications on 1 April 2011, in accordance with the Public Services Reform (Scotland) Act 2010 (Commencement No 4) Order 2011 (2011 SSI 122). Those provisions must, however, be subject to the transitional provisions that brought the 2010 Act into force in place of the 2001 Act. To the extent that those transitional provisions delay or postpone the repeal of any part of the 2001 Act, that delay or postponement must be given effect. That is so whether the delay is general, to the effect that the repeal of a particular provision of the 2001 Act will be delayed until a specified date, or particular, to the effect that the repeal of a provision of the 2001 Act is postponed for a specified purpose. In the present case, articles 2 and 3 of the second Transitional Order fall into the latter category. Their effect, if fairly read, is to postpone the repeal of Part 1 of the 2001 Act in respect of any care services registration that is the subject of current proceedings under section 20 of that Act. I should add that counsel for the pursuers accepted that, even if the Commission had ceased to exist in consequence of section 52 of the 2010 Act, certain provisions of the 2001 Act were preserved by the two Transitional Orders. For example, article 15 of the first Transitional Order preserved the effect of sections 9 and 15 of the 2001 Act for the purposes of any outstanding application for registration that had not been determined by the Commission before the 2010 Act came into force. Thus the proposition that the repeal of the 2001 Act might be postponed for particular purposes was not in dispute.

[30] Section 102 of the 2010 Act provides that, with effect from the date when SCSWIS came into existence, any person employed by the Commission was transferred into the employment of SCSWIS, and all property, rights and liabilities of the Commission were transferred to and vested in SCSWIS. The date when those provisions took effect was 1 April 2011, in terms of paragraph 3(1) and (2) and the Schedule to the Public Services Reform (Scotland) Act 2010 (Commencement No 4) Order 2011 (2011 SSI 122). After that date, accordingly, the Commission had no employees or property. Counsel for the pursuers placed particular emphasis on this feature in attempting to demonstrate that it could not have been intended that the Commission could have any existence after that date. He submitted that the Commission, not being a natural person, could only give instructions for the conduct of litigation if one or more individuals were empowered to give those instructions on its behalf. Without employees or officers, therefore, the Commission could not give instructions for the continuation of the proceedings, and could not even authorize SCSWIS to act as its agent for the purpose of giving such instructions. Without property, the Commission could not pay the fees and outlays that would be necessary for continuation of the appeal.

[31] In my opinion those consequences do not follow. As indicated at paragraph [16], I am of opinion that the clear meaning of articles 2 and 3 of the second Transitional Order is that the Commission continues in existence for the purpose of regulating any care service that is the subject of outstanding appeal proceedings and conducting those proceedings. Moreover, the proceedings remain governed by the 2001 Act. In order to achieve that intention, it is obvious that means must be supplied to enable the Commission to perform its remaining functions; those means consist both of personnel and of financial resources. The obvious implication in my opinion is that SCSWIS was to provide both the staff and the financial resources that were required to achieve this end. SCSWIS was the Commission's statutory successor; it had taken over all of the Commission's staff, and it exercised functions that were in practical terms identical to those carried out by the Commission. The relationship that existed between the Commission and SCSWIS for these purposes can properly be categorized as implied agency; thus SCSWIS would give instructions for the conduct of the appeal proceedings and fund those proceedings as agent for the Commission. I do not think that there is any difficulty in implying an agency relationship in such circumstances. Agency is in essence an extremely simple relationship, and it can readily be implied in almost any case where one person performs a task on behalf of another, either consensually or under a statutory scheme. In the present case counsel for the pursuers submitted that SCSWIS could not act as agent for the Commission because the Commission, having no officers or staff, could not consent to any agency relationship. That argument might be valid if it were argued that the implied agency arose consensually, as would occur where, for example, one company in a group performs services for another member of the group. In the present case, however, the implied agency arises under a statutory scheme, in order that that scheme may be given effect. In such a case the consent of the Commission is in my view irrelevant.

[32] I should also note the manner in which the Transitional Orders dealt with section 18 of the 2001 Act. Section 18 empowered the Commission to make summary application to the sheriff for an order cancelling the registration of a care service or varying, removing or imposing conditions in relation to such registration. The section was designed to deal with urgent cases, and it was necessary that the sheriff should find that, without the order, there would be a serious risk to a person's life, health or well-being. The relevant transitional provision is article 18 of the first Transitional Order. Article 18(1) provides that, where prior to the appointed day (1 April 2011) the Commission has made a summary application to the sheriff for an order under section 18 of the 2001 Act, Part 1 of that Act "continues to apply for the purposes of the service which is the subject of that application, until the final determination of that application". It can be seen that this provision is framed in terms that are very similar to article 2 of the second Transitional Order. Once again, the scheme is clear: so far as a care service is subject to outstanding court proceedings, Part 1 of the 2001 Act continues to apply to that service until the proceedings had been finally determined. In the event that the registration of the service is not cancelled, article 18(2) makes provisions that are almost identical to those found in article 3 of the second Transitional Order: the care service is treated for all purposes as if it had been registered under Part 5 of the 2010 Act. The fact that a similar scheme is used for both categories of outstanding proceedings, urgent cancellation proceedings and appeals against notices issued by the Commission, strongly suggests that the scheme was chosen deliberately, to ensure that the same statutory provisions apply throughout such proceedings.

[33] I should in addition mention article 19 of the first Transitional Order, which also concerns appeal proceedings. This deals with the situation where, within 14 days prior to the appointed day, a person has been given notice under section 17(3) of the 2001 Act (notice of a proposal to cancel a registration or impose a condition). In that event, with effect from the appointed day any right of appeal under section 20 of the 2001 Act is to be treated as arising under section 75 of the 2010 Act and any appeal that might be taken under section 20 of the 2001 Act is to be treated as taken under section 75 of the 2010 Act. This deals with a very limited category of cases, namely those where notice of a proposal to cancel a registration or impose a condition is given during the 14 days prior to the date when the new statutory scheme takes full effect. This clearly has no relevance to the present case, and we were informed that no appeals had in fact fallen within article 19. It seems that, at the time when the first Transitional Order was drafted, although urgent cancellation proceedings that were outstanding were dealt with in article 18, it was not noticed that it was necessary to make similar provision for outstanding appeal proceedings. That was corrected in the second Transitional Order.

[34] For the foregoing reasons I am of opinion that the appeal should be allowed and that the order of the sheriff principal should be recalled. That includes the sheriff principal's finding in expenses. On that basis the substantive issue that arose in the appeal to the sheriff principal must be determined. This is whether the sheriff was in error in refusing to permit the pursuers to lead evidence as to the current condition of their care service. Counsel for the Commission submitted that this issue had been determined by an Extra Division in Yashi Care Ltd v Scottish Commissioner for the Regulation of Care, 25 February 2005, [2005] CSIH 24. The matter was not argued before us, however, and the most appropriate course of action would be to have the case put out By Order to enable parties to consider their positions on this issue.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Drummond Young Lord Marnoch	[2012] CSIH 7 XA68 and XA69/11 OPINION OF LORD MARNOCH in Summary Application under Section 20 of the Regulation of Care (Scotland) Act 2001 in the causes MRS SHEILA DAVIES AND ANOTHER t/a ALL STARS NURSERY Pursuers and Respondents; against THE SCOTTISH COMMISSION FOR THE REGULATION OF CARE Defenders and Appellants: _______

Act: Gale, Q.C., Logan; Fyfe Ireland (for Bruce MacDonald & Co., Solicitors, Aberdeen) (Pursuers and Respondents)

Alt: Mitchell, Q.C., Blair; Simpson & Marwick (for Solicitors at SCSWIS, Paisley) (Defenders and Appellants)

Intervener: Lord Advocate: Duncan; Scottish Government Legal Department

24 January 2012

[35] As from 1 April 2011 the Public Service Reform (Scotland) Act 2010 replaced the Scottish Commission for the Regulation of Care with two new statutory bodies, one of which was Social Care and Social Work Improvement Scotland (referred to by counsel and hereinafter referred to as "the Inspectorate"). To that body was transferred, with only relatively minor differences in the statutory wording, the Social Care and Social Work functions (but not the Healthcare Improvement functions) of the former Commission. By section 52 of the Act the Commission was "dissolved" and by section 102 all the staff, property and liabilities of the Commission were transferred to the Inspectorate. Finally, for present purposes, by section 106 and paragraph 37 of schedule 14 to the Act Part I of the Regulation of Care (Scotland) Act 2001, which was the Part under which the Commission had been established, was repealed. By virtue of various Commencement Orders all this occurred on 1 April 2011.

[36] Plainly transitional provisions were required and these were supplied by two statutory instruments, the first of which was the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions Order 2011 (2011 SSI 121). For present purposes it is, I think, unnecessary to reproduce the whole of this Order and, instead, I set out below those provisions which appear to be of relevance:

"The Scottish Ministers make the following Order in exercise of the powers conferred by sections 132 and 133(1)(c) of the Public Services Reform (Scotland) Act 2010 and all other powers enabling them to do so.

PART I GENERAL

Citation, commencement and interpretation
1.-(1) This Order may be cited as the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions Order 2011 and comes into force on 1^st April 2011.

(2) In this Order-

"the appointed day" is 1^st April 2011;

"care service" has the meaning given by section 47(1) of the 2010 Act;

...

"the 2001 Act" means the Regulation of Care (Scotland) Act 2001;

...

"the 2010 Act" means the Public Services Reform (Scotland) Act 2010;

...

"the Commission" means the Scottish Commission for the Regulation of Care;

"HIS" means Healthcare Improvement Scotland; and

"SCSWIS" means Social Care and Social Work Improvement Scotland.

PART II CARE SERVICES

TRANSITIONAL PROVISIONS

Registration
2.-(1) Where on the appointed day, a person provides a care service which immediately before that day was registered under Part 1 or 2 of the 2001 Act, that care service is to be treated for all purposes as if it had been registered under Part 5 of the 2010 Act on that day and is subject to the same conditions as the registration under Part 1 or 2 of the 2001 Act was subject.

(2) Paragraph 1 does not apply to a registration to which article 18(1) applies.

Improvement notices

3.-(1) Where prior to the appointed day an improvement notice has been given under section 10 of the 2001 Act, that notice is to be treated for all purposes as if it had been given by SCSWIS under section 62 of the 2010 Act.

(2) Any reference in that notice to section 2, 12, 14, 41 or Part 2 of the 2001 Act is to be treated as a reference to section 64, 70, 91, Chapter 4 or schedule 12 of the 2010 Act as appropriate.

Cancellation notices

4. Where prior to the appointed day, the Commission has proposed under section 12 of the 2001 Act, to cancel the registration of a care service, that proposal is to be treated for all purposes as if it had been made by SCSWIS under section 64(1) of the 2010 Act, and as if any reference to a relevant offence or to a relevant requirement in that section were to a relevant offence or relevant requirement as defined in section 12 of the 2001 Act.

Condition notices

5. Where prior to the appointed day, a person providing a care service is given a condition notice under section 13 of the 2001 Act, that notice is to be treated for all purposes as if it had been given by SCSWIS under section 66 of the 2010 Act.

Applications in respect of conditions

6. Where prior to the appointed day a person providing a care service registered under Part 1 of the 2001 Act has applied to the Commission for the variation or removal of a condition in force in relation to the registration, or variation or removal of a condition in force in relation to the registration, or for cancellation of the registration, in accordance with section 14 of the 2001 Act, and that application has not been granted or refused prior to the appointed day, that application is to be treated for all purposes as if it were an application made to SCSWIS in accordance with section 70 of the 2010 Act by a person providing a care service registered under Part 5 of that Act.

...

Complaints

9. Where immediately before the appointed day, the Commission has received a complaint relating to-

(a) the Commission;

(b) a care service; or

(c) an independent health care service,

and investigation of that complaint has not concluded, the investigation of that complaint is to be carried out by SCSWIS.

PART III INDEPENDENT HEALTH CARE SERVICES

...

PART IV SAVINGS PROVISIONS

Applications
15.-(1) Subject to paragraphs (2) and (3), where a person who seeks to provide a care service or an independent healthcare service has made an application to the Commission in accordance with section 7 or 8 of the 2001 Act in respect of that service, and that application has not been determined by the Commission before the appointed day, that application is to continue to be dealt with under those provisions, and sections 9 and 15 of the 2001 Act remain in force for that purpose.

(2) Where paragraph (1) applies-

(a) if the application relates to a care service all references to the Commission are to read as references to SCSWIS; and

(b) if the application relates to an independent health care service all references to the Commission are to read as references to HIS.

(3) Where SCSWIS or HIS determine that such an application should be granted, SCSWIS or HIS, as the case may be, must grant registration under section 60 of the 2010 Act or section 10Q of the NHS Act, as the case may be, subject to such conditions as they think fit.

Care Commission inspections

16. Where prior to the appointed day the Commission has commenced an inspection of a care service or an independent health care service under section 25 of the 2001 Act, which has not concluded by the appointed day, that section and section 27 of the 2001 Act will continue in force for the purposes of that inspection.

Integrated inspections

17. Where before the appointed day the Commission and Her Majesty's inspectors have commenced an integrated inspection under section 26 of the 2001 Act, which has not concluded by the appointed day, that section will continue in force for the purposes of that inspection.

Urgent cancellation proceedings
18.-(1) Where prior to the appointed day the Commission has made a summary application to the sheriff for an order under section 18 of the 2001 Act, Part 1 of the 2001 Act continues to apply for the purposes of the service which is the subject of that application, until the final determination of that application.

(2) Where the registration of the service is not cancelled-

(a) if the service is a care service, it is to be treated for all purposes as if it had been registered under Part 5 of the 2010 Act;

...

immediately following determination of the application.

Appeal proceedings
19. Where a person has been given notice within 14 days prior to the appointed day under section 17(3) of the 2001 Act, from the appointed day any right of appeal under section 20 of the 2001 Act is to be treated as arising under section 75 of the 2010 Act and any appeal taken under section 20 of the 2001 Act is to be treated as taken under section 75 of the 2010 Act.

Offences
20.-(1) Where prior to the appointed day criminal proceedings are ongoing in respect of an offence under section 21, 22, 23 or 40 of the 2001 Act, those sections continue in force for the purposes of those proceedings.

(2) Any offence committed under section 21, 22, 23 or 40 of the 2001 Act before the appointed day may be prosecuted after that day as if Part 1 of the 2001 Act had not been repealed.

Regulations

21. Despite the repeal of section 29 of the 2001 Act, the following regulations continue in force-

(a) the Regulation of Care (Fitness of Employees in relation to Care Services) (Scotland) (No.2) Regulations 2009;

(b) regulations 19 to 24 of the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 and such other provisions of those Regulations as are necessary for the purposes of regulations 19 to 24."

[37] The second of the statutory instruments referred to above was the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions (No.2) Order 2011 (2011 SSI 169) which provided as follows:

"The Scottish Ministers make the following Order in exercise of the powers conferred by sections 132 and 133(1)(c) of the Public Services Reform (Scotland) Act 2010 and all other powers enabling them to do so.

Citation, commencement and interpretation

1.-(1) This Order may be cited as the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions (No.2) Order 2011 and comes into force on 1^st April 2011.

(2) In this Order-

"the 2001 Act" means the Regulation of Care (Scotland) Act 2001;

"the 2010 Act" means the Public Services Reform (Scotland) Act 2010;

"the NHS Act" means the National Health Service (Scotland) Act 1978;

"care service" has the meaning given by section 47(1) of the 2010 Act;

"independent health care service" has the meaning given by section 10F of the NHS Act.

Appeal proceeds (sic) - savings provision

2.-(1) Where-

(a) a person has been given notice by the Commission under section 17(3) of the 2001 Act of the Commission's decision to implement a proposal in relation to a condition notice or a notice under section 15 of that Act in respect of a care service or independent health care service;

(b) that person has raised an appeal in respect of that decision under section 20 of the 2001 Act; and

(c) that appeal has not been finally determined before 1^st April 2011,

Part 1 of the 2001 Act will continue to apply for the purposes of the care service or independent health care service which is the subject of those appeal proceedings until the final determination of those proceedings.

(2) Article 2(1) of the first Savings and Transitional Order does not apply to any care service to which paragraph (1) applies.

(3) Article 10(1) of the first Savings and Transitional Order does not apply to any independent health care service to which paragraph (1) applies.

(4) For the purposes of this article-

"the Commission" means the Scottish Commission for the Regulation of Care;

"the first Savings and Transitional Order" means the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions Order 2011.

Deemed registration of service - transitional provision
3. Where the final determination of an appeal under section 20 of the 2001 Act is that the registration of a care service or an independent health care service is not cancelled, then either-

(a) where the service is a care service, it is to be treated for all purposes as if it had been registered under Part 5 of the 2010 Act; or

(b) where the service is an independent health care service, it is to be treated for all purposes as if it had been registered under section 10P of the NHS Act."

[38] In the present case, as Lord Drummond Young has explained, following a notice of decision given by the Commission under section 17(3) of the 2001 Act there were, as at 1 April 2011, ongoing appeal proceedings under section 20 of the 2001 Act. The question - and it should be a short question - which arises for our decision is as to the effect of Article 2(1) of the later statutory instrument in that situation.

[39] The sheriff principal held that since the Commission had been dissolved as from 1 April 2011 its earlier decision, which had been the subject of the appeal, was a nullity. However, before us that view of matters was not supported and instead the question came to be whether for purposes of conducting the appeal after 1 April 2011 the Commission remained in existence or whether the Inspectorate had on that date taken its place. In fairness to the sheriff principal it must be noted that the second limb of that question was never argued before him.

[40] Your Lordships have taken the view that the effect of Article 2(1) is that, notwithstanding the unqualified terms of sections 52 and 102 of the 2010 Act, the Commission actually remains in place and, in order to conduct the appeal and similar proceedings, has implied powers to recruit personnel and obtain funding from the Inspectorate. In that connection, it is suggested, I think, that for the particular purpose of continuing court proceedings it may have been thought by the legislature that the Commission should remain in existence.

[41] Regrettably, and with the greatest of respect, I find myself unable to follow that approach. It involves implying into the Act new provisions of a material character and it also involves an apparent contradiction with sections 52 and 102 and with the other provisions of the 2010 Act which repealed Part I of the 2001 Act. In that connection it is perhaps instructive that, unlike Article 21 of the earlier statutory instrument, Article 2(1) contains no acknowledgement of any of the provisions with which it is apparently at odds. Moreover, when I look at the transitional provisions as a whole I find that, with the possible exception of only four instances, while the substance of the former law is often preserved, as from 1 April it is invariably the Inspectorate which is responsible for its operation. This includes, incidentally, Article 19 of the earlier statutory instrument which provides, inter alia, that any appeal taken against a decision intimated within 14 days prior to 1 April is to be treated as taken under the new Act.

[42] The four possible exceptions are to be found in Articles 16, 17 and 18 of the earlier statutory instrument and Article 2(1) of the later statutory instrument with which, of course, we are immediately concerned. Articles 16 and 17, as will have been seen, simply state that where, prior to the "appointed day" (1 April 2011) inspections have been initiated by, inter alia, the Commission, certain sections of the 2001 Act "will continue in force for the purposes of that inspection." Since, however, after the "appointed day" inspections are a function of the new Inspectorate, I am, myself, inclined to think that, notwithstanding references to "the Commission" in these sections, what is envisaged is that after the "appointed day" inspections will be conducted by the Inspectorate albeit on the fiction that the former substantive law is still extant. For the rest, Article 18 of the earlier statutory instrument and Article 2(1) of the later statutory instrument employ precisely the same phraseology as Articles 16 and 17, the only difference being that instead of reference being made to particular sections of the 2001 Act there is a more all embracing reference to "Part I of the 2001 Act". While I recognise, of course, that Part I includes section 1 which set up the Commission in the first place, I am wholly unconvinced that the reference to Part I of the 2001 Act remaining in force was intended actually to resurrect the Commission any more than it was intended actually to restore to the resurrected Commission (as regards the care service in question) all the functions covered by Part I which under the 2010 Act and the transitional provisions are expressly transferred to the Inspectorate. Rather do I think that, as matter of construction, these Articles, like Articles 16 and 17, are intended to ensure that only what I have described as the former substantive law is applied in the course of the inspections or proceedings in question. To that end it is, of course, expressly provided that the care service which is the subject of ongoing proceedings should remain on the old 2001 Register until the proceedings are finally determined but, that having been achieved, I am satisfied that the true meaning of Article 18 of 2011 SSI 121 and Article 2(1) of 2011 SSI 169 is that the proceedings in question should be adjudicated upon as if, so far as relevant, Part I of the 2001 Act remained in force. No doubt because of the variety of matters which might come before the court in an appeal it was thought unwise to specify further what parts of the "old law" might become relevant but, for my part, I see no reason whatever why the hypothetical, let alone actual, re-establishment of the Commission should be thought necessary to the objectives of either Article 18 or Article 2(1). In my opinion, therefore, what was intended was that the Inspectorate, having replaced the Commission, should take over the conduct of the present and similar ongoing proceedings as from 1 April 2011. I would only add that, in construing the transitional provisions in the way I have done, I do not feel the need to insert or alter any words but simply to read the provisions as a whole.

[43] All that said, we are, I think, now agreed - and here I include counsel - that, one way or another, there is machinery whereby the present proceedings could - I say only could - be allowed to proceed. It is, nonetheless, a matter for great regret that the transitional provisions in question have been so framed as to give rise to lengthy argument both before the sheriff principal and before this court and, indeed, to what is now a serious difference of judicial view. The result has been to add significantly to both the delay and expense of obtaining resolution of a matter apparently thought appropriate for a "Summary Application" to the sheriff.

[44] As it happens, it is only four months since I was party to a decision of the Second Division issued in the case of O v Aberdeen City Council 2011 SLT 1039 [2011] CSIH 43, in which the court again experienced difficulty in the construction of transitional provisions - in that instance relating to the Adoption and Children (Scotland) Act 2007. And only two years prior to that I was party to the decision of an Extra Division in The Scottish Ministers v The Mental Health Tribunal for Scotland 2010 SC 56 [2009] CSIH 66 where, at para [5], Lord Reed felt constrained to remark that it was unfortunate that the legislation in question "should be so resistant to ordinary comprehension" and where I, myself, had occasion to refer to the "severe difficulties" confronting the court and the apparent lack of even a "clear objective" within the provisions there being considered. Other courts have experienced similar difficulties such as the Extra Division in BP Oil (UK) Ltd v City of Edinburgh Licensing Board 2011 SLT 1039 [2011] CSIH 29 where, yet again, the transitional provisions of the Licensing (Scotland) Act presented great difficulty and where one of the substantive provisions of the Act was itself described as "an unquestionably difficult legislative provision".

[45] No doubt it is the duty of this court to make what it can of all these legislative complexities but one must certainly hope that both the Scottish Legislature and those who advise it will take on board the extent of litigation which has resulted from them; and the desirability of avoiding similar uncertainties in the future.

[46] Being of opinion that the Commission is no longer the proper contradictor in these proceedings I cannot but dissent from allowing the appeal in its present form. That said, I am in entire sympathy with the views expressed by both of your Lordships to the effect that it is now of the first importance that the substantive issues between the parties be resolved as speedily as possible.