SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

B591/08

JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC in the cause (1) MRS SHEILA DAVIES, and (2) MRS MAUREEN MOWAT Pursuers and Appellants against THE SCOTTISH COMMISSION FOR THE REGULATION OF CARE Defenders and Respondents

Act: Mr D J T Logan, advocate, instructed by Bruce MacDonald & Co, Aberdeen

Alt: Mr Scott Blair, advocate, instructed by the Scottish Commission for the Regulation of Care

Aberdeen: 9 May 2011

The sheriff principal, having resumed consideration of the cause, finds and declares (1) that the Scottish Commission for the Regulation of Care ("the Commission") no longer exists, having been dissolved in terms of section 52 of the Public Services Reform (Scotland) Act 2010 ("the 2010 Act") which came into force, insofar as it was not already commenced, on 1 April 2011, (2) that the body known as Social Care and Social Work Improvement Scotland ("SCSWIS"), which was established in terms of section 44(1) of the 2010 Act, has no title or interest to enter the current proceedings and (3) that the decision of the Commission, which was intimated to the pursuers and appellants in a letter dated 18 August 2008, to implement its proposal to cancel the registration under Part 1 of the Regulation of Care (Scotland) Act 2001 ("the 2001 Act") of the All Stars Nursery, 95 Don Street, Aberdeen, AB24 2SA is now a nullity; therefore in terms of section 20(2) of the 2001 Act directs that this decision shall not have effect and further removes the condition imposed by the Commission on 21 March 2007 in terms of section 13 of the 2001 Act whereby the first named pursuer, Mrs Sheila Davies, is not to have contact with, or access to, children enrolled or enrolling at the All Stars Nursery; quoad ultra appoints a hearing on expenses to take place at Aberdeen Sheriff Court on 18 May 2011 at 3.00 pm.

Note

[1] In this case the pursuers and appellants are partners who operate the business known as the All Stars Nursery, 95 Don Street, Aberdeen, AB24 2SA. I shall have more to say later on in this note about the exact status of the defenders and respondents, but when the summary application which is the subject of this appeal was submitted to the court they were the Scottish Commission for the Regulation of Care (hereinafter referred to as "the Commission") constituted as a body corporate in terms of section 1(1) of the Regulation of Care (Scotland) Act 2001 ("the 2001 Act"). In their capacity as providers of a care service as defined in section 2(1) of the 2001 Act the pursuers were required to make an application to the Commission for registration of their nursery in terms of section 7 of the 2001 Act and the application was duly granted in terms of section 9 subject to certain conditions.

[2] The 2001 Act contained some fairly elaborate procedures for the cancellation of a registration. These are set out in sections 10 to 20, all of which, together with the preceding sections 1 to 9 and the succeeding sections 21 to 32, are included in Part 1 of the 2001 Act. For present purposes the important sections are those numbered 10, 11, 12, 15, 16, 17, 18 and 20, the relevant parts of which provided:

10 Improvement notices

(1) The Commission may at any time give notice (in this Act referred to as an "improvement notice") to the person for the time being providing a service registered under this Act that, unless within such reasonable period as may be specified in the notice, there is a significant improvement, of such nature as may be so specified, in the provision of that service, it intends-

(a) ................ to make a proposal under section 12 of this Act.

....................

(3) This section is without prejudice to section 18 of this Act.

12 Cancellation of registration

(1) The Commission may, at any time after the expiry of the period specified in an improvement notice given in respect of a care service, propose to cancel the registration, under this Part, of a care service-

(a) on the ground that any person has been convicted of a relevant offence in relation to the service;

(b) on the ground that the service is being, or has at any time been, carried on other than in accordance with the relevant requirements; or

(c) on any other ground which may be prescribed.

..............................

(3) This section is without prejudice to section 18 of this Act.

15 Further provision as respects notice of proposals

........................

(2) Except where it makes an application under section 18(1) of this Act, the Commission shall give any person who provides a service registered under this Part notice of a proposal to cancel the registration ................

.........................

(4) A notice under this section shall give the Commission's reasons for its proposal.

16 Right to make representations to Commission as respects proposals under Part 1

(1) A ............ notice under section 15 of this Act shall state that, within fourteen days after service of the notice, the person to whom it is given may make written representations to the Commission concerning any matter which that person wishes to dispute.

(2) Where such a notice has been given, the Commission shall do the thing proposed only after (whichever first occurs)-

(a) the person to whom the notice was given makes such representations as are mentioned in subsection (1) above;

(b) that person notifies the Commission in writing that such representations will not be made; or

(c) the period of fourteen days so mentioned elapses.

.........................

17 Notice of Commission's decision under Part 1

....................

(3) If the Commission decides to implement a proposal in relation to which it has given a person .............. a notice under section 15 of this Act, it shall give that person notice of the decision.

(4) A notice under subsection (3) above shall-

(a) explain the right of appeal conferred by section 20 of this Act; and

(b) ....................

(5) Subject to subsection (6) below, a decision to implement a proposal .............. of which notice has been given under subsection ..... (2) of the said section 15 shall not take effect-

(a) if no appeal is brought, until the period of fourteen days referred to in section 20(1) of this Act has elapsed; and

(b) if an appeal is brought, until that appeal is finally determined or is abandoned.

...............................

18 Urgent procedures for cancellation of registration etc.

(1) 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.

...................

20 Appeal against decision to implement proposal

(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.

[3] The Commission evidently had serious concerns about the way in which the pursuers' nursery was being managed. It appears that the factual basis for these concerns was disputed by the pursuers and the pleadings in relation to these matters run to many pages. It is unnecessary in the present context to refer to these in detail. Suffice it to say that by letter dated 5 March 2008 the Commission served an improvement notice on the pursuers in terms of section 10 of the 2001 Act. It is said that this notice was not complied with within the required time scale and accordingly by letter dated 13 June 2008 the Commission gave notice to the pursuers in accordance with section 15(2) that it proposed to cancel the registration of the nursery in terms of section 12(1). In pursuance of section 16(1) the pursuers' solicitor by letter dated 30 June 2008 made written representations to the Commission in response to the letter dated 13 June 2008. The Commission nonetheless decided in pursuance of section 17(3) to implement its proposal to cancel the registration and it gave notice of this by letter addressed to the pursuers dated 18 August 2008. The pursuers thereafter appealed to the sheriff in terms of section 20(1). They did so by lodging a summary application at the court on 2 September 2008 (see rule 1.4 of the Summary Applications and Appeals Rules 1999) and in crave 1 they crave the court to direct that the Commission's decision dated 18 August 2008 to implement its proposal dated 13 June 2008 to cancel the registration shall not have effect.

[4] For the sake of completeness I should add here that the pursuers also crave the court, in the event that a direction is granted in terms of crave 1, to remove a condition which had been imposed by the Commission on the first named pursuer in terms of section 13 of the 2001 Act. I shall have more to say about this in due course.

[5] In the event the Commission gave notice in pursuance of section 15(2) to the pursuers by letter dated 10 October 2008 of a second proposal to cancel the registration of the nursery in terms of section 12(1). Quite how this came about I am not at present sure. At all events the pursuers evidently exercised their right to make representations in terms of section 16, and this they did on 24 October 2008. By letter dated 30 March 2009 the Commission thereafter once again gave notice to the pursuers in terms of section 17(3) that it had decided to implement its earlier proposal to cancel the registration. The pursuers duly appealed by means of a summary application which was lodged at the court on 14 April 2008 (see B265/09), and in terms of crave 1 of this application they crave the court to direct that the Commission's decision contained in the letter of 30 March 2009 to cancel the registration in terms of section 17 should be of no effect.

[6] Although it appears that they have never been formally conjoined, the two summary applications have in effect been treated as one. After sundry proceedings they came to proof before the sheriff on 26 October 2009, and so far there have been twenty four days of evidence spread over a period of fifteen months or so, all of them taken up with the evidence of the first named pursuer. It appears that several witnesses on both sides have still to give evidence including various experts. At the end of the cross-examination of the first named pursuer, which had taken no less than twenty (sic) days, counsel for the pursuers sought to be permitted to lead evidence in re-examination from the witness about the current circumstances of the nursery. Counsel for the Commission objected to the admissibility of such evidence upon the basis that the appeals ought to be decided on the facts as they stood at the time that the Commission had taken the decisions to cancel the registration of the nursery. The sheriff sustained this objection and ruled that evidence relating to matters that had occurred after 30 March 2009 was inadmissible. At the same time he granted leave to appeal and the pursuers duly lodged a note of appeal in each case. Hence the matter has come before me.

[7] At the outset of the appeal hearing on 12 April 2001 counsel for the pursuers stated that he wished to raise a preliminary point based upon the fact that the Commission had been dissolved with effect from 1 April 2011 and had been replaced by a body corporate known as Social Care and Social Work Improvement Scotland (to which I shall refer as "SCSWIS"). In short, counsel contended that I should find in the case of each appeal that the Commission no longer existed, that SCSWIS had no title or interest to enter the proceedings, that the decision of the Commission under section 17(3) of the 2001 Act to cancel the registration was a nullity and that I should accordingly direct that the decision had no effect. This contention was opposed by counsel who stated explicitly at the outset of his submissions that he appeared for the Commission. For convenience I shall continue to refer to him as counsel for the Commission albeit that, as will shortly become apparent, I do not consider that he could have appeared for the Commission since it no longer exists. In the event the discussion of this preliminary point took the best part of a day and at the conclusion of it counsel were agreed that I should consider and decide the point since my decision in relation to it might render the discussion of the principal issue in the appeal unnecessary.

[8] In order to understand the argument here, it is necessary to examine certain provisions of the Public Services Reform (Scotland) Act 2010 ("the 2010 Act") and various commencement and transitional orders made by the Scottish Ministers in pursuance of this Act. SCSWIS was established by section 44(1) of the 2010 Act which provides:

44 Social Care and Social Work Improvement Scotland

(1) There is established a body to be known as Social Care and Social Work Improvement Scotland (in this Part referred to as "SCSWIS"), which -

(a) is to exercise the functions conferred on it by this Act or any other enactment, and

(b) has the general duty of furthering the improvement in the quality of social services.

In Chapter 3 of Part 5 of the 2010 Act there is a series of provisions in regard to the registration of care services which broadly reflect the provisions in Part 1 of the 2001 Act mentioned above. In particular, sections 10, 12, 18 and 20 of the 2001 Act are echoed in sections 62, 64, 65 and 75 respectively of the 2010 Act except of course that it is now SCSWIS that may take action under sections 62, 64 and 65 rather than the Commission. Section 52 of the 2010 Act is admirably succinct. It states:

52 Dissolution of Scottish Commission for the Regulation of Care

The Scottish Commission for the Regulation of Care is dissolved.

Lest there be any doubt about the effect of section 52, the reader may then turn to section 102 of the 2010 Act which, so far as relevant in the present context, provides:

102 Transfer of staff etc.

(1) With effect from the date on which section 44 comes into force-

(a) any person employed by the Scottish Commission for the Regulation of Care immediately before that date is, subject to section 109, transferred into the employment of SCSWIS,

(b) all property (including rights) and liabilities of the Scottish Commission for the Regulation of Care subsisting immediately before that date are, subject to section 109, transferred to, and vest in, SCSWIS,

(c) ......................

(d) ......................

(2) ......................

(3) The contract of employment of a person transferred by virtue of subsection (1)(a), (c) or (d)-

(a) is not terminated by the transfer, and

(b) has effect from the date of transfer as if originally made between the person and SCSWIS.

(4) Without prejudice to subsection (3), where a person is transferred by virtue of subsection (1)(a), (c) or (d)-

(a) all the rights, powers, duties and liabilities of the Scottish Commission for the Regulation of Care or, as the case may be, the Scottish Ministers, under or in connection with the person's contract of employment are transferred to SCSWIS on the date of transfer, and

(b) anything done before that date by or in relation to the Scottish Commission for the Regulation of Care or, as the case may be, the Scottish Ministers, in respect of the person or the contract is to be treated from that date as having been done by or in relation to SCSWIS.

(5) Subsections (1) to (4) do not affect any right of any person so transferred to terminate the person's contract of employment if the terms and conditions of employment are changed substantially to the detriment of the person; but any such change is not to be taken to have occurred by reason only that the identity of the person's employer changes by virtue of those subsections.

Finally in a consideration of the terms of the 2010 Act it is necessary to notice sections 106, 132, 133 and 134 which, so far as material, provide:

106 Minor and consequential amendments and repeals: SCSWIS

Schedule 14 (which makes minor modifications of enactments and modifications consequential on the provisions of this Part) has effect.

132 Ancillary provision

(1) The Scottish Ministers may by order 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.

(2) An order under this section may modify any enactment, instrument or document.

133 Orders and regulations: Parts 8 and 10

(1) Any power conferred by Part 8 or this Part on the Scottish Ministers to make an order or regulations-

(a) must be exercised by statutory instrument,

(b) except an order under section 134(7), includes power to make such consequential, supplemental, incidental, transitional, transitory or saving provision as the Scottish Ministers think necessary or expedient,

(c) may be exercised so as to make different provision for different purposes.

134 Short title and commencement

(1) This Act may be cited as the Public Services Reform (Scotland) Act 2010.

(2) Sections 103, 109, 132 and 133 and this section come into force on Royal Assent.

....................

(7) The remaining provisions of this Act come into force on such day as the Scottish Ministers may by order appoint.

........................

With reference to section 106, it should be noted that paragraph 37 of schedule 14 to the 2010 Act provides for the repeal of Parts 1 and 2 of the 2001 Act (and here it will be recalled that it was Part 1 that had established the Commission and set up the regime for the registration and cancellation of registration of care services under the 2001 Act).

[9] In terms of paragraph 3(2) and (3) of, and the schedule to, the Public Services Reform (Scotland) Act 2010 (Commencement No. 1) Order 2010 (2010 SSI 221) section 44 of the 2010 Act was brought into force on 1 August 2010, but only for the purpose of making appointments to the embryonic SCSWIS. In terms of paragraph 3(1) and (2) of, and the schedule to, the Public Services Reform (Scotland) Act 2010 (Commencement No. 2) Order 2010 (2010 SSI 321) sections 44 to 106 of, and schedule 14 to, the 2010 Act were brought into force on 1 October 2010, but this time only for the purpose of making subordinate legislation. Finally, in terms of paragraph 2(1) of, and the schedule to, the Public Services Reform (Scotland) Act 2010 (Commencement No. 4) Order 2011 (2011 SSI 122) sections 44 to 106 of, and (with the exception of paragraph 35(a)) schedule 14 to, the 2010 Act were brought into force without further qualification, in so far as these provisions were not already in force, on 1 April 2011. In other words, on 1 April 2011 Part 1 of the 2001 Act was repealed, the Commission was dissolved and its staff, property (including rights) and liabilities transferred to SCSWIS which came into being on the same day - all of which begs the question how counsel can now appear on behalf of the Commission and the Commission itself can continue to participate in these proceedings and oppose the pursuers' appeals.

[10] In addressing this question counsel for the pursuers drew attention to the terms of 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. Instead I set out below those provisions which appear to me to be of relevance in the present context:

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 1st April 2011.

(2) In this Order-

"the appointed day" is 1st 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 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.

[11] Counsel pointed out that paragraph 3 of this order provided that, where prior to the appointed day an improvement notice had been given under section 10 of the 2001 Act, that notice was to be treated for all purposes as if it had been given by SCSWIS under section 62 of the 2010 Act. Likewise, in paragraph 4 it was provided that, where prior to the appointed day the Commission had proposed under section 12 of the 2001 Act to cancel the registration of a care service, that proposal was to be treated for all purposes as if it had been made by SCSWIS under section 64(1) of the 2010 Act. Similarly, in terms of paragraph 9, it was provided that, where immediately before the appointed day the Commission had received a complaint and investigation of that complaint had not concluded, the investigation of the complaint was to be carried out by SCSWIS. Moreover, in terms of paragraph19, if the pursuers had been given notice by the Commission under section 17(3) of the 2001 Act on, for example, 25 March 2011, they would have been protected in as much as after the appointed day they could have appealed under section 75 of the 2010 Act (in which case the appeal could have been opposed by SCSWIS). But counsel pointed out that there was no provision in the order whereby a decision made by the Commission under section 17(3) of the 2001 Act to implement a proposal in relation to which it had given notice under section 15 should be treated for all purposes as if it had been made by SCSWIS under section 73(3) of the 2010 Act (which corresponds to section 17(3) of the 2001 Act). It followed, said counsel, that SCSWIS could not rely on the decisions made by the Commission and intimated to the pursuers in its two letters dated 18 August 2008 and 30 March 2009 respectively to implement its proposals to cancel the registration of the nursery. The decisions upon which the present appeals were based were thus the decisions of the Commission alone and it no longer existed, having been dissolved by section 52 of the 2010 Act. There had been no application by SCSWIS to be sisted as a defender in these appeals and in any event, even if there were to be such an application, there would was no provision in the order upon the basis of which SCSWIS would be entitled to adopt or continue the Commission's defence of the appeals.

[12] In response, counsel for the Commission drew attention to the provisions of the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions (No.2) Order 2011 (2011 SSI 169). This provides:

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 1st 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 - 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 1st 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.

[13] Counsel submitted that the purpose of this second transitional order was to save appeals under section 20 of the 2001 Act which had been raised but not determined before 1 April 2011. For the purposes of such an appeal the Commission continued to exist. It was to be observed that in terms of paragraph 2(2) of the order there was no automatic transfer of the registration of a care service from the Commission to SCSWIS under paragraph 2(1) of the first transitional order. It followed, said counsel, that the registration of the pursuers' service remained with the Commission so that even now the Commission could take proceedings under section 18 of the 2001 Act against the pursuers if appropriate. The effect of paragraph 2 of the second transitional order was plainly that the Commission remained entitled to defend the current appeals, and in any event Part 1 of the 2001 Act continued to apply until the appeals had been determined. Accordingly this second transitional order provided a complete answer to the point which had been taken by counsel for the pursuers upon the basis of the first transitional order.

[14] Counsel for the pursuers pointed out that paragraph 2(1) of the second order merely provided 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 those proceedings. It did not provide that the Commission should continue in existence contrary to the terms of section 52 of the 2010 Act whereby it had been dissolved. The effect of section 17(5) of the 2001 Act had been that the decisions made by the Commission to cancel the registration of the nursery should not take effect until the appeals had been finally determined or abandoned. Hence the pursuers had continued to trade for the last two and a half years, and the effect of paragraph 2(1) of the second transitional order was that the protection afforded to the pursuers by section 17(5) should continue until these proceedings were finally determined notwithstanding the repeal of the 2001 Act. Thereafter, if the outcome of the proceedings was that the registration was not cancelled, then it would automatically be transferred to SCSWIS in pursuance of paragraph 3(a) of the second transitional order. The only purpose of paragraph 2(1) of this order was to allow the pursuers to continue to trade pending the determination of the appeals. It did not require the extreme interpretation that a body which had been dissolved by Parliament, namely the Commission, should continue to exist for the purposes of the appeals. If that were to be the case, one would have a body which simultaneously existed and did not exist. Counsel pointed out that the staff, property and liabilities of the Commission had been transferred to SCSWIS on 1 April 2011 and he submitted that it was impossible therefore that the Commission should continue to regulate the care service provided by the pursuers. And in this context he observed that they had in fact received notice from SCSWIS of a forthcoming inspection of the nursery under the provisions of the 2010 Act which would in practice be carried out by the very same officers as had previously been employed by the Commission.

[15] Counsel for the Commission submitted that, if the only purpose of the second transitional order had been to keep the registration of the nursery alive after 1 April 2011 so as to allow paragraph 3(a) of this order to take effect, there would have been no need for the elaborate provisions of paragraph 2 of the order which plainly had in view the judicial determination of an outstanding appeal under section 20 of the 2001 Act. It would have been enough for the second transitional order simply to have provided that, where an appeal under section 20 was outstanding on 1 April 2011, registration of a care service before that date with the Commission would be automatically transferred after that date to SCSWIS. It would be extraordinary that the second transitional order should have had in view that, matters having got to the length of a decision by the Commission under section 17(3) of the 2001 Act to cancel the registration on the ground of concerns about the care service given by the pursuers, that service should thereafter secure registration with SCSWIS. The second transitional order clearly envisaged the continuation all the provisions of Part 1 of the 2001 Act in relation to the nursery until there was a positive determination in favour of the pursuers since, until the care service was registered with SCSWIS, there would otherwise be no clear protection for the public interest in relation to those who used the nursery. Paragraph 2(2) of the second transitional order made it clear that those care services which were the subject of appeal proceedings did not have the benefit of automatic registration with SCSWIS and this was consistent with the proposition that regulation of such care services continued under Part 1 of the 2001 Act. Referring to the point made by counsel for the pursuers to the effect that the Commission had been dissolved by section 52 of the 2010 Act, counsel drew attention to sections 132 and 133 of the 2010 Act, and in particular section 132(2), and submitted that the Scottish Ministers had been entitled in the first and second transitional orders to provide that Part 1 of the 2001 Act should continue to apply, and hence that the Commission should be kept alive, to allow a judicial determination of the question whether a decision by it to cancel the registration of a care service had been properly taken by it. Accordingly the Commission was properly before the court and in a position to continue to defend the present appeals.

[16] In my opinion it cannot be correct to maintain, as did counsel for the Commission, that the effect of paragraph 2(1) of the second transitional order is that the Commission continues to exist, at least for the purpose of opposing these appeals, pending their final determination. The simple fact is that the Commission has been dissolved without qualification by section 52 of the 2010 Act and its staff, property and liabilities transferred to SCSWIS in terms of section 102 of the same Act. I say "without qualification" since the language of these two sections is quite clear and there is nothing in the commencement orders to which I have referred to suggest that their meaning or effect should be qualified in any way. It is true that section 132(2) provides that an order made by the Scottish Ministers under that section may modify any enactment, instrument or document. But in my view very clear wording would be required to modify the explicit terms of sections 52 and 102 of the 2010 Act, and one does not find such clear wording in the somewhat opaque provision in paragraph 2(1) of the second transitional order that Part 1 of the 2001 Act should continue to apply for the purposes of the care service which is the subject of appeal proceedings such as the present until their final determination. Besides, however clear the language employed by them, section 132(2) cannot in my opinion mean that the Ministers may do something which is impossible, namely to maintain in existence for a limited purpose only (and even then without any staff or property) a body corporate which has been declared otherwise to have been dissolved. In a nutshell, they cannot have it both ways. They cannot on the one hand bring sections 52 and 102 of the 2010 Act into force, as they have done, and at the same time hope that the Commission will somehow remain in a state of partial existence in pursuance of paragraph 2(1) of the second transitional order pending the determination of these appeals. And it follows in my opinion that, since it does not now exist, the Commission is no longer in a position either to be represented in these appeals or to oppose them.

[17] The question thus arises what should happen now in relation to the appeals. I was initially inclined to the view that it did not follow from the fact that the Commission no longer existed and that SCSWIS had no title or interest to enter the proceedings that the Commission's decisions under section 17(3) of the 2001 Act to cancel the registration of the nursery should be regarded as nullities. This, it will be recalled, was what was submitted by counsel for the pursuers, and on reflection I think he must be correct in this since notwithstanding what is said in paragraph 2(1) of the second transitional order the decisions cannot have a life of their own apart from the body that made, or is deemed to have made, them. And since the body that made them has been dissolved and so no longer exists, and since there is no provision in either of the transitional orders whereby the decisions are to be treated as if they had been made by SCSWIS, they can no longer have any meaning or effect, and hence must be nullities. I have accordingly directed that they should not have effect. This will mean that in terms of paragraph 3(a) of the second transitional order the nursery will be treated for all purposes as if it had been registered under Part 5 of the 2010 Act, and it will follow from this that SCSWIS will have all the necessary powers under Chapter 3 of Part 5 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 who are being cared for in it - and indeed it appears that this may already be happening if counsel was correct in stating that SCSWIS had given notice to the pursuers of a forthcoming inspection of the nursery under the 2010 Act.

[18] It remains to deal with the pursuers' crave, in the event that a direction is granted in terms of crave 1, that the court should remove the condition which had been imposed by the Commission on the first named pursuer in terms of section 13 of the 2001 Act. This condition was that she was not to have contact with, or access to, children enrolled or enrolling at the All Stars Nursery. The power of the court to remove this condition is to be found in section 20(2)(a) of the 2001 Act. The difficulty here is that section 20 is silent as to the grounds upon which the sheriff is to decide whether or not to remove such a condition - or, for that matter, on the one hand to confirm a decision of the Commission or on the other hand to direct that it shall not have effect. In the absence of any such guidance it seems to me that the only conclusion that can be drawn from the section is that the legislature intended that it should be a matter for the discretion of the sheriff in any given case to do what he thought was appropriate and right in light of all the circumstances of that case. It is no doubt tempting to seek to read into the section some qualification of the sheriff's power to determine an appeal under the section as he thinks fit. But the simple fact is that there is no such qualification in the section and so it would be wrong in my view to fall prey to this particular temptation.

[19] On the assumption that this is the correct approach, I dare say that I could remit this appeal back to the sheriff to determine in the exercise of his discretion whether the condition in question should be removed or not. But I cannot immediately see any reason why I should not decide this myself here and now, and it seems to me that it is high time that these protracted proceedings were brought to an end without further waste of time and expense. I can understand the point that the Commission must have had serious concerns about the way in which the nursery was being run by the pursuers to have got to the stage of deciding to cancel its registration. But, whatever the circumstances were that gave rise to these concerns, they must have existed more than two years ago, and in the interval since the letters of 18 August 2008 and 30 March 2009 were sent to the pursuers they have continued to operate the nursery by virtue of section 17(5) of the 2001 Act. Moreover, I have already drawn attention to the fact that the effect of directing that the decision of the Commission to cancel the registration should not have effect will be that the nursery will be treated for all purposes as if it had been registered under Part 5 of the 2010 Act so that SCSWIS will have all the necessary powers under Chapter 3 of Part 5 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 who are being cared for in it. In this context it is to be observed in particular that section 67 of the 2010 Act provides in short that, where SCSWIS believes that the absence of a condition in relation to the registration of a care service poses a serious risk to the life, health or well-being of persons, it may at any time give notice (an "emergency condition notice") to the person providing the service specifying a condition, in relation to registration, in respect of that risk. Such a condition takes effect immediately on receipt of the emergency condition notice. There is a right of appeal under section 69 against the condition so specified but, as I understand this section, and in contrast to the position under section 17(5) of the 2001 Act and section 73(5) of the 2010 Act, the condition remains in force until the appeal has been determined. In these circumstances it seems to me that it would be much more sensible to bring the current proceedings, based as they are on events which occurred at least two years ago, to a conclusion without further delay not only by directing that the decisions of the Commission to cancel the registration of the nursery should not have effect but also by removing the condition imposed in March 2007 on the first named pursuer. If, in light of current circumstances, SCSWIS believe that such a condition is required here and now, it can always proceed under section 67.

[20] For the sake of completeness I should mention two further points. In the first place, I am conscious that my view that the Commission cannot simultaneously exist for one limited purpose and otherwise not exist has implications for certain provisions of the first transitional order, and especially paragraph 18. One could understand how that particular paragraph would make sense if there had been a provision in it to the effect that references in Part 1 of the 2001 Act to the Commission were to be read as references to SCSWIS, as there is in paragraph 15(2)(a), and as if it had also contained a provision to the effect that SCSWIS should be entitled to be sisted as a party to the application under section 18 in place of the Commission. A recent example of such a provision may be seen in section 10(1)(b) of the Damages (Scotland) Act 2011. But in the absence of such provisions it seems to me that a pending application by the Commission under section 18 of the 2001 Act must inevitably have fallen on the appointed day for the want thereafter of an applicant to insist upon it. I dare say that this was not what the Scottish Ministers intended should happen. But I do not see any alternative given that they have chosen to bring into force sections 52 and 102 of the 2010 Act.

[21] In the second place I have already drawn attention to the fact that section 20 of the 2001 Act does not specify any potential grounds of appeal. The same is true of sections 69 and 75 of the 2010 Act. For well over a century the courts in Scotland have been under the necessity of wrestling, often at considerable expenditure of time and money, with such questions as whether an appeal to the sheriff under an enactment such as the 2001 and 2010 Acts is to the sheriff in his administrative or judicial capacity, whether there may be a further appeal against the decision of the sheriff to the sheriff principal and/or the Court of Session and upon what grounds the sheriff may be entitled to interfere with the decision which has been challenged on appeal to him. This is certainly not the first time this point has been made. Thus in Macphail's Sheriff Court Practice (3^rd Edn) at para 26.30 it is said: "It has often been observed that it is difficult to discover any systematic policy or pattern in the choice of statutory provisions relative to appeals in statutory applications, and much time and expense would be saved if enactments making provision for summary applications were to state explicitly whether there is to be an appeal and, if so, to define its nature and scope by specifying whether it is to be from the sheriff to the sheriff principal or from the sheriff court to the Court of session, and whether on fact or on law".

[22] Indeed, as an example of the time and expense that may be occasioned by such legislative uncertainty one need look no further than this particular case in which no less than five days were taken up before the sheriff in discussing whether or not the Commission's objection to the admissibility of evidence in regard to the current circumstances of the nursery should be sustained. Needless to say, this sort of potentially awkward question is easily avoided if the scope and grounds of any appeal to the court are specified in the legislative provision which provides for the appeal in the first place. Examples of this happening in practice may be seen in section 44 of, and Part III of schedule 5 to, the Firearms Act 1968, paragraph 18 of schedule 1 to the Civic Government (Scotland) Act 1982, sections 320 to 324 of the Mental Health (Care and Treatment) (Scotland) Act 2003 and sections 131 and 132 of the Licensing (Scotland) Act 2005. So one wonders why even as recently as 2010 Parliament was still to be found enacting provisions as hopelessly uncertain in their effect as sections 69 and 75 of the 2010 Act. And this question is all the more pertinent today given that, more or less by definition, at least one of the parties to an appeal of this kind is likely to be publicly funded - as I presume is SCSWIS. In these days of financial restraint it might have been supposed that Parliament would seize every opportunity to avoid a potential waste of public money, and one simple way of doing so would be to avoid the uncertainty that is to be found in appeal provisions such as sections 69 and 75 of the 2010 Act.