Matters to be considered
The Scottish Ministers must not unreasonably refuse an additional powers request. For the avoidance of doubt, this is not a reflection on the reasonableness of the request, but on the reasonableness of the decision to refuse the request.
In deciding whether to give effect to or refuse the request, the Scottish Ministers must assess issues such as their legislative competence to transfer the requested additional power and, where that power is currently carried out by a public body, they will have to consider the potential impacts of it being carried out by requesting local authority for that local authority area instead. This assessment will be undertaken with support from the relevant Scottish Government policy team. A full list of the matters that the Scottish Ministers must consider is set out in regulation 12(3). Scottish Government officials will be available to answer any questions during this stage.
Making a decision
The Scottish Ministers must decide whether to give effect to or refuse an additional powers request. The decision must be made within six months from the validation date (the date the completed request was received), or within a longer period agreed between the Scottish Ministers and the requesting local authority. The requesting local authority will be advised of any potential delays at the earliest opportunity, and their agreement sought to an extension to the time period. At the outset, Scottish Government officials will liaise with the requesting local authority and will take forward the additional powers request as efficiently and quickly as they are able to do so.
The diagram below shows the indicative timeline for collating all the necessary information associated with an additional powers request in order for the Scottish Ministers to make a decision.
Giving effect to an additional powers request
In the event that Scottish Ministers decide to give effect to an additional powers request, this means that they agree to transfer the additional power, or to promote legislation devolving the additional power, as appropriate, to the requesting local authority.
Extending the additional power
Scottish Ministers also have the ability to extend the additional power to one or more of the other relevant local authorities. This is one of the reasons why this guidance encourages relevant local authorities to notify and work with each other at the pre-application stage. It will allow local authorities time to consider the implications for them and crucially establish if they agree whether the power would be also beneficial to their island communities.
There is no provision for those other local authorities to seek a review if they do not wish to have the additional power extended to them and it is, or if they wish it to be extended to them but it is not. However, a relevant local authority may make an additional powers request of their own or discuss alternative arrangements with Scottish Ministers outwith this scheme.
Having made their decision, Scottish Ministers must issue a decision notice to the requesting local authority setting out their decision and the reasons for it. A copy of the decision notice must be published online by the Scottish Ministers. The information to be provided in a decision notice is set out in regulation 14 and includes the date by which a review request must be made.
Where an additional powers request is refused, the requesting local authority may seek a review. The deadline for seeking a review will be notified to the requesting local authority in the decision notice. The deadline is at the Scottish Ministers’ discretion but must be at least three months after the date of the decision notice. In setting the date, consideration will be given to what a reasonable timescale will be on a case by case basis.
The Regulations do not prevent repeat applications, however there is an expectation that a repeat application will provide evidence of a material change in circumstances or significant new information.
Any comments, questions or suggestions about this guidance can be directed to the Local Government Policy and Relationships Team at the Scottish Government. You can contact the Scottish Government switchboard on 0300 244 4000 and they will direct you to the appropriate contacts.