Delegated Powers and Law Reform Committee

Meeting date: Tuesday, December 13, 2016

Official Report 328KB pdf

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Instruments subject to Negative Procedure

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Caseins and Caseinates (Scotland) Regulations 2016 (SSI 2016/383)

I welcome members to the Delegated Powers and Law Reform Committee’s 14th meeting in session 5.

It is regrettable that various provisions in the Caseins and Caseinates (Scotland) Regulations 2016 (SSI 2016/383) appear to be defectively drafted. First, regulation 4 contains restrictions on the marketing and use of caseins and caseinates, the breach of which is an offence in accordance with regulation 7. However, the provisions are drafted inconsistently, as regulation 4(a) provides for alternative restrictions on

“edible acid caseins, edible rennet caseins or edible caseinates”,

but regulations 4(b) and 4(c) provide for a conjunctive restriction on

“edible acid caseins, edible rennet caseins and edible caseinates”.

To specify what actions properly constitute an offence, paragraphs (a) to (c) should have been drafted in a consistent manner.

Secondly, regulation 4(c) appears to be defectively drafted. It refers to non-compliance with standards that are set out in

“points (b) and (c) of schedules 1, 2 or 3”.

The schedules contain numbered paragraphs and tables, so the applicable standards are not properly referred to.

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Thirdly, regulations 5(1)(a) and 5(1)(b)(ii) appear to be defectively drafted. There are similar errors in those provisions, as they refer to the cations—processing aids or additives—that are listed in

“point (d) of schedule 3”.

Fourthly, regulation 7 appears to be defectively drafted. It provides that

“A person is guilty of an offence if they fail to comply with any of the foregoing provisions of these regulations”,

but the Scottish Government has acknowledged that there is no intention to extend the offence provision in regulation 7 to the obligation on a food authority under regulation 6 to enforce the regulations.

Fifthly, there appears to be defective drafting in schedule 4, which modifies the application of provisions of the Food Safety Act 1990 for the purposes of the regulations. The modifications of sections 29 and 35(1) of the 1990 act are incorrect. It appears that the two references to

“regulation 9 and the schedule”—

to be read within the 1990 act for the purposes of the regulations—should be references to regulation 8 and schedule 4. Furthermore, the modification of section 32 is incorrect. It appears that the reference to regulation 9 should be a reference to regulation 8 and schedule 4.

Does the committee agree to draw the regulations to the Parliament’s attention under reporting ground (i), as some provisions appear to be defectively drafted?

Members indicated agreement.

In schedule 4, in the modification of section 29 of the Food Safety Act 1990, there is an incorrect citation of the regulations as

“the Caseins and Caseinates Groups (Scotland) Regulations 2016”.

Does the committee therefore also agree to draw the instrument to the Parliament’s attention under the general reporting ground, on account of this more minor and patent error?

Members indicated agreement.

Does the committee welcome the fact that the Scottish Government has undertaken to revoke the regulations and will make corrected regulations, which would also come into force on 22 December 2016?

Members indicated agreement.

Notwithstanding that, does the committee express its concern that an instrument of such poor quality should have been laid before the Parliament at all?

Members indicated agreement.

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National Health Service (Dietitian Supplementary Prescribers and Therapeutic Radiographer Independent Prescribers) (Miscellaneous Amendments) (Scotland) Regulations 2016 (SSI 2016/393)

In regulation 3(b)(ii), the word “or” could be used instead of “and” at the end of subparagraph (f) of the definition of “prescriber” in regulation 2(1) of the National Health Service (General Medical Services Contracts) (Scotland) Regulations 2004 (SSI 2004/115). That would put it beyond doubt that the subcategories that are listed in that definition are alternatives and not cumulative. On the same basis, in regulation 6(b)(ii) of SSI 2016/393, the word “or” could be used instead of “and” at the end of subparagraph (f) of the definition of “prescriber” in regulation 2(1) of the National Health Service (Primary Medical Services Section 17C Agreements) (Scotland) Regulations 2004 (SSI 2004/116).

Does the committee agree to draw the instrument to the Parliament’s attention under reporting ground (h), on the basis that it could be made clearer in the aforementioned respects?

Members indicated agreement.

No points have been raised by our legal advisers on the following five instruments.

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Lyon Court and Office Fees (Variation) (Devolved Functions) Order 2016 (SSI 2016/390)

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Tweed Regulation (Salmon Conservation) (No 2) Order 2016 (SSI 2016/391)

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Conservation of Salmon (Scotland) Amendment Regulations 2016 (SSI 2016/392)

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Patient Rights (Complaints Procedure and Consequential Provisions) (Scotland) Amendment Regulations 2016 (SSI 2016/401)

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Financial Assistance for Environmental Purposes (Scotland) Order 2016 (SSI 2016/406)

Is the committee content with the instruments?

Members indicated agreement.