Subordinate Legislation Committee, 10 Jan 2006

Meeting date: Tuesday, January 10, 2006

Official Report 141KB pdf

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Delegated Powers Scrutiny

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Animal Health and Welfare (Scotland) Bill: Stage 1

Item 2 is scrutiny of the delegated powers in the Animal Health and Welfare (Scotland) Bill at stage 1. The Environment and Rural Development Committee will take evidence on the bill from the Minister for Environment and Rural Development at its meeting tomorrow. The clerks will feed in the main points that we make today in advance of that meeting.

The first point to consider is the use of the emergency affirmative 28-day procedure. Members will recall that we wrote to the Executive about a number of points. We asked why that procedure was being followed. The Executive's answer says that, as we had already agreed, some procedure is obviously needed to deal with any fast-spreading diseases. However, it would appear that the Executive has not really answered the question about why another procedure, such as the more usual annulment procedure, was not used instead. I invite members' views.

We asked why the Executive opted for the emergency affirmative 28-day procedure, rather than an alternative parliamentary procedure. The procedure that has been chosen provides less scrutiny than the annulment procedure, for example. I do not think that the Executive has fully explained its approach. The bill is at stage 1, so we have plenty of time to address the issue. We should highlight the matter to the lead committee and we should write back to the Executive, asking why the emergency affirmative 28-day procedure was chosen, rather than an alternative emergency procedure.

Is that agreed?

Members indicated agreement.

I agree with that, but the Executive's answer is rather puzzling. We asked why the Executive did not use the annulment procedure and why it chose the 28-day procedure. It has not answered the question but has, instead, given us examples of how that procedure would be used. Given that we asked a specific question about a matter that concerned the committee the last time that we met, it is puzzling that the Executive has not clarified why it chose this procedure rather than the annulment procedure. The annulment procedure is used elsewhere and more commonly than this one, and it provides a greater level of parliamentary scrutiny.

The committee's debate surrounded the fact that an Executive of some sort could, in principle, lay the order, let it fall after 28 days and continue to re-lay it without its ever being subject to proper parliamentary scrutiny. Given that concern and our discussion, I expected a more definitive answer from the Executive. We should write to the Executive again and make it clear to the lead committee that our concerns have not been addressed.

I agree with what has been said. We need to make the point a bit more robustly than simply asking for an explanation. We should make the point more or less as it is made in our legal briefing and say that we believe that this procedure provides less effective scrutiny than the annulment procedure. We should make that point strongly and send the Executive the message that we expect it to budge on this.

Is that agreed? Gordon?

Yes, sure.

Okay. We move on to sections 1, 2, and 10. We were concerned that the powers in those sections are not subject to parliamentary scrutiny. The Executive has acknowledged our concerns and is in the process of producing an amendment for stage 2. I think that the committee will be happy about that.

The next issue concerns section 3, "Biosecurity codes". We were concerned that there could be concern over whether breaking biosecurity codes constituted a criminal offence. The Executive considers that confusion is unlikely to arise because guidance on biosecurity measures and mandatory requirements will form either separate codes or separate parts of a single biosecurity code. Are we happy to accept that reassurance that there will be no confusion?

We can only take the Executive at its word. It will have to draft the guidance very carefully to ensure that confusion is avoided and, because we have not seen the guidance, we do not know whether that will be the case. It is worth pointing out to the lead committee that we have concerns about the issue, given the fact that the information has not yet been made available to us. We should point out to the lead committee that that has not happened and that we have received an assurance from the Executive that it will avoid confusion on the matter. We will then just have to wait and see—unfortunately, that is where we are with it.

Is that agreed?

Members indicated agreement.

On section 5, "Animal gatherings", we sought clarification of whether an animal gathering could include a domestic setting. We asked for the Executive's views on the creation of a duty rather than a power for appeals. The committee also asked for clarification of whether it would be possible for fees to be charged for licences issued under section 5. The committee will, most likely, be happy that the Executive says, in its response, that appeals will be available where appropriate. I do not know whether members have any other points to raise. Are we happy with the Executive's response?

Similar to the previous issue, we do not have the full information in front of us, so we do not know the exact nature of what will be brought forward. I am happy with the response, in the sense that the Executive says that it will be all right; however, without having the information in black and white in front of us it is difficult to be fully reassured. I am open to suggestions about what else we can do about it.

Our legal brief states that

"where a right of appeal is required such a right will be provided. This could take the form of a separate order making only provision for such a right of appeal".

We could say to the lead committee that we have been reassured by the Executive that that will happen. That is all that we can say. Is that agreed?

Members indicated agreement.

On section 18, "Mutilation", we were concerned that the regulation-making power to allow ministers to permit certain procedures to be carried out is not subject to a statutory duty to consult. The Executive's response indicates that the regulations would be consulted on, as that would be good practice. However, the Executive is prepared to lodge an appropriate amendment, if the committee considers that desirable. As the convener of the cross-party group on animal welfare, I know that this is a sensitive issue and I think that we should ask for that amendment.

I am not familiar with the provisions of the Animal Welfare Bill in England and Wales; however, I think that we should flag the matter up to the lead committee. The Executive has made a positive statement and we should pass it on to the lead committee, whether or not we make a recommendation.

What are other members' feelings on the matter?

Again, I am puzzled about why the Executive is resisting on this one. I cannot imagine that the Executive would not consult.

No, it is saying that it would consult.

That is right. However, given the nature of the subject, I would have thought that formalising the consultation would be appropriate. I do not know why the Executive has a problem with that. I would have thought that an amendment to that effect would be generally supported in the Parliament.

The position is slightly odd, if we are to take the wording in our legal brief at face value. It says that, if the committee thinks that there should be an amendment, the Executive will lodge one. That is not exactly decisive Executive action or direction of policy, is it? If we are offered an amendment, we should not look a gift horse in the mouth.

I am of the same view.

That is probably right. It would set a bad precedent if we turned down a gift horse.

Okay. We are agreed that we will write back to the Executive, asking for an amendment to be drafted. We will also raise that point in our report to the lead committee.

On section 23, "Provision for securing welfare", we asked for clarification of why the Executive seeks to use secondary legislation here to the extent that it does. In its response, the Executive argues that there will be a lot of detailed rules and that it would be more appropriate for secondary legislation to be used. What are members' views? Are we happy with that response?

Members indicated agreement.

We move on to licensing, which is dealt with in section 24, "Licensing etc of activities involving animals". We asked for comment on the different approaches that have been adopted at Westminster and in the bill to the creation of offences under section 24. I think that Gordon Jackson was involved in our discussion of this. The offences are on the face of the Animal Welfare Bill, whereas in Scotland they will be in secondary legislation, to allow flexibility and to enable some civil as well as criminal penalties to be imposed. The committee's legal brief says that the two approaches might, more or less, come to the same thing; however, the Executive is taking a different approach. Again, the Executive feels that it allows a wee bit more flexibility to leave it to secondary legislation.

There is also the big advantage of being able to impose civil rather than criminal penalties. We should not criminalise behaviour where we can avoid that and where it can be dealt with by civil penalties.

Okay. Does that seem reasonable?

Members indicated agreement.

On section 25, "Prohibition on keeping certain animals", we asked for clarification of why the Executive had taken such a wide power in section 25(1). The Executive has suggested a further limitation to that power. Are we happy with that?

Members indicated agreement.

On section 33, "Animal welfare bodies", the committee asked the Executive how it envisaged that the delegated powers in the section would be used. The Executive has given us information on that. Are we happy with what it has provided?

Members indicated agreement.

We move on to section 34, "Animal welfare codes". The committee wanted to establish how the Executive plans to take account of the consultation responses on a code and how the power to revoke a code will be exercised. Members will see that there is an issue about revocation in the legal brief, which says that a revocation does not have to be laid before the Parliament; it can just happen. Paragraph 59 of the legal brief clarifies the point. I was a little bit tempted to suggest that we might want to write back about it.

Yes. Is it not a bit bizarre that if there is a code and the Executive changes it, but does not revoke the existing code, there might be two possible codes to which people might have recourse? Primary legislation contains schedules that deal with consequential amendments and repeals, so surely if an instrument is introduced to bring in a new code, it ought to contain all the necessary mechanisms to remove the existing code and take any dubiety out of the position.

This might be just a technical point; I am not quite sure, Murray, to be honest. I would have thought that if a new code was produced, it would just overtake the old code.

I would have thought so, but because the legal brief flags up the fact that revocation is not automatic and that the Executive has misunderstood the point that we made, we need to clarify the issue.

Yes; that might be the way forward. We will seek clarification of the whole area around revocation to make sure that the procedure is straightforward.