Subordinate Legislation Committee, 10 Jan 2006

Meeting date: Tuesday, January 10, 2006

Official Report 141KB pdf

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Draft Instrument Subject to Approval

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Draft Instrument Subject <br />to Approval

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Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006 (draft)

Stewart Maxwell will be interested in these regulations. Do you have any comment, Stewart?

I do not have any particular comment. I know that the legal brief says that there is some concern about the regulations and certain definitions in them. My underlying concern is that the regulations should not be invalidated in any way and that no loopholes should be created. I would be quite happy with that. I am just slightly concerned that some problems might have been created; perhaps the legal adviser could clarify whether there is any concern about problems being created by the particular designations and where they are in the regulations, or whether the issue is simply presentational and would have no effect.

As I understand it from the legal brief, this is a different way of doing the procedure, so to speak. Another way could have been used, rather than doing it through the definitions. Basically, we must ask why, in relation to the specific terms—"designated hotel bedroom", "designated laboratory room", "designated room" and "detention or interview room"—in regulation 1(2), substantive legislative requirements appear to be included in a definition regulation provision rather than as proper substantive legislative provisions.

On the back of that, we could be asking about the implications of doing it that way rather than another way.

Is there time to get that clarified before the regulations come into effect?

I hesitate to say this, but I see nothing in it. I do not think that it makes a tuppenceworth of difference, but I might be wrong, so we should ask the question.

I understand Margaret Macdonald's point about an interpretation regulation being more restrictive and so on. However, the definition is clear, so it is hard to see where it would give rise to a problem. The regulations define a designated hotel bedroom as a room: in which people sleep; that has been designated as a smoking room; that is a room in the normal sense; that

"has a ventilation system that does not ventilate into any other part of the hotel"

and

"is clearly marked as a bedroom in which smoking is permitted".

What could you say might have been able to be interpreted differently if it were in another part of the regulations? Am I missing something, Margaret?

It is just regarded as poor drafting practice to do what has been done. The leading writers on this subject say that you should not have what appear to be substantive provisions in a definition section.

I am not disagreeing with that; I totally understand that point. However, I just cannot help but feel that, in this case, it is a bit of a non-issue. By all means, though, we can tweak the Executive's tail about it not drafting things correctly.

We will raise the drafting issue. The bigger question that we should raise, however, relates to Stewart Maxwell's point about the implications of this approach.

Ask. I suspect that there are no implications, but I am happy for the question to be asked. I simply record my view that there will be none.

I hope that you are right.

Whether I am right or not, the Executive will certainly say that I am right. That is the answer that we will get back.

Do we agree to take the action that has been suggested?

Members indicated agreement.

The Smoking, Health and Social Care (Scotland) Act 2005 is one of the most important acts that the Scottish Parliament has passed, but the regulations are difficult to understand. We are always striving for plain English in our legislation so that there is clear understanding of what we are doing, but what we are dealing with today is not a good example of that. Any member of the public who wanted to find out where and when they could smoke would have to ask for advice as to how they should interpret the regulations. That is unfortunate, given the importance of the legislation.

The legal advice puts the fact that the regulations are difficult to follow down to difficult wording in the parent act.

I am sure that there is a good reason for it; I am just saying that it is unfortunate that reading the explanatory notes and the Executive note is of more benefit than reading the regulations.

Maybe it is because I have been totally absorbed in this subject for the best part of three years, but I thought that the act was quite clear. However, perhaps if I had come to it cold I might have found it difficult to understand.

Ken Macintosh is right to say that the act and the regulations are difficult to understand. However, anyone who reads the schedule will be in no doubt as to where they can smoke and where they cannot smoke. Basically, you cannae smoke anywhere, unless you can.