Subordinate Legislation Committee, 10 Jan 2006
Meeting date: Tuesday, January 10, 2006
Official Report 141KB pdf
Contents
- Scottish Parliament Subordinate Legislation Committee Tuesday 10 January 2006
- Item in Private
- Delegated Powers Scrutiny
- Legislative Consent Memorandum
- Draft Instrument Subject to Approval
- Instruments Subject to Annulment
- Instruments Not Laid Before the Parliament
Instruments Subject to Annulment
Instruments Subject <br />to Annulment
Road User Charging (Liability for Charges) (Scotland) Regulations 2005 (SSI 2005/651)
No points of substance arise in relation to the regulations, but we could write an informal letter to the Executive about a minor point. Is that agreed?
Members indicated agreement.
Road User Charging (Penalty Charges) (Scotland) Regulations 2005 (SSI 2005/652)
A number of points arise on the regulations. We could ask whether regulation 8(1) should read "purpose specified in section 56(2)(a)" rather than "purpose of section 56(2)(a)". We could ask the Executive to explain the vires for regulation 10(6) and the provisions relating to the contents of a vehicle contained in regulations 11 and 13. In that regard, we could also ask whether it is deliberate that regulation 12 makes no reference to the contents of a vehicle. We could ask the Executive to explain why regulation 13(3) is not drafted as a provision to be included in a charging scheme, as it seems to be inconsistent with the other provisions of regulation 13 and with the enabling powers. Finally, we could ask the Executive to confirm whether any progress has been made with the regulations referred to in regulation 13. Do we agree to do so?
Members indicated agreement.
Transport of Animals (Cleansing and Disinfection) (Scotland) Regulations 2005 (SSI 2005/653)
No substantive points arise on the regulations.
Road User Charging Schemes (Keeping of Accounts and Relevant Expenses) (Scotland) Regulations 2005 (SSI 2005/654)
The legal advice suggests that we ask six questions about the regulations. Do we agree to do so?
Members indicated agreement.
M77 (Malletsheugh) (Speed Limit) (Scotland) Regulations 2005 (SSI 2005/655)
On the M77 (Speed Limit) (Scotland) Regulations 2005 (SSI 2005/655), it is suggested that we ask the Executive to explain the following on a formal basis. What is the purpose of regulation 1(2), and in particular its reference to "regulation 1(1)", given that paragraph (1) is merely a citation provision and does not in any event refer to a "special road"? Why, assuming that paragraph (2) is intended to be an interpretative provision, is the heading to regulation 1 simply "Citation" rather than "Citation and interpretation"? Why, given that breach of regulation 3 is a criminal offence for which the penalty is provided in the parent act, is this information together with a note of the current maximum penalty not included in the explanatory note? Do we agree to ask those questions?
Members indicated agreement.
Convener, the committee noted that you did not say the place name in the title of the regulations.
I did not.
"Mallet-shuch", "Mallet-shoe".
They probably call it "Mallet-shuch" in Ayrshire but, since it is in Renfrewshire, we will allow the more effete pronunciation.
Criminal Legal Aid (Scotland) (Fees) Amendment (No 3) Regulations 2005 <br />(SSI 2005/656)
The regulations appear to have the same defect identified by the Committee in its consideration of the Criminal Legal Aid (Scotland) (Fees) Amendment (No 2) Regulations 2005 (SSI 2005/584) at its meeting on 29 November last year. The note on the decision that we came to previously, after we wrote to the Executive, is now being circulated to members.
Given the answer that we got previously from the Executive, do we want to write to it again, or do we accept that, most likely, the answer would be the same, and simply include that in our report?
We should flag up the fact that we are still concerned about the matter.
Last time, we noted that the fact that the retrospective application of a regulation in circumstances in which the parent act did not expressly confer that retrospective effect led to there being doubts as to whether the instrument was intra vires. Our legal advice says that the instrument that we are considering today raises exactly the same point.
Forgive me if I misunderstand the position, but I have only just read the note on the previous decision. Is the Executive saying that, because reference to the power enabling retrospection is omitted from the parent act, the Executive can do whatever it wants? Is it the Executive's position that the fact that the act does not say that it cannot do it, means that it can do it?
Possibly. Let me have another read of the note.
Perhaps I should interrupt your reading, convener, for the purposes of the record—there are people out there who like to read these things. I have a direct interest in the regulations, so I will take no part in the discussion.
Okay. It says in our note on the regulations:
"the Executive considers that the powers in the parent Act do not prevent the approach that has been taken".
As Stewart Maxwell says, the parent act does not contain any express enabling power here.
Exactly. It is silent on the matter.
Yes, it is silent on the matter.
My assumption would be that there cannot be a retrospective effect, because a power enabling retrospection is not given. The Executive has taken the opposite interpretation: that, because the act does not say that there cannot be a retrospective effect, there can be. I do not think that that is right.
We might simply get the same answer if we pursue the matter further.
I am not saying that we should raise the issue with the Executive again—I agree that that is exactly what would happen. We should certainly bring the matter to the attention of the lead committee, however. We should convey our strong opinion. There is no point raising it again with the Executive, which has made its view clear.
Is that okay? I thought that it was useful to discuss that.
Yes, it was.
Marriage (Approval of Places) (Scotland) Amendment Regulations 2005 <br />(SSI 2005/657)
No points have been identified on the regulations.