Health and Sport Committee, 01 Oct 2008
Meeting date: Wednesday, October 1, 2008
Official Report
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Subordinate Legislation
Plastic Materials and Articles in Contact with Food (Scotland) Amendment Regulations 2008 (SSI 2008/261)
Our first main item of business is consideration of subordinate legislation, and we have before us two negative instruments.
We are considering for the second time the Plastic Materials and Articles in Contact with Food (Scotland) Amendment Regulations 2008. The instrument was brought to the committee's attention by the Subordinate Legislation Committee on several grounds: doubt as to whether parts of the instrument are intra vires because of the failure to justify adequately its coming into force less than 21 days after it was laid before the Parliament; failure to provide a Presiding Officer with such an explanation when the instrument was laid; and apparent failure to provide transitional arrangements for substance "ref. 74560".
The Subordinate Legislation Committee wrote to the Minister for Parliamentary Business on 17 September to raise its serious concerns about the handling of the instrument. With due regard to the parliamentary timetable for consideration of the instrument, the Minister for Parliamentary Business has responded and his response was circulated with members' papers. No comments have been received from members and no motions to annul have been lodged. Do members wish to make any comments?
I have read the papers again, and read carefully the Minister for Parliamentary Business's response. I have much sympathy with the poor view that has been taken of the Food Standards Agency's failure to respond adequately, but I do not agree with the Subordinate Legislation Committee's view that when the 21-day rule is breached, questions arise about the instrument's vires and the minister's actions.
It seems to me that the 21-day rule is a matter of administrative law. If a committee believes that the failure to meet the 21-day law has resulted in Parliament being incapable of dealing adequately with whether a measure has been properly explained, it is right for Parliament or the committee to use the final option of annulling the instrument and therefore allowing it to come back for further consideration. I do not understand, however, the suggestion that a failure to comply with the administrative law renders the instrument ultra vires. It seems to me that the vires comes from the primary legislation on which the secondary legislation is based. Unless the instrument is demonstrably outwith the powers that the primary legislation has granted, it is within vires. If that is proven, the question whether there has been a failure in an administrative legal matter simply does not arise. I do not agree with the Subordinate Legislation Committee's view on that.
I hope that a way can be determined to ensure that such an issue will not arise again. Clearly, the Subordinate Legislation Committee's legal advisers—or the committee as a whole—now believe that failure to comply with the administrative legal matter means that an instrument is not within vires. Effectively, that could mean that any instrument could come before committees, for consideration as to whether they are within vires.
I am in your hands on this, convener. I do not know whether you can take the matter to the Conveners Group or elsewhere, but the issue must be determined in the interests of the workings of Parliament, otherwise committees will continue to have this matter brought before them.
Perhaps I can assist the committee by saying that the Subordinate Legislation Committee is considering the correspondence. In addition, as members will note from their papers, the Minister for Parliamentary Business has made it plain that he is in dialogue with the Subordinate Legislation Committee. I think that the full response that we received from the minister is helpful. Perhaps we should just leave the Subordinate Legislation Committee to reflect on the content of the correspondence.
The issue will be discussed fully at the next meeting of the Subordinate Legislation Committee.
Are you on the committee?
Helen Eadie and I are on that committee.
That is good.
We will certainly keep an eye on the issue. The legal matters will be gone into in great depth. However, what is the fate of substance "ref. 74560" in the meantime? I ask because it was incorrectly referred to as "ref. 74530" in the regulations, and that has not been altered.
I suggest that Ian McKee raise that typographical error with the Subordinate Legislation Committee. I am sure that he and Helen Eadie will keep an eye on the issue, and I thank them for that.
As no motion to annul has been lodged, the Health and Sport Committee has completed its consideration of the instrument. Are we agreed that the committee does not wish to make any recommendation on the instrument?
Members indicated agreement.
Adult Support and Protection (Scotland) Act 2007 (Restriction on the Authorisation of Council Officers) Order 2008 <br />(SSI 2008/306)
There are more people in the public gallery now, so I remind everyone to ensure that mobile phones and BlackBerrys are switched off.
The second negative instrument before us is the Adult Support and Protection (Scotland) Act 2007 (Restriction on the Authorisation of Council Officers) Order 2008 (SSI 2008/306). The instrument specifies the restrictions to be placed on persons before they may be authorised by a council to perform the functions of a council officer under the Adult Support and Protection (Scotland) Act 2007.
No comments have been received from members and no motions to annul have been lodged. Are we agreed that the committee does not wish to make any recommendation in relation to this instrument?
Members indicated agreement.