Official Report 235KB pdf
Regional Transport Partnerships (Establishment, Constitution and Membership) (Scotland) Order 2005 (draft)
Agenda item 4 is Executive responses. We asked two questions on the order. We were not clear whether the provision in article 3(5) was compatible with the enabling power in section 1(2)(e)(iii) of the Transport (Scotland) Act 2005. Does the Executive's explanation mean that members are now okay about the vires issue?
Yes. I think that the Executive recognises that a recent judgment by the European Court of Human Rights raised vires issues and has agreed to withdraw the instrument.
Ah. I think that you have moved on to the next instrument.
Have I?
There is no problem; we will come back to it in a second.
I am sorry, but I am confused. Which response are we dealing with?
I am talking about the response on the regional transport partnerships draft order.
That is okay; that is the response that I thought we were on.
The first point was that we were not sure whether the provision in article 3(5) was compatible with the enabling power. That was a vires issue. Are we happy with the explanation that we have received?
We will pass that on to the lead committee.
Civil Partnership Act 2004 (Consequential Amendments) (Scotland) Order 2005 (draft)
Now it is over to Ken Macintosh. Fire away, Ken.
I refer you to the remarks that I made a few minutes ago. [Laughter.] I am happy with the explanation that the Executive has given, because it has agreed on the general point that there are vires issues, and it is redrafting the order.
There are two points there. One is to do with whether the instrument is compatible with the ECHR, and the Executive has said that it will withdraw the draft and re-lay an amended version, which we are obviously happy about. The second point is a general issue about how the compatibility check is actually done, particularly in relation to subordinate legislation. Shall we send a letter about that?
I accept the fact that the Executive has agreed to withdraw the order and come back to it again, but it seems to be concentrating on article 12 of the convention. However, it seems to me that there are other articles that come into play. Article 8, on the right to private life, and article 14, on prohibition against discrimination, taken in conjunction, would also apply. There may be some debate about that, but the idea that the re-laid instrument would deal only with breach of article 12 and might go ahead ignoring articles 8 and 14 is not acceptable. I am of the opinion that, if the Executive were to do that, it would be in breach of those two articles, and I think that we should raise the wider issue of the whole area dealt with by the legislation. It is not just about marriage between a man and a woman; there is a wider issue because we are dealing with civil partnerships.
Absolutely. The clerk has suggested, quite usefully, that we can pass on the specific remarks to the lead committee, in addition to the response that we have already received from the Executive, and also raise in our general letter the issue of extending any revision to include the other articles. Is that agreed?
Tryptophan in Food (Scotland) Regulations 2005 (SSI 2005/479)
We asked first of all why the relevant provisions of the Food Safety Act 1990 (Consequential Modifications) (Scotland) Order 1990 (SI 1990/2625) have not been revoked by the regulations. The Food Standards Agency Scotland has explained that express revocation of spent provisions does not affect substantive changes. It does agree, however, that such revocation is good practice. Accordingly, at the next suitable legislative opportunity, it will rectify that omission. Are members content to pass that on?
We also asked whether the drafting of the equivalent UK regulations affected the drafting of the instrument. Stewart Maxwell raised a question about that.
Yes, I did, and I think that the answer is that it did affect the drafting of the instrument. We have received a response from the FSA that is not unreasonable, and there seem to have been different debates going on with its English and Northern Irish equivalents. I am not sure that the answers that it has sent to everybody have been entirely consistent, but as far as we are concerned its answer is not unreasonable, as I said. However, the original point was that to slavishly follow the regulations that have been made down south can lead to problems of that kind, and that fundamental point remains.
Is it agreed that all those points will be passed to the lead committee?
Food Hygiene (Scotland) Regulations 2005 (SSI 2005/505)
We requested an explanation of the legal basis of regulation 24, given that it provides for a code of practice to be issued by Scottish ministers that has legislative effect. I do not know what you think of the reply that we got, but there may be some cause for concern still.
I agree. It is clear that the code of practice is legislative in character. I do not understand why the Executive takes a different view. To use a phrase that we learned last week, it has a "horizontal effect". We should report the regulations on the basis that there is a difference of opinion on the matter.
Should we refer the matter to the lead committee and Parliament?
Yes.
As I understand it, the doubt is whether regulation 24 is intra vires with respect to the enabling act. That could cause difficulty.
It is not simply guidance; it seems to be more powerful than that.
That is right.
Thirdly, the committee asked the Executive to confirm that regulation 23 was sufficient to achieve its stated purpose, as members noted that, where it has been desired to attract section 9 in other regulations, a fuller adaptation has been required.
Smoking, Health and Social Care (Scotland) Act 2005 (Commencement No 1) Order 2005 (SSI 2005/492)
We asked the Executive why section 43(4) of the Smoking, Health and Social Care (Scotland) Act 2005—the parent act—had not been cited as an enabling power. The Executive in its response accepts that it is normal practice to refer to a provision such as section 43(4) when making a commencement order that appoints different days for the coming into force of different sections of the parent act.