Official Report 96KB pdf
Civil Legal Aid (Scotland) Amendment Regulations 2004 (SSI 2004/50)
We move on to item 3, on Executive responses. Members will remember that we asked the Executive about citing as enabling powers section 17(2B) and section 42 of the Legal Aid (Scotland) Act 1986. Members will see that the legal adviser is still not happy and does not accept the Executive's arguments regarding the relevance of section 17(2B). What is the way forward on the regulations? The Executive is saying that it does not think that there was a need to cite the sections, but our legal advice is that that would have been useful.
I agree that it would have been useful. The Executive has cited the use in the preamble to the regulations of the words:
I was going to say the same thing. If we do not have time to write back to the Executive we should report the matter to the lead committee and the Parliament.
I gather that we do not have time to write back to the Executive, so we will just have to report the matter to the lead committee and the Parliament.
Private Hire Vehicles (Carriage of Guide Dogs etc) Act 2002 (Commencement No 1) (Scotland) Order 2004 (SSI 2004/57)
It is the legal adviser's view that there is a slight problem, particularly for the user, with using the UK "Statutory Instrument Practice", given that there is a separate Scottish manual, which the Executive has prepared, on how we deal with commencement orders. Members have read through the legal advice and will see that the legal adviser thinks that the issue could be considered further. What are members' views?
I am not entirely clear. I am only a conditional supporter of devolution, but I thought that the settlement means that we do things differently in Scotland, as the Executive and Government ministers tell us constantly. The Executive's response is right in the sense that it is following the Scottish guidance in terms of the numbering of instruments. The only question is whether the two sets of guidance should accord more with each other. One could argue that point either way. It is quite clear from the insertion of the word "(Scotland)" in the order that it is in a separate numbering series. One could argue the point just as one could argue whether calling the monarch Elizabeth I or Elizabeth II is confusing.
I tend to consider such matters from the starting point of whether the user would find the instrument confusing. I accept Alasdair Morgan's point that the issue probably is not relevant, other than for the saddest anoraks, but we have a duty to the sad anoraks as well as to ordinary people with lives. There should be consistency and best practice should always be followed, especially if it helps to clarify where an instrument sits in the scheme of legislation. However, I am not prepared to divide the committee on the issue. I genuinely think that it is worth pursuing in the interests of clarity.
Given Alasdair Morgan's point and the fact that there is Scottishness, if you like, in the approach that we should take, but that there might be confusion from the users' point of view, we could ask the Executive whether it considers that there is any way that we can marry the two sets of guidance to bring more clarity.
Given that we like labels, such as Henry VIII powers, perhaps we could refer to Elizabeth I or Elizabeth II clauses from now on. To balance the English-Scottish angle, we could even have James I clauses or, if people prefer, James VI clauses.
Indeed. Whether people are confused depends on where they are coming from. I cannot remember what the number of the order would have been if it had been numbered in a UK series.
It would have been number 2.
Let us say for the sake of argument that we had another order that was a "(Commencement No 5) (Scotland) Order", would that mean that someone would be looking for commencement orders for Scotland numbered 1 to 4? There is scope for confusion no matter which way we approach the issue.
That is why we are seeking clarification.
There is no harm in our seeking a bit more clarification. We could then pursue the matter more informally, as we have with other matters.
That is fine.
Before we disintegrate totally, I suggest that we seek more information on whether we can make things clearer for the user. There might not be any way to do that.