Chamber and committees

Delegated Powers and Law Reform Committee

Meeting date: Tuesday, December 2, 2014

Official Report 296KB pdf

Attendance
Interests
Decision on Taking Business in Private
Instrument subject to Affirmative Procedure
Instruments subject to Negative Procedure
Instrument not subject to Parliamentary Procedure
Welfare Funds (Scotland) Bill
Food (Scotland) Bill: After Stage 2
Modern Slavery Bill

Instruments subject to Negative Procedure

Marriage Between Persons of Different Sexes (Prescribed Bodies) (Scotland) Regulations 2014 (SSI 2014/304)

The Convener

Regulation 2 states:

“The bodies prescribed for the purposes of 8(1)(a)(ii) of the Marriage (Scotland) Act 1977 are listed in the Schedule”,

which omits the word “section”. Does the committee therefore agree to draw the regulations to the attention of the Parliament on the general reporting ground, as they contain a minor drafting error?

Members indicated agreement.

The Convener

Does the committee agree to note, however, that the minor error will be corrected when the regulations are next amended for another reason?

Members indicated agreement.

Food Information (Scotland) Regulations 2014 (SSI 2014/312)

The Convener

It has been suggested that the meaning of the instrument could be clearer.

First, the form or meaning of regulation 5(5) could be clearer. It does not clearly give effect to the policy intention that the provisions of the regulation should apply where the relevant ingredient or processing aid is itself a substance or product listed in annex II of European Union regulation 1169/2011 on the provision of food information to consumers.

Secondly, the form or meaning of paragraph 2(a)(iii) of schedule 5 to the instrument could be clearer. That paragraph substitutes the text

“(b) an indication of its maximum alcoholic strength in required form 1, 2 or 3”

in column 2 of the entry relating to the description “low alcohol” in part I of schedule 8 to the Food Labelling Regulations 1996. The text that should be substituted is

“(b) the drink is marked or labelled with an indication of its maximum alcoholic strength in required form 1, 2 or 3.”

Accordingly, paragraph 2(a)(iii) of schedule 5 does not clearly give effect to the policy intention.

Does the committee therefore agree to draw the instrument to the Parliament’s attention under reporting ground (h), as its meaning could be clearer?

Members indicated agreement.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

May I make some observations?

The Convener

Please do.

Stewart Stevenson

There is a wider issue in respect of clarity. Although I think that it is likely that the instrument is legally clear in other respects, I think that it is, like many complicated amendments, likely to be practically unclear. I am specifically looking at schedule 5, which starts on page 22 of the regulations and continues to page 29. It will amend probably more than a dozen other pieces of secondary legislation—I have not counted them. I am sure that the secondary legislation that it will amend will include secondary legislation that has been amended many times.

There is a genuine practical difficulty in establishing the current state of, to choose one instrument at random, the Food (Lot Marking) Regulations 1996, which are nearly 20 years old. They have been amended many times and, of course, unlike primary legislation, secondary legislation is not updated as amendments are made, once it has been published on the legislation.gov.uk website. Therefore, there is nowhere that a member of the public or even someone in the industry can go to see what the current regulations look like.

I suggest that the Government consider one of a range of options. One option would be consolidation of much-amended secondary legislation so that it is published in total and one starts afresh with the complete regulations. It could also consider whether the process by which primary legislation is updated on legislation.gov.uk as amendments are made should apply to secondary legislation. Alternatively, legislation.gov.uk could at least contain a list of the instruments that amend instruments even if there is no consolidated instrument.

If somebody were to try to find out all the amendments that have been made to the piece of secondary legislation that I picked at random, they would have to look through nearly 20 years’ worth of legislation to try to find them and the odds are that they would miss one. That is an unsatisfactory way in which to deal with complex pieces of secondary legislation.

John Scott (Ayr) (Con)

I back up what Stewart Stevenson said. People from the food industry have highlighted to me concerns that, because of the obscure nature of the regulations, many people in the industry will not be aware of what is going on. I am not sure in whose gift it lies to publicise the regulations better. However, the amendments that they make are possibly quite far reaching and many of the industry bodies are not entirely aware of them.

The Convener

Thank you for those comments. I take it that the rest of the committee is in agreement with them.

The regulations also contain some minor drafting errors.

First, regulation 2(3) provides that a reference to certain European Union provisions in a “regulation” listed in paragraph (4) is a reference to that EU provision as amended from time to time. It should instead provide that a reference to certain EU provisions in a “provision of the Regulations” listed in paragraph (4) is a reference to that EU provision as amended from time to time.

Secondly, in part 1 of schedule 3, in the entry relating to

“Article 18(1) (list of ingredient requirements)”,

the reference in column 2 to “regulation (8)” should be to “regulation 8”.

Thirdly, part 1 of schedule 4 purports to revoke certain provisions of the Miscellaneous Food Additives (Amendment) Regulations 1999. However, those regulations were revoked in full in 2013 in so far as they extended to Scotland and, accordingly, the purported revocation is of no effect.

Finally, paragraph 15(b) of schedule 5 to the instrument inserts a definition of “Regulation 1169/2011” in the Natural Mineral Water, Spring Water and Bottled Drinking Water (Scotland) (No 2) Regulations 2007. However, the definition is unnecessary, as regulation 1169/2011 is not referred to in those regulations.

Does the committee agree to draw the instrument to the Parliament’s attention under the general reporting ground, as it contains minor drafting errors?

Members indicated agreement.

The Convener

Does the committee agree to note that the Scottish Government has undertaken to amend all but the errors in regulation 2(3) at the first appropriate opportunity?

Members indicated agreement.

The Convener

Given that the Scottish Government accepts that including references to the schedules of the instrument as well as to the regulations would have made the intention in regulation 2(3) clearer, does the committee agree to suggest that the Scottish Government might wish to take the same opportunity to amend the remaining error?

Members indicated agreement.

Children and Young People (Scotland) Act 2014 (Ancillary Provision) (No 2) Order 2014 (SSI 2014/315)

The Convener