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National Health Service (Transfer of Property between Health Boards) (Scotland) Regulations 2004 (SSI 2004/15)
Our legal advice has identified a number of points, the first of which relates to definitions. The term "the Act" is used only once in the regulations, and the term "Trust property" is defined in the enabling power. Why do the two terms have to be defined again in the regulations?
I think that you are probably right that the "specified date" refers to the transfer-back date. However, the point is similar to the one that I raised on the Welfare of Animals (Slaughter or Killing) Amendment (Scotland) Regulations 2004 (SSI 2004/13): a lack of clarity in phrases in regulations seems to be a recurring theme. We are getting generalities rather than specifics, which leaves room for manoeuvre or confusion. Perhaps we should raise that general point.
Yes. The word "specified" needs to be defined, because it is unclear. I take your point.
If those problems did not exist, others might be considered to be of less importance. The fact that the health board has to notify ministers whether the property has returned as a condition of transfer means that there is circularity in the regulations. I do not think that that is necessarily hugely important, but coupled with everything else that is wrong, it represents a problem.
Paragraph 8 of the legal briefing indicates that our advisers tried to straighten out some of those points through informal contact with the Executive. Has a response to those representations been received?
With reference to these regulations and to the National Health Service (Borrowing and Loans from Endowments) (Scotland) Regulations 2004 (SSI 2004/16), which we will come on to next, the Executive is willing to consider the points that our advisers made. It is willing to make a lot of changes to the borrowing and loans regulations, but it wanted to see whether the committee had any more points to raise before it made amendments.
So the Executive does not mind being kicked all round the committee. It strikes me that while our back-up team is trying to straighten out points, we are demonstrating pretty good faith with the Executive. It is surprising that it does not take advantage of that more consistently or thoroughly.
To be fair to the Executive, I must point out that it has taken on board a lot of the points from our legal advisers. It just wanted us to have a chance to discuss the regulations before it made amendments. I will try to be fair if I can.
On the point that Murray Tosh made, part of the difficulty is that the length of time between our receiving the papers initially, getting the feedback from our legal advisers and getting the opportunity to suggest changes is not long enough to allow us to get amended regulations from the Executive.
My comments were prompted more by the wording of the briefing note than by its intention. Paragraph 8 ends with the comment:
We have had a response from the Executive since the legal briefing was produced, so you are quite right to raise that point.
National Health Service (Borrowing and Loans from Endowments) (Scotland) Regulations 2004 (SSI 2004/16)
We move on to the second set of regulations under item 5. There has been substantial informal contact between the Executive and our legal advisers. The defects that are set out in paragraph 17 of our legal briefing highlight the differences between the regulations and the explanatory note. It is unclear whether the regulations cover borrowing under both section 7(3) and section 7(4) of the Public Appointments and Public Bodies etc (Scotland) Act 2003. We would have to read the act to consider that in detail. There are also minor errors, but the main points relate to sections 7(3) and 7(4).
Does section 7(3) cover normal borrowing, and does section 7(4) cover borrowing from other health boards?
As I understand it, section 7(4) is to do with loans from other health boards
Whereas section 7(3) is on loans in the commercial market.
Section 7(3) is on borrowing from endowments. Section 7(4) is on loans from other health boards.
I am not quite clear what the difference is between loans and borrowing. I thought that they were much the same thing.
That is the point that the legal advice makes as well. Regulation 2 seems to relate to borrowing under section 7(3), but when we read the act we can see that it should relate also to section 7(4).
It is clearly a point of substance. The intention of regulation 2 is to limit borrowing under section 7(3) and section 7(4) to £100,000, but in effect it does not do so, which is serious. Given the financial state of most health boards, I cannot imagine that many of them will have a spare £100,000 to lend to another board. However, the regulations should reflect ministers' intentions.
The explanatory notes do not make those issues clear. The Executive has accepted that section 7(4) is not dealt with adequately in certain respects.
We can return to the issue once we get the regulations back.