Official Report 230KB pdf
Members were asked to indicate whether they wished to debate the affirmative instruments that we have before us this morning. No comments have been received, so it is suggested that the affirmative instruments will not be debated. Do members agree?
Members indicated agreement.
Malcolm Chisholm, the Deputy Minister for Health and Community Care, is with us this morning. We will kick off with emergency affirmative instruments.
Food Protection (Emergency Prohibitions) (Amnesic Shellfish Poisoning) (West Coast) (No 6) (Scotland) Order 2001
The Subordinate Legislation Committee had nothing to report on the order. Minister, will you move the order?
Would you like me to make a wee speech again or would you like me just to move it?
You can make a wee speech if you feel like it. It is up to you.
It would probably be much the same as the previous one, but I am happy to make it again if you want.
You can either make your single transferable speech or we could just take it as read. We are happy to take it as read.
Motion moved,
That the Food Protection (Emergency Prohibitions) (Amnesic Shellfish Poisoning) (West Coast) (No 6) (Scotland) Order 2001 (SSI 2001/316) be approved.—[Malcolm Chisholm.]
Motion agreed to.
Food Protection (Emergency Prohibitions) (Amnesic Shellfish Poisoning) (East Coast) (Scotland) Order 2001 (SSI 2001/317)
The Subordinate Legislation Committee had nothing to report on the order.
Motion moved,
That the Food Protection (Emergency Prohibitions) (Amnesic Shellfish Poisoning) (East Coast) (Scotland) Order 2001 (SSI 2001/317) be approved.—[Malcolm Chisholm.]
Motion agreed to.
Food Protection (Emergency Prohibitions) (Amnesic Shellfish Poisoning) (West Coast) (No 7) (Scotland) Order 2001
The Subordinate Legislation Committee had nothing to report on the order.
Motion moved,
That the Food Protection (Emergency Prohibitions) (Amnesic Shellfish Poisoning) (West Coast) (No 7) (Scotland) Order 2001 (SSI 2001/322) be approved.—[Malcolm Chisholm.]
Motion agreed to.
Thank you, minister—that is you finished. We now move on to the negative instruments.
National Health Service Trusts (Membership and Procedure) (Scotland) Regulations 2001 (SSI 2001/301)
The instrument was originally circulated to members on 13 September but no comments have been received. The Subordinate Legislation Committee reports that the instrument is "defectively drafted", because there is a repetition of provisions and because it leaves the position of associates of committee members "open to doubt". In addition, the explanatory note
I note that the Subordinate Legislation Committee seems to have raised more than the usual number of concerns. I also note the Executive's response to those concerns. Is the Subordinate Legislation Committee satisfied with the Executive's response? It would be helpful if this committee were advised of the Subordinate Legislation Committee's opinion.
Apparently this is simply a matter of interpretation and opinion: the Subordinate Legislation Committee has one opinion and the Executive's lawyers have a different opinion. We could certainly write to the Executive to indicate that we are aware of the Subordinate Legislation Committee's concerns. However, at present, because of the system, we are not really able to raise anything beyond that, because no motion to annul has been lodged. With the proviso that we will write to the Executive, are we happy to accept the recommendation?
Yes, if we can assume that the Subordinate Legislation Committee's concerns have been addressed.
I am concerned, because virtually every instrument that went before the Subordinate Legislation Committee last month was found to be defectively drafted. It concerns me that that committee is considering instruments but is not passing on information so that this committee has the same knowledge. That makes it difficult for us to come to a decision. What does the Subordinate Legislation Committee mean by "defectively drafted"? Has it run the instruments past lawyers?
Yes.
So the Subordinate Legislation Committee has had legal opinion to say that the instrument is defectively drafted, yet the Executive says that its lawyers do not agree.
Yes.
Well, that is lawyers for you.
We are nodding the instrument through on the assumption that the Subordinate Legislation Committee is satisfied, but it would be helpful if the Subordinate Legislation Committee could notify us whether its concerns had been addressed.
Yes. We should know what concerns the Subordinate Legislation Committee has raised.
There has been a difference of opinion between two sets of lawyers, but I suppose that we are meant to be considering the policy behind the orders, rather than the drafting, which is really the task of the Subordinate Legislation Committee.
I would like to talk about a policy issue, although I probably should have raised objections before. I am concerned about the conditions for being disqualified from membership of health boards—I think that the issue is covered by the second negative instrument, the Health Boards (Membership and Procedure) (Scotland) Regulations 2001 (SSI 2001/302).
The issue involves an interpretation of dismissal. Those people were not employed.
The instrument says that a person is disqualified if
Because John McAllion did not make those points in time, we cannot do anything about not going ahead with the instrument. However, we could raise those points in writing and ask for clarification.
That would be helpful.
The recommendation is therefore that the committee does not wish to make any recommendation in relation to the instrument—with the provisos that we have discussed. Do members agree to that recommendation?
Members indicated agreement.
Health Boards (Membership and Procedure) (Scotland) Regulations 2001 (SSI 2001/302)
The instrument was originally circulated to members on 13 September. No comments have been received from members. The Subordinate Legislation Committee reports that there are unnecessarily repeated provisions of the enabling act and that there is doubt over whether the instrument is technically intra vires. The instrument is also defectively drafted in that respect.
Members indicated agreement.
Scottish Social Services Council (Appointments Procedure and Access to the Register) Regulations 2001
The instrument was originally circulated to members on 13 September. No members' comments have been received. The Subordinate Legislation Committee reports that a failure in the preamble to mention the need for consultation constitutes defective drafting. The provisions do not appear to reflect correctly the stated drafting intention. As drafted, it is doubtful whether the provisions are intra vires. There are doubts over whether regulation 13(5) is intra vires in specifying a maximum fee rather than a fee. The regulation may also exceed the powers conferred by the enabling act in that it purports to delegate the setting of the fee to the SSSC.
I do not accept what the Subordinate Legislation Committee has said. From the work that we undertook on the Regulation of Care (Scotland) Bill, it was clear to me that the setting of the fees would be one of the issues that the SSSC would address. We spent a considerable amount of time dealing with that issue.
I agree. We should seek clarification, to ensure that our understanding of the matter is correct. Do members agree that the committee does not want to make any recommendation relating to the instrument?
Members indicated agreement.