Subordinate Legislation Committee, 05 Feb 2002

Meeting date: Tuesday, February 5, 2002

Official Report 134KB pdf

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Draft Instruments Subject to Approval

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Draft Instruments Subject <br />to Approval

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Forth Estuary Transport Authority Order 2002 (Draft)

I do not know whether this is to annoy us, or whether the Executive has forgotten, but we are considering the order once again. I do not know why we cannot call the Forth estuary the Firth of Forth at this stage.

Perhaps the Executive is being obtuse.

No, we are being correct.

No, I said that the Executive was being obtuse.

I do not know, but we can request that it considers the order again and ask why it persists—

The term flows from the Transport (Scotland) Act 2001, which refers to estuary crossings. Perhaps that is where the pass was missed.

We shall mention it anyway.

We had so many concerns about the previous draft order that it was withdrawn and we are now considering another draft. It is unfortunate that there are still some difficulties and we might want to draw those to the attention of the drafters.

Article 6 and schedule 1 are on setting up the new board and making rules. However, that does not appear to be permitted by the enabling power. The power that the Executive has appears to be confined to specifying the constituent authorities of the board. We have to go back to the Executive about that, because it is fundamental to the power that the minister would have.

The power in sections 69(1) and 69(2) appears to be restricted to dissolving the board and transferring its functions to a new board on which new functions can be conferred.

There is doubt about the vires of article 11(1), which relates to tolls. The enabling power is very wide, but the provision is not effected as a textual amendment of existing legislation. Tolls normally require a specific authorising power in parent legislation that the Transport (Scotland) Act 2001 does not contain.

We drew the Executive's attention to the provision for penalties in schedule 3, and although that provision has been removed, the provision relating to exemptions has been retained, as has the extension of the toll period. Neither of those provisions appears to be related to the transfer of functions to the new board. Given that the law requires that powers to provide for the charging of tolls must be specifically conferred in the parent legislation—a test that the Transport (Scotland) Act 2001 does not fulfil—there must be doubt about the vires of paragraphs 2 and 3 of the draft order.

That is quite serious stuff. How will we deal with it?

When do we have to report on the order?

We have enough time to write to the Executive saying, "Thank you very much, but we must draw this to your attention" and to consider the order again next week.

In that case we should put those questions to the Executive and ask it to respond.

The inadequacy of the enabling power underlies all the difficulties that we have spotted.

We will write to the Executive on those points.

We must write to the Executive. It will have the power to make byelaws, but it does not have the power to ensure that they are enforced. That is a weakness.

We do not want a Robbie the Fifer campaign.

We will write to the Executive on the points that we want to raise and consider the order again next week.

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Budget (Scotland) Act 2001 (Amendment) Order 2002 (Draft)

Article 2(4)(b) makes a textual amendment to punctuation that is contrary to good drafting practice. Did anyone notice that? I read the order and I can see where it comes in. It is the first time since I became convener that punctuation has determined what will be the law of the land.

We must query it.

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Public Finance and Accountability (Scotland) Act 2000 (Consequential Modifications) Order 2002 (Draft)

Do any points arise on the order?

It seems okay.