Scottish Government Responses
Good afternoon. I welcome members to the fifth meeting in 2008 of the Subordinate Legislation Committee. We have apologies from Richard Baker and we may have a late arrival or two. I ask members to turn off their mobile telephone or BlackBerry.
After our meeting on 29 January, the committee wrote to the Scottish Government about two Scottish statutory instruments. Members have seen the responses.
Bluetongue (Scotland) Order 2008 <br />(SSI 2008/11)
A couple of additional matters have arisen on the order since the meeting papers were issued. For the record, I ask the legal adviser to explain them to the committee.
Judith Morrison (Legal Adviser):
I have three points to make, the first of which arises in connection with point (a). Although I do not wish to alter the recommendation made to the committee in the legal brief, I have considered in addition whether there is any argument that, where it is necessary for an instrument to be given proper effect, to impute particular provisions to a particular enabling power would be sufficient. In this case, I consider that it is not appropriate to rely on any such suggestion and that the proper practice would be to attribute enabling powers to the particular provisions.
The second point relates to point c(ii). I have considered the argument that the Scottish Government put forward in its response. I agree with its conclusion that there is no real doubt as to the meaning of "suspicion" in this context, because the European Commission regulation adopts the definition of "suspicion" contained in the previous directive. My reading of article 8 of the order leads me to the inescapable conclusion that "suspicion" used in that context must adopt the same meaning. I agree with the Scottish Government that it would not be appropriate for it to gloss the meaning, or to impute any additional meaning to that provided in a directly effective European measure. So I agree with the Government's conclusion as to effect, but I have reached it by a slightly different route.
Finally, I ask members to consider writing to the Scottish Government on an additional matter. Unfortunately, the committee will be unable to include the response in its report to the lead committee, but the question is important, nonetheless. The question is why provisions in articles 13(5), 14(7) and 15(3) of the order, which appear to delegate to the Scottish ministers the ability to specify that other measures are required when issuing declarations under those articles, are considered to be intra vires the enabling powers in the absence of any specific power to make such provision?
Thank you. The last point is something of a tidying-up exercise; we will do what we can within the time constraints.
I will run through the grounds for our recommendations. On point (a), there has been a failure to follow proper drafting practice, such as may impact on the operation of the instrument. On point (b), there has been a failure to follow proper legislative practice. On points c(i) and c(iii), an explanation was sought from and provided by the Scottish Government with which we are satisfied; on point c(ii)—a point to which our legal adviser has just alluded—an explanation was sought from and provided by the Scottish Government, which we find satisfactory in part. On point (d), an explanation was sought from and provided by the Government with which we are satisfied.
Finally, our legal adviser recommends that we write to the Scottish Government to seek an explanation of how the provisions in articles 13(5), 14(7) and 15(3) of the order, which appear to delegate to the Scottish ministers the ability to specify that other measures are required when issuing declarations under those articles, are considered to be intra vires the enabling powers in the absence of any specific power to make such provision.
Are we content to draw the order to the attention of the lead committee and Parliament on those grounds?
Members indicated agreement.
Before we move on, I point out that it has been only a short time since we last talked about this sort of procedure and Government response and yet another such instrument is before us today. We continue to believe that the Government could improve the situation.
Scottish Road Works Register (Prescribed Fees and Amounts) Regulations 2008 <br />(SSI 2008/16)
Are members content with the Government's response and on that basis to draw the regulations to the attention of the Parliament?
Members indicated agreement.