Rural Affairs Committee, 05 Sep 2000

Meeting date: Tuesday, September 5, 2000

Official Report 139KB pdf

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Seed Potatoes (Scotland) Regulations 2000 (SSI 2000/201)

Item 5 on the agenda is subordinate legislation. A paper has been circulated covering the Seed Potatoes (Scotland) Regulations 2000 (SSI 2000/201).

I must admit that, when we were considering the agenda for today's meeting, we thought that a nice, simple piece of subordinate legislation would be a great idea, that we could nod at it in the passing and that that would be that. Unfortunately, it is unlikely to be that simple, given that the report submitted to us by the Subordinate Legislation Committee comprises some six pages of concerns in relation to the regulations.

Having read the Subordinate Legislation Committee's report, I am not clear whether one of its suggestions—getting the appropriate officials to come before us—would really enlighten us further. The statutory instrument seems to be a bit of a mess, and I think that the best thing would be to lodge a motion to annul it. If the Parliament accepted that, the Executive could then return with a redrafted statutory instrument.

Like Alasdair Morgan, I have read the report from the Subordinate Legislation Committee, and I note the serious concerns about the regulations. If the committee approves, it would be appropriate for a member, on the committee's behalf, to prepare a motion for annulment of the instrument and for us to make time available to debate that motion at our meeting next week.

What would be the effects of annulment on the seed potato industry? Given that we might proceed on the basis of the work that has been done by the Subordinate Legislation Committee, rather than our own work, might it be appropriate for us to refer the matter back to the Subordinate Legislation Committee, for one of its members to lodge an amendment on its behalf?

We are the lead committee on the regulations; this is the only committee in which a motion of annulment may be considered.

Given the views that have been expressed in the Subordinate Legislation Committee's report, our options are very limited.

Could we get some advice on the implications for the industry?

It might be worth asking the Executive to provide somebody to answer questions such as that which Des McNulty has raised. It might be difficult for us to know what the effects of annulment would be.

I am not absolutely clear whether the Subordinate Legislation Committee is saying to us that it thinks the instrument should be annulled. The Executive seems to have attempted to answer some of the questions, and it thinks that some of the issues are not as important as the Subordinate Legislation Committee seemed to think.

I found some of the recommendations a little bit confusing—in fact, very confusing. It was a detailed argument about what was the matter with the instrument. It might be worth getting somebody from the Executive to answer our questions.

That is what will happen if we lodge a motion to annul in this committee. The ministers will come before us to defend their statutory instrument; in effect, we will kill two birds with one stone.

I am just a practical soul. Annexe A in front of us is entitled "Extracts from the 28th report of the Subordinate Legislation Committee". I am wary about annulling anything on the basis of an extract. I have not seen the full report. Are we now being asked to annul?

My understanding is that the annexe is in fact an extract of a report that followed a Subordinate Legislation Committee meeting, at which more than one issue was covered. The extracts in front of us stem from the entire part of the meeting that related to the instrument.

So what we have before us is complete?

Yes.

If I understand paragraph 6 of the senior assistant clerk's general procedure note on the regulations, we have the option to ask to

"hear evidence from Officials at the next meeting".

Is that correct? I understood the deputy convener to say that, if we move to annul, that would happen automatically. Or is it a case of either/or?

That is covered under paragraph 5.

It is paragraph 6 on my paper.

But an explanation is given in paragraph 5.

I see—sorry.

I appreciate that paragraph 5 says that we

"would have to invite Ministers to debate the issue . . . should a motion for annulment be proposed".

However, if it transpired that the effect of annulment on the seed potato industry would be sufficiently disastrous, and we felt that annulment would be a worse option, would we then have the opportunity to withdraw that motion for annulment? Would it be worth asking the questions first?

A motion to annul a statutory instrument could be defeated. The committee has had experience of that. A decision to annul the instrument would be taken on the basis of the minister's evidence and the conclusions that the committee drew from its debate on the matter.

Paragraph 2 of the paper states that the time limit for parliamentary action expires on 19 September. Does that refer to the parliamentary action in the chamber that would have to follow the decision of the committee?

Yes.

In that case, if we are to annul the order, we will have to get our skates on. If we do not annul it, we are in effect approving it. We cannot do nothing and time is running out for us to do something, one way or the other.

This is a negative instrument, so if we do nothing, we approve it.

I think that the instrument has significant defects. We are not talking about one or two minor points that could be amended easily. I was struck by paragraph 38 of the paper that gives extracts from the Subordinate Legislation Committee's report, which is in bold. It says that

"as these Regulations implement Community obligations, defective drafting could also constitute a breach of a Community obligation to incorporate correctly the provisions of the relevant Directives into domestic law".

There are far-reaching implications if the instrument is implemented in a badly drafted or defective format. We owe it to the industry to get it right and should not just hope that it works out okay in the end, as I do not think that it will.

Nobody is arguing that that is what we should do. I would be interested to hear the Executive's view on that assertion.

I agree with what the report says, especially in the paragraphs in bold, but I would like to know why the Subordinate Legislation Committee did not recommend that the committee move to annul the order.

I do not have the answer to that.

We are groping in the dark here, as we do not have the information that we need.

Given the time scales that are involved, we have only a limited range of options. Our discussion hinges on whether we think that a motion to annul will produce adequate scrutiny of the instrument in the committee in the presence of the minister.

Clearly, if we move to annul at our next meeting, and the Executive declines to send anyone to the meeting to defend the instrument, we will be entitled to take the view that the Executive, too, believes that the order is defective. If the Executive sends someone to the meeting who defends it successfully and convinces us, we can vote down the motion—I do not see any problem. If we do not put a motion to annul on the agenda for next week, the order will stand.

Can we request some more information from the Subordinate Legislation Committee?

Standing orders state that it is the responsibility of the Subordinate Legislation Committee to

"determine whether the attention of the Parliament should be drawn"

to an instrument; there is a list of grounds for doing that. The Subordinate Legislation Committee's responsibility is largely to draw details to our attention rather than to make recommendations.

Okay. In that case, I agree with Alasdair Morgan.

I feel that I am in a difficult position—I tried to express this point earlier. I think that the Subordinate Legislation Committee is engaged in a fight about the way in which statutory instruments are drafted. The instrument happens to be one that that committee has picked for that fight. The report expresses a degree of exasperation and keeps referring to earlier instances.

The Subordinate Legislation Committee's objections do not have much to do with seed potatoes, but are about the ineffective way in which legislation is drafted. The Rural Affairs Committee could be drawn into another committee's fight, on a subject that may not be the most appropriate one on which to have that fight. We would be in an unfair and unsafe position if the mechanism for dealing with the instrument forced us to propose annulment on grounds that had more to do with someone else's problems.

It is not necessary for us to stray so far into the matter. We are saying that we would like the minister to come to the committee to defend the instrument.

The reason why the Subordinate Legislation Committee has to report to us is so that we receive such comments. We cannot ignore them because they come from another committee. Therefore, I support Alasdair Morgan's suggestion that we lodge a motion to annul and invite the minister to defend the instrument.

My concern is whether the comments in the Subordinate Legislation Committee's report are sufficiently specific to the instrument or whether they are the expression of a more general concern, in which case that committee should sort out the matter itself instead of putting the onus on us.

That view would surely not justify our passing, in effect, a defective statutory instrument. It must be right to accept Alasdair Morgan's proposition.

It is clear from the part of standing orders to which the convener referred that the Subordinate Legislation Committee—whether it has a bee in its bonnet or not—does not have the power to overturn statutory instruments. It is up to the subject committees to do that. Increasingly, large areas of our lives are being regulated by statutory instruments, which, until the establishment of the Scottish Parliament and the National Assembly for Wales, received no scrutiny whatsoever. We are duty bound to pay attention to reports that suggest possible defects.

I am happy that we should proceed as Alasdair Morgan suggests, so long as we have the opportunity to withdraw the motion for annulment should the minister, or whoever the Executive sends to speak to us, manage to refute all the allegations and it transpires that we are worrying about wording rather than substance.

Our meeting next week will take place a week before the time limit for parliamentary action expires. Will that allow sufficient notice for the instrument to go before Parliament in the following week if we decide to proceed with annulment?

Yes. It would be more convenient to have the debate next week than to hold it in the following week.

We will have enough on our plate on 19 September.

If we agreed that the instrument had to be annulled, action would have to be taken in Parliament within the next week. Is that correct?

Yes.

Does the committee agree that we should lodge a motion—in the simplest possible terms—that the instrument should be annulled, and that a debate on that motion should take place at our next meeting, at which the minister will be present to defend the instrument?

Members indicated agreement.

The wording of the motion should state simply that SSI 2000/201 be annulled. Does the committee wish me to lodge that motion on its behalf, or does it wish a particular member to take on that responsibility? Alasdair Morgan suggested that I do that.

I would not want any motives to be misconstrued, so I think that the convener should lodge the motion.

I will lodge the motion on behalf of the committee.