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Town and Country Planning (Listed Buildings and Buildings in Conservation Areas) (Amendment) (Scotland) Regulations 2006 (SSI 2006/266)
We asked the Executive three questions on the regulations; members will have seen the Executive's response and the legal brief.
I do not think that I understand the Executive's argument, to be honest. It seems to be arguing that it may not publish the notices, as it says in paragraph 22 of our legal brief. However, the regulations clearly say that the notices must be published. The Executive could decide on further amendments or additional parts to the notices, but there is no doubt that they must be published. The Executive seems to be arguing the opposite—that publication could be in doubt—so it could not publish the notices if it so decided. I cannot see how the Executive can argue that. Do we have time to go back to the Executive, or must we report on the regulations?
We have time just to report on them.
I certainly do not understand the line of argument that the Executive has taken; we should point it out to the lead committee.
To put it in a nutshell, I understand that the legal brief is saying that the enabling act says that the notices must be published, but the regulations seem to be allowing the Executive some exemptions. That is the nub of the Executive's argument and our legal advisers are taking the opposite view.
Perhaps there is a general issue that we could add to the agenda for one of our periodic briefings. The legal brief makes the point that an express power would normally be given if it was intended that there should be exemptions from statutory requirements. It would be interesting to test whether that is still policy; we might be able to bring these regulations up in the context of that discussion. I do not see what else we can do with the regulations other than report them.
Okay. David McLaren, the clerk, will take a note of your point for our list of points for discussion.
The last paragraph on the regulations in our legal brief says:
We will add that information. Members will see from the legal brief that the Executive's intention is
Town and Country Planning (Application of Subordinate Legislation to the Crown) (Scotland) Order 2006 (SSI 2006/270)
We asked the Executive three questions about the order. The first was about the meaning of one provision, which could have been clearer. The second and third questions concerned defective drafting, which the Executive has acknowledged. I suggest that we draw that to the attention of Parliament and the lead committee. That is fairly clear-cut. Do members have further points?
In its response to our second question, the Executive suggests that readers will be able to understand proposed new regulation 6(4A)(a) of the Town and Country Planning (Listed Buildings and Buildings in Conservation Areas) (Scotland) Regulations 1987 (SI 1987/1529), even though it
Which paragraph of the legal briefing did you quote?
I quoted paragraph 43.
It is suggested that the draftsman followed the corresponding regulations for England. If that is why he understood the provision, although nobody else does, that is disappointing, because the Executive should be alert to the danger of simply basing its work on corresponding regulations for England, especially given the subject matter. Scotland has for a long time had town and country planning legislation with separate procedures, terms and requirements, so the Executive ought to be alert to such danger.
That point goes more into paragraph 44 of the legal brief than paragraph 43.
Yes. I mentioned paragraph 43 because I quoted it.
We will put in our report the substance of paragraph 44, which covers the point that Murray Tosh raised.
The situation is rather disappointing. A simple check of whether the words "under regulation 3 or 4" were used would have avoided the error. That is quite poor.
We should acknowledge that the Executive says that it is grateful to the committee for highlighting all the mistakes and that it has promised to produce a corrective order.
We can welcome that, but it is bizarre that the Executive says that the provision makes sense to it, because the provision clearly does not make sense. It makes sense only if it is read in the context of entirely different regulations that apply to a separate jurisdiction.
Perhaps we can reach a compromise.
I doubt it.
We will say that the Executive was pleased that we brought the matters to its attention and we will include the information in paragraph 44 of the legal brief. We will also mention that the Executive is to produce corrective legislation as soon as possible, as Ken Macintosh said. The essence of our comments is that the meaning could be clearer in one provision and that there are two instances of defective drafting. Is that agreed?
Regulation of Care (Applications and Provision of Advice) (Scotland) Amendment Order 2006 (SSI 2006/272)
We asked the Executive to explain the purpose of the citation as an enabling power of section 14(3) of the Regulation of Care (Scotland) Act 2001 and to say when it plans to consolidate the relevant legislation. Do members have comments? The Executive has acknowledged defective drafting of the preamble but says that it is not so defective as to be likely to cast doubts on the order's validity. The Executive's response to the other question was that it would consolidate at the "earliest opportunity".
We have dealt with several instruments—this is about the third in a row—for which a power to amend secondary legislation would have helped. We see such instruments every week. I accept that defective drafting such as that in the order does not affect an instrument's validity, but it is not helpful to have such mistakes in instruments.
The order makes the fourth substantive amendment to the principal order.
Yes.
At least the Executive says that it is working on a consolidation order, so it is good that we raised the issue when we did. I see that members have no other comments and that we are happy to report on those matters.
Designation of Institutions of Higher Education (Scotland) Order 2006 <br />(SSI 2006/279)
Members will remember that we asked the Executive to explain the removal of the words "The Robert Gordon University" from the Designation of Institutions of Higher Education (Scotland) Order 1992 (SI 1992/1025) when those words do not appear in that order. The Executive explained that the 1992 order was amended by the Designation of Institutions of Higher Education (Scotland) Amendment Order 1993 (SI 1993/424), which replaced the words
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