Official Report 279KB pdf
Local Democracy, Economic Development and Construction Act 2009 (Commencement No 1) (Scotland) Order 2011 (SSI 2011/269)
It is recommended that the order be drawn to the attention of the Parliament on the general reporting ground. The basis for that recommendation is that there has been a failure to follow proper drafting practice. While the repeal provision in section 138(2) of the 2009 act has been brought into force, the corresponding provision in part 5 of schedule 7 to the 2009 act has not been brought into force. Given the failure to follow proper drafting practice, do members agree to draw the order to the Parliament’s attention on the general reporting ground?
Local Electoral Administration (Scotland) Act 2011 (Commencement) Order 2011 (SSI 2011/277)
As members will have noted from the legal brief, the order does not follow the convention that the provisions that it brings into force should be brought into force at least 10 days after the laying of the order. The main reason for the convention is that a sufficient minimum time should be allowed between the publication of a commencement order and when the provisions that are being brought into force have legal effect, so that those who will be affected by the order have adequate time to become aware of it and to comply with it. With that in mind, does the committee agree to draw the instrument to the Parliament’s attention on the general reporting ground?
In doing so, the committee might well wish to consider whether it is satisfied with the reasons provided for failing to follow normal legislative practice in that regard. The Government explained that convention was overlooked as it wished to commence the Local Electoral Administration (Scotland) Act 2011 before the parliamentary recess so that it could begin the recruitment procedure for the convener of the Electoral Management Board for Scotland and initiate discussions with the Electoral Commission about funding for the functions being conferred. Furthermore, the Government explained that those principally affected by the earlier commencement were made aware of the provisions in advance and of the intention to commence them on 29 June. Although that does not explain why the arrangements could not have been co-ordinated to make the commencement order at least 10 days prior to the coming into force date of the instrument, does the committee agree to accept the Government’s explanation in this instance?
No. Maybe it is me, but I cannot believe—or maybe I can—that the Government, or whoever is advising the Government, does not understand, particularly in a situation like this where you are appointing a very senior individual, that the process has to be pristine clean. I am not suggesting that it was not, but it has to be seen to be so. A delay like this might just open up the question why the process was started before the order was laid, to ensure that the recruitment process was pristine clean.
Thank you. We have already heard some other explanations for not being able to comply with the 10-day rule, and I think that we will meet some more later in the agenda. However, the complete absence of any explanation in this case as to why the 10-day rule was not met seems unsatisfactory. [Interruption.] I am just being advised—and I may as well put this on the record—that that does not affect the validity of the order. That is fair enough. In practice, in this case it probably does not affect the individuals concerned, who knew what was going to happen. I think that we can trust the Government on that. I certainly think that we might point out to the Government that in the complete absence of any explanation as to why this happened, we cannot be impressed. The order is equally valid, so it looks as though no damage was done, but Chic Brodie has made the point that, particularly when you are recruiting people, you want a pristine clean system.
Particularly when you are recruiting at a senior level, it has to be absolutely crystal clear that the process has been followed and that there is no scope for any misinterpretation. I am sure that there was nothing wrong, other than that the procedure was not followed. The message should be, “Be very, very careful in these situations.”
Okay. Are you happy that we write to the Government expressing those observations? I think that those observations probably should go in the report on the order to the relevant committee, although the point is really more for the Government than for the committee. Are we happy with that?
Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No 1) Order 2011 (SSI 2011/279)
The legal brief notes that there appears to be an error in article 2(1)(l), in that the Finance Act 1924 and the Game Act 1970 were not repealed and the Destructive Imported Animals Act 1932 was repealed, on the appointed day of 29 June 2011. However, the defect has been corrected by an amending commencement order, the Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No 1) Amendment Order 2011 (SSI 2011/287), which was also brought into force on that appointed day. Is the committee content to draw the order to the Parliament’s attention on reporting ground (i), in that the drafting of article 2(1)(l) appears to be defective and at the same time note that the error does seem to have been corrected?
Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No 1) Amendment Order 2011 (SSI 2011/287)
The order was laid to correct the Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No 1) Order 2011 (SSI 2011/279). It was not laid before coming into force, as required by section 30(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, and as such it has been drawn to the committee’s attention. Given the breach of section 30(2), does the committee agree to draw the order to the Parliament’s attention on reporting ground (j)?
In doing so, the committee may wish to note the Government’s explanation that it was necessary to breach section 30(2) in order to ensure that the errors in SSI 2011/279 were corrected. In drawing the instrument to the Parliament’s attention, the committee may wish to note its satisfaction with the explanation that the Government provided. I suggest that we confirm that the rule provides a very good basis because it allows things to be corrected. Whether they are spotted by the Government—as I believe they were in this case—or by our legal advisers, that is one of the reasons why the rule is a good thing and is to be commended. Are members happy to proceed on that basis?
Local Democracy, Economic Development and Construction Act 2009 (Commencement No 2) (Scotland) Order 2011 (SSI 2011/291)
Members should note the following failures to follow proper drafting practice with regard to the order. While the repeal provisions in sections 139(1) and 143(2) of the 2009 act have been brought into force, the corresponding provisions in part 5 of schedule 7 to the 2009 act have not been brought into force, and the wording of the commencement provision fails accurately to reflect the wording of the enabling power in section 149(2) of the 2009 act.
International Criminal Court (Libya) Order 2011 (SI 2011/1696)
As members will note from the legal brief, the instrument was not laid before the Scottish Parliament before it came into force, as required by section 30(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. Given the breach of section 30(2), does the committee agree to draw the instrument to the Parliament’s attention on reporting ground (j)?
In drawing the instrument to the attention of the Parliament, the committee may wish to note the Government’s explanation for the breach. The explanation sets out that, due to the urgent nature of the order in Westminster, consideration of whether it should be laid before the Scottish Parliament took place only after it had been laid with both United Kingdom Houses of Parliament. Furthermore, the Scottish Government had no involvement in the earlier aspects of the process. Given that explanation, does the committee agree to accept the Government’s explanation in this instance?
Does the committee also agree that I as convener should write to the Scottish Government to establish what steps are being taken to ensure that UK departments comply with the requirements of the Interpretation and Legislative Reform (Scotland) Act 2010?
Has that been strongly underlined?
We as a committee have an opportunity strongly to underline that.
The UK Government should, particularly in circumstances such as these, ensure that the order is laid before the Scottish Parliament and we should agree with the other processes before we are expected to enable it.
Is the committee happy to underline that we are asking the Scottish Government to ensure that the UK Government understands that, when such issues affect Scotland, we would like to be told?
Consultation on the Draft Student Fees (Specification) (Scotland) Order 2011
The proposed order is laid under the super-affirmative procedure, which requires that the draft be consulted on in advance of the finalised affirmative order being laid. The legal brief has drawn the consultation draft to members’ attention and the committee may wish to report on it in the following terms.
When does the Government expect to lay the Education (Fees) (Scotland) Regulations? In view of today’s comments and yesterday’s actions, are we in danger of any conflict?
The official advice is that it will be later in the year. That is apparently what we have been told.
For clarity, a university—Edinburgh university, say—cannot apply the fees that it has decided to apply until November.
I do not think that I want to answer that question, Chic. The answer is that we will see the revised draft and the relevant regulations at the same time. That is what we are being told that we will get later in the year.
Thanks for that. Forgive me, convener. In the event that a university—let us say Edinburgh university—sends out letters regarding the fees that have been paid for this year, it would be in contravention of the law. Is that correct?
It is well above my pay grade to answer that, but I am wondering whether our legal advisers might be able to comment. They might not want to comment.
That is okay. I am raising the question whether what the university is doing is within its legal ambit.
That is probably best addressed to the universities’ legal advisers and possibly the Government.
Damages (Scotland) Act 2011 (Commencement, Transitional Provisions and Savings) Order 2011 (SSI 2011/268)
Private Rented Housing (Scotland) Act 2011 (Commencement No 1 and Saving Provision) Order 2011 (SSI 2011/270)
Public Services Reform (Scotland) Act 2010 (Commencement No 5) Order 2011 (SSI 2011/278)
Act of Sederunt Rules of Court of Session Amendment No 4) (Miscellaneous) 2011 (SSI 2011/288)
Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No 2) 2011 (SSI 2011/289)
Act of Adjournal (Criminal Procedure Rules Amendment No 5) (Miscellaneous) 2011 (SSI 2011/290)
Act of Sederunt (Rules of the Court of Session Amendment No 5) (Causes in the Inner House) 2011 (SSI 2011/303)
Act of Sederunt (Regulation of Advocates) 2011 (SSI 2011/312)