Official Report 121KB pdf
Before I go into detail on the responses, I refer members to the summary of recommendations, which is a useful way of putting the paper on the record without my having to read it out at great length.
Budget (Scotland) Act 2007 Amendment Order 2007 (Draft)
Members need to consider whether omitting to define the term "the third sector", which appears in articles 3(2)(f)(ii) and 3(2)(h)(v), or otherwise clarify its meaning, amounts to failure to follow normal drafting practice, and whether the use of the term "Scottish Government" in the explanatory note, which does not appear in the order or in the enabling act, is a failure to follow normal drafting practice, but not such as to impact on the operation of the order. We also need to agree to report the order to the lead committee and Parliament accordingly.
I suggest that, on this occasion, we should accept that the term "third sector" accords with normal drafting practice, but we should also recommend to the Government that, in future orders, the term should be more clearly defined.
Should we do that in writing, through the committee clerks?
That is what I would suggest.
Thank you. That is a sensible suggestion; it means that we keep on the rails the progress of events that are necessary to the governance of Scotland. I take it that there is general agreement to that.
What are we saying to the Government about the use of the term "Scottish Government"?
My understanding is that that is not covered by Ian McKee's suggestion.
No, but clearly the committee should be concerned that there is no such legally constituted body as the Scottish Government. That term is not contained within the Scotland Act 1998, which quite clearly mentions the Scottish Executive.
Our legal advice is that the Scotland Act 1998 dictates that the term "Scottish Executive" must be used in the instrument itself. Outwith the remit of the 1998 act, you can call yourself whatever you see fit. The term "Scottish Government" is used in the explanatory note, which is pretty close to the instrument, and if an instrument is considered in court, consideration will also be given to the explanatory note. The further away we get from the instrument in term of advice or conversation, the less important the terms that are used become. Gillian Baxendine, the clerk, will keep an eye on the issue, but on balance, it is within the 1998 act to use the term.
It is within the law to use the term "Scottish Government" in the explanatory notes.
Yes.
But it is not legal to use it within the instrument itself.
Yes. I will read out the question from the summary of recommendations again. It asks
The question must be whether the courts have considered the impact on an instrument of the use of that term when reference to the explanatory note has been involved. What legal status does the note have, and to what extent is it binding on the rest of the instrument?
The general position is that the explanatory note can be used as an aid to interpretation of the instrument where there is, for example, ambiguity in the instrument. I do not think that there is ambiguity in relation to the point in the order that we are discussing.
But would it not be best practice to have consistency between the explanatory note and the order?
Yes. That would be drafting practice.
It is probably worth flagging that up.
Yes. Our comments are not about the competency or legality of the order, only the drafting practice.
The explanatory note is for helping people to understand the instrument. As time goes by, the term "Scottish Government" will be used more in common parlance than the term "Scottish Executive". There is, therefore, a chance that people will think that the Scottish Executive is the administrative branch of the Scottish Government. We should not get too party political about this, but if the Government is going to go on using the term "Scottish Government", it makes sense to use it in the explanatory note while using the technically legal term in the instrument.
During the first session of Parliament, the Procedures Committee took evidence throughout Scotland that suggested that people did not understand what the term "Scottish Executive" actually meant. Ian McKee is correct; quite clever people thought that they knew what the definition of the term "Scottish Executive" was. The term was never changed.
Is it worth asking the clerks to take away the point and consider it and come back with some sort of paper at a future meeting?
That is the point that I was making.
I know exactly what Gil Paterson and Ian McKee are saying, but I do not want to stray into party political areas. Our debates over policy and whether we should use the term Executive or Government are not really of concern to me. I understand what Ian McKee is saying, but it does not really matter if people generally understand the term "Government" better than they do the term "Executive"; we are talking about the legal clarity of the order.
I was going to make the same point that Richard Baker made. We are sailing close to the wind in almost talking about policy. I am relatively relaxed about how we describe the Scottish Government or the Scottish Executive when talking about policies, but we are in the legal realm in this committee and best practice would be consistency in our descriptions. The point that Ian McKee made on issue (1) in the summary of recommendations was well made. The same arguments that underpinned his point underpin our arguments about the use of the term "Scottish Executive."
I agree with what John Park and Richard Baker said. The primary concern for all of us round the table must be the extent to which the use of the term "Scottish Government" might put in jeopardy any legislation that we consider. We certainly do not want people to take us to task in future for not having paid due regard to the issue, which, as Gil rightly pointed out, could result in all sorts of litigation being pursued. That is not desirable, so we must resolve the matter.
You pronounced "Gil" as "Jill".
I beg your pardon.
Do not worry—many people are disarmed by the pronunciation.
At this stage, it looks as if we want to ask our clerks and our legal advisers to produce a paper on what I and others have said is an extremely tricky issue in the context of our remit. Are we agreed on that course of action?
Do members want to mention the issue in the context of the draft budget amendment order? My view is that we should let the order go, but that we should not let the wider issue go. Do members agree?
I think so.
Our consideration of the order should be held back until we have clarity on the issue. We do not want to agree to a whole sheaf of Scottish statutory instruments, only to have to revisit them at a later date.
It should be a simple fact whether the use of the term "Scottish Government" is part of the order? I gather that it is not. Is that right?
That is correct.
So, in that context, there cannot be any legal challenge to the use of those words.
I am in members' hands, but my advice would be that, as the issue has been raised and we have flagged up that we will examine it, I would be hesitant to delay the progress of the order when we have a job of work to do. Do I have trouble persuading colleagues of that?
It would be helpful to have some clarification on the implications of delaying the order.
Indeed. What would be the implications of saying, "Hold it"?
We have to report on the order within a certain timescale. The advice that we have is that the issue in question has no impact on the operation of the order, so it would not make much difference if the committee were to let the order go, but to consider the issue as one that is likely to recur in relation to other instruments.
My view is that the order has flagged up the issue and that we have now moved on to consider the issue. Do I persuade members?
Yes.
I would like my concerns to be noted.
Your dissent has been recorded.
Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2007 (SSI 2007/463)
Are members content to report the instrument to Parliament on the ground that further information was sought from and received by the Lord President's office? Are you satisfied with the response?
I ask members to note the commitment that the response gives to correcting, at the earliest opportunity, the error that relates to the numbering of the rules.
Materials and Articles in Contact with Food (Scotland) Regulations 2007 (SSI 2007/471)
Are members content to report the regulations to the lead committee and Parliament on the ground that an explanation was sought from and provided by the Scottish Government? Are you satisfied with the response?