Official Report 199KB pdf
Item 2 concerns the statutory instrument that members have in front of them. Members should also have a note on the instrument by the senior assistant clerk.
The Subordinate Legislation Committee's report on this issue makes extraordinary and interesting reading. I completely concur with that committee when it asks whether it is not ultra vires for secondary legislation to amend primary legislation, which the regulation apparently endeavours to do. I also concur with the committee when it asks whether the relevant date—which was long established by the Family Law (Scotland) Act 1985—should have been confused in the way that it has been by the regulation.
The Executive wants to bring its amending regulation into effect on 8 December. We have a little time before we need to nod this through, so it might be worth while delaying our decision until our next meeting. We want to ensure that the Executive produces the change that it has promised.
This is a negative instrument, so we do not even get the chance to nod it through because it has already come into force, on 1 December. However, if members wish, we can write to the minister—and we do not have to wait before doing so—and express our feelings, whatever they might be.
If other members consider that the regulation, in the form presented, was ultra vires in endeavouring to amend primary legislation, I suggest that we write as suggested in the note from the clerk. We may want to add our own comments, too.
We have received a reply from the Executive, which said that it believed that the regulation was intra vires. The Subordinate Legislation Committee thinks that it is ultra vires. Short of going to a court, I am not sure that we will get any resolution of that. The whole thing appears to be a bit of a mess, betraying a degree either of rushing or of overstretch. A regulation has been produced that was clearly flawed because of a misunderstanding over whether the DSS was going to charge. I do not know how you can misunderstand whether people are going to charge: either they will have said that they are going to charge, or they are not going to charge. Will we write to the minister and express our disappointment that the regulation appears to have been so flawed that it will have to be amended within a week of its coming into force?
I would like it to be noted that I do not accept the Executive's explanation that all it is doing is changing a calculation date. In my view, it is ultra vires for secondary subordinate legislation—which, as it stands, seems to provide a substitute for a relevant date—to amend primary legislation.
All right. Will we proceed on that basis?
Next
Petition