Subordinate Legislation Committee, 08 Nov 2005

Meeting date: Tuesday, November 8, 2005

Official Report 268KB pdf

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Executive Responses

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Victim Statements (Prescribed Courts) (Scotland) Revocation Order 2005 (draft)

I will leave discussion on the order, because another very similar instrument comes up later and we would just be repeating ourselves. We shall keep this one in abeyance.

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Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2005 (SSI 2005/514)

As members will remember, we asked for an explanation of the vires for several of the rules. The first are rules 24(4) and 33(3). It appeared that provision for the payment of expenses of persons other than tribunal members or staff is already provided for in a substantive provision of the Education (Additional Support for Learning) (Scotland) Act 2004, namely paragraph 17 of schedule 1.

In relation to both rules, the Executive has indicated that it is making an incidental or supplemental provision under the parent act and that it considers that there are vires. As drafted, the rules confer the power to make payment of expenses in certain cases and to that extent there may be doubt about vires. Should we raise that point or are we content that they are intra vires?

It is clear that we should raise the point. There is doubt in some of the questions in the briefing paper about who is responsible for paying the money. Several issues are raised in the briefing paper and we should ask questions about them. We should also ask the Executive to confirm that it is content about the vires.

I am being told that we cannot ask any further questions; we just have to report the point to the lead committee and the Parliament.

We should just report it then.

Do we agree with the proposed action on rules 24(4) and 33(3)? We also had doubts about whether rule 28(5) is intra vires, given what paragraph 14 of schedule 1 provides for. We would have to report that we had doubts about those rules.

Rule 37(1) raises another issue of vires. The Executive has indicated that to avoid the possibility of a tribunal becoming deadlocked in the absence of a member, it is considered under reference to section 34(2)(a) of the 2004 act that rule 37(1) is an incidental or supplemental provision considered to be expedient and that there is accordingly vires for it.

From the information that we have, it seems that there is less doubt about the vires of rule 37(1) than there is about the other two.

It seems odd that there might be a situation in which there were just two members and one of them might have two votes. That does not seem right somehow, although that is not exactly technical language. I assume that the intention was that the minimum number would have been three rather than two. We should point out those concerns.

Okay, we will do so if that is the committee's feeling. The briefing note seems to indicate that the first points are more major, but I accept that we still have concerns about the last one. Is that agreed?

Members indicated agreement.

We move on to the point that we made about rule 37(2). Paragraph 14(1)(b) of schedule 1 to the act would seem to rule out the use of the wording from "save as" to the end. It also appears to allow no exceptions. Our point on rules 39(2)(b) and 39(5) was made in light of paragraph 10 of schedule 1, which states:

"The Scottish Ministers are to pay any expenses reasonably incurred by the President or a Tribunal in the exercise of the President's functions or, as the case may be, Tribunal functions."

The Executive agrees that the committee's observations on those two rules are well founded. It has undertaken to bring forward amending rules to address the points that we raised. On that count, we can report that the matter will be rectified.

Finally, the committee sought explanation of why, in rule 37(3)(a), a requirement to send out a copy of the decision was thought necessary, given that such a requirement is already to be found in paragraph 14 of schedule 1. The Executive has indicated that its intention was to clarify that, as a matter of practice, the administrative responsibility for doing so rests with the secretary. Again, the provision appears to be of doubtful vires. Shall we add that to our list of concerns about vires?

Members indicated agreement.

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Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005 (SSI 2005/515)

Regulation 4 states that if the prescribed conditions apply, an appeal committee shall be deemed

"for the purposes of paragraph 6(6)(b)"

of schedule 2 to have confirmed the decision of the education authority on a placing request. As paragraph 6(6)(b) is simply a regulation-making provision following the wording of the enabling power, the committee asked the Executive whether the phrase in question should not read:

"for the purposes of this Act".

I remember this one. The Executive accepts the committee's suggested rewording, but says that it had thought that it would be helpful for a specific reference to the paragraph to be made in the schedule and that it does not consider that the validity of the regulations is affected. Therefore, I assume that it will not rectify the matter quickly. Will we report the regulations to the lead committee and the Parliament on the ground of defective drafting? The Executive seems to have accepted that our wording should be used.

I am disappointed by the Executive's response. It should have agreed with us and used its usual phrase that it would make the changes "at the earliest legislative opportunity". Clearly, it is not going to do that.

There is nothing to stop us from writing another letter.

Yes, but all that we can do about the regulations is report them.

Yes, we can report the regulations to the lead committee and the Parliament on the ground of defective drafting. Is that agreed?

Members indicated agreement.

Does the committee want to write again to the Executive?

Will we achieve anything by doing so? We seem to have come to an impasse. Clearly, we disagree. What would the content of the letter be? All that we would do in so writing would be to reiterate what we said last week. The Executive has said that it does not agree.

Shall we leave it?

We could put it to the committee that it should lodge a motion for annulment.

We could, but I think that we will leave it at that.

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Education (Additional Support for Learning) (Scotland) Act 2004 (Transitional and Savings Provisions) Order 2005<br />(SSI 2005/516)

Members will remember that we asked the Executive for an explanation of article 3(2). We asked, in particular, about the words "and that" at the end of the fourth line. We also expressed concern about the number of typos in the order. The Executive accepts that the words "and that" are not essential; they were meant only to be of assistance in the reading of a lengthy sentence. It is satisfied that the phrase does not affect the validity of the order.

Should we report the order to the lead committee and the Parliament on the ground of defective drafting or on the ground that the meaning could have been clearer?

We should note the Executive's apology.

Yes. The Executive is very apologetic about the typos.

I am not sure whether I would go as far as to say that the order is defectively drafted.

It could be clearer.

At the very least, the order certainly could be clearer. However, it us up to other committee members to decide whether it is worth reporting it on the basis of defective drafting, because I do not feel strongly either way.

The typos have been altered, so shall we accept the Executive's apology and pass on to the lead committee our view that the order could have been clearer?

Members indicated agreement.

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Additional Support for Learning<br />(Co-ordinated Support Plan) (Scotland) Amendment Regulations 2005<br />(SSI 2005/518)

Members will remember that we asked why the title of the regulations did not follow the usual form for instruments. The Executive's explanation is that the use of "Amendment" in the title was misplaced, but that it is satisfied, again, that the validity of the regulations is not affected. The Executive is also making appropriate arrangements to put right its error and produce a replacement instrument that will be available free of charge. Are we content just to draw the lead committee's attention to the regulations along the lines that they have not followed proper legislative practice but that they will be altered?

Members indicated agreement.

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National Assistance (Assessment of Resources) Amendment (No 2) (Scotland) Regulations 2005 (SSI 2005/522)

The committee asked for further information on the reason for the breach of the 21-day rule—Stewart Maxwell will remember this. Members have the Executive's explanation before them, which seems to be that Westminster was late in telling the Scottish Executive.

It is as we thought. We have Executive assurances that it will try to ensure that such a discrepancy does not happen again. There is an obvious solution in the longer term, but perhaps that is for another place.

Of course—not here. We pass that on to the lead committee and the Parliament, do we?

Do you mean my allusion to independence?

No, I mean your comment that we should accept the Executive's explanation. We should also pass on the Executive's commitment to ensuring that the discrepancy does not happen again. Is that agreed?

Members indicated agreement.

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Victim Statements (Prescribed Offences) (Scotland) Revocation Order 2005 <br />(SSI 2005/526)

Members will recall that I referred to this order earlier when we dealt with the first victim statements order. This is the second of the orders.

The committee asked the Executive why the explanatory notes did not fulfil the requirements of the guidance on the drafting of statutory instruments, as the effect of the orders is not made clear. We were concerned that that was available only on the internet. The Executive accepts that it would be feasible to provide a detailed description in the explanatory notes, but it states that that would inevitably lengthen them without necessarily increasing their utility to the reader.

The Executive is getting confused about the purposes of the two orders.

And the explanatory notes.

Exactly. The explanatory notes should explain what an instrument does; they should not attempt to explain the policy behind an instrument, which is the purpose of the Executive note. Perhaps we ought to write to the Executive in that respect.

I think that we must report now to the lead committee and the Parliament. We can report the order on the ground of its failure to comply with proper legislative practice. Again, given our earlier discussion, that is very important. Is that agreed?

Members indicated agreement.