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Seed Potatoes (Scotland) Regulations 2015 (SSI 2015/395)
The regulations contain a drafting error. In paragraph (1) of regulation 18, which is entitled “Information regarding seed potatoes”, the words “and of” have been inserted in error. A breach of the requirements in regulation 18(1) is an offence under section 16(7) of the Plant Varieties and Seeds Act 1964. The Scottish Government has undertaken to amend that provision at the next available opportunity. Does the committee agree to draw those regulations to the attention of Parliament on the general reporting ground, as they contain a drafting error?
Members indicated agreement.
Does the committee agree that the Scottish Government should lay an amendment as soon as possible?
Yes, convener. It is important that we send quite a strong message, because the drafting error is linked to an offence. An amendment should be agreed as soon as possible; it should not wait until it suits somebody to lay one.
Thank you. Are members agreed?
Members indicated agreement.
Management of Offenders etc (Scotland) Act 2005 (Commencement No 8 and Consequential Provisions) Order 2015 (SSI 2015/397)
Article 4 of the order makes a consequential amendment to the Management of Offenders etc (Scotland) Act 2005 (Specification of Persons) Order 2007. That is by virtue of the powers contained in sections 22(2) and 22(4) of the Management of Offenders etc (Scotland) Act 2005. The consequential amendment must be subject to the affirmative procedure and the provision should be laid in draft, as a result of the enabling powers and section 29 of and schedule 3 to the Interpretation and Legislative Reform (Scotland) Act 2010.
The vires of article 4 is doubtful, given that the affirmative procedure has not been followed. The order also contains a drafting error. Article 3 brings into force section 10(2)(b) of the 2005 act, in so far as it is not already in force, but only for the purposes of section 10(1)(e) of the 2005 act. In article 3 the qualification
“for the purposes of section 10(1)(e)”
is duplicated, which confuses the provision.
The Scottish Government has undertaken to introduce corrective legislation to come into force on 31 March 2016. Does the committee agree to draw the order to the attention of the Parliament on reporting ground (e) as there is doubt as to whether article 4 is intra vires?
I welcome the fact that the Government will take action to ensure that the proper order is in place before the date planned. However, by laying a negative order rather than the affirmative order that we would have expected, we carry the risk that something that the Government agrees is ultra vires and outwith the powers granted by the primary legislation will end up on the statute book, even though it will never have legal effect.
I urge the Government to explore whether it can take steps such as revocation, a motion not to proceed and to do nothing further or another method to ensure that the instrument does not reach the statute book. Of course, if it had been an affirmative instrument in the first place, it would have reached the statute book only after a resolution in Parliament. Given that it is a negative instrument, it can reach the statute book by other means. I therefore urge the Government to take all the action that it can to ensure that the instrument does not reach the statute book.
I support what Stewart Stevenson has just said. I do not think that the instrument should reach the statute book and be sorted thereafter, so to speak, as that would cause the Parliament as well as the Government reputational damage—people would ask why it got there in the first place. We should urge the Government to try in every possible way to amend the instrument and keep it off the statute book.
This case is unusual because we have not had many cases where an instrument has been potentially ultra vires, so I think that we need to take firmer and more serious action on this occasion. I therefore support referring the instrument back to the Government initially; depending on the Government’s response, this committee or another parliamentary committee might need to look at it again.
Right. We are required to report to Parliament this week, so we need to make that decision this week. We need to encourage the Government to find a way of ensuring that the instrument is not on the statute book. There are routes open to the Government and, on reflection, to us. The committee clearly agrees to draw the order to the attention of the Parliament on the basis discussed. Does the committee also agree to draw the order to the attention of the Parliament on the general reporting ground, as it contains a drafting error?
Members indicated agreement.
Community Right to Buy (Scotland) Regulations 2015 (SSI 2015/400)
Regulation 1(3)(d)(ii) is defectively drafted. The reference to “15th April 2015” should be to “15th April 2016”. The Scottish Government proposes to lay a correcting instrument before commencement of the regulations on 15 April 2016.
The meaning of regulation 20(2) could be clearer in that it does not specify to whom the Scottish ministers must provide a copy of a community body’s modified memorandum, articles of association, constitution or registered rules. The Scottish Government has undertaken to clarify the provision through a further instrument.
The meaning of regulations 1 and 23 could be clearer. Regulations 1 and 23 relate to, respectively, application and savings. Their effect is that the regulations will apply in respect of community rights to buy deriving from an application that is made by a community body on or after 15 April 2016. The previous legislative regime is saved in respect of applications that are made prior to that date. The regulations do not contain any interpretative provision specifying when an application is regarded as made for these purposes.
There appears to have been an unusual or unexpected use of the enabling power in section 52(3) of the Land Reform (Scotland) Act 2003. The power enables the Scottish ministers to prescribe the form of return to be used by a balloter for the purpose of notifying the Scottish ministers and various other parties of the information that is specified in section 52(3)(a) to (f). Section 52(3)(a) specifies the result of the ballot as a piece of information that must be so notified by the balloter, but the form that is prescribed in schedule 11 to the regulations does not contain an entry for the balloter to notify the result of the ballot.
It is therefore suggested that the committee agrees to draw the regulations to the attention of the Parliament on reporting ground (i) for defective drafting, under reporting ground (h) as the meaning of regulations 20(2), 1 and 23 could be clearer, and under reporting ground (g) as the way that the enabling power in section 52(3) of the 2003 act has been used appears to be unusual. Do we agree to do so?
Members indicated agreement.
Seed Potatoes (Fees) (Scotland) Regulations 2015 (SSI 2015/396)
No points have been raised by our legal advisers on the instrument. Is the committee content with it?
Members indicated agreement.