Rural Affairs and Environment Committee

Meeting date: Wednesday, March 9, 2011

Official Report 422KB pdf

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Annual Report

I ask members for general comments on our draft annual report and whether they think that anything needs to be added to it.

The start of paragraph 26 on page 5 of the report, which is on the Public Services Reform (Agricultural Holdings) (Scotland) Order 2011, is odd. It states:

“This was a super-affirmative instrument”.

It takes its lead from the title of the paragraph, which is an odd way to start. However, whether we need to acknowledge the vires question that has been considered this morning is possibly of more substantive concern, as we are talking about the first occasion on which the power has been used. There seems to be an opportunity to acknowledge that.

Okay. We will add to that.

I am mindful of comments that Peter Peacock made earlier. I am mindful of the risks of making too much comment on the intra vires versus ultra vires issues relating to the order that was before us today, and of giving that further weight by including it in the annual report. I am not entirely sure that we need to do that. The discussion will be fully documented in the Official Report, and I might not be entirely comfortable with elevating the matter to such a point. However, I am here to be persuaded.

I certainly accept that there are risks in the debate that we have just had and in what we have put on the record. I envisage something in the annual report that acknowledges the matter, but makes a fairly firm statement on the committee’s view on the legal assurances.

If we want to cover the point, we need say only, “In arriving at its conclusion, the committee was mindful of the advice of the Subordinate Legislation Committee,” or that it “took account of” that advice.

We could add, “but concluded ... .”

That is right.

On stretching the envelope in future, the only other thing that we might want to note is that the cabinet secretary did not lodge two possible amendments and he therefore recognises that there must be a limit to the power.

I think that we are tying ourselves in knots, and it seems that my colleagues at the end of the table—Elaine Murray and Karen Gillon—are not very supportive of Liam’s suggestion.

I think that we should simply note that we had our first super-affirmative instrument. Time will tell whether we did the right thing, but I believe that we did.

We will simply update paragraph 26 on the basis of this morning’s discussion, without going into too much detail.

Members indicated agreement.

Are there any further points on page 5 or page 6?

Members: No.

Okay. Do members agree to the draft annual report?

Members indicated agreement.

Well done to the clerks.

Yes, well done.

That concludes the public part of today’s meeting. I thank everyone in the public gallery for their attendance.

11:11 Meeting continued in private until 11:54.