Licensing (Mandatory Conditions) (Scotland) Regulations 2009 (Draft)
Agenda item 2 is subordinate legislation. I draw members' attention to the draft Licensing (Mandatory Conditions) (Scotland) Regulations 2009, which is an affirmative instrument, and to the cover note.
Good afternoon. The committee will recall that in 2007 it approved regulations that, from 1 September 2009, require alcohol to be displayed in dedicated parts of off-sales premises. At the time, the committee recognised that the regulations would stop cross-merchandising, such as cans of gin and tonic being displayed alongside lunch time sandwiches, and help to ensure that alcohol is not viewed as an ordinary commodity.
This is quite a technical issue, and I may be getting it entirely wrong. I understand that you call in aid the interpretation order. The committee has been advised that that relates only to revocation of orders and not to changes to the principal legislation, as are proposed here. Do you accept that the regulations revoke not the previous regulations per se but a provision that is part of the 2005 act?
I defer to my learned legal adviser on this technical matter.
I agree that the paragraph in the interpretation order allows us to amend or revoke regulations. The 2007 regulations, which added the condition relating to layout plans, were made under section 27 of the 2005 act. In effect, the regulations that the committee is considering today amend the 2007 regulations—although that is not indicated expressly—because they amend the paragraph that was inserted by those regulations.
The trouble is that we are dealing with a relatively technical and important matter relating to the effect of particular legislation that is fairly narrow in scope. As the convener said, we are all sympathetic to what you are trying to do. However, in its report, the Subordinate Legislation Committee has in effect said that you cannot use the interpretation order to do what you are trying to do. Indeed, is that not reasonably clear?
Although we acknowledge the Subordinate Legislation Committee's view, we also note that it is only a doubt. We think that there is a better argument for saying that the draft regulations are within vires, and it might help if I went through it.
I wonder whether you can develop the point about the power a bit further. Section 27 of the 2005 act says:
No. When schedule 3 was passed by the Scottish Parliament as part of the 2005 act, it contained no condition about layout plans. The effect of the regulations is to revoke the existing condition about layout plans and to bring forward a different, additional condition that was not in the 2005 act when it was passed. Paragraph 13 is still an addition to the schedule that was in the 2005 act as passed.
We are trying to vary regulations that were added to the 2005 act without the need for primary or substantive legislation. After all, it was not primary or substantive legislation that was added.
We are trying to be helpful. It seems to me that, if we are not going to take the proposed route, there are one or two ways in which we could deal with the matter. First, the 2007 regulations could be partly revoked. Secondly, there could be a stage 2 amendment to the Criminal Justice and Licensing (Scotland) Bill, which the committee is considering.
I will ask Rachel Rayner to respond to your first suggestion. On your second, I suggest that such a move would cause significant delay and impede our ability to proceed with this matter. We would not be able to have the required transition, which would jeopardise the Scotch Whisky Experience in this year of homecoming.
On the first suggestion, according to the Subordinate Legislation Committee, we have no power to revoke the 2007 regulations, because the power in section 27 of the 2005 act allows us only to add conditions. Revoking the 2007 regulations would require a bill to be introduced.
Regulations are supposed to be light touch. Although it has not been mentioned, I think that it is quite clear that this is all about interpretation. It is not a variation of primary legislation but of regulations that were brought in, and I submit that varying those regulations in order to improve them is clearly what Parliament intended.
I do not know about you, convener, but my head is beginning to hurt. I will ask a fairly straightforward question. Cabinet secretary, are you saying that you are certain that this is a variation of regulation and not—albeit inadvertently—an amending of primary legislation?
Yes, in a nutshell.
Is that what your learned adviser is advising you?
I ask her to answer that.
Yes. The effect is that we are using regulations to amend something that is in schedule 3 to the 2005 act. Section 27 of that act specifically provided the power to do that through regulations.
Right. You are saying that we are amending a regulation. We are changing the condition within a set of regulations; we are certainly not amending primary legislation, which would not be appropriate.
No. The power in section 27 is to modify schedule 3. It is a power that expressly allows regulations to modify—
So, this is a regulation to modify. We are not inadvertently falling into the trap of amending primary legislation.
No. The power is to amend primary legislation. The effect is that paragraph 13 of schedule 3, which is primary legislation, which relates to layout plans, will be relaxed.
Are you saying that the primary legislation within schedule 3 allows us to modify that piece of primary legislation?
Yes, there is a power to modify.
Will you read that out please?
Section 27(1) of the 2005 act states:
The regulations that were approved in 2007 modified schedule 3, so we have already modified. To some extent, you could argue that this is a modification of the modification.
It is a further subtlety that has been introduced by regulation.
Yes.
We need this to be quite clear. Will you define quite clearly what you are doing here? Basically, you are amending something that has already been amended.
We are amending something that was inserted into primary legislation by regulations.
I support the direction of travel that the Government is trying to go in. Has precedent been set by a previous instrument? Is there precedent for this, or is this situation unique?
Section 27 has been used to make two sets of regulations that have added conditions to schedule 3. This is the first time that we have sought to alter one of the conditions that those regulations inserted.
The convener has talked about the Criminal Justice and Licensing (Scotland) Bill, which we are scrutinising. Procedurally, there are no other opportunities to take us through—
Your other opportunity would be to act through primary legislation, which would not be done in time to address the requirements of the whisky centres.
I understand the impact on the whisky industry. Hindsight is a great thing, but was there no interrogation of the legislation to consider the impact that it would have had? I suspect that the whisky industry might not be the only industry that is affected. I appreciate that you have had representations from the whisky industry, but others must be affected.
As Rachel Rayner made clear, we are modifying regulations that were approved by the committee unanimously. We all approved the regulations and we have all learned that there are unintended consequences. That is why the Scotch Whisky Association has lobbied us and you. We are seeking to modify the regulations as expeditiously as possible. We are modifying, if I can put it bluntly, the regulations that the committee approved, which insert provisions into the 2005 act.
But you appreciate that other bodies may make similar representations.
Various bodies have made similar representations, usually because they wish to continue to sell alcohol in the manner to which they have become accustomed. We think that there is a particular reason why the draft regulations should apply not only to distillers but to, for example, the Scotch Whisky Heritage Centre and the Scottish Liqueur Centre in Perthshire, which we visited, and to small breweries that have visitor centres. We think that such places are distinct because they produce alcohol on-site or collate information about an alcoholic drink. That is vastly different from what is done in a shop on the Royal Mile or in any other place in Scotland that may say that it is a tourist attraction. We acknowledge that the centres to which I have referred have a specific nature, so we are prepared to change the legislation to accommodate that.
I am trying to make a genuinely constructive point in my question. I appreciate that the whisky industry has made effective representations, that we want to try to resolve that situation and that we debated supermarkets and other places in 2007, but have other representatives of the tourism industry made representations that are similar to those of the whisky industry?
Not that I am aware of.
That is all that I am asking.
They are not in the same industry.
I think that I understand the position now but, for clarity, are you saying that you cannot and would not touch with this method any of the conditions that were originally set out in schedule 3 to the 2005 act but that anything that was added subsequently via regulation is open to amendment or revocation by the route in the draft regulations?
Yes.
We are therefore not touching the primary legislation that the Parliament passed; we are touching only additional matters that were dealt with by regulation, which is a normal process.
Yes.
That is completely different from the Subordinate Legislation Committee's advice to us and Rachel Rayner's statement a wee while ago, in response to Bill Butler, that the regulations will amend primary legislation. The Subordinate Legislation Committee's view is that they will amend primary legislation that Parliament passed but that there are no powers for them to do so.
There is a distinct power in the conditions in the primary legislation as passed to use regulations to add conditions to the primary legislation. Our view is that we cannot amend the conditions in the act as passed. However, unlike the Subordinate Legislation Committee, we believe that we have the power to amend or revoke conditions that were added by regulations.
Have there been discussions between the Government solicitors and the Parliament solicitors on the issue?
Yes.
I know that you can ask solicitors anything and get umpteen different answers, but it is a serious situation when the Government and Parliament have such differing legal opinion on the same issue. Where is the difference in your argument? I am not clear on it at all.
To an extent, the Subordinate Legislation Committee raised the point that we are discussing as a caveat; as far as I can see, it is not a blanket criticism. I do not know whether Rachel Rayner has any additional comments.
I understand the Subordinate Legislation Committee's different view or interpretation, but I think that our argument is a better one. We think that there is the power to do what I described. Members will see that the Subordinate Legislation Committee's paper includes our response to the issue that it raised with us, so there have been discussions.
I will have one last shy, if I may. My question is for Rachel Rayner. Are you saying that the draft regulations will amend primary legislation but that there is permission in that legislation to do that?
Yes.
Now I am clear—thank you.
But where is the permission?
Just for the record, where is the permission explicitly stated?
We think that it is in section 27(2) of the 2005 act.
That is enough for me. Thank you.
I want to follow matters through in order. The regulations say:
Read with the interpretation order, which does not need to be cited.
The exercise of section 27(2) is being used to amend the 2005 act, as amended by the Licensing (Mandatory Conditions No 2) (Scotland) Regulations 2007 (SSI 2007/456). A condition was added to the 2005 act by the 2007 regulations, which now counts as part of the legislation.
Yes.
Section 27(2) says that schedule 3—the schedule that we are dealing with—can be modified by adding further conditions or by extending
But the interpretation order provides that when there is a power to make regulations, there is also a power to revoke or amend those regulations. Before the interpretation order, it used to be usual, when there were powers in legislation, to say specifically that there was a power to make regulations, a power to amend them and a power to revoke them. The current practice is not to do that but to rely on the interpretation order.
I want to be clear that we are not relying on section 27(2) by itself, because it talks about the addition of further conditions or the extension of the application of an existing condition, which obviously does not apply.
The interpretation order implies that section 27(2) includes a power to amend or revoke any instrument made under the original power, unless the contrary intention is shown.
That is the nub of the issue.
Yes.
I will approach the issue in a slightly different way. Are there any other powers in the 2005 act or elsewhere that would allow you to get at the issue in any other way? In other words, is there some sort of catch-all expression that would allow you to amend and do various things to previous regulations?
No, because the previous regulations were made using the power under section 27(2).
So the regulations stand or fall on the interpretation order issue.
Yes.
As there are no further questions, we will move on to item 3, which is formal consideration of the motion to approve the regulations. I invite Mr MacAskill to move motion S3M-4198.
Motion moved,
That the Justice Committee recommends that the draft Licensing (Mandatory Conditions) (Scotland) Regulations 2009 be approved.—[Kenny MacAskill.]
Do members have any further comments or questions?
I am not satisfied that section 27(2) of the 2005 act gives the Government the power to make the regulations. Section 27(2)(b) says that ministers can modify schedule 3 in order
I hear what Cathie Craigie says about section 27(2), which is correct, but as the witnesses have said, and as members such as Bill Butler and I, and perhaps others, who have spent many years on the Subordinate Legislation Committee, know, there is a general power under the interpretation order, whereby it is accepted that where there is a power to make regulations, there is also a power to amend or revoke them. That does not have to be explicitly stated in the legislation. Given that that is generally accepted and that there is a clear distinction between amending or revoking the original act as opposed to amending or revoking the additional parts that were inserted through regulation, which is what the regulations that we are considering seek to do, I am satisfied with the regulations.
It is so long since I served—I use that verb deliberately—on the Subordinate Legislation Committee that, when I was a member, the cabinet secretary was the committee's convener.
We must acknowledge that there is an element of doubt. However, the will of the Parliament seems to be clear and the policy consideration is clear to us. On that basis, we should recommend the approval of the draft regulations, to ensure that we send the right message about the policy. That is the best that we can do.
I agree with what Bill Butler said about the intention behind the regulations, which I will support.
If deficiencies of the type that we have been considering appear in legislation, it is appropriate that organisations make representations to the Parliament to ask that matters be sorted out, if that is necessary. If the regulations are not approved, there could be significant implications for an important Scottish industry. That must be the underlying point.
I am far from happy about the situation. Cathie Craigie's point had merit. We are on dangerous ground when we seek to amend legislation or regulation of the type that we are considering. The nub of the question is whether by doing so we are interfering with primary legislation. After a great amount of probing, we have the appropriate answer. The Scottish Government has admitted that by recommending the approval of the draft regulations we will not set a precedent in relation to amending primary legislation. I was anxious to receive that assurance.
No.
The question is, that motion S3M-4198 be agreed to.
Motion agreed to,
That the Justice Committee recommends that the draft Licensing (Mandatory Conditions) (Scotland) Regulations 2009 be approved.
Police Pensions Amendment (Increased Pension Entitlement) (Scotland) Regulations 2009 (SSI 2009/185)
These regulations, which are subject to the negative procedure, will not be as complex as the previous ones.
According to the regulations, there have been 28 amendments to the original legislation. Someone somewhere knows what all that means and perhaps that is all that matters, but have we asked the cabinet secretary whether he will tidy up the legislation?
There has been correspondence on the matter, which is being tidied up. Your point is well made. Are members content to note the regulations?
Members indicated agreement.