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Agenda item 2 is to discuss the Executive's responses to the various questions that we raised last week.
Products of Animal Origin (Third Country Imports) (Scotland) Amendment (No 3) Regulations 2003 (SSI 2003/333)
I welcome any comments on the Executive's response to our points on the regulations. While members are thinking, I remind them that we asked for further explanation from the Scottish Executive on two main questions, which, in essence, related to timing. Are members happy with the Executive's explanation?
We are happy, but, nonetheless, the matter should be reported to the lead committee and to the Parliament for information. However, we accept the reasons that the Executive has given.
The reasons that were given for the delay in producing the regulations were that the bringing into force of the collagen decision for third country imports was delayed and that the Executive was trying to bring the various pieces of subordinate legislation together, which seems reasonable.
Form of Repair Notice (Scotland) Regulations 2003 (SSI 2003/335)
As Christine May made a point on the regulations at the previous meeting, perhaps she will say how good she thinks the answer is.
I have a doubt about the completeness of the answer. The Executive said that local authorities expressed no preference as to whether the forms were produced individually or as a series, but it did not say whether it had asked local authorities about that—I suspect that they were not asked. In future, where such work is being done, it would be good practice to ask such questions proactively. Other than that, I accept the answer, but we should draw the Executive's response to the attention of the lead committee and the Parliament.
To summarise, we will draw the Executive's answer to the attention of the lead committee and the Parliament, on the ground that the matter required explanation.
We should also write to the Executive on that point.
We will do that.
Form of Improvement Order (Scotland) Regulations 2003 (SSI 2003/336)
Members will remember that we doubted whether the regulations were intra vires. Do members feel that we should ask the Executive to revisit the regulations?
We should not let the matter go. The point might be minor, but it is important and the Executive's response does not clarify the issue. We are still confused about whether the period of 21 days is to start when the form of improvement order is served, or at some other time. Where there is confusion, there will be future problems, so we should ask the Executive to clarify the matter. It would not be good to proceed with the regulations if they are confused.
I ask the clerk whether we should send a note to the Executive before we report to the lead committee and to the Parliament.
It would be better to send a letter to the Executive with any remaining points. The committee can discuss the reply at next week's meeting, after which the matter can go into the committee's report.
Okay.
Housing Grants (Form of Cessation or Partial Cessation of Conditions Notice) (Scotland) Regulations 2003 (SSI 2003/337)
We raised four points with the Executive on the regulations. Some of our points have been acknowledged, but there is a difference of opinion between us and the Executive on other issues. I think Christine May has a point about the question whether the regulations are intra vires.
Our original question was why the wording of the notice that the regulations set out does not follow the conditions in the parent act. While I accept that, in some circumstances, it might not be practical or possible to adhere to all those conditions, the question remains whether any of those conditions can be disallowed for the purposes of grant. There is a clear difference of opinion between the legal advice given to the Executive and that given to the committee.
The clerk confirms that we have time to do that. Do members agree that we should continue to pursue the intra vires issue?
Before we move on, I want to say that the rest of the responses were perfectly adequate.
Housing Grants <br />(Form of Notice of Payment) (Scotland) Regulations 2003 (SSI 2003/338)
Our query related to whether the form or meaning of the regulations could be clearer. From the response that the Executive has provided, it looks as if we need only to draw its response to the attention of the lead committee and the Parliament. Is that agreed?
National Health Service (Compensation for Premature Retirement) (Scotland) Regulations 2003 (SSI 2003/344)
We raised three points on the regulations. The first related to whether a definition in superseded legislation meant that the regulations failed to comply with the proper legislative process. I gather that our second point, about how the instrument relates to same-sex relationships has also been raised by the United Nations Human Rights Committee in relation to a case in Australia. The reply that we have been given seems to say that the issue will be taken up in the light of further developments.
Bearing in mind Gordon Jackson's caveat that we should keep to the technicalities, the regulations could be said to be fine under the European convention on human rights, as those changes have not yet come into effect. Although we might wish that the Executive had been proactive on the issue, technically it did not have to be. Although we might regret that, we need to accept it—are we allowed to say that?
We might want to pursue the point about the application of the regulations to people in same-sex relationships. Are we sure that we want to accept what the Executive says on that issue?
No. I heard what Christine May said, but the Executive has a case to answer when it says that it will wait until the domestic law of Scotland is resolved on the matter. If we are in breach of the ECHR, we are in breach of it. The Executive's response that:
I am tempted to agree with Stewart Maxwell that we should write back to the Executive to make that point. Do members have a view on that?
I am inclined to agree with what others have said.
I am inclined to keep my mouth shut.
In the light of what we have been told about the case in Australia, it would do no harm to raise the issue again with the Executive. We should pursue it a little further.
National Health Service (Travelling Expenses and Remission of Charges) (Scotland) Regulations 2003 (SSI 2003/376)
Members will remember that we raised points about defective drafting. The Executive says that it intends to remake the regulations as part of a consolidation exercise that is currently underway. The projected date for the consolidated regulations to come into force is 8 October 2003. Is the response sufficient?
I am sorry, but I am looking at a date of 6 October 2003.
I have 8 October.
My papers show 6 October.
I thought that it was my eyesight but, for some reason, two of us have 6 October and two others have 8 October. We will double-check the date. We want to ensure that the record is correct.
Food (Hot Chilli and Hot Chilli Products) (Emergency Control) (Scotland) Regulations 2003 (SSI 2003/382)
We return to our old favourite. Having read the Executive response, I do not understand the part that relates to regulation 3(3) on the implications for importers. I refer in particular to the comment that only importers
I would like us to ask the Executive to return to regulation 3(1)(a), which refers to article 3.1 of the Commission decision on random sampling. It is clear that the obligation is on the member state but, if that is the case, how can the individual importer satisfy himself? As drafted, the regulations make it impossible for the importer to comply. That will not do. With the greatest of respect to the Executive, the regulations are defectively drafted—they need to go back.
Are we agreed, with particular reference to regulation 3(1)(a) and its reference to article 3.1 of the Commission decision?
We will await the Executive's further response before we pass all our comments on the regulations to the lead committee and the Parliament. One of the issues of defective drafting that we raised was to do with the definition of "sample". I gather that the Executive is thinking of amending the regulations. We would welcome that.
It is to be welcomed that the Executive recognises that many of the points that we make are valid. That said, the regulations require to be substantially rewritten.
For Gordon Jackson's benefit, I add that we hope to have the Food Standards Agency Scotland before the committee. It will be useful to talk to agency representatives.
Diseases of Animals (Approved Disinfectants) Amendment (Scotland) Order 2003 (SSI 2003/334)
We drew the Executive's attention to a possible consolidation of the area covered by the order. The Executive response provides us with that reassurance. Are members content to draw that to the attention of the Parliament?
Public Appointments and Public Bodies etc (Scotland) Act 2003 (Commencement No 2) Order 2003 (SSI 2003/348)
We had a doubt about the order being intra vires.
I think that our only comment would be to ask when commencement of schedule 3 to the enabling act will take place. There is still a doubt about the actual commencement date, because two dates are mentioned. I think that we should refer the order to the Parliament on that ground.
Is that agreed? Gordon Jackson looks like he is not sure.
I am not trying to dwell on what the committee has done in the past, but if there is disagreement or doubt around an issue, I think that the best thing to do is simply to refer the matter to the Parliament. We cannot decide on the issues. Sometimes we have come to the conclusion that only a court will be able to decide in 10 years' time on a matter about which we have doubts now. We cannot act as a court and tell the Executive that it is right or wrong about such matters; we can only highlight the fact that there are doubts around certain things. If the Executive decides to run with provisions despite those doubts, that is its business. If it turns out that the Executive gets something wrong—
Some people will make money out of it.
Yes. "Every cloud", as people say.
No further points arise.
Movement of Animals (Restrictions) (Scotland) Order 2003 (SSI 2003/353)
We raised three points about the order. The first referred to defective drafting that the Executive has undertaken to correct. Our second point was about the absence of an Executive note. Our third comment was a request for clarification, which has now been supplied, about the order's European Community law implications. We should therefore simply bring those three points and the responses that we received to them to the attention of the Parliament. Is that agreed?
Diseases of Poultry (Scotland) Order 2003 (SSI 2003/354)
This is an interesting one. Like me, Stewart Maxwell has an issue to raise about the order.
In its response, the Executive stated that commercial poultry is transported almost exclusively by road vehicle in Scotland and that it would be rare for poultry to be transported by other means. That might be true—I accept that—but it seems perverse that the Executive will not cover all eventualities. The use of the powers available seems unduly limited in this case. We should refer the matter on that basis. I know that it might be rare for people to transport chickens by plane or by some other method, but it is possible to do so. It seems remiss not to cover such eventualities.
Are you suggesting that we write back to the Executive in the first instance?
Yes, if there is time.
I understand that there is time to do that. I hope that we will return to the matter next week and ensure that all the relevant issues have been dealt with. No further points arise.
Sexual Offences (Amendment) Act 2000 (Commencement No 4) (Scotland) Order 2003 (SSI 2003/378)
The explanation that we have received from the Executive on this order is essentially what we asked for, and I think that we can be reassured by its response. Is that agreed?
Public Appointments and Public Bodies etc (Scotland) Act 2003 (Commencement No 3) Order 2003 (SSI 2003/384)
We raised points about defective drafting. We also had doubts as to whether the order was intra vires in so far as the order purports to commence a provision that we thought was commenced by the parent act. Do members have further thoughts on the order?
As was the case with the Public Appointments and Public Bodies etc (Scotland) Act 2003 (Commencement No 2) Order 2003 (SSI 2003/348), we should simply report the order to the Parliament for its consideration.
Is that agreed?
Act of Adjournal (Criminal Appeals) 2003 (SSI 2003/387)
Members will remember that we raised a point over defective drafting, which was acknowledged by the Lord President's private office. We should welcome the Lord President's intention to use an amending instrument to remedy the defect. Do members agree to pass on that comment to the Parliament?
Act of Sederunt (Sheriff Court Company Insolvency Rules 1986) Amendment 2003 (SSI 2003/388)
Again, the response to our queries was made by the Lord President's private office. Our first point that the form of rule 31A(2)(a) could be clearer has been acknowledged. The second point about defective drafting has also been acknowledged.
It was a very respectful letter.
Yes.
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