Subordinate Legislation Committee, 09 Sep 2008
Meeting date: Tuesday, September 9, 2008
Official Report
115KB pdf
Scottish Government Responses
For those members who were not here last week, we wrote to the Scottish Government about two Scottish statutory instruments, and we have seen the responses.
Plastic Materials and Articles in Contact with Food (Scotland) Amendment Regulations 2008 (SSI 2008/261)
We have a bit of a difficulty with the response to our points on the regulations. Our advisers have drawn some serious issues to our attention about the regulations and the response that we have received from the Food Standards Agency.
The first issue relates to the breach of the 21-day rule and the explanation given to the Presiding Officer for that breach. We know that, where it is necessary for an instrument to be brought into force at any time before the expiry of the 21-day period, an explanation must be provided to the Presiding Officer giving the reasons for doing so. We have known that ever since Parliament was set up in 1999. This Committee should be satisfied that the explanation provides reasonable justification as to why the test of necessity was met. "Necessity" is the key word. In this case, although the explanation might be thought to be acceptable in relation to the parts of the regulations that concern the enforcement of EC regulation 597/2008, we questioned why the FSA also used the regulations to permit the early commencement of unrelated provisions. We knew why one bit was to breach the 21-day rule, but not why the other bits would.
The FSA's response suggests that it applied the test whether it was "appropriate and expedient" to breach the rule, rather than whether it was necessary. No explanation was provided for why it was not appropriate or expedient to produce a corrective instrument to deal with matters before the end of June, especially when they had been recognised in April as errors that affected the principal regulations.
Our legal brief says that the 21-day rule is enshrined in the Scotland Act 1998, whereas it is merely a convention at Westminster, so it is a solid aspect of how the Scottish Parliament works. I open this important point to debate.
The test of necessity is statutory and, as the convener said, officials knew about the errors in April and had the opportunity to rectify them by June. If the justification is not necessity but appropriateness and expediency, I have serious issues with the validity of the regulations.
In addition, an explanation to the Presiding Officer is needed, but that has not happened. It is also suggested that the regulations contain an error in the description of some additive substances, so an error exists, notwithstanding the approach that has been taken.
The position is extraordinary. The Parliament is not new and everybody knows the rules, so I wonder whether we should report the situation to the lead committee and Parliament. I want the committee to correspond with the Minister for Parliamentary Business, because rules have not been followed. We need to get to the bottom of that and ensure that the matter is dealt with properly.
Would it have been possible to have different commencement dates for different provisions in the regulations?
Judith Morrison (Legal Adviser):
Yes.
Yes. That could have been done.
For the sake of formality, we will go through the decisions that we must make one by one. Are we content to draw the regulations to the attention of the lead committee and Parliament on the grounds that the absence of any explanation as to why it was necessary to bring into force within 21 days the provisions that did not concern the enforcement of EC regulation 597/2008 gives rise to a doubt as to whether those parts of the regulations are within vires and that the failure to provide a full explanation to the Presiding Officer at the time that the instrument was laid, as required by article 10(3) of the Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999 (SI 1999/1096), is a failure to follow normal legislative practice? Given the importance of the proper observance of the application of articles 10(2) and (3) of the 1999 order, are we content to take the matter up in correspondence with the Minister for Parliamentary Business, as Jackie Baillie suggested, to seek a further explanation and to seek his assurance that such breaches will not be repeated? If so, are we content to delegate clearance for that letter to me?
Members indicated agreement.
Thank you. I hope that just a series of oversights has occurred. However, the position cuts against the thrust of the 1998 act and of how the Parliament has operated. What matters is proper parliamentary scrutiny, whether an instrument is subject to the affirmative or negative procedure.
The second issue relates to an error in the regulations that the FSA has said is a typographical error that does not in its view have a "significant effect". It has said that it will correct the error through further amendment by early 2009. However, our legal team considers that because the correct substance is not specified in the principal regulations as amended, doubt remains as to whether an appropriate transitional arrangement has been put into effect in domestic law for that substance. To that extent, domestic law appears to be restrictive when that is not permitted.
Are we content to draw the regulations to the attention of the lead committee and Parliament on the ground that the failure to provide for an effective transitional defence in respect of the substance with reference number 74560, as required by Community law, raises a devolution issue that should be rectified at an early opportunity?
Members indicated agreement.
Control of Salmonella in Poultry (Scotland) Order 2008 (SSI 2008/266)
Are we content to draw the order to the attention of the lead committee and Parliament on the grounds that are set out in the summary of recommendations?
Members indicated agreement.