Subordinate Legislation Committee, 09 Dec 2003

Meeting date: Tuesday, December 9, 2003

Official Report 136KB pdf

---

Executive Responses

---

Race Relations Act 1976 (Statutory Duties) (Scotland) Amendment Order 2003<br />(SSI 2003/566)

Item 3 is Executive responses. Members will recall that we raised the issue of the definition of the 2002 order in this order. The Executive has agreed that it was not necessary to provide a definition of the order and that it was not necessary to refer to the 2002 order in article 5(2) and article 6 of this order. On that basis, I suggest that we inform the lead committee and the Parliament that we raised that issue and received that answer. Is that agreed?

Members indicated agreement.

---

Honey (Scotland) Regulations 2003 <br />(SSI 2003/569)

We raised with the Executive the lack of a definition of the term "country of origin" in the regulations. Do members want to make any comments on the response?

Yes. The original complaint that I made was that anyone who picked up and read the regulations would not know the meaning of the phrase "country of origin" in this context. The Executive has said that, in the absence of a definition, the most persuasive interpretation is that it means a member state. That is fine and well, but we are still in a situation in which somebody who is bottling—or jarring, whatever the word is—honey and labelling it does not have the advantage of having that advice in front of them. We should be providing statutory instruments that are clear to the people who have to obey them. The situation is still not satisfactory.

It may be that the fault lies with the original directive or the European procedure that backs the regulations up; however, that does not make it any easier for the poor sod at the end of the chain who has to interpret the legislation and who will probably fall foul of it. I do not think that the situation is satisfactory, although I do not think that there is much that we can do about it.

The second point that I want to make is more a point of policy, and is probably not for this committee. The fact that, if someone makes honey in Scotland, they have to state not only that it is made in Scotland but that it is made in Scotland in the United Kingdom seems a bizarre requirement. If I were a Eurosceptic—which I am not—that would be something else that I could use to hammer the European Union with. It is unfortunate that this kind of regulation is going through.

It is a good job that Murray Tosh is not with us this morning.

I agree with you, to an extent. We can perhaps draw those issues to the attention of the European and External Relations Committee. That might be a way forward. I agree that there is not much more that we can do, but we might at least raise the issue, as clarity is important. Is that agreed?

Members indicated agreement.

It is also suggested that we inform the lead committee and the Parliament that we asked the question; that we did not think that the answer was particularly clear; and that we have brought the matter to the attention of the European and External Relations Committee.

---

Registration of Establishments Keeping Laying Hens (Scotland) Regulations 2003 (SSI 2003/576)

There was great debate on the regulations at last week's meeting. We were concerned about how the regulations had been drafted. From the answers that we have received from the Executive, and the committee's legal advice, it seems that we are hardly any further forward. Many of our questions have not been answered, and pages and pages of difficulties remain to be addressed.

We can go through those difficulties step by step if members wish. However, because so many issues have been raised, I suggest that we send them all to the lead committee and the Parliament, identifying our concerns. Members will recall that, last week, our legal adviser was concerned that we might not even have picked up all the points—the drafting was so disastrous. Do members think that there is anything else that we can do?

As the committee's legal advice is not in the public domain we should perhaps say for the Official Report that one point of doubt is whether the regulations are intra vires, while another is whether they raise a devolution issue. There are also six cases of defective drafting and six cases of unusual or unexpected use of the powers in the regulations. That is pretty good for starters.

It is.

Alasdair Morgan made the point that somebody could fall foul of the Honey (Scotland) Regulations 2003 (SSI 2003/569). I think that everybody is going to fall foul of these regulations.

Was that meant to be a pun?

Of course it was meant to be a pun. Gee—well spotted!

Last week we talked about the person who had originally made the application for registration having to apply to amend it. We asked—very sensibly—what would happen if that person was dead. The Executive has accepted that we had a point. If the person is dead, they cannot make that application; their representative can make it for them.

Nonetheless, the regulations are late, defective in the ways that Alasdair Morgan pointed out and potentially defective in other ways that might be picked up if we spent an awful lot of time on them. If the regulations have to go back to the Executive to be redrafted properly, they are going to be even later. Would that be preferable to having an omelette like this implemented?

The regulations certainly are bad. One of the issues that I thought Gordon Jackson might have brought up, had he been here, related to our 10th question, which was on fines. The information that we have received from the Executive does not clarify the issue at all. As Alasdair Morgan said, however, the matter is covered under recommendation (c) in our brief, on defective drafting. We have covered most of the substantive points on the regulations, but it is worrying that there are so many of them. I think that we ought to express concern about the regulations to the lead committee and the Parliament, because they are so bad.

I would be concerned that the regulations are unenforceable in their current form, in which case there is little point in their going on to the statute book—or whatever it is called.

I agree that those are the type of words that we should use. We should say that the regulations as we see them, judging from our legal advice, are unenforceable, and that they raise a devolution issue. Is that agreed?

We should say that the regulations are unenforceable as currently drafted.

Yes.

I presume that, ideally, we want somebody to go back and do them again.

Exactly. When we hold our informal meeting with the Executive, we might wish to raise some specific examples. We have had one or two.

---

Local Government Pension Reserve Fund (Scotland) Regulations 2003 (SSI 2003/580)

The Executive has acknowledged that there was a failure to follow proper drafting practice in the regulations. We asked the Executive why it thought it necessary to include a definition of "local authority", given that the term is defined in both enabling powers in the same terms as in the regulations. Are there any further points?

No.

---

Pupils' Educational Records (Scotland) Regulations 2003 (SSI 2003/581)

There are quite a few issues that we need to draw to the attention of the lead committee and the Parliament. There was some defective drafting, which was acknowledged in response to the first point that we raised, which related to regulations 5(1) and 5(2). Our second and fifth points raised doubt as to whether the regulations are intra vires. Our third and fourth points raised further matters of defective drafting. Our third point was also on a matter of unusual or unexpected use of powers. Our sixth and seventh points highlighted a failure to follow proper legislative practice and our sixth point also raised what may be an unusual or unexpected use of a power. In other words, we had quite a few points to raise.

Our legal advice raises quite a bit of case law, including the case of McCarthy & Stone (Developments) Ltd v Richmond-upon-Thames Borough Council. That really ought to have been taken on board. Is it agreed that we raise the issues that I have outlined? Do members wish to add any further points?

I do not have any additional points to raise, but can we ensure that the case law on which our decisions have at least partly been based is brought to the attention of the lead committee?

Yes. Is that okay?

Members indicated agreement.