Subordinate Legislation Committee, 10 Feb 2004

Meeting date: Tuesday, February 10, 2004

Official Report 125KB pdf

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Instruments Subject to Annulment

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Registration of Establishments Keeping Laying Hens (Scotland) Amendment Regulations 2004 (SSI 2004/27)

Agenda item 5—instruments subject to annulment—is very familiar. The first such instrument is the Registration of Establishments Keeping Laying Hens (Scotland) Amendment Regulations 2004 (SSI 2004/27). Our legal adviser still wonders why the drafters have not considered the Registration of Establishments (Laying Hens) (England) Regulations 2003, which seem to be a model of clarity and coherence, which the Scottish regulations do not appear to be. In fact, if anything, the regulations seem to get worse as we keep trying to amend them.

Where do we go from here? The regulations still contain serious defects, particularly with regard to registrations. They say that the "owner or keeper" should register: they are not clear with whom the responsibility lies, whereas the English regulations are very clear that it is the operator's responsibility. One of the more significant defects is the failure to amend regulation 9 of the Registration of Establishments Keeping Laying Hens (Scotland) Regulations 2003. Also, the penalties in the offence provision in regulation 12 of the 2003 regulations still remain different from those in the English regulations.

I am open to comments.

On the face of it, it seems that the penalties for the failure to register are disproportionate to the offence, in that a whole business can, in effect, be destroyed on the basis of a failure to reregister.

There is lack of clarity about whether it is the owner or the operator who must register. Who is responsible? There is no clarity on that and, therefore, the question arises who is it that actions would be taken against. Someone could lose their business on the back of someone else's inaction. If there is no clarity about who is responsible, I would expect that there would be a clear defence in law of not knowing that it was your responsibility or believing that it was somebody else's responsibility to do whatever it was that you were supposed to do. The way in which the provision is worded means that someone could not pursue an action against an individual—they could say, as an operator, that they thought that the owner was responsible or, as an owner, they could say that they thought that the operator was responsible. None of that has been addressed and the situation has been left open. We should seek further improvements from the Executive.

While there might be a defence in law that the matter of who was responsible was not clear, the fact is that, usually, the length of time that it would take to get such a case to court might mean, in effect, that the business would be closed down. That relates to the powers that are vested in ministers under the regulations. It is essential that there is clarity about which individual is responsible for re-registration in the event of a change of ownership, a death or whatever. That would allow for such penalties to be considered in terms of whether they were commensurate with the obligation. There might still be a concern about the nature of the power given to ministers to oblige the business to cease trading in the event of a breach.

We need clarity about on whom the responsibility should fall, and there should be further consideration of the power that is given to ministers and whether there should be a stay of execution while a defence is being prepared.

Could we ask what the rationale is for having the penalties in Scotland differ from those in England? There might be a good reason, but it would be useful to know that.

Members indicated agreement.

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Local Government Capital Expenditure Limits (Scotland) Regulations 2004<br />(SSI 2004/29)

It is suggested that we ask the Executive to explain which power authorises the reference to future editions of the code of practice referred to in regulation 2(2). Do we agree to write to the Executive to ask that question?

Members indicated agreement.

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Health Act 1999 (Savings) (Scotland) Order 2004 (SSI 2004/31)<br />Community Care and Health (Scotland) Act 2002 (Savings) Order 2004 <br />(SSI 2004/34)

No points arise in relation to these two orders.

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National Health Service (General Ophthalmic Services) (Scotland) Amendment Regulations 2004<br />(SSI 2004/36)

No points of substance arise in relation to this instrument. However, it is the first in a series of instruments that we will consider today whose explanatory notes are not in the normal form, which would comprise a summary and a link to the regulation. Do we agree to write an informal letter to the Executive on that point?

Members indicated agreement.

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National Health Service (General Dental Services) (Scotland) Amendment Regulations 2004 (SSI 2004/37)

No points arise on this instrument, but it relates to consolidation, which is a matter of interest to Christine May.

Consolidation is an important issue. I would like the Official Report to show that we raised the matter at this point but decided to do nothing about it as we are already discussing the matter with the Executive.

Is that agreed?

Members indicated agreement.

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National Health Service (Tribunal) (Scotland) Regulations 2004 (SSI 2004/38)

It has been suggested that we ask the Executive to explain the vires of regulation 26, and that we question it further on the matter of the notices in schedule 2. Do we agree to do so?

Members indicated agreement.

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National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2004 (SSI 2004/39)

Again, we have a point to raise about the form of the explanatory note. We can add that to our list, which will accumulate as we go on.

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National Health Service (General Medical Services Supplementary Lists) (Scotland) Amendment Regulations 2004<br />(SSI 2004/40)

Once again, we have a point about the form of the explanatory note. Is that agreed?

Members indicated agreement.

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National Health Service (General Medical Services) (Scotland) Amendment Regulations 2004 (SSI 2004/41)

Again, our point relates to the explanatory note.

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Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2004 (SSI 2004/44)

This is quite a contentious issue. The legal brief lists from (a) to (f) a number of instances of what the adviser views as some fairly silly slips.

We should raise all the points that have been identified. There are quite a few of them, although I accept that most of them are fairly minor. Given the contentious nature of the order, the fact that it deals with the restriction on days at sea and the way in which it affects the communities concerned, it is incumbent on the Executive to get the order right first time—or even the second time.

I have one particular point on article 17(1), which deals with the conferring of powers of entry on British sea-fishery officers. That seems to relate to fishing boats for the purposes of enforcing articles 8 and 10. At the same time, however, the provisions seem to refer in some places to road haulage. Is that just a mistake, or is there something that I do not understand about boats that go on roads? I assume that it is a mistake, but perhaps we should raise the matter.

We will raise that as a further question, in addition to points (a) to (f) as listed on the legal brief.

I wish to reinforce the last of those points:

"why the Order was not accompanied by a copy of the relevant EC legislation."

The issue of transposition notes has come up in the committee over and over again. The order concerns a contentious matter, so it might be expected that those who will be affected by the regulations would want to see them in conjunction with the detail of the EC legislation. The same applies in other areas. An issue to do with animal by-products was raised recently in my constituency. As far as the regulations for that are concerned, people have to hunt for the relevant legislation to see what it says. We should reinforce our point on the matter.

Is that agreed?

Members indicated agreement.

As Stewart Maxwell said, the problems with the order are probably fairly trivial on the scale of things. However, in view of the political sensitivity of the matter, the Executive will want to get the order 100 per cent correct.

Exactly.