Water Environment (Controlled Activities) (Scotland) Regulations 2005 (draft)
First, the Executive confirmed that all the powers cited will be commenced before the regulations are made, which I am sure we are happy about. Do members agree to pass that information on to the lead committee?
The second point is that we asked for an explanation as to how regulation 20 is intended to operate. The Executive advises that regulation 12 is applied in regulation 20 to ensure that the Scottish Environment Protection Agency can recover a charge in respect of a variation initiated by it. That is in line with SEPA's general duty to recover the costs associated with its regulatory functions and complies with the polluter pays principle of Community environmental law. Is the committee happy with that? Do members think that we should report to the lead committee the fact that the drafting could have been clearer?
In legislative terms, we should be content with the information that we got on the commencement of the enabling powers and on regulation 20. A policy issue is raised, which I will pursue in a different forum. I know that there is contention around SEPA's charging for actions that it has imposed on companies, but that is a policy matter and is not for this committee. I agree that we should report to the lead committee on the two substantive legal points.
Is that agreed?
Horse Passports (Scotland) Regulations 2005 (SSI 2005/223)
We asked the Executive for an explanation as to why the enabling power at section 2(2) of the European Communities Act 1972 was used in preference to powers in the Animal Health Act 1981. The Executive has said that because the issue is to do with horses entering the human food chain, it has used the human health side, rather than the animal health side, of legislation to deal with the matter. Is that explanation acceptable?
It is acceptable, even if the Executive only thought of that reason after we asked our question.
To be fair, having been a member of the cross-party group in the Scottish Parliament on animal welfare, I know that the issue with horse passports is to do with horses getting into the food chain. That is a reasonable explanation.
I am sorry I am late, but I had a puncture. So there.
We are on horse passports, Gordon. The second point that we raised was on the definition of "horse" and why there was a difference between European Council directive 90/426/EEC and the regulations in Scotland, which contain no reference to wild horses. The reason given for that is that there seem to be no wild horses in Scotland. Stewart Maxwell said last week that he thought that that was the reason.
I have to say that I find the second reason slightly difficult to accept. As I recall, the foot-and-mouth crisis was in 2001. If one's teenage daughter was that late, she would have reached her age of majority by the time that the decision was implemented. The excuse is fairly weak.
We now welcome Mike Pringle. We are on horse passports, Mike. We were saying that the Commission decision was implemented late because of the extensive consultation. The Executive also said that resources were diverted to deal with the foot-and-mouth crisis rather than following through certain regulations. However, as Christine May said, that crisis was quite a long time ago.
I accept that there might well have been extensive consultation, but Christine May is quite right: foot-and-mouth was four years ago. Four years' consultation is fairly extensive.
We will put it down to extensive consultation, which I guarantee has taken place. Doe everyone agree that those points should be passed on to the lead committee for its information?
Land Management Contracts <br />(Menu Scheme) (Scotland) Regulations 2005 (SSI 2005/225)
At last week's meeting we pointed out an error in regulation 3(1); the Executive has agreed that the reference to paragraph (4) should be to paragraph (2) and said that the error will be corrected at the next opportunity. I am sure that we are happy about that. We will certainly report the defective drafting.
The drafting could have been clearer and we had to seek an explanation.
Absolutely. The committee also asked why a regulatory impact assessment was not prepared in respect of the regulations. According to the Executive, there is no negative impact on businesses as a result of the regulations and therefore there was no need for an RIA. However, our legal advice is that the regulations are in fact part of a wider package. We do not have the exact details, but RIAs could have been undertaken on the wider package. We had a bit more background information than the Executive provided.
If a package of RIAs covers this area, it would have been helpful for the Executive to have told us about that. We are effectively taking it on trust that there is no negative impact on business. If RIAs cover the matter, that should have been indicated to us. The best that we can say is that we do not know.
You mean that we do not know whether there will in fact be a negative impact.
Yes. We do not know, as we have no evidence to prove the matter one way or the other.
I suggest that, in our feedback to the lead committee, we say that we have received an explanation from the Executive, but that we are concerned that we do not have the evidence to back it up. It would have been useful had we known a bit more about whether RIAs apply to the wider package of measures.
Plant Health (Import Inspection Fees) (Scotland) Regulations 2005 (SSI 2005/216)
We come now to agenda item 4, a further Executive response. The regulations use a 10 per cent uplift in the standard fee that is charged. We discussed the matter last week and sent a report to the lead committee and the Parliament about the vires of the regulations. We have received a further update, and we put it on the agenda because the regulations illustrate a general issue that we should keep an eye on. We should perhaps also address matters around European directives in general as part of our inquiry. Should we simply note the update? We have reported on the regulations.
We have already reported on the regulations, so there is nothing else that we can do with respect to the lead committee or the Parliament. The further explanation before us only reiterates the practical reasons for the route that the Executive chose to take. I am no more convinced now than I was when we discussed the regulations previously that they are correct. There is still some serious doubt about their vires, and we should put that on the record.
I tend to agree. The regulations indeed come from a European directive, which was different from the directive referred to by the two previous instruments. We should keep our eye on such instances. The directive changed, and that has led to the Executive and the United Kingdom Government dealing with the matter in a different way.
I am not sure whether the final sentence in our paper on the Executive response is commentary by our clerking staff or the Executive's own comment.
It is the Executive's comment.
It states:
We touched on this last week. We wanted to know what consultation, discussion or liaison had happened between here and the Commission, between Westminster and the Commission and between here and Westminster.
Am I correct in recalling that the regulations before us are different from the English regulations? Are the two different or identical?
They are the same.
I am sorry; I thought that they were different—they often are. Murray Tosh is quite right. If the Executive is simply accepting what is handed down to it—and perhaps then making changes without knowing the background, which would be even worse—that is puzzling and worrying. If that last line of our paper is in the Executive's own words, we should pursue the matter.
My point is much the same. I asked last week what advice had been sought from the Commission because I find it inconceivable that a method of fee arrangement that did not fit neatly into either of the two existing guidance systems or mirror what had been provided for under other directives would not have been queried, by either a phone call or an e-mail to someone at the Commission. Someone could have asked whether the Commission saw any potential problem with the Executive's proposed approach. That last sentence smacks of nobody having time to find out about the matter or of no record having been kept. Either of those would worry me.
We should follow up what Stewart Maxwell, Murray Tosh and Christine May have been saying and ask what the working practices are in relation to such regulations. We should ask in particular about liaison with the European Commission and Westminster. Is that agreed?
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