Official Report 298KB pdf
Housing (Scotland) Act 2014 (Commencement No 5 and Consequential Provision) Order 2015 (SSI 2015/430)
No points have been raised by our legal advisers on the order. Is the committee content with it?
Members indicated agreement.
Management of Offenders etc (Scotland) Act 2005 (Specification of Persons) Amendment Order 2015 (SSI 2015/431)
No points have been raised by our legal advisers on the order. Is the committee content with it?
Members indicated agreement.
Public Bodies (Joint Working) (Integration Joint Boards and Integration Joint Monitoring Committees) (Scotland) Amendment (No 2) Order 2015 (SSI 2015/432)
No points have been raised by our legal advisers on the order. Is the committee content with it?
Members indicated agreement.
Food (Scotland) Act 2015 (Consequential Provisions) (No 2) Order 2015 (SSI 2015/433)
No points have been raised by our legal advisers on the order. Is the committee content with it?
Members indicated agreement.
Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Order 2015 (SSI 2015/435)
No points have been raised by our legal advisers on the order. Is the committee content with it?
Members indicated agreement.
Inshore Fishing (Prohibited Methods of Fishing) (Luce Bay) Order 2015 (SSI 2015/436)
No points have been raised by our legal advisers on the order. Is the committee content with it?
Members indicated agreement.
South Arran Marine Conservation Order 2015 (SSI 2015/437)
No points have been raised by our legal advisers on the order. Do members have any comments on it?
I have a minor concern about the order, in as much as I have been approached by the Clyde Fishermen’s Association on it. Apparently, the Government did not consult every organisation that it should have done, the Clyde Fishermen’s Association being one such organisation, although I understand that, the CFA’s legal advice notwithstanding, the fact that the CFA was not made aware of the order does not affect its validity.
As I believe that the association’s concerns relate to the policy of the order, I suggest that it makes representation to the Rural Affairs, Climate Change and Environment Committee. I think that that is the appropriate committee for the CFA to make known its objections to.
Thank you for that comment.
Is the committee content with the order?
Members indicated agreement.
Waste (Meaning of Recovery) (Miscellaneous Amendments) (Scotland) Order 2015 (SSI 2015/438)
No points have been raised by our legal advisers on the order. Is the committee content with it?
Members indicated agreement.
Management of Offenders etc (Scotland) Act 2005 (Commencement No 8 and Consequential Provisions) Order 2015 (SSI 2015/397)
Our legal advisers have noted that SSI 2015/431 and the Management of Offenders etc (Scotland) Act 2005 (Commencement No 8) Order 2015 (SSI 2015/429) replace the provisions of the Management of Offenders etc (Scotland) Act 2005 (Commencement No 8 and Consequential Provisions) Order 2015 (SSI 2015/397). In relation to that order, the Scottish Government confirmed to the committee that, in its view, it is of no legal effect, and the Government undertook to lay the corrective instruments.
The Scottish Government has confirmed with the National Archives of Scotland that SSI 2015/397 will not be printed as a Scottish statutory instrument and that it no longer appears on www.legislation.gov.uk. The committee may wish to note that those steps have been taken in highly unusual circumstances in which, subsequent to the laying of an instrument that has purportedly been made by the Scottish ministers, they have publicised the fact that the entire instrument is of no legal effect. The committee has also reported to the Parliament that there is doubt about whether the order is intra vires, and it has not been laid for approval by the Parliament.
The committee may also wish to note that the normal practice is to expressly revoke provisions to remove them from the statute book. Although the Government has taken steps with the intention of causing readers less confusion, it appears that some confusion may still arise. For example, stakeholders with an interest in the instruments may read the Parliament’s Official Report of the consideration of SSI 2015/397, or they may read legal resources beyond legislation.gov.uk that might possibly have retained a record of the instrument.
Do members have any comments?
In your remarks, convener, you said that the instrument had not been laid for the approval of Parliament. I take a different view. It has appeared in the Business Bulletin and, at that point in parliamentary process terms, it has been accepted by the chamber desk and put in the Business Bulletin, and it therefore should be regarded as having been laid.
I am perfectly content with the explanations that have been provided that, because it has been agreed by the Government that laid the order that it is ultra vires and therefore has no legal effect, the legal aspects of the order concerned are adequately dealt with. I welcome the fact that no printed or otherwise published version will appear in the archives.
However, that still leaves open the question of parliamentary process. The order having been laid, there is no formal recognition by the Parliament that that laying should not have any future effect—in effect that the laying should be undone because the order could not properly be laid.
There are a couple of ways in which that could be dealt with. It could be dealt with by the Parliament simply passing a motion agreeing that the order be unlaid, or it could be reported in the Business Bulletin that the previous report of the laying of the order had no effect and therefore the order should be regarded as not having been laid in the first place.
Those are matters of process, and it may well be that the committee should write to the Standards, Procedures and Public Appointments Committee to ask it to consider whether the disposal of the instrument, which has been laid but could not properly and legally be laid, has actually been completed in a satisfactory way. I suggest that we do that.
I support Stewart Stevenson in what he says. For completeness, there should be a way of, as it were, unlaying instruments. Given that this is essentially an untidy and inelegant situation in which we find ourselves, it would be wise to refer it to the SPPA Committee and have it consider the matter as soon as possible, so that it can be tidied up before the end of the session.
Clearly, the committee is agreed that that is what we should try to do. I suggest that we might also refer the matter back to the Government and ask it to consider whether there is anything else that it could sensibly do.
I agree with Stewart Stevenson. I said that the order had not been laid for approval, which would have been the process of bringing it to the Parliament again. There is absolutely no doubt among our legal advisers that it has been laid before the Parliament. That part of the process has been done, and it is that part that undoubtedly needs to be undone if the matter is to be tidied up completely.
Referring the matter to the SPPA Committee to consider in short order would appear to be the way forward.
Members indicated agreement.