Official Report 146KB pdf
Forth Estuary Transport Authority<br />Order 2002 (draft)
Although the Executive has made a genuine effort to answer the points that we raised on the order, we want to draw some outstanding matters to its attention. For example, we had doubts whether the order was intra vires. It has been drawn from two separate pieces of legislation; however, the Transport (Scotland) Act 2001 and the Local Government (Scotland) Act 1973 confer different enabling powers and do not appear to provide the proposed new authority with the powers that the Executive intends that it should have. That is the situation, as expressed in lay terms. Does any member want to be any more specific about the order?
As the Executive's response is not entirely satisfactory, we should draw the fact that we still have concerns about the vires of the order to the lead committee's attention.
This is obviously an area with a shade of grey. However, we should simply accept that we have drawn the issue to the attention of the Executive, which has responded that section 69 of the Transport (Scotland) Act 2001 confers on it the power to constitute a joint board. In particular, section 69(3) refers to
The Executive, however, is in the same bind as the committee. It cannot definitely say whether the provision would stand up if it were challenged.
That might well be the case with many issues that we deal with.
As the Subordinate Legislation Committee, we have to tell the Executive that we cannot be absolutely certain that the order is watertight.
We could say that some committee members expressed concerns about the order. However, I do not want to express any doubts too strongly.
Perhaps we could say that there are lingering doubts about the order.
That is terrific—that is just the way to put it. The committee has lingering doubts about the vires of the order.
And it could lead to a legal dispute.
No. I did not say that.
We have had persistent doubts about the order. Although the Executive has attempted to address our concerns, we are still not absolutely certain that the order is intra vires.
Budget (Scotland) Act 2001 (Amendment) Order 2002 (draft)
We raised the question whether proper drafting practice had been followed and wondered whether commas had been put in the right or wrong place. Amendments have been made to punctuation, which is verboten. We will therefore draw the order to the attention of the lead committee and the Parliament.
Police Act 1997 (Criminal Records) (Registration) (Scotland) Regulations 2002 (SSI 2002/23)
The Executive has provided a very good explanation of the point that we raised.
Yes. Members will remember that we asked about the rights of disabled and handicapped people, and the Executive's response has been sensitive and adequate.
Children's Hearings (Legal Representation) (Scotland) Amendment Rules 2002 (SSI 2002/30)
We raised four points about these rules.
We received a nice apology from the Executive about its failure to follow proper drafting practice.
Which we will draw to the lead committee's attention.
The Executive has already done so.
Local Authorities' Traffic Orders (Procedure) (Scotland) Amendment Regulations 2002 (SSI 2002/31)
These regulations are odd, because they probably constitute retrospection. The committee does not like retrospection in its instruments, but in this case such retrospection has no real effect and does not subvert the intention behind the regulations. Perhaps we should simply tell the lead committee and the Parliament that we noticed that.
We could also point out one or two drafting infelicities—I will not call them errors—to the lead committee and to the people who drafted the regulations. However, none of the infelicities is desperately important.
We should mention the retrospective element because we do not approve of that practice.
Scottish Legal Services Ombudsman (Compensation) (Prescribed Amount) Order 2002 (SSI 2002/32)
It might be an idea to draw to the lead committee's attention the fact that the explanatory note is not terribly clear.
The order came with a good Executive note; however, that is different from the explanatory note. We will ask the Executive why it could not just replicate its own note.