Official Report 113KB pdf
There appears to be a catalogue of problems with this instrument. I do not know whether anybody wants to comment.
In its response, the Executive recognised that the instrument is ultra vires, and it is taking action to correct that through the commencement of a section of the relevant act by the Department of Health in England. Once that takes place, we will proceed with an order that is in accordance with the powers of the Scottish ministers. At this stage, it is essential that we draw the lead committee's attention to the fact that, as it stands, this statutory instrument is ultra vires.
We could also draw the lead committee's attention to the irony that there can be no corrective statutory instrument until such time as Westminster acts. The law of adoption in Scotland must sit and wait until the Department of Health in England and Wales gets around to doing something about the matter. I do not think that that is what devolution is supposed to be about.
There is a vires issue concerning this instrument, as there was with the Education and Training (Scotland) Regulations 2000, although we did not mention it at the time. Such issues are obviously important to the whole system. Our legal adviser's recommendation is so eloquent and full that I would like to read it out for the record.
Why not?
The legal advice says that the instrument should
The Executive's response seems to indicate that it expects fairly prompt action from the Department of Health in England. The lead committee might want to pay close attention to the situation and encourage the Executive to keep pressing its counterpart body south of the border to proceed promptly.
To its credit, the Executive has acknowledged the problems.