Subordinate Legislation Committee, 12 Sep 2006

Meeting date: Tuesday, September 12, 2006

Official Report 130KB pdf

---

Delegated Powers Scrutiny

---

Aquaculture and Fisheries (Scotland) Bill: Stage 1

Good morning and welcome to the Subordinate Legislation Committee's 24th meeting of 2006. Apologies have been received from Sylvia Jackson and Adam Ingram.

Item 1 is scrutiny of the delegated powers in the Aquaculture and Fisheries (Scotland) Bill. In general, all powers to make delegated legislation under the bill will be exercisable by statutory instruments that are subject to the negative procedure, except if a power allows an act to be amended, when the affirmative procedure will be used.

An order that is made under the power in section 1(1) to require information about parasites on fish farms and shellfish farms will be subject to the negative procedure and will be the subject of consultation with stakeholders, although consultation is not a statutory requirement. Are we content with the power?

Yes.

Good. Section 1(3) provides the power to require information about the containment of fish on, and the escape of fish from, fish farms and about the recovery of escaped fish. The same arrangements as those that we just discussed apply, so I take it that this power is also okay.

Members indicated agreement.

Section 4(2) concerns one of the great philosophical questions of the universe: what is the meaning of "parasite"? The provision will enable ministers to modify the definition of "parasite"—I am trying not to laugh, but it is not easy. The use of a delegated power appears to be justified. However, an issue arises about the use of the term "modify", which allows ministers to restrict or extend the definition. Do we want to ask how the Executive intends to exercise that power and whether it will restrict the existing definition or alter it to make a generic reference to all fish parasites?

We normally expect the affirmative procedure to be used when a power allows the text of an act to be amended. However, the Executive says that a change in the definition would relate to technical and scientific matters, so the negative procedure is enough. What do we say?

The answer to the second question depends on the answer to the first question. If we have a fuller explanation of the definition of modifying, perhaps we will know whether the affirmative or negative procedure is more appropriate.

We will ask for that explanation. In doing that, we might even point out that we would normally recommend changing the procedure to the affirmative procedure. We will point out the link.

Subsections (1) and (3) of section 7 contain powers to approve a code of practice by making orders, after consultation, that will be subject to the negative procedure. Is that okay?

Members indicated agreement.

Section 13 will introduce proposed new section 2ZA of the Diseases of Fish Act 1937, which is on additional powers when designating an area under section 2 of the 1937 act. The new section amends the existing power to make designation orders under the 1937 act, which are not subject to parliamentary procedure. The Executive thinks that the existing procedure has worked okay and has not sought to modify it. Are we content with the extension of powers under section 2 of the 1937 act as proposed, with the existing procedure, or do we need a new statutory instrument?

I thought that the provision was all right.

It is pointed out to me that members may wish to note the link to the recommendation in the draft report on our regulatory framework inquiry that local instruments should no longer be made as statutory instruments. The provision is an example of that.

Section 14—

Let us hear your pronunciation.

I am taking a deep breath before I say "preliminary". Was that okay?

Section 14 introduces powers in subsections (1) and (3) of proposed new section 2ZB of the 1937 act, "Preliminary designation of area: Gyrodactylus salaris". An order that is made under that section will have an initial duration of 30 days, which will be extendable by further order to 60 days. Any order will be made by statutory instrument that is not subject to parliamentary procedure. The Executive says that that is okay given that such orders are temporary and urgent. Is that okay or might a 28-day order procedure be more appropriate? We might also want to ask the Executive what happens when an emergency continues beyond 60 days.

I am not sure why the Executive has used that procedure. There is nothing particularly controversial about the order, but it could affect people's livelihoods. The procedure that we usually follow is that the Executive would lay the order and it would fall if it were not given parliamentary approval. A role for Parliament would not go amiss. I do not understand why the Executive is using a power that gives Parliament no role.

We will ask the Executive to justify that.

Section 16 amends section 31(1), "Salmon fishing: general regulations", of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 by creating new section 31(1)(g) of the 2003 act. The amendment introduced by the section does not alter the existing procedure for making regulations under section 31(1) of the 2003 act, which is that they are subject to the negative procedure. The committee will note that the exercise of the power is not limited to the control of that other one that was mentioned previously.

Gyrodactylus—

Gyrodactylus salaris. Are we content with the power?

Members indicated agreement.

Section 19 is yet again about gyro whatever it is: "Gyrodactylus salaris: Scottish Ministers' power to make payments". It inserts new section 5F into the Diseases of Fish Act 1937.

Orders under new section 5F of the 1937 act will be made as statutory instruments and be subject to the affirmative procedure. Orders under the 1937 act are not made as statutory instruments. Accordingly, if they are to receive effect arrangements must be made for their publication. Section 9 of the 1937 act provides for the publication requirements to be prescribed by regulations. It is not clear why the additional power to make regulations under section 9 in relation to the manner in which orders under new section 5F are published is necessary, as such orders will be made by statutory instrument and therefore will be published under the provisions of the SI transitional order. I hope that that is now clear.

I ask members whether they are content with the power and the fact that it is subject to the affirmative procedure. Do they wish to question the Executive further on the additional power?

It would be good to question the Executive further on the matter.

Okay. Section 23 introduces new section 17A, "Weekly close time for freshwater fish", into the 2003 act. Orders made under section 17A will be made by statutory instrument subject to annulment. There is also a statutory obligation on ministers to consult before making an order. Section 23 also introduces new section 17B, "Annual close time for freshwater fish other than trout", into the 2003 act. The same procedure applies in relation to that power.

Section 25(1) provides the power to make regulations for the conservation of freshwater fish. Such regulations are to be made by statutory instrument subject to annulment. There is also a statutory obligation on ministers to consult before making regulations. Is that okay?

Yes.

Section 27 contains the power to specify marine waters adjacent to Scotland as "specified areas" and the power to specify areas of marine or inland waters from which fish may not be moved into specified areas without the permission of the Scottish ministers.

Orders made under the section are made by statutory instrument subject to annulment. I am to

"Ask if the Committee is content with the power and that it is subject to negative procedure."

I am reading the words from the brief.

It is suggested that a consequential amendment may be needed to the amendments to the Diseases of Fish Act 1937 that are contained in paragraph 1 of the schedule to the bill and relate to the publication of orders. Will we write to the Executive on that point?

Yes.

Mr Tosh asks how we will stop the fish moving, but I do not think that the Executive will be of much assistance on that matter.

The power in section 29(1), "Payments in respect of fish destroyed", is very wide. Orders under the section are subject to the draft affirmative procedure as they involve payment from public funds. It is appropriate that the Parliament has an opportunity fully to scrutinise any proposed scheme before it comes into operation. Are we content?

Members indicated agreement.

Section 31 provides the power to require the provision of information on the economic, social and environmental aspects of fish farming and shellfish farming. Orders under the section are subject to the negative procedure. Any order would be made following the recommendation of the ministerial working group, which has everybody concerned on it. That would seem to be okay.

Section 35(1) provides a power to make

"incidental, supplemental, consequential, transitional, transitory or saving"

it contains a power to "modify any enactment", which we thought might extend to the bill itself. Will we pursue the matter in this case, or have we pursued it sufficiently in relation to previous such occasions?

I do not think that we have had a reply following our previous correspondence.

We are getting the answer next week. We will—

Hold fire.

We will hold fire and let the matter go.

It is the same question as before, and we should raise the point in this instance, too.

We will not bring in officials from the Scottish Executive Environment and Rural Affairs Department as well.

No.

We will just tell the Executive that we are discussing the issue next week with other officials. Is that okay?

Yes.

Section 38(2), which contains a power to appoint the day upon which the provisions of the bill will come into force, seems pretty normal.

Paragraph 5(3) of the schedule amends section 31(5)(b) of the 2003 act, which specifies the weekly close time for salmon. That does nothing to alter the existing procedure for making regulations.

Paragraphs 5(6) to 5(8) of the schedule to the bill modify schedule 3 to the 2003 act. That is a tidying-up exercise, and does not alter anything.