Subordinate Legislation Committee, 12 Nov 2002

Meeting date: Tuesday, November 12, 2002

Official Report 97KB pdf

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Executive Responses

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Plant Health (Phytophthora ramorum) (Scotland) (No 2) Order 2002 (SSI 2002/483)

Members have a separate legal briefing on the order on phytophthora ramorum. On this matter, the chair recognises the man from Govan.

The legal adviser raised a genuinely interesting interpretation point about the vires of the order, which we asked the Executive to answer. I do not think that anyone could be 100 per cent sure of the answer to the question of the order's vires. We suggested that the order might be ultra vires. The Executive has given a detailed explanation of why the order is not ultra vires.

There are two issues to consider. One is that the Executive is probably right. A court would probably allow the Executive to use the order in the way that it proposes just to make the order workable in practice, although I have no doubt that someone could be paid a lot of money to put up an argument against the Executive's view. We came across a similar situation previously.

If the Subordinate Legislation Committee makes a point about an aspect of legislation being ultra vires, but the Executive says that it is happy with the legislation's legality, that is the end of the matter as far as the committee is concerned. We cannot do much if the Executive is happy with its decision and runs with it. If the Executive ultimately falls foul of somebody who challenges its decision in court, that is the Executive's problem at that stage. That kind of situation happens to every Government and Governments occasionally lose court cases. However, when we flag up an issue and the Executive's response is that it is happy that what it is doing is legally right, our response can only be that that is fine—if it works out.

So our report to the lead committee will record that the Subordinate Legislation Committee regards the order as workable but thinks that a small legal doubt must remain.

We have previously told Executive witnesses to the committee that they cannot be 100 per cent sure of a legislative provision surviving a legal challenge. They have often agreed that a court might successfully challenge a provision. That is what courts are for. Every so often Governments lose in court. However, the committee cannot do much about provisions that might be ultra vires. If the Executive is happy with a provision, it must run with the ball.