Subordinate Legislation Committee, 12 Dec 2006

Meeting date: Tuesday, December 12, 2006

Official Report 111KB pdf

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Instruments Subject to Annulment

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Instruments Subject <br />to Annulment

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Home Energy Efficiency Scheme (Scotland) Regulations 2006 (SSI 2006/570)

The regulations are a complete revision of what existed before. We have been looking into the history of the regulations, which first came to the committee in the first session, would you believe. That was when Margo MacDonald was convener. I do not think that there is a present member who was on the committee at that time.

I might have been.

Sorry about that, Ken. I forgot that.

On you go then, Ken.

Maybe you would like to take us through the issues, Ken.

No thanks.

Basically, there were some drafting errors, which have all been sorted. That is not the problem now, but there are some new issues. I will highlight them, and members may chip in.

The first point is that the regulations make provision for grants to be withdrawn in certain circumstances. It is not very clear, as members will see from the legal brief, exactly what "withdrawn" means. We will seek clarification on that. Is that okay?

Members indicated agreement.

The second point is that the regulations make no provision for any appeal against a decision to award or withdraw a grant. Our advice points to judicial review not being sufficient by itself to fulfil the requirements of article 6 of the European convention on human rights. Again, it is a matter of clarification, but quite a serious one.

Thirdly, a similar point arises in relation to paragraphs 8 and 11 of schedule 1 to the regulations, which allow an agency to appoint and to

"terminate or suspend the appointment of a registered installer for reasonable cause."

Should we perhaps ask for clarification of what "reasonable cause" might mean and of the position that would be taken on appeals?

Members indicated agreement.

Finally, are members content to ask the Executive to explain the inconsistency in the use of the terms "agency" and "administering agency" in schedule 1 and to explain the provision in regulation 6(3) that appears to restrict the application of the regulations to applications for grants as described in that paragraph?

Members indicated agreement.

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Scottish Charity Appeals Panel Rules 2006 (SSI 2006/571)

A couple of points arose on the rules. One is to do with the vires for rules 10 and 18(2). The enabling power allows rules to be made as part of the practice and procedure of the Scottish charity appeals panel, but it does not mention the constitution of the panel.

The second and third points are more minor. We would like the Executive to explain whether the power to submit documents electronically under rule 24 is to apply in all cases or to notices other than those sent under rules 3(1), 6(1)(a) and 7(a). The third point is a consistency problem, or rather a problem of inconsistency. We would like the Executive to explain why, in respect of rule 18(5), no provision is made as to the time within which an appeal may be made to the Court of Session and whether it is intended to make appropriate provision in some other way.

There are also some minor points that we can deal with in an informal letter to the Executive.

Is that agreed?

Members indicated agreement.

Members should feel that they can come into the discussion at any point.

No, you are doing wonderfully, convener.

I thought that you might say that.

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Conservation of Salmon (Collection of Statistics) (Scotland) Regulations 2006 (SSI 2006/572)

Two points arise on the regulations. It is recommended that we ask whether any representations were made on them and, if so, what those representations were and what action was taken in respect of them. The committee will recall that Dennis Canavan raised the point that there had not been sufficient consultation on a similar set of regulations, so it is important that we know what representations have been made.

Secondly, it is recommended that we confirm that the requirement of section 38(4)(b) of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 is fulfilled and that, if it is, we ask the Executive to explain why the preamble to the regulations does not refer to that fact.

There is also a minor point that we can deal with in an informal letter.

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Marriage (Approval of Places) (Scotland) Amendment Regulations 2006 <br />(SSI 2006/573)

No substantive points arise on the regulations, but there is a minor point that we can raise in an informal letter.

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Civil Partnership (Attestation) (Scotland) Regulations 2006 (SSI 2006/574)

No points arise on the regulations.

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Registration Services (Fees, etc) (Scotland) Regulations 2006 (SSI 2006/575)<br />Plant Protection Products (Scotland) Amendment (No 3) Regulations 2006 <br />(SSI 2006/576)

No substantive points arise on the regulations, but there is a minor point on each set that we can raise informally. Is that agreed?

Members indicated agreement.

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Sheep and Goats (Identification and Traceability) (Scotland) Amendment Regulations 2006 (SSI 2006/577)

A number of defects have been identified in relation to the regulations. They have been withdrawn and replacement regulations were laid yesterday. We will consider the new regulations next week. We look forward to that.

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Feeding Stuffs (Scotland) and the Feed (Hygiene and Enforcement) (Scotland) Amendment Regulations 2006 <br />(SSI 2006/578)

No substantive points arise on the regulations, but there are some minor points that we can raise informally.

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Fishery Products (Official Controls Charges) (Scotland) Regulations 2006 <br />(SSI 2006/579)

No substantive points arise on the regulations. Paragraph 88 of the legal brief states that the Joint Committee on Statutory Instruments has not reported on the corresponding English regulations. Members will be pleased to hear that the JCSI reported today that there are no problems with those regulations. Is that okay?

Members indicated agreement.

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Environmental Impact Assessment (Agriculture) (Scotland) Regulations 2006 (SSI 2006/582)

Committee members might be interested to note the use of open procedure. In this case, it is a negative instrument.

A few points arise on the regulations. I will try to link them with the relevant paragraphs in the legal brief. The first point relates to paragraph 95.

And paragraph 101, I think.

Yes. As the committee can see from paragraph 95, the regulations revoke the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) (Scotland) Regulations 2002 (SSI 2002/6), which did not include projects on restructuring rural land holdings. However, the 2006 regulations include such projects. It is recommended that we ask why the environmental impact assessment directive was not implemented on such projects in the 2002 regulations. It is also recommended that we clarify how the second subparagraph of article 6.3 of the EIA directive has been implemented. That relates to paragraph 101 in the legal brief. Do you want to raise any more points on that, Ken?

We need to ensure that the main reports, and advice on which ministers acted, are made available to the public. That is not in the regulations or the explanatory note, so we should ask for the Executive's comments on that.

I am sorry—say that again, Ken.

Ministers are supposed to publish the main reports and advice that they receive, but that is not mentioned in the explanatory note or the regulations, so we should ask them to comment on how they are complying with their duty to publish advice and reports.

It is not clear that reports and advice are included. We will have to double-check that.

It is also recommended that we ask the Executive whether regulation 14(5) should refer to the second set of corresponding English regulations and that we ask it to clarify the meaning of regulation 28(3)(a) given that it does not refer to carrying out reinstatement works. Those points are addressed in paragraphs 103 and 104 of the legal brief.

We can also ask the Executive why the transposition note does not cover the habitats directive. That point is discussed in paragraph 105 of the legal brief. There is also a minor point that can be raised informally, which is the question why the footnote for regulation 5(2)(f) is missing a citation. Is that okay?

Members indicated agreement.

I remind committee members that Jim Wallace, as a reporter for the European and External Relations Committee, is considering transposition notes at the moment. I wondered—as did Ruth Cooper, our clerk—whether we should put together the issues that have come up in our consideration of transposition notes, and in particular those that came up on the regulations. Do members agree that we should try to get that information together and pass it on to Jim Wallace?

What is he considering?

He is considering the transposition of European directives and some of the issues that are connected with that. Ruth Cooper can give us more detail.

He has completed his first report on transposing and implementing European directives. He is considering all forms of implementation, so there is a policy side to his inquiry, but there is also a crossover with some of the issues that this committee raises. He will submit the report to this committee, so members will see it and will be able to comment on it early next year.

What spurred the European and External Relations Committee into appointing a reporter? Is there a problem with transposing European legislation?

My understanding is that that committee wanted to examine the matter closely to see—

Just how it is done.

Yes. I understand that Jim Wallace has a lot of background knowledge and experience in that matter and wanted to pursue it.

It sounds good. I thought that we should try to get our points together and make an input into that inquiry if we can.