Official Report 164KB pdf
Instruments Subject <br />to Annulment
Queen Margaret University, Edinburgh (Scotland) Order of Council 2007 <br />(SSI 2007/116)
If members have looked at their legal brief, they will have seen that there are several points on the order. I will read them out for the record, if that is all right, unless anyone has a burning point that they want to make first.
Town and Country Planning (General Permitted Development) (Avian Influenza) (Scotland) Amendment Order 2007<br />(SSI 2007/135)
Are members agreed that no points arise on the order?
Charities Accounts (Scotland) Amendment Regulations 2007 (SSI 2007/136)
Are members agreed that we ask the Executive why no Executive note has been included with the regulations, as is normal drafting practice?
We should expect to see one next week.
Yes. There is also a minor drafting point that we can raise informally.
Plant Health (Export Certification) (Scotland) Amendment Order 2007<br />(SSI 2007/137)
Are members agreed that, although no substantive points arise on the order, there are minor points that can be raised informally?
Plant Health (Import Inspection Fees) (Scotland) Amendment Regulations 2007 (SSI 2007/138)
Are members agreed that, although no substantive points arise on the regulations, there is a minor point that can be raised informally?
National Health Service (Charges for Drugs and Appliances) (Scotland) Regulations 2007 (SSI 2007/139)<br />Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (Scotland) Amendment Regulations 2007 (SSI 2007/142)
Colours in Food Amendment (Scotland) Regulations 2007 (SSI 2007/143)
Are members agreed that no points arise on the regulations?
Meat (Official Controls Charges) (Scotland) Regulations 2007 (SSI 2007/144)
Are members agreed that, although no substantive points arise on the order, there is a minor point that can be raised informally?
Tuberculosis (Scotland) Order 2007<br />(SSI 2007/147)
I have three points to raise on the order, two of which are to do with definitions. The first is the question why the Executive has failed to follow proper legislative procedure by using a combination of enabling powers that are subject to different procedures—namely, negative procedure and no parliamentary procedure. The issue is on-going. If I remember correctly, the Executive has argued that it cannot see a problem with that.
I disagree with that, and I hope that the committee does, too. We should, at the very least, be slightly concerned about the mixing of procedures in that way. As we have said in previous weeks, the issue seems to have come upon us all of a sudden. It did not seem to be an issue before but, all of a sudden, we are receiving on a regular basis instruments in which the enabling powers are subject to a combination of different parliamentary procedures. That has happened every week for the past few weeks.
We will ask that question.
It is important that we continue to challenge the Executive on this, as we have agreed that we will put the issue in the legacy paper for our successor committee. It is important that that committee considers the matter and thrashes it out fully with the Executive. In the interim, we should defend the line that we have taken.
The matter has come up for three weeks running. Can we ask the Executive specifically why this is a new development? The Executive has been using the procedures in subordinate legislation over the past eight years, but it is only this year that the matter has come up. Why did the Executive not mix the procedures before? What stopped it before, and why does it think that that is acceptable now? We should ask specifically whether a conscious policy change has been made to start drafting instruments in that way. If it is not a policy change, it is an oversight. If it is a policy change, it is a matter of importance of which we should have been informed.
Off the top of my head, I think that the Executive said that it was deliberate, giving the reason for it as bringing certain regulations together. However, we could look back and get the exact reason.
I think that the Executive said that it was being done to make the regulations easier to use.
Yes, that is right. It was about grouping them together.
That was given as a reason two weeks ago, I think. It was a post hoc justification. I am not saying that it is not a good reason, but it is strange that, in the past seven years, there have not been circumstances similar to those that have suddenly emerged in the past six months, which have required the use of a combination of procedures in the same instrument.
I gather that there were a couple of instruments in 2003.
We had forgotten those. The point is that having had a couple of such instruments over many years, we have had lots within a few weeks. I agree with Ken Macintosh that for the Executive to have started doing this regularly would seem to indicate a deliberate shift in policy. I would still like the Executive to tell us what would happen if a negative instrument was voted down under the circumstances that I outlined.
It is a question of balance. The advantages are perhaps not worth having if there are disadvantages such as those you outline.
But if it is not a deliberate change, then clearly this is just a blip and we will go back to normal practice.
We can live in hope.
Unless it is founded on the assumption that the Executive will never lose a vote on any of the instruments. That may be the case in fact, but it should never be presumed in drafting instruments.
Absolutely. We will raise that point.
Education (Graduate Endowment, Student Fees and Support) (Scotland) Revocation Regulations 2007 (SSI 2007/148)
This and the following 10 instruments—excluding the Welfare of Animals (Slaughter or Killing) Amendment (Scotland) Regulations 2007 (SSI 2007/150)—are part of a package of consolidation, amendment and revocation instruments relating to graduate endowment, student fees and student support. Most of the instruments refer to the European Economic Area agreement and the EEA states. However, the Executive has decided not to include definitions of those terms, despite definitions being included in the original instruments. We might like to ask the Executive for its comments on that. Are members happy for us to raise that point?
No points arise on the revocation regulations.
Education Authority Bursaries (Scotland) Regulations 2007 (SSI 2007/149)
The point about the terms "EEA agreement" and "EEA states" relates specifically to these regulations. There are also some minor points relating to the regulations.
Welfare of Animals (Slaughter or Killing) Amendment (Scotland) Regulations 2007 (SSI 2007/150)
We do not have this instrument.
It is on page 23 of the brief.
We had so many instruments.
Has the group ever met?
The group has not met. It was waiting for the committee's recommendations in the inquiry report, but it can get up and running now and be taken forward at official level, if members are content.
Do members recall that this was one of the issues that we were going to discuss with the Minister for Parliamentary Business? I can give you more of an update next week, when we consider our legacy paper. Shall we add the regulations to our list, so that we make it as comprehensive as possible?
I agree that we should add the regulations to the list. However, we talked previously about ease of use as one of the reasons for the Executive doing what it was. There have been nine sets of amendment regulations, but I note that only four sets have been listed in the footnote. It must make the regulations difficult to use if five sets of amendment regulations are missing from the footnote.
I am advised that only the relevant amendment regulations need to be listed, so the Executive has followed the right practice.
It was just that the Executive talked about the usability of regulations—
You are very sharp, Stewart.
No, no. I was just struck by that point about ease of use. However, that is fair enough.
Are members content that we add the regulations to our list?
Nursing and Midwifery Student Allowances (Scotland) Regulations 2007 (SSI 2007/151)
No substantive points arise in relation to the regulations, but there are a couple of minor points that we should raise. Are members content that we do so?
Education (Fees and Awards) (Scotland) Regulations 2007 (SSI 2007/152)
We should possibly ask the Executive whether it intends to correct the error that is contained in paragraph 11 of schedule 1, given its response to the committee on the Education (Graduate Endowment, Student Fees and Support) (Scotland) Amendment Regulations 2006 (SSI 2006/323). I think that the Executive said that it would correct the error, but it did not and the error has now reappeared.
Although the error is quite minor, the Executive's failure to make the correction feeds our anxiety—I was going to say paranoia—that recommendations that we make and which are accepted by the Executive just disappear into the ether. We have very little way of tracking what happens to our recommendations. This is a perfect example of a recommendation that the Executive accepted and said it would address but which it has not addressed. That is probably due to oversight rather than deliberate omission, but it emphasises the need for some sort of tracking mechanism so that we can track whether our recommendations are implemented.
Stewart Maxwell will recall that, when we visited the Joint Committee on Statutory Instruments in Westminster, we saw that it kept a log of all its recommendations so that, at the end of the year, it could check whether they had been implemented.
The issue is mentioned in the report of our inquiry into the regulatory framework in Scotland. That report recommended that the committee should produce an annual report on our recommendations and how the Executive has reacted to them. Such an annual report would show up such anomalies. It is entirely reasonable for us to take the Executive at its word when it says that it will take the next legislative opportunity to sort out an error. However, if it subsequently fails to do so, that is a bit problematic. It would help if we published the suggested annual report.
Absolutely.
Students' Allowances (Scotland) Regulations 2007 (SSI 2007/153)
No points arise.
Education (Student Loans) (Scotland) Regulations 2007 (SSI 2007/154)
No substantive points arise in relation to the regulations, but there are some minor points.
Graduate Endowment (Scotland) Regulations 2007 (SSI 2007/155)
Three points arise. First, we should ask the Executive why the definition of "European Economic Area" that is used in the regulations differs from that used in Scottish statutory instruments 2007/149, 2007/151, 2007/152 and 2007/153. Secondly, we should ask the Executive to explain how the requirement that a United Kingdom national insurance number be included in a completed application sits alongside the exception to the requirement that a UK NI number be provided if requested, which is granted in regulation 9(5). There is a bit of confusion on that point. Thirdly, we should ask whether the Executive is content that the cross-references that are contained in paragraph 2(4)(b) of schedule 2 are correct. Are members content that we raise those points?
Education Maintenance Allowances (Scotland) Regulations 2007 (SSI 2007/156)
We should possibly ask the Executive to explain why the definition of "employed" that is given in regulation 2 differs from the definition of "employment" that is used in, again, SSIs 2007/149, 2007/151, 2007/152 and 2007/153.
Civil Partnership Act 2004 (Modification of Subordinate Legislation) (Scotland) Revocation Order 2007 (SSI 2007/157)
No points arise.
Education (Student Loans for Tuition Fees) (Scotland) Amendment Regulations 2007 (SSI 2007/158)
No substantive points arise in relation to the regulations, but there are some minor points.
Repayment of Student Loans (Scotland) Amendment Regulations 2007 <br />(SSI 2007/159)
I think that we need clarification on why new regulation 11(2) of the Repayment of Student Loans (Scotland) Regulations 2000 (SSI 2000/110)—which is inserted by regulation 6 of the amendment regulations—appears to sub-delegate to Scottish ministers powers to specify and require information. Are members content that we ask for that clarification?
There are also two minor points that we should raise.
Disabled Persons (Badges for Motor Vehicles) (Scotland) Amendment Regulations 2007 (SSI 2007/162)
We should possibly ask the Executive why it has not amended the definition of "disabled person" in regulation 2(1) of the principal regulations—the Disabled Persons (Badges for Motor Vehicles) (Scotland) Regulations 2000 (SSI 2000/59)—given the amendment to regulation 4 of those regulations by regulation 5(2) of these amendment regulations to include persons below the age of two years. If members followed that, they are good.
I did not follow that initially—it took me several readings to understand that recommendation in our legal brief, but I now think it is particularly clear.
There is also a minor point that can be raised informally.
Land Reform (Scotland) Act 2003 (Path Orders) Regulations 2007 (SSI 2007/163)
No substantive points have been identified on the regulations but we will raise a minor point informally.
Individual Learning Account (Scotland) Amendment Regulations 2007 <br />(SSI 2007/164)
I have no points to raise on the amendment regulations. Do members?
No.
Registered Social Landlords Accounting Requirements (Scotland) Order 2007 <br />(SSI 2007/165)
No substantive points have been identified on the order but some minor points arise.
Building (Scotland) Amendment Regulations 2007 (SSI 2007/166)<br />Building (Procedure) (Scotland) Amendment Regulations 2007 <br />(SSI 2007/167)
Building (Forms) (Scotland) Amendment Regulations 2007 (SSI 2007/168)<br />Building (Fees) (Scotland) Amendment Regulations 2007 (SSI 2007/169)
Representation of the People (Absent Voting at Local Government Elections) (Scotland) Regulations 2007 (SSI 2007/170)
No points have been identified on any of these regulations.
Bell College of Technology (Transfer and Closure) (Scotland) Order 2007 <br />(SSI 2007/171)
No substantive points arise on the order but a minor point does.
Waste Management Licensing Amendment (Waste Electrical and Electronic Equipment) (Scotland) Regulations 2007 (SSI 2007/172)
This is the 21st time that the principal regulations—the Waste Management Licensing Regulations 1994 (SI 1994/1056)—have been amended.
Can we ask the Executive whether that is a record?
We can—why not? We can ask, "Is this a record?" and we can put the regulations on our list.
Private Rented Housing Panel (Applications and Determinations) (Scotland) Regulations 2007 (SSI 2007/173)
No points have been identified on the regulations.
Cattle Identification (Scotland) Regulations 2007 (SSI 2007/174)
No substantive points have been identified on the regulations but there is a minor drafting point.
Town and Country Planning (Marine Fish Farming) (Scotland) Regulations 2007 <br />(SSI 2007/175)<br />Planning etc (Scotland) Act 2006 (Consequential Provisions) Order 2007 (SSI 2007/176)
No points arise on the instruments.
Town and Country Planning (General Development Procedure) (Scotland) Amendment Order 2007 (SSI 2007/177)
No substantive points have been identified on the amendment order but a minor point arises.
Surface Waters (Fishlife) (Classification) (Scotland) Amendment Regulations 2007 (SSI 2007/178)
No points have been identified on the amendment regulations.
Radioactive Contaminated Land (Scotland) Regulations 2007 (SSI 2007/179)
An issue arises to do with the vires of regulation 17, because the power at section 78YC(b) of the Environmental Protection Act 1990 appears to allow for the modification only of "any other Act" rather than of subordinate legislation. Shall we ask the Executive about that?
Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2007 <br />(SSI 2007/180)<br />Civil Legal Aid (Scotland) (Fees) Amendment (No 2) Regulations 2007 <br />(SSI 2007/181)
No points have been identified on these regulations.
Air Quality Standards (Scotland) Regulations 2007 (SSI 2007/182)
No substantive points arise on the regulations but a minor one does.
Local Governance (Scotland) Act 2004 (Remuneration) Regulations 2007 <br />(SSI 2007/183)
We should ask the Executive to explain the purpose of the definition of "the 2004 Act" in regulation 2(1). The definition does not appear to be used in the regulations.
Seeds (Fees) (Scotland) Amendment Regulations 2007 (SSI 2007/184)<br />Inshore Fishing (Prohibited Methods of Fishing) (Loch Creran) Order 2007 <br />(SSI 2007/185)
Inshore Fishing (Prohibited Methods of Fishing) (Firth of Lorn) Order 2007 <br />(SSI 2007/186)<br />Debt Arrangement Scheme (Scotland) Amendment (No 2) Regulations 2007 <br />(SSI 2007/187)
No points have been identified on any of the instruments.
Curd Cheese (Restriction on Placing on the Market) (Scotland) Revocation Regulations 2007 (SSI 2007/188)
Curd cheese? We have seen this before, have we not? Members will note that the Executive has given an explanation for the breaching of the 21-day rule. Are we happy with it?
Yes—it is entirely reasonable.
Teachers' Superannuation (Scotland) Amendment Regulations 2007 <br />(SSI 2007/189)
Regulation 29 introduces new regulation E7A into the Teachers' Superannuation (Scotland) Regulations 2005 (SSI 2005/393). We should ask the Executive whether the reference in regulation 29 to paragraph (5) should be a reference to paragraph (6). The numbering has gone wrong somewhere.
Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2007 <br />(SSI 2007/190)
No points have been identified on the amendment rules.
National Health Service (General Dental Services) (Scotland) Amendment Regulations 2007 (SSI 2007/191)
No points arise on the amendment regulations but this is the 10th amendment to regulation 2. The Executive note indicates that the Executive is currently preparing a consolidation instrument. A draft will be consulted on later this year.
National Health Service (Optical Charges and Payments) (Scotland) Amendment Regulations 2007 (SSI 2007/192)
No points have been identified on the amendment regulations, but this is the 15th amendment to the principal regulations. This time, the Executive note indicates that the Executive has no plans for consolidation because it is allocating its resources elsewhere.
Such cases are just part of the overall discussions that we need to have with the Executive about how to deal with the amendment of subordinate legislation more constructively. We do not exactly stagger from instrument to instrument, but no long-term planning seems to be involved in the process. We have called for that for a while and we should take up the issue with Executive officials through the group that will consider such matters, so that we come to a solution that helps both us and the Executive.
National Health Service (General Ophthalmic Services) (Scotland) Amendment Regulations 2007 <br />(SSI 2007/193)
A number of issues arise, the first of which is why, given its response to the committee on the National Health Service (General Ophthalmic Services) (Scotland) Regulations 2006 (SSI 2006/135), the Executive has not taken the opportunity to amend the reference to paragraph 11 in paragraph 11(1) of schedule 1 to those regulations. Secondly, we want to know whether the reference to "sub-paragraph (3)" in regulation 2(12)(a) is intended to be a reference to paragraph (3) or, alternatively, to subparagraph (3)(a). There are also some minor points to raise.
Disability Discrimination (Public Authorities) (Statutory Duties) (Scotland) Amendment Regulations 2007 <br />(SSI 2007/195)
No points arise.
Gambling Act 2005 (Premises Licences and Provisional Statements) (Scotland) Regulations 2007 (SSI 2007/196)
There is a minor point to raise.
Charities References in Documents (Scotland) Regulations 2007 (SSI 2007/203)
Are members content to ask the Executive to explain the vires for regulation 3, which, as drafted, covers only documents
It is worth seeking clarification because that seems odd. It looks as if a mistake has been made, but perhaps not—the Executive might be able to provide an explanation.
Charities Reorganisation (Scotland) Regulations 2007 (SSI 2007/204)
We should ask the Executive whether it is intended that the Office of the Scottish Charity Regulator's obligation in regulation 6(3) to send a copy of its decision to
Valuation Appeal Panels and Committees (Scotland) Amendment Regulations 2007 (SSI 2007/212)<br />Council Tax (Discounts) (Scotland) Amendment Regulations 2007 <br />(SSI 2007/213)
Council Tax (Discounts) (Scotland) Amendment Order 2007 (SSI 2007/214)
No points arise on the instruments. I can see the end in sight.
Council Tax (Exempt Dwellings) (Scotland) Amendment Order 2007 (SSI 2007/215)
There are three points for us to ask about. First, we seek information on the vires for inserting in schedule 1 to the Council Tax (Exempt Dwellings) (Scotland) Order 1997 (SI 1997/728) a new paragraph 25, which prescribes a class of exempt dwelling. Secondly, we want to know why section 72(5) of the Local Government Finance Act 1992 has been cited as an enabling power. Thirdly, we would like the Executive to clarify the meaning of "exclusive right to use" in newly inserted paragraph 25(3) of schedule 1 to the principal order, given that the exemption and its exception can apply to residences with more than one tenant or licensee. Is it "exclusive" only of non-residents, or is it "exclusive" of other residents, too?
The order is important; it is about ensuring that Abbeyfield homes are exempt from council tax.
Non-Domestic Rates (Levying) (Scotland) Regulations 2007 (SSI 2007/216)<br />Horse Passports (Scotland) Amendment Regulations 2007 (SSI 2007/217)
Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2007 (SSI 2007/219)
No points arise on the regulations.