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Mental Health (Specified Persons' Correspondence) (Scotland) Regulations 2005 (SSI 2005/408)
Members will remember that we asked the Executive why the term "specified person" was defined in regulation 2, given its definition in the parent act, while the term "relevant item" in regulation 5(2) was not defined. Members will see from the explanation that we received that the reason was that the term "specified person" was used in two different contexts within the parent act, therefore it was thought necessary to define the term in the regulations to avoid confusion. The term "relevant item" was used in only one way in the parent act, therefore it was perfectly clear. Is that acceptable?
Mental Welfare Commission for Scotland (Procedure and Delegation of Functions) Regulations 2005 (SSI 2005/411)
Members will recall that we had an issue with the use of "may" in paragraph 1(2) of the schedule to the regulations, as we felt that it ought to be changed to "shall". That has been agreed by the Executive, which has also agreed to bring forward an amended instrument to rectify that defect. Are we agreed that that should be reported to the lead committee and to Parliament on the basis of defective drafting?
Mental Health (Period for Appeal) Regulations 2005 (SSI 2005/416)
The committee asked the Executive to explain why the word "Scotland" does not appear in the title. The Executive's reply says that that was an oversight and that it will bring forward an amending instrument to rectify that detail. Well spotted again.
Regulation of Scallop Dredges (Scotland) Order 2005 (SSI 2005/371)
The committee asked the Executive whether the order had been notified to the European Commission under the technical standards directive, given that the order appears to impose technical standards. We received rather an interesting letter in reply. What are members' comments on that?
I appreciate the Executive's difficulty on the order, but it is clear that it imposes technical standards. The Commission should have been informed three months in advance, and the Executive failed to do that. I note that Westminster failed to do the same thing in relation to England and Wales. An obvious difficulty for the Executive is that if it leaves the order in force it may be open to challenge in court. If it withdraws the order to start the process again, it will bring into question the order that is in force in England and Wales. However, having said that no matter which way the Executive goes there are difficulties, the order does impose technical standards and should be withdrawn. The Executive should start the process again because it will be open to court action if it does not. We should report on that basis.
The order is currently in force. The particular issue in Scotland, as opposed to England and Wales, is the fact that section 57(2) of the Scotland Act 1998 provides that Scottish ministers have no power to make any subordinate legislation that is incompatible with community law; hence the obligation to go to the European Commission.
That leaves no latitude. To say that withdrawing the order would somehow compromise measures in England and Wales is no defence for our having defective legislation. If the English and Welsh measure is affected in some way by a legal challenge then so be it. We must ensure that the legislation passed in our Parliament is competent.
The Executive is not offering that as an excuse or an explanation; that is just one interpretation of what is happening. It is not excusing itself because of the situation in England, but it is taking it into consideration. We should highlight our concern.
The Executive has said that it is looking into the issue and that it will come back to us, which is fine. As there is no lead committee, various options are open to us. We agree that we should take those points forward, as Stewart Maxwell suggested. We can report to Parliament, as we normally do, but perhaps we should also write to the minister in charge of the order to point out the issues, because they are quite serious.
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