Subordinate Legislation Committee, 13 Sep 2005

Meeting date: Tuesday, September 13, 2005

Official Report 140KB pdf

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Executive Correspondence

Members will recall that in the lead-up to the summer recess we wrote to the Executive about some general issues.

The first letter that we will consider expressed the committee's concern about the number of instruments that were laid prior to the summer recess. I have picked out three main points. The first relates to the effect of the 21-day rule. All negative instruments that were due to come into force on 1 July had to be laid by no later than 9 June and those that were due to come into force at any time during the summer recess had to be laid no later than 10 June. In consequence, instruments that could otherwise have been laid over the summer had to be brought forward. That illustrates how the 21-day rule operates.

On our second point, the Minister for Parliamentary Business wrote to us:

"My officials give warning, to your Clerks and the Chamber Desk, of the deadlines for laying SSIs prior to the recess."

That is okay but, as we know, the clerks and the staff in general cannot do anything until they actually get the instruments. The warning—

Is no good.

No, it is not much good unless we receive the instruments in a more progressive manner—not necessarily earlier—rather than getting a whole batch of them together.

The third point is about the high volume of instruments causing difficulties for lead committees' work programmes. I think that Murray Tosh raised this point previously—I am not sure whether you wish to comment now, Murray. I suggest that we ask committee conveners a bit more about this as part of our review so that we ascertain what the difficulties are in more detail.

We could do. In general terms, the Executive has knocked back our complaints, but it was gracious enough to accept our compliment. Technically, we could consider that a draw.

The second letter was sent to the Executive following a question raised by Christine May at the committee's meeting of 24 May about the way in which Henry VIII powers are sometimes dealt with under the negative procedure. It was the committee's view that such powers should always be subject to the affirmative procedure. The Executive has accepted that it would be required to provide an explanation for its position when the affirmative procedure is not used. That seems to be a wee bit of a step forward.

The Executive said that it "will normally" use the affirmative procedure but that, on those occasions when it does not, it will explain why. The Executive has accepted the argument.

The Executive has done what we asked.

We should be happy with that.

Members indicated agreement.

The third letter to the Executive concerned the National Health Service (Travelling Expenses and Remission of Charges) (Scotland) Amendment (No 2) Regulations 2005 (SSI 2005/179), which the Committee considered at its meeting on 19 April 2005. We asked the Executive for general background information about its co-ordination with United Kingdom departments on the drafting and laying of Scottish statutory instruments. This might be another issue that was raised by Murray Tosh. We also asked for information on whether the equivalent English NHS regulations broke the 21-day rule at Westminster. Does Murray Tosh have any comments to make?

The Executive observes that the UK departments have

"greater flexibility than is available to the Executive"

in otherwise

"identical circumstances".

It might be worth thinking further about whether our approach could be freed up. It could be that we are too tightly bound, by the Scotland Act 1998 and by our agreed procedures, to develop that flexibility. It might be appropriate for those south of the border to bind themselves in more tightly. Judging from the Executive response, there does not seem to be anything further to be said on the relationship between Scotland and the UK when it comes to departmental co-ordination. The Executive maintains that

"There are no formal protocols governing the process of coordination."

I do not know whether there should be or not. That would require further thought, evaluation and information.

I do not know how much we can push the point with respect to liaison between the Scottish Parliament and Westminster to make Westminster more aware of the need to work a little more closely with us.

The Executive has not nibbled at the opportunity to say that. It does not seem to be particularly concerned. I cannot remember this particular issue arising before. If it did, we did not react to the same depth and extent.

The 21-day rule has had to be broken before. That has definitely arisen quite a few times.

We did not quite pick up the apparent lack of communication to the same extent, however.

Was there not an issue with the Food Standards Agency in the south working to a different timetable or to a timetable that was not as tight as that of the Food Standards Agency Scotland? The problem seems very much the same in this instance. Those south of the border were working to and met their own timetable, but without taking proper cognisance of the tighter timetable applying to us. That has led to such problems arising a few times.

As part of our on-going work, we could perhaps do an internal review of how frequently that comes up and ascertain whether it is indeed the same issue on each occasion. It might be worth rattling the cage another time.

Possibly. If it is not too onerous a task, I would like Ruth Cooper to find out for us the number of times that the same issue has arisen. We could then compose a letter making the point that there could be more liaison between the Scottish Parliament and the UK Government.

As the Executive has given us its observation that

"There are no formal protocols",

we could ask why not. Perhaps "protocols" is too grand and refers to something at a higher level, but there ought to be some sort of procedural agreement in place.

The Executive indeed states:

"There are no formal protocols governing the process of coordination."

We should ask for a bit more movement on that and ask why there are currently no such arrangements. Is that agreed?

Members indicated agreement.

We come now to our fourth letter, which was sent to the Executive following the committee's consideration of the drafting of the Additional Support for Learning (Appropriate Agency Request Period and Exceptions) (Scotland) Regulations 2005 (SSI 2005/264). We requested that the Executive provide general clarification on its approach to the calculation of the date on which a request is made—and I emphasise "made".

I think that the Executive's answer is a good one, and goes into a lot of angles. The Executive explains that it has no hard and fast rules, and the response perhaps explains why that is the case. There is a lot of case law behind the Executive's approach. Should we raise any further points on the issue, or are members quite happy with the response?

I do not remember this absolutely, but I think that our discussion raised the issue of some sort of procedure for the recording of delivery. The end of the letter says:

"it would be open to the recipient of a letter to prove that it was actually received at a later date."

How on earth could someone prove that unless the letter had to be signed for at the door? When information is being sent out from the Executive, it is not clear that it is being sent on that basis—that it has to be signed for and accepted by the recipient or the recipient's agent. In the absence of such a procedure, the burden of proof would be impossible.

I am trying to think back to the earlier discussion. We came across two or three instances of the problem at the same time, or at least close together. We could not tell which interpretation the Executive was using in which case. In some cases, it was using the principle of the time when it sent a letter; in other cases, it was a question of when letters were received. Part of the problem was understanding which procedure was being used. That was not clear from what we had in front of us.

I agree with the point about how to prove receipt. However, part of our problem was being unable to interpret what the Executive actually meant, and there were no notes to explain what it meant in different cases. As there are no hard and fast rules, how are we supposed to know?

I cannot find the reference at the moment, but I am sure that, somewhere in the letter before us, the Executive says that it will endeavour to make things clearer. I cannot find the right place.

It is in the last sentence of paragraph 2.

Thank you. It states:

"the Executive will seek to use the appropriate wording in any particular context to make the intention clear."

We should welcome that, because that is what we are asking for.

Murray Tosh's point is interesting. Given case law, I thought that "reasonable" would be appropriate. I was thinking of the case where someone goes on holiday and comes back two weeks later, and the letter has laid there for two weeks. That would be a reasonable explanation for why they had not seen it. However, I am not a legal person. I did not know whether recorded delivery would always be necessary.

It would clearly be a matter of contention if it got to that level. However, I am more concerned about the lack of clarity in the first place. There is no point in creating anxiety or a dispute when it can be avoided. If everyone is clear about what is meant by "made" in the first place, there is less likely to be confrontation.

Convener, it is interesting that you brought that up in the context of the Additional Support for Learning (Appropriate Agency Request Period and Exceptions) (Scotland) Regulations 2005 (SSI 2005/264), the whole point of which and of the code of practice is to defuse the confrontation that sometimes occurs between parents, local authorities and Government. That is why greater clarity would be welcome.

We could write to the Executive and flag up the issues. The last sentence of paragraph 2 is forward looking and backward looking. It implies that the Executive tries to use appropriate wording, but if the committee has been concerned on a number of occasions, it cannot be as clear as the Executive suggests. We should write to the Executive and state that we think it could be even clearer in legislation from now on.

Yes. We can welcome the Executive's comment about seeking to use appropriate wording and making it clearer. We are all agreed on that. Murray Tosh raised the issue that the Executive makes it clear that the relevant date will be when a person receives a letter or communication, but how will it determine that in practice?

I accept the point about being on holiday or being in hospital, but someone could probably prove that they were somewhere else in those circumstances. However, is the time at which they received the letter critical? For example, does it matter whether they got it in the morning before they left for work or in the evening or a day later? While a fortnight might make a difference, I find it difficult to think of an example where the fact that someone left before the postman arrived would make a critical difference.

The point is that we do not know when the period starts. It is unfortunate if a letter is delivered when someone is on holiday, but the point is that at least they know that that was the point when the clock started ticking.

That is all very well if the letter is delivered. The Post Office has improved its performance, but I do not know how many million pieces of mail get lost every year. If the letter never arrives, what does the person do? The only way of being sure is by using recorded delivery or registered mail. That is the only way you can be certain that someone gets the letter. You cannot be sure they get the letter if you just post it and rely on it being delivered.

Absolutely.

That is my point. The last paragraph of the letter makes it clear that you have received a letter the day after it is posted first class. Even if you never receive it you have, in fact, legally received it. That seems a bit onerous. I dare say that in many instances it would not matter if you did not receive the letter, but there must be some documentation going out that has implications for individuals, including potential legal implications. Therefore the assumption that you received it the following day unless you can prove otherwise is a bit onerous.

I am sure that there are plenty of disputes centred on the receipt or otherwise of mail, and there are probably procedures for resolving them. In this case, the request is not made of parents; it is parents making a request of local authorities. It is not parents or families receiving letters through the mail; it is Government departments or public authorities receiving them. Plenty of mail goes missing in public authorities too, but the point is that this is a parent making a request of the Government. The clock starts ticking from when the parent makes the request of the Government, not the other way round. It is a problem for the local authority, not the parent. My concern is that both sides should be clear about when the request has been made. Most public authorities stamp mail when they receive it—that is straightforward.

With respect, we did not raise the issue only in relation to the procedure for placement requests. Indeed, one of the legal judgments quoted in the Executive letter is

"Camden London Borough Council v ADC Estates Limited".

It is a general ruling about the range of Government communication with the public at large. It may well be that the way in which school placings work places the burden on public authorities rather than on individuals. That may or may not be all right, but what we sought to illuminate and explore were the general rules determining how Government communicates with the public. The answer is not very reassuring about the general way in which procedures operate.

There are two main points. One is that we welcome the fact that the Executive will look for clarity in relation to the use of the word "made" and whether it means when a letter is sent or when it is received. The second issue is the many different circumstances that we were thinking of in relation to this matter. I accept what Ken Macintosh is saying about that particular instance, which was the one that we used when we raised the matter, but we had other considerations as well. The point needs to be made that the fact that there is not really a check that a person has received the correspondence is not particularly reassuring. I would like to raise that issue and to ask how the Executive thinks we could get around it. Those are good points.

Members indicated agreement.

We move on to the final letter, which expressed the committee's concern that the consultation requirement contained in article 9 of regulation EC 178/2002 is not referred to in the preamble of relevant regulations. We have seen today that that is now happening. That is a good note on which to end.

Members indicated agreement.

Meeting closed at 11:18.