Subordinate Legislation Committee, 13 Dec 2005

Meeting date: Tuesday, December 13, 2005

Official Report 160KB pdf

---

Instruments Subject to Annulment

---

Instruments Subject <br />to Annulment

---

Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Order 2005 (SSI 2005/581)

The order closely mirrors the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (SI 2005/3181), which the committee considered last week. The order before us designates countries in respect of which the Scottish courts can enforce a restraint request or a forfeiture order that is made by a court in the foreign jurisdiction.

There appears to be a typographical error in article 16(6), which obliges the court to

"cancel the registration of the external forfeiture order or an application by the Lord Advocate or any person affected by it"

if certain conditions are met. In that sentence, the first "or" ought to read "on". As drafted, the order could be read as obliging the court to cancel a registration of the forfeiture order or an application by the Lord Advocate or another affected person.

Are members happy to seek clarification on that point?

Members indicated agreement.

---

Adults with Incapacity (Management of Residents' Finances) (Scotland) Regulations 2005 (SSI 2005/610)

The regulations restore to section 35(1) of the Adults with Incapacity (Scotland) Act 2000 a reference to "private psychiatric hospitals". That reference was accidentally removed by part 1 of schedule 5 to the Mental Health (Care and Treatment) (Scotland) Act 2003 when schedule 5 was commenced on 5 October 2005 by the Mental Health (Care and Treatment) (Scotland) Act 2003 (Commencement No 4) Order 2005 (SSI 2005/161), as amended by the Mental Health (Care and Treatment) (Scotland) Act 2003 (Commencement No 4) Amendment Order 2005 (SSI 2005/375).

However, the regulations contain an error, in that the citation of the 2000 act in regulation 2 omits the word "Scotland". Fortunately, there is no United Kingdom act with the title "Adults with Incapacity Act 2000", so it is thought that regulation 2 would be interpreted as referring to the Scottish act.

Do members wish to raise the matter formally or informally? I suggest that we raise the matter formally.

I have no doubt that the citation would be interpreted as referring to the Scottish act. Anybody who reads the regulations will know that they refer to the Scottish act because there is no UK act with that name.

However, the regulations represent an unusual use of subordinate legislation. I can see why subordinate legislation has been used—a piece of primary legislation has deleted something, so we are starting from scratch and subordinate legislation allows us to put it back in. The Executive is simply putting back something that was deleted by accident, but what if it was not an accident? Let us imagine that the Parliament deliberately deleted something, saying, "We as a Parliament no longer wish this to be there." If this is the proper use of the power, the Executive could slip such a provision back in through subordinate legislation. It is very unusual for subordinate legislation to replace something that was removed by primary legislation. In this case, a provision was removed by accident, but I suppose that nothing could prevent such circumstances from arising again.

I think that the reference "or private psychiatric hospital" was removed not by primary legislation but by a piece of subordinate legislation that the committee considered recently.

Is Ken Macintosh correct?

The reference was removed by primary legislation that was commenced by a piece of subordinate legislation.

So Gordon Jackson is correct.

I took the information from our briefing note. I did not check the details, as I just took Margaret Macdonald's word for it.

Was the reference deleted through subordinate legislation or primary legislation?

It was deleted by primary legislation that was commenced by a commencement order.

What matters is not that the reference was removed when the provision was commenced by subordinate legislation but that it was removed by primary legislation. The reinsertion of the reference by the regulations that are before us is a very unusual use of subordinate legislation. However, in theory, the Executive could always do that: whenever there is a power to add things in by subordinate legislation, if a provision is removed by primary legislation, the Executive could just add it back in. That just shows the power of subordinate legislation, although in this case it does not particularly matter.

Should we raise that question with the Executive or should we just consider it at a later date, perhaps as part of our review?

In part, I have just been reading the adviser's briefing and thinking out loud. There may be no issue to raise. At the end of the day, perhaps it is simply that subordinate legislation can do such things. However, this just shows how powerful subordinate legislation can be.

Surely that is the reason why we are so keen on using the affirmative procedure for Henry VIII powers.

I often say that other members think that members of the Subordinate Legislation Committee are just anoraks. They are probably right, but the regulations before us are a good example of the importance of subordinate legislation and its power as a tool of Government.

The question, perhaps, is whether the regulations demonstrate the use of an ancillary or supplemental provision. We should be told.

I thank Gordon Jackson for raising the issue.

To be fair, the issue was raised in the legal adviser's briefing.

You can continue to discuss the issue with her later if you wish.

No other points have been raised on the regulations. I think that we have agreed to raise formally with the Executive why, in the citation of the 2000 act in regulation 2, the word "Scotland" has been missed out.

---

Plant Health (Scotland) Order 2005<br />(SSI 2005/613)

The third instrument that we must consider under item 6 is the Plant Health (Scotland) Order 2005 (SSI 2005/613), which is a consolidation for Scotland of the Plant Health Order 1993 and its amending instruments. Among the other things that it does, the order implements a large number of European Community instruments that establish the Community plant health regime.

When the Joint Committee on Statutory Instruments examined the equivalent English instrument, it reported the instrument on the ground of defective drafting in two respects. The Department for Environment, Food and Rural Affairs has acknowledged those defects and agreed to correct them. The Scottish order contains similar errors in articles 42(1) and 43(1), which the committee may wish to refer to the Executive for comment. The Scottish order seems to assume that notice will be given orally, whereas it could be given in writing. Therefore, it seems odd to require that a written notice be further confirmed in writing.

The committee may also wish to seek an explanation of the meaning of article 7(3), from which some words may be missing, as the paragraph does not seem to make sense.

Shall we follow up those points?

Members indicated agreement.

---

Smoke Control Areas (Authorised Fuels) (Scotland) Amendment Regulations 2005 (SSI 2005/614)

No points arise on the regulations.

---

Smoke Control Areas (Exempt Fireplaces) (Scotland) Order 2005 (SSI 2005/615)

No points arise on the order.

I took the unusual step of reading the order, as I was fascinated to find out what an exempt fireplace is.

---

Official Feed and Food Controls (Scotland) Regulations 2005 (SSI 2005/616)

The regulations make provision for the enforcement in Scotland of regulation 882/2004/EC of the European Parliament and the Council, on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules. The regulations also impose prohibitions on the import into Scotland of certain feed and food.

Regulations in virtually identical terms, with modifications to reflect the devolution settlement, have been made for England and Wales.

As members will know from the legal briefing, it is suggested that we raise four issues with the Executive. The first relates to regulation 3 and schedule 1, which define certain Community legislation. We should ask why it has been thought necessary to define regulation 1688/2005/EC when the regulations seem to contain no reference to that piece of legislation. Secondly, regulation 7 authorises the Scottish ministers to issue codes of practice. As those codes of practice appear to have legislative effect, we should ask the Executive to explain the vires of the regulation in light of the prohibition that is contained in paragraph 1(1)(c) of schedule 2 to the European Communities Act 1972. Thirdly, regulation 18 specifies the enforcement authorities for various provisions in part 2 of the regulations. We should ask the Executive to explain the vires of regulations 18(4) and 18(5), given what section 29(2)(e) of the Scotland Act 1998 states. Fourthly, the word "date" seems to be missing from regulation 43(2)(a), but perhaps we should ask the Executive to confirm that.

We should ask those questions.

All four of them.

---

National Health Service (Charges for Drugs and Appliances) (Scotland) Amendment (No 3) Regulations 2005 (SSI 2005/617)

No substantive points arise, although it is anticipated that another set of amending regulations will be produced in April next year. After that, the Executive might bring out a consolidating instrument.

Are members content to raise minor issues in an informal letter to the Executive?

Members indicated agreement.

---

National Health Service (Pharmaceutical Services) (Scotland) Amendment (No 2) Regulations 2005 (SSI 2005/618)

No substantive points arise. Are members content to take the same action that we agreed to take on SSI 2005/617?

Members indicated agreement.

---

Organic Aid (Scotland) Amendment Regulations 2005 (SSI 2005/619)

There are no points on the regulations.

---

Rural Stewardship Scheme (Scotland) Amendment Regulations 2005<br />(SSI 2005/620)

The regulations make a number of changes to the rural stewardship scheme, which is a discretionary scheme under EC legislation that is designed to encourage environmentally friendly farming practices in Scotland. I am sure that members all know that.

We might want to ask the Executive about the purpose and effect of the reference to the regulations in the definition of "post-2003 entrant" in regulation 3(e) and about the meaning of the words "at least" in the definition that is given in regulation 10(b). There is another point that we can raise in an informal letter. Is that agreed?

Members indicated agreement.

---

Less Favoured Area Support Scheme (Scotland) Amendment (No 2) Regulations 2005 (SSI 2005/624)

The regulations correct drafting errors in and omissions from the Less Favoured Area Support Scheme (Scotland) Regulations 2005 (SSI 2005/569), which established the less favoured area support scheme for 2006.

Are members content to ask the Executive whether the regulations will be made available to recipients of the principal regulations free of charge and, if so, why no italic headnote to that effect appears on the front of the regulations?

It is normal to have a headnote to that effect.

It is.

Again, there is a minor issue that we can raise in an informal letter.

---

Avian Influenza (Preventive Measures) (Date for Identification of Poultry Premises) (Scotland) Regulations 2005 (SSI 2005/625)

The Avian Influenza (Preventive Measures) (Scotland) Regulations 2005 (SSI 2005/530) made provision for the enforcement of Commission decisions that were aimed at preventing the introduction and spread of avian influenza. Regulation 6(1) of SSI 2005/530 imposed a requirement on commercial poultry farmers to provide certain information to ministers by a date that was to be specified in further regulations. The regulations before us specify that date.

The committee may wish to note that the Executive has agreed that there are defects in the drafting of the regulations and in the regulations that they amend, which it will address in regulations that will be forthcoming shortly.

Are we content to draw the regulations to the attention of the lead committee on the ground that they contain defective drafting that the Executive has acknowledged and is taking steps to address?

Members indicated agreement.

Can the legal advisers confirm that the relevant date error will be corrected by the Executive?

Yes.