Subordinate Legislation Committee, 14 Jan 2003

Meeting date: Tuesday, January 14, 2003

Official Report 113KB pdf

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Delegated Powers Scrutiny

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Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill: Stage 1

I welcome everyone to the second meeting of the Subordinate Legislation Committee in 2003 and intimate that Gordon Jackson—poor soul—is in bed with food poisoning. We will probably miss his presence; however, Murdo Fraser knows all about the first item on the agenda, so we will proceed without further ado.

In our previous discussion on the bill, we felt that a number of points would be resolved by the Salmon and Freshwater Fisheries (Consolidation) Bill Committee and hung back to find out what it had to say on certain aspects. First, we were concerned about section 4, which deals with the meaning of "rod and line". Although we appreciated the underlying intention behind this Henry VIII power, we were concerned that the exercise of the power was to be subject only to the negative procedure.

With regard to the procedure for making regulations, the Executive has replied that any statutory instrument made under the power in section 4(3) will be subject to the negative procedure. It observes that the power to make subordinate legislation under section 33(1) in relation to baits and lures is not subject to either the negative or the affirmative procedure, because the power derives from section 8(1) of the Salmon Act 1986, which similarly did not require any parliamentary procedure. The Executive has adopted such an approach because the power in what is now section 33(1) can be used only after an application has been made to the Scottish ministers by a district salmon fishery board, using the procedures set out in schedule 1 to the bill. [Interruption.] Good morning, Brian.

How are you, convener?

I am extremely well. I am up to my neck in rods and lines.

This matter has been chasing Murdo Fraser and me around the building.

Well, we have got to get the thing done, because we are all going on our holidays in a few weeks' time.

Temporarily, convener.

Convener, were you thinking of folk in assisted places, or anyone else in particular?

No, I had no one in mind.

Further on in the saga of the Executive's response to our comments on the bill, it says that the power conferred by section 4(3) does not have a potentially wide effect on the operation of the legislation and would be exercised only after consultation. The procedure imposed by the bill in relation to the power is the same as that in the current legislation in relation to the power to define fishing for salmon by net and coble—whatever that is. We have not come up against "coble" before. The Executive's view is that the negative procedure is appropriate in this case.

The consolidation bill committee might have its own opinions on such matters. Perhaps at this point we should simply register that we are still a little unhappy with the procedure and cannot quite see how it will work.

The Subordinate Legislation Committee also includes the convener of the consolidation bill committee—God must really love him.

This particular point has caused some serious interest in the consolidation bill committee. I think that the phrase "lively interest" would be wrong in this respect. I should point out that I was not whispering sweet nothings into Murdo Fraser's ear earlier, convener; I was actually interested in finding out whether he had managed to read the Scottish Law Commission's submission. It would be useful for the clerk and the legal adviser to see that document. It is sitting on my screen, but I have not got round to reading it—I will look at it tonight.

However, I was wondering whether, instead of having two committees examine the issue in tandem, the consolidation bill committee should simply note your point, convener. After all, I think that it will be quite a substantial issue for us to examine. If it is any help, I suspect that Gordon Jackson, Murdo Fraser and I are of one mind on the issue. We really want to get to the bottom of the matter. As a result, I am not minded to accept the Executive's response at the moment. Obviously, I cannot speak for anyone else on this serious issue.

The committee has a general overarching comment on the Executive's response. The Executive appears to be arguing that because a particular procedure in relation to subordinate legislation already exists throughout the acts that are being consolidated it will simply apply the same procedure to any other legislation. However, as some of the legislation predates 1992 and the setting up of scrutiny mechanisms in Westminster, I do not think that that argument holds water.

That pertinent observation has been repeated by members of the consolidation bill committee, not least because its membership is predominantly made up of members of this committee. It is just such a shame that you are not a member, convener.

Of course there is nothing to stop you attending voluntarily, if you so wish.

I am sure that Murdo would be prepared to stand down as convener.

Yes.

I wonder whether the committee can make any comments at this stage that would be within its own bailiwick. After all, we have reached the stage where we will simply have to wait and see what the consolidation bill committee says.

Well, we could take away what is said here for the consolidation bill committee's consideration.

Without this committee having to write letters to you.

That is right.

In essence, the committee always considers areas where definitions come into question and takes the line that anything that tampers with definitions in primary legislation should be subject to the affirmative procedure, especially in relation to anything controversial. Indeed, that is what the committee is for. We consider whether any additional scrutiny is required to ensure that the powers that are taken are appropriate and are subject to proper scrutiny.

If it is of any assistance, I thought that there was a tension within the argument that was urged on the consolidation bill committee that the legislation would be all right on the day because, after all, it had to go through Parliament. I trust that we had that conversation in public. I suppose that the theology behind that view might be true; however, as far as the real politics of the matter is concerned, I do not expect that too many of our colleagues in the chamber will expend some substantial amounts of time on scrutiny in the absence of any comparable stage 1 or stage 2 consideration. I except shining lights like yourself from that statement, convener; indeed, Murdo Fraser and I will book ourselves in for a wee discussion with you on the bill.

As I have said, the consolidation bill committee has firmly grasped this very important issue. To be honest, the issue has sparked some activity in the committee—I am again trying to find a diluted form of "enlivened". The committee has done well to raise such a moot point.

Do you want to talk about haaf nets now, Brian?

No, not again.

The general comments that Ian Jenkins and I have made cover our points about section 31(4)(c), which deals with the power to make general regulations.

I wonder whether the same applies to section 31(5), about which we asked the straight question of whether a day can be defined as a period. I suppose that we are dealing with definitions again. The proposal from the consolidation bill committee is that it should be period, singular. Elsewhere, in previous legislation, I think that it has been periods, plural. Is that right? I think that it might be.

Yes.

The consolidation bill committee has to examine the matter and work out whether that definition could be interpreted, or could be made.

I understand that the draftsman thinks that the provision as it is drafted is not a change from the existing law. That is a debatable point.

I am sure that the intention is not to change the existing law.

If there is a change in the law, technically we should be able to examine that, but the consolidation bill committee will do that in any case.

Okay. It is a point for the consolidation bill committee.

Section 33 is on regulations as to bait and lures for salmon fishing. The Executive has undertaken, because of our previous comments, to introduce an amendment.

We should welcome that.

Of course we do. We like the Executive.

Section 33(7) is another one on which the Executive has said "Okay" to our previous comments.

Brian Fitzpatrick has raised an issue on section 34, on salmon fishery districts. We will wait until we hear from him.

Yes. Thanks for the corroboration.

The same point arises in section 34(4), does it not?

The consolidation bill committee has raised that point as a query. It should perhaps be left to that committee to deal with the matter.

It is a matter that is more for the consolidation bill committee than for the Subordinate Legislation Committee.

Reference to the provision in section 35 on designation orders was omitted from the memorandum. We were uncertain about how the section interacted with sections 31 and 37. We asked for an explanation and the Executive apologised. That is still a matter for the consolidation committee to note.

Section 38 is on salmon conservation orders. We asked whether a different procedure should perhaps be followed. It might be thought that an order is the correct form of instrument, but it is believed that that might have unexpected consequences by throwing doubt on whether existing regulation will continue in force by virtue of the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc of Acts of the Scottish Parliament) Order 1999 (SI 1999/1379). I confess that I am not au fait with the matter. I am advised that whether the transitional interpretation order will affect orders made under section 38 is an interesting point. Will the consolidation bill committee also examine that, Murdo?

Yes.

Great.

There is a point about whether orders and regulations are one and the same thing and can be considered interchangeable and whether, if certain provisions are put in to the consolidation bill, that supersedes and knocks out some other provisions that it was not intended to knock out. A question might be raised about that.

Thankfully, we can leave that to the consolidation bill committee.

On the basis that you can run but you cannot hide.

Section 48(1) is on freshwater fishing. We thought that the section might have been made redundant. Section 48(9) is a consolidation of section 1(10) of the Freshwater and Salmon Fisheries (Scotland) Act 1976. Since the provision does more than simply provide for the variation and revocation of orders, it was thought appropriate to leave it untouched. Is that right?

That should be, "does no more".

Yes.

Yes. Okay.

Was Ian Jenkins a conveyancer in a previous life?

There has been a slight slip up in section 72(2) on commencement. We commented on that and the Executive acknowledged it and apologised.

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Land Reform (Scotland) Bill: <br />as amended at Stage 2

The Executive has not supplied the Subordinate Legislation Committee with a memorandum on the changes to the bill, but it has written to us to draw our attention to two of the subordinate powers that will have the effect of reducing the effect of ministerial discretion.

Section 24A may be a new delegated power. The Executive has supplied, as promised, drafts of the regulations that it intends to make under the powers that will be conferred by sections 59(4) and 86(4).

Section 24A is about guidance. Ian Jenkins knows all about the difference between guidance and guidelines.

In relation to some of the matters that arise in the Education, Culture and Sport Committee, such as health education and sex education—

Do not go there.

In relation to such matters, guidelines give you some indication of what to do and guidance is stronger. You have to pay regard to guidance. It is stronger than stating that this is the kind of thing that we would like you to do.

The fact that guidance is stronger underlines our concern.

Guidance is becoming almost like subordinate legislation. It does not quite have that force, but it is becoming similar.

How is it revoked?

I do not know.

This has echoes of the themes of the Local Government in Scotland Bill, when such a situation can arise if a local authority is shown not to be demonstrating continuous improvement in relation to access. I presume that that is why the guidance comes before the Parliament. We will say that if you cannot show that that has been done, then enforcement procedures can go ahead.

Yes. It is good that it comes before Parliament, because it is getting into territory where you are almost legislating.

If you are doing that, the drafting must be correct. There are suspicions that the drafting is not exactly accurate. The big question, as guidance nearly has the power or effect of subordinate legislation, is how is it revoked? It does not say how that should happen.

It also does not say how it would be amended and what procedure would be used to do that. We should ask the Executive what its intention is.

There is an omission in section 24A(6), in that it refers only to the recess and not to dissolution. If guidance was in the form of an SSI, that issue would be dealt with under articles 13 and 14 of the relevant transitional order. It may be that subsection (6) ought to be amended to include a reference to dissolution, as otherwise there must be doubt as to whether the guidance would have to be relaid if the 40 days had not expired before dissolution. That is a drafting point. We should definitely ask for an explanation of that.

Do members have any points about section 48(5) on ballot procedure?

The amendments have improved the section.

Regulations made under sections 59 and 86 concern compensation, so we must be clear about this. There may be some ambiguity in the drafting because it does not appear that the powers are sufficient to support the regulations made under them—unless it is for the calculation of compensation. That is important.

We should ask the Executive for comments on that.

Section 95, which relates to general and supplementary provisions, has been amended and now seems to be fine. Good on the Executive.

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Water Environment and Water Services (Scotland) Bill: as amended at Stage 2

We considered the Water Environment and Water Services (Scotland) Bill a while ago and raised several issues with the Executive. It is to be welcomed that the amendments, which the Executive said that it would incorporate at stage 2, incorporate several shifts from the negative to the affirmative procedure. That pleases us no end.

There is a point about the memorandum, which, I understand, is inaccurate in parts. We should note our concern that it creates extra work for our advisers if the memorandum is not accurate.

Obviously. There is a later case where there was no mention in the memorandum at all, which creates even more work, but we will deal with that when we come to it.

The amendment to schedule 2 concerned the penalties that would be paid. Once again, it was about money. Penalties were to be increased by subordinate legislation, but no provision was made for any procedure.

What do you suggest that we do? Do we just go back to the Executive?

We should ask the Executive to explain the rationale behind the decision. Are we all agreed?

Members indicated agreement.

Section 7(1) deals with the form and content of the register of protected areas. There are no points to raise.

Section 8(3) deals with monitoring methodology and monitoring strategy. It provides Scottish ministers with the discretion to subject the regulations to either the negative or the affirmative procedure. That was quite interesting, and it is worthwhile asking the Executive why that approach has been adopted. Is it in order to line up with European legislation—the European Communities Act 1972—because that is how it operates there? We should ask the Executive why it has done that and the circumstances in which the Executive could see itself using either the affirmative or the negative procedure. Are we all agreed?

Members indicated agreement.

Section 9(3) concerns determining and achieving the environmental objectives.

That is where the memorandum is not accurate. It suggests that section 9(3) is unamended, but it seems to us that the section has definitely been amended.

The Executive claims that section 9(3) is unamended, but we think that it has been amended.

Is it enough for us to ask that the procedure be changed from the negative to the affirmative?

We should ask the Executive for its comments on the issue anyway.

Section 19(1) is a general regulation-making power—

Are you just going to pass over the "za-za" question? Are there really paragraphs that are lettered "za"?

Yes.

Do you have the prospect of a sub-paragraph labelled "za-za"?

Followed by "g-a-b-o-r", possibly.

Can we not say that the Subordinate Legislation Committee thinks that it is a very bad idea to have "za-za" sub-paragraphs?

I have never seen that before.

It strikes me that there is a consolidation bill in here somewhere, 10 years down the road. Sorry.

How would you get around that?

Za-za-boom? I thought that you were an old jazz fan, Margo—as in "old jazz", rather than "old jazz fan".

I know what you meant.

You know what I meant. Not Swedish jazz. [Laughter.]

Stop digging, Brian.

The committee should note Brian Fitzpatrick's concern about "za-za".

Section 19(1) is a general regulation-making power in relation to river basin management planning.

Those are just tidying-up amendments.

As we are dealing with water, it is quite interesting to note that the legal adviser's brief has a typo that talks about "tiding up".

Section 20 concerns the regulation of controlled activities and introduces schedule 2. Once again, penalties or fines are involved. No procedure to upgrade the maximum penalty was included. The Executive said that it would include a provision to that effect, but it has not told us whether that has been done—that information is not in the memorandum. Should that be done under negative procedure? I do not know.

Does paragraph 98 compare horses with horses? I suppose that it does.

Yes, I think so.

We should go back to the Executive on that point.

We will.

Section 22(1) deals with remedial and restoration measures. The Executive has amended section 31. That is fine.

Section 23(1) concerns the fixing of charges for water services. Amendments have been lodged to the effect that negative procedure will not apply in all cases, which we thought was the case at stage 1. Further, consultation provisions have been included.

We welcome that.

Yes. Everything is hunky-dory.

Section 24(1) covers the power to give effect to community obligations.

The Executive has taken our views on board.

That is fine.

Section 26(2) inserts new subsection (3B) into section 1 of the Sewerage (Scotland) Act 1968. That subsection covers the power to make regulations regarding reasonable cost.

I do not think that we have any objections in principle to those changes.

The Executive says that the power has not been amended. However, we are not arguing the principle of the matter.

Section 26(7) inserts new subsection (2C) into section 6 of the Water (Scotland) Act 1980 and concerns the power to make regulations determining reasonable cost. We have no objections to this provision for the same reasons that we gave earlier.

Section 27(3) inserts new section 14A into the 1968 act. Subsection (1) of new section 14A deals with the power to make regulations specifying construction standards.

Only consequential amendments have been made.

Fine.

Section 27(3) also inserts new section 14B into the 1968 act. Subsection (3) of new section 14B concerns the power to make regulations for providing for takeover conditions, vesting conditions and connection agreements.

The amendment does not affect the substance of the power.

Section 28 inserts new section 23C into the 1980 act. Subsection (3)(b) of new section 23C concerns the power to make regulations for determining liability for mains and so on vesting in Scottish Water.

There was a question about the amendment's reference to "the communication pipe" without any mention of the "other waterworks" that are referred to in other parts of the bill. Perhaps we should simply make the Executive aware of that.

We should informally tell the Executive that we have noticed a difference between the two expressions.

The provision might be all right, but it has been pointed out to us that it looks a wee bit odd.

It is a question of definition, is it not?

Apart from that, I do not think that the amendment need bother us.

Schedule 2 concerns the particular purposes of controlled activities regulations. We are glad that the Executive has amended the provisions; however, the amendments are not mentioned in the memorandum.

I presume that the Executive will amend the memorandum.

That raises a general point that we are considering bringing to the attention of the relevant officials. At this time in a Parliament's life, there will always be a backlog of work. If our advisers and the people on this committee who scrutinise legislation do not have the relevant information from the Executive—for example, in the form of memorandums—it creates a great deal of work at this end. I am not nit-picking; it is all about smooth running and the best use of resources.

Absolutely. We are interested in sufficiency.

Was there any mention of the power to authorise regulators to make determinations?

No. That is a quite important point.

Yes, it is.

Do you want us to incorporate that in a letter?

As you said, it is an important point. I could resist the temptation to nit-pick if there was an amending change of tack to something that was already outlined in the memorandum. It would be unusual if the memorandum did not include a statement that the Executive was going to do X. However, there is a qualitative difference if one innovates without mentioning such innovations in the memorandum.

We will query the matter.