Subordinate Legislation Committee, 14 Mar 2006

Meeting date: Tuesday, March 14, 2006

Official Report 213KB pdf

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Executive Responses

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Sheep and Goats (Identification and Traceability) (Scotland) Regulations 2006 (SSI 2006/73)

The Executive has provided a full explanation of the background to the making of the regulations. Are members content to draw the attention of the lead committee and the Parliament to that further information?

Members indicated agreement.

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Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (SSI 2006/88)

We asked the Executive to clarify rule 7(2), where the effect of the reference to rule 15 was uncertain. The Executive's view differs from that of our legal advisers, who still consider the issue to be a serious drafting error.

This is kind of odd. I have read and reread the response and am still slightly confused. The Executive has accepted that the reference in rule 7(2) to rule 15 should be amended and has said that it intends to do that. The Executive was obviously trying to speed things up—I will not say that it was cutting corners—by applying rules 15 and 17 to directions made under rule 7(1), but the Executive now accepts that there is a problem with that.

However, simply decoupling rule 7(2) from the other rules will not solve the problem; that will just leave it sitting isolated. If the intention is that it will never be used, or you cannot envisage it being used, what is the point of it? Although the Executive's argument is not quite circular, I cannot see where it is going. If the Executive, having accepted that the drafting is wrong, amends rule 7 in a way that solves one problem but leaves us with the central problem of how the detail is supposed to operate, I do not see how that solves anything.

The last sentence of the Executive's response states:

"the Executive are of the view that the current wording of rule 7(2) does not cause particular or immediate difficulty in the application of these Rules."

The Executive seems to be saying that the application of rule 7 would not cause a particular problem. The Executive does not say, as Stewart Maxwell suggested, that there is no intention to use the power.

The legal brief is quite clear that rule 7(2) just does not work. If it does not work, it cannot be used. The Executive argues that the paragraph causes no particular or immediate difficulty, which will certainly be the case if the rule cannot be used. However, if the rule is intended to be used at any point, there will be a difficulty. There may be a difference of opinion between the Executive's view and our legal advice, but there seems to be a fundamental problem.

We do not have time to write to the Executive again, so we will need to report the issue to the lead committee. We will say that the Executive accepts that it will need to amend the rules and intends to do so, but that we do not know the timing for that. We will also highlight our concerns that, according to our legal advice, rule 7(2) is unworkable.

Obviously, we cannot do much about the matter other than report it to the lead committee, but there is a good case for saying that the Executive should withdraw the rules, amend them and re-lay them before the Parliament in a correct form. Perhaps Stewart Maxwell can lodge a motion asking the lead committee to annul the rules. He could go along to the lead committee to argue the case and see whether that committee is brave enough.

We will report the defective drafting and other matters to the lead committee.

Yes, we have serious concerns about the drafting.

In particular, we shall point out that the Executive accepts that the drafting should be amended but has not provided any timescales for that.