Official Report 141KB pdf
Instruments Subject <br />To Annulment
Electricity (Applications for Consent) Amendment (Scotland) Regulations 2005 (SSI 2005/295)
No points arise on the regulations.
Adam Smith College, Fife (Establishment) Order 2005 (SSI 2005/298)
Again, no points arise on the order.
Am I allowed to express my pleasure that this order is on our agenda?
Stopping you expressing pleasure has never been on my agenda.
Air Quality Limit Values (Scotland) Amendment Regulations 2005 <br />(SSI 2005/300)
There is a minor drafting point that we can deal with via an informal letter. Is that agreed?
Loch Crinan Scallops Several Fishery Order 2005 (SSI 2005/304)
Just when we thought that we were safe from fish.
Nitrate (Public Participation etc) (Scotland) Regulations 2005 (SSI 2005/305)
There is a reference in regulation 2(2)(a) to the wording
Charities (Designated Religious Bodies) (Scotland) Order 2005 (SSI 2005/306)
Under section 3(1) of the parent act—the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990—ministers are required to be satisfied that the conditions narrated in section 3(1)(a) to 3(1)(c) and in section 3(2) are fulfilled. Those concern the purpose, size and activity of the religious organisation. The Executive has not narrated that precondition in the preamble to the instrument.
I presume that the registration is being made under old charities legislation and not the new legislation that the Parliament passed last week.
It must be under the old legislation.
Honey (Scotland) Amendment Regulations 2005 (SSI 2005/307)
There is a minor drafting point that we will put into an informal letter, but there are no substantive points to make on the regulations.
Wildlife and Countryside Act 1981 (Variation of Schedule) (Scotland) Order 2005 (SSI 2005/308)
We have not received an Executive note and there is no mention in the current explanatory statement of criminal offences or sanctions. An Executive note might also have provided information about the possibility of a public inquiry. We should ask the Executive why we did not get a note.
Mental Health (Content and amendment of care plans) (Scotland) Regulations 2005 (SSI 2005/309)
Regulation 3 contains a paragraph (1) and no further paragraphs; that could be misleading for the reader.
Perhaps the Executive wanted to make it clear that there was only one paragraph.
We will raise any other minor drafting points in an informal letter.
Mental Health (Social Circumstances Reports) (Scotland) Regulations 2005 <br />(SSI 2005/310)
No points arise on the regulations except a minor drafting issue that we will deal with in an informal letter.
Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2005 <br />(SSI 2005/311)
There is a delay on this but I do not know why.
It has been six months. There is a problem with scales and weighing things.
There was also a misplaced modifier, I noticed. Perhaps we should ask for an explanation of what a misplaced modifier is.
What do we do about this? Are we happy with the delay? I do not think that there is any more information to get from the Executive. Perhaps it relates to our earlier discussion about all the instruments coming to us at once. I do not know what we can do other than say that we have noted what the Executive said.
Mental Health (Content and amendment of Part 9 care plans) (Scotland) Regulations 2005 (SSI 2005/312)
This is another instrument in which regulation 3 has a paragraph (1) and no paragraph (2). We will point that out.
Student Loans (Information Requests, Maximum Threshold, Maximum Repayment Levels and Hardship Loans) (Scotland) Regulations 2005 (SSI 2005/314)
Regulation 3 inserts new regulations 11A to 11F into part III of the Repayment of Student Loans (Scotland) Regulations 2000 (SSI 2000/110). Part III is concerned with repayments by overseas residents. However, the new provisions appear to apply to all borrowers and it is not clear why they have been included in part III. We should ask about that; it is a serious question.
New regulation 11F provides that
We should ask the question although we have asked it before.
There is a legal answer to that but I cannot remember it.
I assume that it is the date of posting because the one who does the posting would know when the document was posted.
I think that the date of serving is the date that the document is delivered, unless it has been specified otherwise.
This regulation is the other way around to the one that we discussed last week or the week before. It would seem to me to be the date of posting.
I thought it was to do with whether the document being posted was a response. If I just send out a legal document to someone, it is the date when they get it that is the date of service. However, if someone sends me an offer and I respond to it, the date of service is the date when I post the response. Of course, that might be wrong.
Why do we not ask?
Yes.
It makes a change from fish. There are statutory provisions about the issue so we should ask the Executive to clarify the point.
Local Government Pension Scheme (Scotland) Amendment (No 2) Regulations 2005 (SSI 2005/315)
Regulation 2(a) and (b) refers to "paragraph 132(1)" and "paragraph 132(3)" of the principal regulations. Again, those should be references to regulations rather than paragraphs. We will ask the Executive about that.
Genetically Modified Organisms (Transboundary Movements) (Scotland) Regulations 2005 (SSI 2005/316)
The regulations provide for the execution and enforcement of regulation (EC) 1946/2003 of the European Parliament and of the Council of 15 July 2003 on the transboundary movements of genetically modified organisms. The Council regulation implements procedures agreed by the community and its member states in 2000.
This is one area of the law where I do have a little expertise. The whole business of when people should be allowed to incriminate themselves is still a minefield. We still get asked who was driving the car when the camera flashed, and that is okay. I would be interested to know where the provisions in paragraph 6 of schedule 2 to the regulations fit into that difficult subject. I am curious to hear what the Executive has to say about that.
Falkirk College of Further and Higher Education (Change of Name) Order 2005 (SSI 2005/317)<br />Regulation of Care (Social Service Workers) (Scotland) Order 2005 <br />(SSI 2005/318)
No points arise on the orders, other than minor drafting points that we should raise informally on SSI 2005/318.
Gaming Act (Variation of Fees) (Scotland) Order 2005 (SSI 2005/319)
The order uprates the amount that is set out in section 48 of the Gaming Act 1968. That is a regular exercise, which was last done in 2003. However, the order does not amend all the figures in section 48(4) of the act to reflect the new amounts for section 48(3). That is probably an oversight because it does not accord with previous practice. We should ask the Executive for an explanation, to find out whether that is the case.
Non-Domestic Rating (Valuation of Utilities) (Scotland) Amendment Order 2005 (SSI 2005/320)
No points arise on the order.
False Monetary Instruments (Scotland) Order 2005 (SSI 2005/321)
Although there are no substantive points to make on the order, the Executive has admitted that implementation in Scotland of the European Union framework decision on combating fraud and counterfeiting non-cash means of payment is long overdue. The Executive says that that delay has arisen as a result of an administrative oversight, which sounds like a euphemism for, "We just missed it." In other words, there has been human error or something has been put in the wrong column. We will just accept the Executive's explanation.
Housing (Scotland) Act 2001 (Payments out of Grants for Housing Support Services) Amendment Order 2005 <br />(SSI 2005/322)
No substantive points arise, but Ruth Cooper has received a query from a member of the public or perhaps a representative of a member of the public—it might have been a lawyer—who has a problem with the policy of the order. As some members were not here earlier, Ruth will give an explanation.
We hear that there is an issue with the registering of care providers under the order. The problem is that if a provider is not registered, it will not get the grants that the order specifies. The person concerned was involved with an organisation, the registration of which had been suspended because of dialogue with the Scottish Commission for the Regulation of Care, which meant that it was not entitled to money. That is a policy area. It was pointed out that the provision in question could encroach on article 6 of the ECHR, but the legal adviser is confident that that is not necessarily the case and that, technically, the order is okay for the committee. We just wanted to draw that to the committee's attention before the order is passed on to the lead committee.
The care organisation was involved in some kind of legal dispute with the care commission. The issue is under appeal; it is unresolved. For all I know—I do not even know what the dispute is about—the care provider might turn out to be in the right, but it cannot get registered because it is in dispute and, because it cannot get registered, it is not entitled to the grants. It is in a classic catch-22 situation. It cannot come out of the dispute because it thinks that, legally, it is in the right. That is a matter for the lead committee to consider. If a lawyer raised the subject, I am sure that he will make his case to the lead committee. The issue is interesting.
It is interesting because if the investigation takes any length of time, the organisation, the business or the entity could be non-viable as a result of not getting the money that it needs to keep the establishment going. In such cases, the lead committee would have to say whether it thought that grants should be payable during an investigation; I presume that they would be repayable, depending on what the investigation uncovered.
Sure. I am just putting members in the picture. The fact that there is an on-going legal dispute that we are not discussing and which we know nothing about means that even the lead committee might be a bit stymied in how it can deal with the order, but that is its problem, not ours.
Financial Assistance for Environmental Purposes (Scotland) Order 2005 <br />(SSI 2005/324)
There is a minor drafting point on the order, but nothing substantive.
Additional Support for Learning (Appropriate Agencies) (Scotland) Order 2005 (SSI 2005/325)<br />National Health Service (Charges for Drugs and Appliances) (Scotland) Amendment (No 2) Regulations 2005 <br />(SSI 2005/326)
No points arise on the instruments.
National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2005 (SSI 2005/327)
The regulations make the same consequential amendment that SSI 2005/326 makes. Although no substantive points arise, we should note that the Executive has decided not to consolidate the principal regulations now, given that it is expected that the Smoking, Health and Social Care (Scotland) Bill will make substantial changes to them. That is fair enough. There is also a minor drafting point, which we will put in an informal letter.
Prevention and Monitoring of Cetacean Bycatch (Scotland) Order 2005 <br />(SSI 2005/330)
I do not know whether a cetacean is a fish or a disease; it could be either.
Whales and dolphins are cetaceans.
This has been a morning for the sea. The order is made under the same powers as the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2005 (SSI 2005/311), which we considered earlier. It introduces measures for the protection of cetaceans in fisheries; some of us did not know that they need to be protected. Implementation of the European legislation is long overdue, given that the relevant regulation came into force in July last year. Should we ask the Executive about that?
The heading to column 3 of the schedule is inaccurate: it should read "penalty on summary conviction" rather than just "penalty". We will send the Executive an informal letter to point out the error of its ways.
Plant Protection Products (Scotland) Regulations 2005 (SSI 2005/331)
Only a minor point arises, on which we will send an informal letter.
Eggs (Marketing Standards) (Enforcement) (Scotland) Regulations 2005 (SSI 2005/332)
The regulations consolidate for Scotland—with amendments—a series of regulations that provide for the implementation and enforcement of Community egg marketing standards, which were previously made on a Great Britain-wide basis. In the preamble, the Executive has omitted to refer to the article 9 Community consultation requirement. Ruth Cooper suggests that we should just report that that is the case; as we have raised the issue before, we know what the Executive's answer is.
National Health Service (Primary Medical Services Performers Lists) (Scotland) Amendment Regulations 2005 <br />(SSI 2005/333)
No points arise on the regulations.
National Health Service (Service Committees and Tribunal) (Scotland) Amendment (No 2) Regulations 2005 <br />(SSI 2005/334)
Although no points arise on the regulations, members will recall that at our meeting on 15 March we considered the lack of consolidation of the principal regulations, which have been amended substantively more than 10 times. I can see that members are surprised that I can remember back to what we did on 15 March. The Executive undertook to review the regulations this year, with a view to consolidating them, and it has now repeated that commitment. Lack of consolidation is not a serious problem because only minor changes have been made, but we should make it clear that we are monitoring the situation and waiting for consolidation.
National Health Service (Tribunal) (Scotland) Amendment Regulations 2005 (SSI 2005/335)
No points arise on the regulations.
Previous
Draft Instrument Subject to Approval