Subordinate Legislation Committee, 15 Jan 2002

Meeting date: Tuesday, January 15, 2002

Official Report 126KB pdf

---

Instruments Subject to Annulment

---

Panels of Persons to Safeguard the Interests of Children (Scotland) Regulations 2001 (SSI 2001/476)<br />Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001<br />(SSI 2001/477)

---

Children's Hearings (Legal Representation) (Scotland) Rules 2001 (SSI 2001/478)

We now come to instruments that are subject to annulment. Three regulations were deferred from our meeting last week, in addition to a commencement order that we will come to later. We received the Executive's response, but there are still points that concern us. At the moment, we will not bother about the minor typographical and grammatical points. However, there is a series of important points. Do members wish to say anything?

I will assist.

Yes please.

I was afraid that you would say that.

The basis of the Panels of Persons to Safeguard the Interests of Children (Scotland) Regulations 2001 (SSI 2001/476) and the Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001 (SSI 2001/477) is the same, so the same points apply to both instruments. We raised a number of points by letter, but the Executive's response does not deal adequately with some of them. The regulations contain some typos, but there are more significant points, which I will run through briefly. Regulation 3(2) of both instruments creates confusion about the number of panels that there will be in each area.

The Executive response states that regulation 3(2)

"allows for more than one panel for each area to be established and this is intentional."

That is not clear, because if more than one panel is established in each area, the present panels will have to be reconstituted.

Yes. The Executive stated that it does not intend to do that. We are not accusing anyone—we understand the intentions, but we think that they are not spelled out properly.

Another point is whether, in addition to judicial review, there is a right of appeal against a local authority's decision under regulation 7(3) of both instruments. We are not sure about that, but that is important.

The regulations that are revoked by regulation 11(1) of both instruments were made under section 103 of the Children Act 1975, which has not yet been repealed, although it will be. The regulations are not correct at present, but the situation will change, so we do not have to concern ourselves with that point.

There is an issue about the payment of legal representatives. In both instruments, regulation 11(2) appears to exclude persons who are appointed under the old regulations from acting under the Children (Scotland) Act 1995 and from payment under regulation 10(2). Is that the Executive's intention?

Panel members and safeguarders are allowed fees and allowances, but regulation 10(2) seems not to allow fees and allowances for legal representatives. That seems doubtful. We should sort out those two groupings.

Another point that can be fixed is that the Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001 (SSI 2001/477) has not been drafted in gender neutral terms.

I am advised that the issues that we have raised must go into the committee's report because we do not have time to write to the Executive. The points concern important aspects of the legislation. They will appear in the report, because we cannot do anything else. There are many typos in the regulations, so we should include in our report the general observation that, for such definitive legislation, the drafting is not as tight as it might have been.

There is also an issue about the choice of panel members. One would expect some members of the panel to have legal qualifications, and although that might be what happens in common practice, it is not stipulated in the regulations. That matter ties in with representing children in other ways. If panel members are to represent children, we would want some of them to have legal qualifications. That hole in the regulations should be drawn to the Executive's attention. Again, I imagine that it is not the intention to leave a loophole. Perhaps it is okay to trust that people will have the good sense to ensure that some panel members have legal qualifications. However, we ought to draw the gap to the attention of the Executive.

Is it a lacuna?

Absolutely.

Lily of Lacuna.

The convener is too young to remember that.

Do members know the second verse?

Behave.

Do members want to mention anything else about the regulations that should appear in our report? Regulation 11 of both instruments might raise vires issues.

There are many technicalities; it is difficult to discuss them without confusing ourselves and anyone who is listening. We should ask the clerks to use the legal brief as the basis for the points in the report.

The points that we have discussed—formally and informally—will be incorporated in the committee's report.

I am amazed that so many points are not quite right. For example, it is possible that the wrong powers might have been cited in the Children's Hearings (Legal Representation) (Scotland) Rules 2001 (SSI 2001/478). There seem to be many serious mistakes in the drafting of all three instruments. Do members agree to include all those points in the report?

Members indicated agreement.

---

Import and Export Restrictions<br />(Foot-and-Mouth Disease) (Scotland)<br />(No 3) Amendment (No 2) Regulations 2001(SSI 2001/483)

The regulations contain some minor typos. Do members agree to send an informal note to the Executive?

Members indicated agreement.

---

Scotland Act 1998 (Agency Arrangements) (Specification) Order 2001 (SI/2001/3917)

The order is going to be revoked, so we need not concern ourselves with it.

---

BSE Monitoring (Scotland) Amendment Regulations 2002 (SSI 2002/1)

No points arise on the regulations, other than to thank the Executive for the helpful explanatory note.