Subordinate Legislation Committee

Meeting date: Tuesday, November 15, 2011

Official Report 256KB pdf

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Instruments subject to Negative Procedure

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Double Jeopardy (Scotland) Act 2011 (Commencement and Transitional Provisions) Order 2011 (SSI 2011/365)

The legal brief recommends that the meaning of article 5 of the order could be more clearly expressed. Article 5 modifies the statutory rules on disclosure of evidence to the defence in relation to applications for a retrial under the Double Jeopardy (Scotland) Act 2011 when the original trial took place before 28 November 2011. The relevant rules exempt the prosecutor from being required to disclose evidence that has already been disclosed to the respondent. It is intended that article 5 modifies those rules by providing that the exemption from disclosure for a second time will apply only when not disclosing the evidence again would be consistent with the respondent getting a fair trial.

The combination of words indicating exemption from action with words indicating that there is a requirement for action makes the effect of the provision unclear and inhibits the transparency of the application of an important rule of criminal procedure. Do members have any comments on that?

It seems to me that it would have been easier to have written article 5 in a more understandable way than the way in which it has been written, so I entirely agree with our legal advisers, and I take it that the committee does, too.

Absolutely.

Does the committee agree to draw the order to the Parliament’s attention on reporting ground (h), that the meaning could be better expressed?

Members indicated agreement.

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Town and Country Planning (Listed Buildings and Buildings in Conservation Areas) (Scotland) Amendment Regulations 2011 (SSI 2011/376)

The legal brief identifies that there has been a failure to follow proper drafting practice, as section 28 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 has not been cited as an enabling power in the preamble. However, that does not appear to affect the validity or operation of the instrument, as the words

“and all other powers enabling them to do so”

may be construed in such a way as to include reference to that section.

Does the committee agree to draw the regulations to the Parliament’s attention on the general reporting ground?

Members indicated agreement.

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Enzootic Bovine Leukosis (Scotland) Amendment Regulations 2011 (SSI 2011/390)

The committee agreed that no points arose on the instrument.