Official Report 127KB pdf
Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2007 (draft)
The draft order before us is the fifth amendment order, and we asked the Executive what plans it has to consolidate this series of instruments. In its response, the Executive says that the original 1975 order was in fact consolidated in 2003. That means that the draft order is, in effect, the first substantial amending order. That clarifies the situation.
Prohibition of Fishing with Multiple Trawls (No 2) (Scotland) Amendment Order 2006 (SSI 2006/602)
We had a number of questions about the order. We asked the Executive whether it is the policy intention to apply the conditions that are set out in new article 3(2), subparagraphs (a) to (d), of the principal order—the Prohibition of Fishing with Multiple Trawls (No. 2) (Scotland) Order 2000 (SSI 2000/405), as amended—to single trawls. As we can see from its response, the Executive has confirmed that that is not the policy intention. It therefore proposes to omit the words "or fewer" where they appear at new article 3(2) of the 2000 order, and it intends to make an order in the course of this week to achieve that aim. I am sure that we are quite happy about that. Is that okay?
The Executive also notes the concern that we expressed about the impact of the order on parts of the industry. That was Euan Robson's point.
If the Executive had only said from the start that the order would apply to between two and five vessels, we would not have had to ask the question.
Are you happy with the background information that we have been given on the order?
Yes, thank you.
I suggest that we pass the additional information on to the lead committee and the Parliament. Is that agreed?
Teachers' Superannuation (Scotland) Amendment (No 2) Regulations 2006<br />(SSI 2006/605)
We asked the Executive why regulation 4 is to have effect from 2 December 2006 as well as from 14 June 2006. The Executive confirms that, from the terms of regulation 1(a), regulation 4 is intended to have effect from 14 June 2006 and that the terms of regulation 1(b) should not have included reference to regulation 4. The Executive acknowledges the defect in drafting but it does not consider it necessary to amend regulation 1(b) at this time. The stakeholders responsible for following the regulations will be made aware of the anomaly by the Scottish Public Pensions Agency clarifying the position in the circular that is due to be issued shortly to accompany and explain the new regulations.
Welfare of Animals (Transport) (Scotland) Regulations 2006 (SSI 2006/606)
We raised 10 substantive points on the regulations last week. The first of those was the fact that the Executive has chosen to use section 2(2) of the European Communities Act 1972, rather than domestic powers. Are members happy with the explanation that the Executive has given us for why it did that?
Are you asking about all the points, or just this one?
We will go through them all. Do you want to say anything about them?
It is unfortunate that we had to raise a large number of points about the regulations. Many of them stemmed from the original approach that was taken. The Executive explains that it used European powers rather than domestic legislation because the Scottish legislation in the area has been amended; however, it goes on to say that it could have used that amended legislation. It is not a very satisfactory situation; however, the Executive has given a response on each point, which we should draw to the attention of the lead committee and the Parliament.
As Ruth Cooper was saying, we must be sure to include all the points in our discussion. I will highlight two points that the committee thought were important. The first is the defective drafting in respect of the lack of a definition of "inspector", which has been acknowledged by the Executive. The second is the serious defective drafting in respect of regulation 9(1), which is ambiguous and does not state clearly who is to be guilty of an offence. The Executive has not yet undertaken to amend that provision; therefore, it is pretty important that we state our concern about that. It is important that we give a full account to the lead committee and to Parliament of all the responses that we have received to the points that we raised.
Yes. The Executive has responded to the effect that the wording in regulation 22(1) is not a matter for concern because it is similar to the provision in the Welfare of Animals (Transport) Order 1997 (SI 1997/1480), which does not pose any difficulty in practice. Effectively, the Executive is saying that, because it has used defective or incomplete wording before, it should be able just to repeat it. I do not think that that is good enough. If the Executive incorporated a phrase about the inspector making a reasonable assessment of the prevailing circumstances—the very phraseology that it uses in its response to the committee—at the appropriate juncture, that would assist. I think that we should report that to the lead committee.
No. We said that there should perhaps be an appeals mechanism. We are now straying into policy areas; however, there is nothing to prevent our highlighting the fact that the meaning could have been clearer in that instance and asking that the lead committee consider the matter further. The alternative, if there were no appeals mechanism, would be judicial review.
Well, quite.
We can pass that information on.
Yes. It should go to the lead committee for it to look at. In most circumstances, it is obvious who is in charge of the animals; however, the consequences of mistaken identity could be considerable.
Are we agreed that we should point out that, although the Executive says that it has used the terminology before—which is why it regards it as being correct—we believe that use of the terminology could raise some issues? I suggest that we write a report to the lead committee, as opposed to simply passing on the response that we have received from the Executive, and include the comments that Euan Robson has made.
There is another point that I want to highlight, which has been touched on—the fact that there is no provision to appeal against a decision of an appointed person under regulation 21. The regulations may not, therefore, be compatible with article 6 of the European convention on human rights and may consequently raise a devolution issue. We can elaborate on that point a little in our report. Is that agreed?
Registration of Births, Still-births, Deaths and Marriages (Prescription of Forms and Errors) (Scotland) Regulations 2006<br />(SSI 2006/598)
We asked the Executive to justify the vires for regulation 3 standing the repeal of the enabling powers. The Executive appears to accept that, because of the timing of the repeal of the enabling powers for the regulations, there is a doubt as to whether regulation 3 is intra vires. However, that has not generated any concern because—as is pointed out—the repeal of the enabling powers will mean that the forms will fall in any event; so, there is no practical implication. The regulations do not attract any parliamentary procedure.
National Health Service (Functions of the Common Services Agency) (Scotland) Amendment (No 2) Order 2006<br />(SSI 2006/603)
We asked the Executive why it has omitted to cite in the preamble section 105(6) of the National Health Service (Scotland) Act 1978, which is the relevant enabling power. The Executive accepts that it would have been better practice to do that, but it takes the view that, due to the generalised reference in the preamble to