Official Report 119KB pdf
Instruments Subject<br />to Annulment
Less Favoured Area Support Scheme (Scotland) Regulations 2002 (SSI 2002/139)
These regulations are a bit more problematical. Four main points arise. Regulation 2(1) appears authoritatively to define the phrase "usual good farming practices", but elsewhere the regulations appear to depart from that definition, which causes confusion. We must ask the Executive why it chose to confuse the issue by having what appear to be two definitions of "usual good farming practices" in the regulations.
I concur with your suggestion.
Oh, that is good.
He is being agreeable.
Another point arises on regulation 23, which provides for a review of decisions of Scottish ministers under the regulations. Other decisions are dealt with under generic regulations and there seems to a difference, for example, between the Executive departments responsible for agriculture and for the environment as to how to deal with the regulations. Again, we could ask the Executive to explain why there should be such a difference.
Regulation 23(2) requires that somebody who intends to ask for a review of a decision must apply to do so within 60 days of the date of the decision. However, they might not be told of the decision until 58 days after it has been made. Ministers are not obliged to communicate their decision within a particular time scale, which would provide a safety net for an appeal to be made. That position ought to be clarified and firmed up so that people can have a fair chance of putting in their appeal on time.
Do you concur with that, Murdo?
Absolutely.
Good. The regulations breach the 21-day rule, but the explanation for that seems to be reasonable.
Combined Police Area Amalgamation Schemes 1995 (Amendment) (Scotland) Order 2002 (SSI 2002/140)
There is a breach of the 21-day rule.
But it was not a breach of the peace.
The order seems fine, otherwise.
Right. Thank you.
Combined Fire Services Area Administration Schemes (Variation) (Scotland) Order 2002 (SSI 2002/141)
As with the previous order, there is a breach of the 21-day rule.
We should say that we are not happy with the breaches of the 21-day rule in this and other instruments. There might be reasons for individual instruments making such a breach. However, when we stand back and look at the matter, we can see that breaches of the 21-day rule should not be happening as often as they do.
I love him when he is fired up. You are absolutely right, Ian.
Police Act 1997 (Criminal Records) (Scotland) Regulations 2002 (SSI 2002/143)
A couple of wee points arise. The regulations prescribe the fees payable for the issue of a certificate. Such a certificate might be sought by people who work with children. The Executive said that people who work in the voluntary sector would be able to obtain such a certificate without cost but, unfortunately, the regulations do not say that.
They should say that because it was a big issue at the time.
We shall therefore write to the Executive to ask it to clarify the situation. Although the Executive might say that an amendment is under way, we should ensure that the thing is fixed because it is an important matter.
Producer Responsibility Obligations (Packaging Waste) Amendment (Scotland) Regulations 2002 (SSI 2002/147)
Now then, it is possible that spin-doctors have got loose.
Surely not on the 1 per cent, Margo?
The regulations and the Executive note state that the target for the recovery of packaging waste is 59 per cent, while the explanatory note has rounded up the figure to 60 per cent. The difference is only 1 per cent, but the figures should be consistent and correct, should they not?
Absolutely.
It is probably just a typing error.
No, not from 59 to 60. If it was from 59 to 69, yes. I think that they have simply rounded up the figure. We should tell them that at least we noticed the error.
Do you suspect that dark forces are at work?
I think so. They simply wanted to have a nice round figure, but we do not want that in subordinate legislation.
Food (Figs, Hazelnuts and Pistachios from Turkey) (Emergency Control) (Scotland) Regulations 2002 (SSI 2002/148)
The food. For this lot of regulations, the question arises why section 13 of the Food Safety Act 1990 was not used instead of section 2(2) of the European Communities Act 1972.
And the answer is?
I do not know. That is what we shall ask the Executive.
I thought that this was a quiz.
Well, you are not scoring very highly this morning. I thought that you would have known the answer.
It was called the Common Market at that time, in 1975.
That is what we were told. Even in the late 1980s, the big kick was—not transubstantiation, but—
Subsidiarity.
That is right. Why cannot we have a bit of subsidiarity in the drafting of the regulations? We should ask about that, because it keeps coming up.
As long as they save me from all the poisons in the Turkish hazelnuts, pistachios and figs, I am not sure that I am bothered under which act the regulations are made.
As far as the consumer is concerned, you are absolutely right that it makes no great difference. However, as far as the quality and consistency of the body of our legislation is concerned, we should ask whether it is advisable to jump immediately to the EU legislation.
You are quite right, Margo.
I look forward to asking the woman in Safeway for a Turkish health certificate. I tell you that it will not go down well.
"Are thae things Turkish, hen?"
Food (Peanuts from China) (Emergency Control) (Scotland) Regulations 2002<br />(SSI 2002/149)
Here is even worse. The same points that were made about the previous regulations also apply to these. Also, in both sets of regulations, the purpose of regulation 4(3) appears not to be relevant.
I am sorry but you have lost me.
Let me take advice from the legal adviser.
National Health Service (General Medical Services and Pharmaceutical Services) (Scotland) Amendment (No 2) Regulations 2002 (SSI 2002/153)
The regulations seem fine.
Great. I hope that Ian Jenkins has noted that they breach the 21-day rule.
Aberdeen City Council and Aberdeenshire Council Boundaries (Blackburn) Amendment Order 2002 (SSI 2002/154)<br />Argyll and Bute Council and West Dunbartonshire Council Boundaries (Ardoch Sewage Works) Amendment Order 2002 (SSI 2002/155)
Glasgow City Council and Renfrewshire Council Boundaries (Braehead) Amendment Order 2002 (SSI 2002/156)<br />City of Edinburgh Council and West Lothian Council Boundaries (West Farm, Broxburn) Amendment Order 2002<br />(SSI 2002/157)
Here is the bit that Sandra White is interested in. It may also be of interest to Gordon Jackson.
And to Colin Campbell.
Yes. I realise that there is great interest in at least one of the orders—the one that deals with West Lothian Council. Sorry, that was an in-joke. However, this committee is not the place to examine the policy of transferring a place from one council to another; we can only ensure that it is effected legally and in an orderly fashion.
I thank the convener for allowing me to speak even before the committee members. I sent the convener a letter asking whether I could attend to speak about my concerns and she replied that I could speak only about the technicalities. I have since phoned and met representatives of Glasgow City Council, who also picked up on the technicality that was mentioned, which is that the order does not stipulate from which council the land is being transferred. The concern that Glasgow City Council and I have is that the transfer might affect future regeneration in the Glasgow area. Glasgow is regenerating and the council is worried that the transfer will affect future regeneration and development.
I thank you for your attendance and interest. It is wonderful to get a glimpse of the parallel universe of policy land.
I say for the record that I do not disagree with Sandra White's points. I did not speak because I believe that the Subordinate Legislation Committee does not have anything to do with her points. I mean no criticism to Sandra, but this committee has to do with the technicalities of subordinate legislation. As luck would have it, the one instrument that I do not like is the one that the Executive seems to have got right. That is the way things are.
I put it on record that, as a regional list MSP for the West of Scotland, I have an interest in the matter, but that this committee is not the place to discuss it.
I am glad that we have agreed not to discuss the matter.
We are taking your lead on that, convener.
When the real fight takes place, if Sandra White and Gordon Jackson need reinforcements, the committee will be right behind them.
I doubt that the council was confused.
Confused in this committee? No.
Plant Health (Great Britain) Amendment (Scotland) Order 2002 (SSI 2002/164)
The order is another example of one that should perhaps have been made by order in council.
We could call this order a Desmond because it is made under section 2(2).
We will soon have to publish a glossary of in-terms that the committee uses.
The order takes us back to the point that the convener raised about whether section 2(2) of the European Communities Act 1972 should be used instead of section 13 of the Food Safety Act 1990.
The order is connected to plant health, but it is the same difference. The Executive chose to use section 2(2) of the European Communities Act 1972, rather than powers in the Plant Health Act 1967.
Scottish Water (Rate of Return) (Scotland) Order 2002 (SSI 2002/165)
Because I am not an accountant, I am not certain whether my concerns about the order are relevant or important. I do not know to what the term "net operating assets" in article 3(b) of the order refers. I hope that some members of the committee will know and will put my mind at rest. If no members immediately recognise the term and say that it is commonly used, it will need further explanation from the Executive. Do not put on that look, Brian; the matter is important because it is about money.
I was thinking about my professional indemnity insurance—I will not give my view on the matter.
I think that you are allowed to give your view in the committee. Nobody will hold it against you.
Is professional indemnity insurance still available? I ask because I do not have it.
Another problem is that the order contains a definition of "accounts direction", but that does not appear elsewhere in the order. Why is that definition given?
That question is especially relevant because there is no definition of "net operating assets". Some questions must be asked and a wee bit of tweaking needs to be done.
Article 3 defines "average net assets", but it is not entirely clear from the wording what that means. As the order involves Scottish Water, everyone is watching like a hawk, so it is reasonable that there should be proper definitions. We will ask the Executive to clarify the issues that have been raised.
Water Industry (Scotland) Act 2002 (Consequential and Savings Provisions) Order 2002 (SSI 2002/166)
There are around six questions to be asked about the order. Once again, there is a fair amount of confusion.
The first point is that articles 8(4)(a)(ii) and 8(4)(b) refer to
The order refers both to "the authority" and to "the water authority". It is not clear whether those are exactly the same or whether there is confusion. The situation is certainly confusing for readers and it must be explained.
There are no footnotes for the orders referred to in article 8(4)(a)(iii).
Also, article 7(2)(a) substitutes for a definition of "charges scheme" a definition of "charge scheme", but that term does not appear in the instrument that is amended. The point appears niggardly, but if we are talking about money that is to be paid by the public or by businesses, the order must be exact and consistent and people must be able to understand it. There are inconsistencies in the definitions and descriptions.
There is another point of style. The order refers to
I am not absolutely certain about that, but as we intend to write to the Executive to ask for better definitions, we might as well include that observation.
Water and Sewerage Charges (Exemption) (Scotland) Regulations 2002 (SSI 2002/167)
There is something odd about the regulations. The enabling act does not appear to allow Scottish Water any discretion in respect of penalties that are applied if a person makes a mistake in spelling their name or address or gives slightly inaccurate information. Is that the Executive's intention?
That is a bit draconian.
We must draw attention to regulation 5, which appears to be heavy handed, and ask the Executive if that was its intention.
Section 68(2) of the Water Industry (Scotland) Act 2002, which is referred to in the explanatory note as an enabling power, is not cited in the preamble, but, strictly speaking, it should be. We should ask the Executive to let us know why it is not.
I am advised that there may or may not be a question relating to vires in the degree of sub-delegation to Scottish Water in regulation 8(b). The only problem is whether the wording of the enabling power provides sufficient vires. Do members wish to raise that point?
We should ask the Executive to justify the vires. That would do no harm.
The regulations also breach the 21-day rule, but apparently, that is reasonable.
Import and Export Restrictions<br />(Foot-and-Mouth Disease) (Scotland) <br />(No 3) Amendment (No 2) Amendment Regulations 2002 (SSI 2002/169)
No points arise on the regulations.
Food (Jelly Confectionery)<br />(Emergency Control) (Scotland) Regulations 2002 (SSI 2002/179)
Again, regulations have been made under section 2(2) of the European Communities Act 1972 rather than under the Food Safety Act 1990. There is nothing wrong with the instrument, but why was domestic legislation not used?
Scotland Act 1998 (Agency Arrangements) (Specification) (No 2) Order 2002<br />(SI 2002/800)
Members will remember that, just before the recess, we discussed regulations that were changed at Westminster under an agency arrangement, but were not published. Therefore, we could not possibly have known what they said and worked out what we could do. The order relates to an instrument that referred to an SI that was to be made by the UK department, but which in the event was not made.
Did we write to the Executive after our previous meeting about that matter?
Yes.
Did we receive a response?
No. We should send the Executive a postcard this time.
Scottish Administration (Offices) Order 2002 (SI 2002/801)
No points arise on the order.