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Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006 (draft)
The committee asked the Executive to clarify why substantive legislative requirements appear in a definition regulation provision and not as substantive legislative provisions. Committee members will see from the Executive's reply that the Executive was attempting to make schedules 1 and 2 less detailed and complex. It is also stated that the Executive's approach is not likely to affect the draft regulations' legal effect adversely.
It is helpful to have the Executive's position—that its approach to the draft regulations will have no adverse legal effect—set out clearly. I accept as probably correct the legal advice that the committee received that there has been a failure to follow proper legislative practice. However, the bottom line is that the Executive's approach to the draft regulations does not undermine them. Nevertheless, we should probably report on the matter.
Are members agreed that we should draw the attention of the lead committee to the matter?
Road User Charging (Penalty Charges) (Scotland) Regulations 2005 (SSI 2005/652)
We raised four points with the Executive, the first of which was about the drafting of regulation 8(1). Although the drafting is unlikely to affect the regulations' legal effect adversely, it is, nevertheless, defective.
We should report that.
It is interesting that the Executive appears to have accepted that there is a fault with the drafting of the regulations and that the drafting is defective. I was amused by the legal briefing, which says that the courts would probably ignore the wording and therefore get it right. That is an interesting solution: the courts will resolve the problem of the Executive's poor drafting.
There was another issue with regulations 10(6) and 13(3) and with the regulations that are referred to in regulation 13. We asked the Executive for further information, which we got back. We should send that information to the lead committee and Parliament as well as report our first point. Is that agreed?
Road User Charging Schemes (Keeping of Accounts and Relevant Expenses) (Scotland) Regulations 2005 (SSI 2005/654)
We raised six points with the Executive. Do members have any major points to highlight?
I particularly wanted to discuss the fifth question that we put to the Executive. Although the regulations are correct in terms of the current accounting standard, it would seem that the Executive's intention was that the regulations would also apply to any future accounting standard. That appears not to be the case; the Executive would have to lay new regulations, which is fine. I am concerned, however, that the Executive intended the regulations to apply to future standards. The effect of that would have been that those who were changing the accounting standard would have been changing the law, rather than the law being changed by Parliament. I am relieved that the policy intention has not been fulfilled in that sense because the regulations rightly deal with the current accounting standard and any future changes to that standard will require new regulations to be brought back to Parliament. That might not have been what the Executive intended, but it seems to be okay.
Good.
No.
M77 (Malletsheugh) (Speed Limit) (Scotland) Regulations 2005 (SSI 2005/655)
We asked the Executive three questions. Are we happy to pass on to the lead committee and the Parliament the points about defective drafting and the fact that the Executive has acknowledged those points? They will not affect the validity of the regulations.
I welcome Murray Tosh to the meeting.
Smoking, Health and Social Care (Scotland) Act 2005 (Commencement No 2) Order 2005 (SSI 2005/642)
We raised three points with the Executive. First, there was an unusually limited use of the power, in that section 4(4) of the Smoking, Health and Social Care (Scotland) Act 2005 was not commenced by the order. That has been accepted by the Executive, which is moving to correct it with a new commencement order. Secondly, article 2 of the order was defectively drafted, although that should not invalidate the order. Thirdly, there is a failure to follow proper legislative practice, as there is no reference to section 43(4) in the preamble to the order. As I read the Executive's responses, none of those points are detrimental to the validity of the order; they can be rectified.
That is correct. Obviously I have particular concerns about this order as, I am sure, do other members. We need to get it right because of the interest in the order. I am particularly glad to hear that the Executive will move to resolve the problem on sections 4(4) and 4(5) of the act and that, in the same way as the earlier legislation that we discussed, the minor errors do not invalidate the order in any way.
I suggest that we draw the three points to the attention of the Parliament? Is that agreed?
Charities and Trustee Investment (Scotland) Act 2005 (Commencement No 1) Order 2005 (SSI 2005/644)
We asked the Executive why section 99, which contains an order-making power, was not commenced and whether that was deliberate.
There is unduly limited use of the power, but I presume that the defective drafting is the main point.
Yes.
I suggest that we go with the defective drafting.
I agree.
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