Official Report 173KB pdf
Instruments Subject <br />to Annulment
Plant Health (Great Britain) Amendment (Scotland) Order 2003 (SSI 2003/224)
Are there any points to be made on the order?
There is one substantive point on this order, which applies to a number of others on today's agenda. Reference is made to the requirement to consolidate and there are points to make about the circumstances in which consolidation takes place. I might have jumped the gun with my comments; I might have been supposed to raise this later in the agenda. However, the issue is now raised.
What do you mean by a protocol on consolidation? I have never understood when consolidation should take place. It seems to me to be totally arbitrary; every so often someone seems to say, "It is time that we consolidated this lot," or something like that. By protocol, do you mean that the process should be more formal?
I will let Christine take that one up because she raised the point during the legal briefing.
It was suggested that it is good practice to consolidate after the fifth substantive amendment. Where there are minor amendments, such as changes to pricing or whatever, changing the instruments is relatively straightforward. However, where substantive amendments are required, consolidation after the fifth version seems to be reasonable.
Are we agreed that that is a good general rule?
The legal briefing indicates that the Executive plans to consolidate the plant health instruments sometime next year. We should ask about that when we write to the Executive, as Murray proposed. Is that agreed?
The legal brief also contains a substantial note, which is referred to the committee purely for information, about the competence of ministers' powers to amend the original order and the way in which the drafting of orders is dealt with. I will not bore everybody by reading it all out. Is it a general issue that relates to a number of statutory instruments and of which we should be aware, or is it a stray comment that we can quietly put away in the filing cabinet?
The legal adviser indicates that we can file it.
Products of Animal Origin (Third Country Imports) (Scotland) Amendment (No 2) Regulations 2003 (SSI 2003/225)<br />Adults with Incapacity (Management of Residents' Finances) (Scotland) Revocation Regulations 2003 <br />(SSI 2003/226)
No points arise on the regulations.
Community Care (Direct Payments) (Scotland) Regulations 2003 (SSI 2003/243)
The legal brief recommends that we consider what action to take in respect of the breach of the 21-day rule. I gather that such breaches happen from time to time. It seems that this particular case is not easily explained by the fact that the chamber office was closed on Friday 9 May. What is the committee's view?
I agree with your comments. The Executive's explanation that it did not know the chamber office's hours is unacceptable and does not fully explain the reason for the breach. We should therefore take the matter up with the Executive and ask it for a proper explanation. It does not seem to me in any way reasonable or probable that the breach is due to the chamber office's being closed.
I agree that that seems a strange reason.
It is worth the committee formally making a general point on the 21-day rule. On occasion, the reasons for the breach of the 21-day rule are acceptable—something has come in very quickly or needs an immediate response. In general, however, departments should be reminded of their duty under the 21-day rule. It is probably worth reminding folk to be vigilant on that point at the outset of the committee's work.
We will send a letter to the Executive picking up on those points.
Litter (Fixed Penalty) (Scotland) Order 2003 (SSI 2003/268)
No points arise on the order.
National Health Service Superannuation Scheme (Scotland) Amendment (No 2) Regulations 2003 (SSI 2003/270)
The use of the word "may" in new regulation E6(4A) perhaps implies that there is an element of choice in the implementation of the regulations. That is careless wording and could be important in the context of an individual's rights.
We will ask for clarification on that. Also, as Murray Tosh pointed out on another instrument, there are issues to do with consolidation, which we will raise.
Urban Waste Water Treatment (Scotland) Amendment Regulations 2003 <br />(SSI 2003/273)
Several points arise on the regulations. I will go through them. The first is to ask why the regulations have been drafted partly as free-standing regulations and partly by way of textual amendment to the principal regulations rather than, as is usual, wholly by way of textual amendment.
Would you like to explain that, convener?
All I can say is that it is fully explained in the legal brief. Is that sufficient, or would you like me to give you the full explanation from the brief?
No.
Are there any additional points to the four that I listed?
Is it proposed to write to the Executive and ask for clarification on those points?
Yes.
What will that mean for the decision that we take on the regulations?
As I said earlier, there was only one agenda item for which we had to complete consideration today. We will get the Executive's response and will consider the regulations again next week.
Sweeteners in Food Amendment (Scotland) Regulations 2003 (SSI 2003/274)
I have a common point to make on the regulations and on the Contaminants in Food (Scotland) Regulations 2003 (SSI 2003/289), the Cocoa and Chocolate Products (Scotland) Regulations 2003 (SSI 2003/291) and the Fruit Juices and Fruit Nectars (Scotland) Regulations 2003 (SSI 2003/293). No reference is made to the consultation requirements of article 9 of EC regulation 178/2002 in the preamble to the regulations and that is common to all those regulations.
There is an additional point. That is to ask why, although article 1(a) of directive 95/35/EC states that a temporary authorisation of a sweetener can be for a maximum period of two years, the regulations contain no such limit. To that extent, the regulations may raise a devolution issue. We might want to add that to the letter.
I am sorry—I was only half listening to Christine May. I heard her make the point about the transposition notes. Did she also raise the consultation requirements of article 9?
Yes. That is everything covered for the regulations.
Feeding Stuffs (Miscellaneous Amendments) (Scotland) Regulations 2003 (SSI 2003/277)<br />Food Supplements (Scotland) Regulations 2003 (SSI 2003/278)
No points arise on the regulations.
Ethical Standards in Public Life etc (Scotland) Act 2000 (Devolved Public Bodies) (No 2) Order 2003 (SSI 2003/279)
Some minor drafting errors have been drawn to our attention. Is it intended that we make approval of the order conditional on the drafting errors being picked up or are we in a position to recommend approval of the order but draw the drafting errors to the Executive's attention subsequently?
It would be advisable for us to recommend approval of the order, but draw the drafting errors to the Executive's attention. I gather that minor drafting errors occur not only in this order. They crop up in other instruments. It is an issue that we might want to raise with the Executive in an informal letter.
From what I assume from your response to have been the clerk's advice to you, I assume that this is a regular and recurring problem. What reasons has the Executive offered the committee in the past for flaws in drafting?
The Executive has written to and communicated verbally with the committee about its track record on such flaws. The Executive has said that it realises that there is a problem, which it is trying to address, but it has not got there yet.
Have we pressed the Executive on what the problem is and on what actions it is taking to overcome the problem?
The committee has returned to the Executive several times on the issue, without making any obvious progress.
I must repeat the question: have we asked what the nature of the problem is and what the Executive is doing to overcome it?
We have not asked in detailed terms. The Executive has given the general answer that the flaws are minor matters that it has not yet been able to iron out, but it has not gone into the detail of individual cases.
Perhaps we should seek greater clarity. In attempting to explain the problem to us, the Executive might achieve greater clarity and come closer to finding answers to its difficulties.
Do members agree to write a letter to the Executive to that effect?
St Mary's Music School (Aided Places) (Scotland) Amendment Regulations 2003 (SSI 2003/280)<br />Education (Assisted Places) (Scotland) Amendment Regulations 2003<br />(SSI 2003/281)
Road User Charging (Classes of Motor Vehicles) (Scotland) Regulations 2003<br />(SSI 2003/282)<br />Agricultural Wages (Scotland) Act 1949 Amendment Regulations 2003<br />(SSI 2003/283)
No points arise on the regulations.
Home Energy Efficiency Scheme Amendment (Scotland) Regulations 2003 (SSI 2003/284)
We should ask the Executive why the explanatory note does not include a reference to the changes made in respect of the reference to the "disabled person's tax credit".
Education (Student Loans) Amendment (Scotland) Regulations 2003 (SSI 2003/285)
No points arise on the regulations.
Accountability of Local Authorities (Publication of Information about Finance and Performance) (Scotland) Regulations 2003 (SSI 2003/286)
There are two points on the regulations. First, why has section 13(6)(d) of the parent act—the Local Government in Scotland Act 2003—which seems relevant, not been cited as an enabling power? Secondly, why has a reference to section 13(5) of that act, which imposes the duty to consult, not been included in the preamble?
Criminal Justice (Scotland) Act 2003 (Saving and Transitional Provisions) Order 2003 (SSI 2003/287)
The legal briefing comments that there is no Executive note to accompany the order, but that that is not a problem in this case because the explanatory note covers the necessary detail. To cover the point of principle that the Executive should provide a note for all statutory instruments, the Executive note could have merely referred readers to the explanatory note.
We will add that point to our letter to the Executive.
Contaminants in Food (Scotland) Regulations 2003 (SSI 2003/289)
I refer to my earlier comments about article 9 of EC regulation 178/2002 and explanatory and transposition notes.
We might also wish to refer to the regulations when we make our general point about consolidation.
Drugs Courts (Scotland) Order 2003<br />(SSI 2003/290)
No points arise on the order.
Cocoa and Chocolate Products (Scotland) Regulations 2003 (SSI 2003/291)
This is another instrument to which the points about article 9 of EC regulation 178/2002 and transposition notes apply.
Road User Charging (Consultation and Publication) (Scotland) Regulations 2003 (SSI 2003/292)
There is quite a serious point on the regulations. The Executive should be asked whether the term "police area" in regulation 2(1) is intended to have a meaning different from the term as used in schedule 2 to the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc of Acts of the Scottish Parliament) Order 1999 (SI 1999/1379). If not, we should ask why it was thought necessary to include a definition in the regulations, particularly as it does not correspond with the definition in the order.
Fruit Juices and Fruit Nectars (Scotland) Regulations 2003 (SSI 2003/293)
My points about article 9 of EC regulation 178/2002 and transposition notes also apply to these regulations.
Agricultural Holdings (Relevant Date and Relevant Period) (Scotland) Order 2003 (SSI 2003/294)
No points arise on the order.
National Health Service (Charges for Drugs and Appliances) (Scotland) Amendment (No 2) Regulations 2003 <br />(SSI 2003/295)<br />National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2003 (SSI 2003/296)
We should ask the Executive why, contrary to the guidance on the drafting of statutory instruments, there is no footnote reference to the drugs tariff that is mentioned in the regulations and no indication in the explanatory notes of where copies may be obtained.
Stevenson College (Change of Name) (Scotland) Order 2003 (SSI 2003/297)
There is no Executive note on the order. Are there any other points?
The legal briefing mentions the use of the word "Scotland" in the title of the order and advises that the previous committee raised the issue on a number of occasions, without getting a fully comprehensible or comprehensive answer. I am interested in why the Executive thinks it appropriate to specify that the order relates to Scotland, given that the legislation will be passed by the Scottish Parliament and deals with a college in Scotland. The use of the word "Scotland" seems tautologous. If it has a purpose, I am interested to know what that is.
We will ask.
If Murray Tosh says so, I am sure that we asked that question, but I do not remember raising the issue or receiving an answer.
The issue was discussed, sometimes in relation to bills, but I am not sure that the previous committee took up the matter with the Executive.
I am advised that we need to ask the question again, because the previous committee did not receive an answer.
In addition, there is no Executive note to accompany the order, so we should again make Murray Tosh's point about good practice.
National Health Service (General Medical Services Supplementary Lists) (Scotland) Amendment Regulations 2003<br />(SSI 2003/298)
No points arise on the regulations.
Collagen and Gelatine (Intra-Community Trade) (Scotland) Regulations 2003<br />(SSI 2003/299)
We should ask the Executive to explain from which dates records must be kept in accordance with regulations 5(1)(b)(iv) and 5(1)(d).
Sea Fishing (Restriction on Days at Sea) (Scotland) Amendment (No 2) Order 2003 (SSI 2003/300)<br />Cremation (Scotland) Amendment Regulations 2003 (SSI 2003/301)
No points arise on the instruments.
Agricultural Subsidies (Appeals) (Scotland) Amendment Regulations 2003 (SSI 2003/302)<br />Oil and Fibre Plant Seeds Amendment (Scotland) Regulations 2003 (SSI 2003/304)
The issue that we raised earlier about consolidation applies to the regulations.
Rural Stewardship Scheme (Scotland) Amendment (No 2) Regulations 2003<br />(SSI 2003/303)
We should ask the Executive whether the regulations have been made to correct an omission in SSI 2003/177. If so, because there was an error on the part of the Executive, we should ask what steps have been taken to make the regulations available free of charge to those who can show that they purchased SSI 2003/177.