Rural Development Committee, 17 Sep 2002

Meeting date: Tuesday, September 17, 2002

Official Report 182KB pdf

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Subordinate Legislation

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Common Agricultural Policy (Wine) (Scotland) Regulations 2002 (SSI 2002/325)

Agenda item 4 is consideration of two statutory instruments under the negative procedure. Members have the instruments in their papers.

The first instrument is the Common Agricultural Policy (Wine) (Scotland) Regulations 2002 (SSI 2002/325). The Subordinate Legislation Committee asked two questions of the Executive, which the Executive answered to that committee's satisfaction. One example of defective drafting was brought to the attention of the Rural Development Committee. Other than that, no comments were passed on and no member has noted a desire to speak on the instrument. I assume that the committee is content to make no comment on the instrument.

Members indicated agreement.

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Conservation of Seals (Scotland) Order (SSI 2002/404)

The second instrument is the Conservation of Seals (Scotland) Order (SSI 2002/404). Members will note that the Subordinate Legislation Committee had nothing to report on the order. I understand that the order has been brought about because of the incidence of distemper among the seal population, which is having a devastating effect thereon. The proposal is to prevent culling for one year in certain areas, because of the effect of distemper.

Is the committee content?

Why does the order prohibit injury, killing or taking of common seals from 4 September? It is now 17 September.

My assumption, although I will have to confirm this, is that that reflects the concern that exists about the decline in the seal stocks in those areas.

How can we do this retrospectively?

It would not be the first time that we have done that. Is that Richard Lochhead's point as well?

Yes. What is the point of discussing the order?

I believe that the order has already come into force.

Why did it come into force from 4 September?

The Scottish Executive environment and rural affairs department has not complied with the 21-day rule.

SEERAD has written to the Presiding Officer to explain the need to introduce the order urgently to provide additional protection for the seal population.

Would not it have been incumbent on the Executive to supply the committee with a copy of that letter?

The letter is in the committee papers.

My apologies.

Sorry, I did not catch that.

The order came into force on 4 September. SEERAD has written to the Presiding Officer to explain the reasons for the urgency behind the order.

The order was made on 2 September.

It came into force on 4 September.

My apologies. A letter to the Presiding Officer from SEERAD, dated 2 September, is in the committee papers. The letter explains the thinking behind the urgent introduction of the order. I will give members a minute to read it, then we will resume communication.

As I suggested, the letter states that SEERAD has taken this route as a measure of the urgency with which it considers, I presume on advice, that additional protection is needed. The letter explains:

"The current close season for common seals ended on 31 August".

I presume that SEERAD wished to introduce protective measures as soon as possible.

My question is a real one. I am not prepared to go down the route of retrospective legislation. What happens to somebody who has committed an offence between 4 September and today? Parliament is only now making it illegal.

We will come back to Mr Rumbles on that point.

The restrictions cover common seals in the whole of Scotland and grey seals in the Moray firth. The order has been drafted in that way because it is perceived that an epidemic is coming. If there were no epidemic, would the restrictions be lifted automatically? What would happen?

I notice that we do not have to deal with the order until 12 October. I ask Tracey Hawe to explain the situation.

As the order is subject to negative procedure, it comes into force automatically. Any member may lodge a motion to annul, which is a motion that nothing further be done under the instrument. If such a motion is agreed to, the instrument does not come into force.

Although it has already come into force.

The motion to annul will annul the instrument if it has already come into force, but in the absence of a motion to annul, under the negative procedure, the instrument is already in force as of 4 September.

If it is already in force, why are we debating it?

That is the way that negative procedure operates. The committee has the chance to scrutinise the instrument. The standard procedure is for the committee to make no recommendation on the instrument, in which case it remains in force in the absence of a motion to annul.

Was there anything to stop the instrument coming before the committee before it came into force? There was: we were in recess.

Precisely.

We were not in recess on 3 September.

Why was 4 September chosen as the date on which the order would come into force?

That was the day after it was laid before the Parliament.

Why was it laid before the Parliament on 3 September?

To answer that is within the Executive's power. I am not aware of the answer.

The order could easily have been laid before the Parliament later and we could have been approaching it differently. I am not content with what has gone on.

We are duty bound to report on the instrument by 7 October, which means that we could come back to the instrument later. That gives us next week to come back to it, because the recess will get in the way thereafter.

No, we have two weeks to come back to it.

Mike Rumbles has raised a significant point. Could we get some information before we finalise our view on the matter? I suggest that we seek clarification on whether the prohibition contained in the order would already constitute a criminal offence under the Conservation of Seals Act 1970. I assume that that would be the case—I think that Mike Rumbles assumed that—and it is likely to be so, but we could confirm that.

Secondly, could we invite the Executive to say what guidance it would offer to the Lord Advocate on whether anyone who breached the prohibition prior to having had notice of it and prior to the order undergoing parliamentary scrutiny should be prosecuted? We could also invite the Executive to agree that such persons should not be prosecuted if any such breach has occurred. That may be theoretical, and if any such breach has occurred it has perhaps not been detected, but the general principle is important. We should not allow that to pass, because the situation may arise again.

I will raise one or two other technical points, if that is in order.

It is.

The frontispiece says that the reason for the order is that it

"prohibits from 4/9/02 to 3/9/03"

various activities, but the order itself refers to the period of prohibition as two years, not one, and extending until 3 September 2004. That is in article 1. I presume that the correct figure is 2004, as stated in the order, not 2003, as stated in the frontispiece; I presume that that is a typographical error.

Assuming that that is the case, could we get an explanation of why the period is two years, not one? Would the season and cycle not be annual, rather than biennial? It would be helpful to get some justification of why that period is necessary.

Picking up the point that Jamie McGrigor made, the order differentiates between common seals and grey seals. It is okay for some seals but not others to be shot, according to the order. There does not seem to be any background argument or reasoning why that distinction is made, but I presume that it concerns technical reasons about the way in which the phocine distemper is spread. Presumably, the distinction is also linked to whether the size of the population is sustainable. Can we get more information on that when we ask the Executive for some background?

I can provide some information. The population of common seals is about 30,000; the population of grey seals is about 130,000. Common seals are much more prone than grey seals to catching distemper. In the last epidemic, the number of common seals that died was much higher than the number of grey seals. I imagine that the distinction is made because it is thought that the grey seals in the Moray firth have already got the distemper or that there have already been cases of it.

The committee has raised several times the issue of how we are to scrutinise SSIs that are already in force. The only option available is for us to lodge a motion for annulment to take force retrospectively. Can we have an update on the response that we received to our previous complaints? Perhaps we could find out whether the Procedures Committee has any plans to look into the issue.

That topic has certainly come in front of us before. If members are in agreement, we will write to the Executive about the issues concerned with the instrument and consider it as part of next week's agenda. Richard Lochhead mentioned the wider picture, but did we write to the Executive to ask for clarification on that before?

I am sure that we took some action, yet here we are again. We should pursue the issue.

I shall ask the clerks to look back, so that we can see where we are on that. We shall return to the issue next week.

As it has now been made clear that the instrument will be in force for two years, what will happen if the epidemic does not break out? Will there be a procedure to have the prohibition automatically lifted? When will that happen?

That was one of our original questions. We shall ask the Executive whether the order would automatically cease to apply if the disease came under control. Do members want to make any further points?

Did Rhoda Grant glean anything from her excursion from the room?

I would have gleaned less if I had stayed.

We shall return to the instrument next week. There are too many questions to let them go unanswered.

Members have agreed that we would take item 5 in private, so I ask that the public seats be cleared.

Meeting continued in private until 16:20.