Official Report 142KB pdf
Instruments Subject <br />to Annulment
Natural Mineral Water, Spring Water and Bottled Drinking Water (Amendment) (Scotland) Regulations 2003 (SSI 2003/139)
No points arise on the regulations.
Housing (Scotland) Act 2001 (Payments out of Grants for Housing Support Services) Order 2003 (SSI 2003/140)
The order is serious. We want an explanation from the Executive of at least five points, including a question about timing.
We have received a response from the Executive on the points that have been raised. We need to refer the Executive's responses to the lead committee. The order has some defective drafting, which we will mention in our report.
Okay.
Non-Domestic Rating (Rural Areas and Rateable Value Limits) (Scotland) Amendment Order 2003 (SSI 2003/141)
We could raise a wee point by informal letter.
I agree.
We should also ask the clerk to say in our informal letter that the order raises accessibility questions.
It contains gobbledegook.
The order is the sort of thing that people should be able to understand.
Another point is that the print for the footnotes is a bit small.
Non-Domestic Rating <br />(Former Agricultural Premises) (Scotland) Order 2003 (SSI 2003/142)
The order seems fine.
All right.
Valuation (Stud Farms) (Scotland) Order 2003 (SSI 2003/143)
The order is okay.
Cinematograph (Safety) (Scotland) Amendment Regulations 2003 <br />(SSI 2003/144)
The regulations that the instrument amends have existed since 1955 and have been amended five times, so perhaps we should ask the Executive whether it plans to consolidate those regulations, but not before the end of the session. It is possible that the 1955 regulations are awfully good and do not need to be amended, but we should still ask the Executive about the matter.
We have asked the Executive that question. It said that it would bear the matter in mind.
That is very reassuring.
One of those retrospective seasons might present a good opportunity. "Sunset Boulevard" has been re-released.
Fish Labelling (Scotland) Regulations 2003 (SSI 2003/145)
The regulations raise serious questions, but all that we can do is report on them.
The Executive is a year late in implementing the relevant European Community regulations.
The regulations refer to penalties that must be paid, but do not explain which penalty will apply.
Which is the lead committee on the instrument?
The fish labelling committee.
It must be either the Rural Development Committee or the Health and Community Care Committee.
The regulations are not about growing fish, but about saying whether the fish are good or stinking. That is a health matter.
If you say so, convener.
The Health and Community Care Committee will receive the instrument.
Pollution Prevention and Control (Scotland) Amendment Regulations 2003 (SSI 2003/146)
The Executive has acknowledged defective drafting on a couple of points.
Council Tax (Supply of Information) (Scotland) Regulations 2003 (SSI 2003/147)
The laying of the instrument was delayed. The regulations were made on 3 March and were not laid until 10 March, but it is a statutory requirement to lay instruments as soon as possible after they have been made. We will ask the Executive to explain the delay.
The committee asked the Executive some questions informally, before the meeting. The Executive has had a chance to reply, as Murdo Fraser said.
So, the delay was another administrative oversight.
An oversight of a week is quite short. Administrative oversights are usually prayed in aid when somebody has not responded for three months.
I think that the Executive is taking us for granted.
Is it? Nobody would take you for granted, surely—as some have learned to their cost.
Some have tried.
Regulation of Care (Registration and Registers) (Scotland) Amendment Regulations 2003 (SSI 2003/148)
The regulations are defectively drafted.
We will draw that to the Executive's attention.
Regulation of Care (Requirements as to Care Services) (Scotland) Amendment Regulations 2003 (SSI 2003/149)
The Executive has failed to comply with proper legislative practice.
I agree.
We will refer to that in our report.
Regulation of Care (Requirements as to Limited Registration Services) (Scotland) Regulations 2003 (SSI 2003/150)
A large number of questions—six—arise from the regulations.
All the questions are clarificatory.
The regulations might have an element of defective drafting. When we went through the instrument, we decided that a great deal of work could still be done on it. Perhaps the committee should draw to the attention of the lead committee the procedure for correcting the instrument between now and the end of the session—and beyond. The committee may be unaware of that and may feel that it must say yes to the instrument because we are so near to the end of the session.
Regulation of Care (Applications and Provision of Advice) (Scotland) Amendment Order 2003 (SSI 2003/151)
This instrument is okay.
We are saying that, mutatis mutandis, the same points apply.
Regulation of Care (Fees) (Scotland) Order 2003 (SSI 2003/152)
There is no indication, either in the instrument or in the explanatory note, of the scale of the increase in fees. We will certainly comment on that.
NHS Health (Scotland) <br />(Transfer of Officers) Regulations 2003 (SSI 2003/153)
We are content with the instrument.
The regulations are fine.
Health Education Board for Scotland Amendment Order 2003 (SSI 2003/154)
The instrument changes the name of the Health Education Board for Scotland. This raises a question that we have considered once before: must the board be stood down before a new board can be elected, or can a statutory instrument be used to make the change in one fell swoop? To be honest, I am not desperately concerned about the instrument. Although the Executive may have proceeded inelegantly, I am inclined to allow the instrument to go ahead. We should simply note the fact that we have queried this matter because we have queried it in the past.
Adults with Incapacity (Management of Residents' Finances) (Scotland) Regulations 2003 (SSI 2003/155)
This is the doozie.
There is a serious error in the instrument, suggesting that the regulations may not be intra vires. However, the Executive is taking steps to correct and reissue the instrument.
The Executive has undertaken to correct the instrument.
National Assistance (Assessment of Resources) Amendment (No 2) (Scotland) Regulations 2003 (SSI 2003/156)
The instrument raises an obvious question. Given that this is the 19th amendment to the principal regulations, does the Executive intend to consolidate the regulations? The Executive has indicated that it has no plans to do so. We have asked the question and the Executive has answered it.
National Health Service (Dental Charges) (Scotland) Regulations 2003 (SSI 2003/158)
We have serious concerns about this instrument. The Executive has acknowledged that there are three drafting errors in the regulations. The committee should note in its report that it can be argued that the regulations breach the social security reservation.
The legal adviser has set out a cogent argument on that point.
We are again dealing with the interface of devolved and reserved powers. Everything depends on the piece of legislation that one decides to use. Clearly, the Executive thinks that it can use health legislation. We are wondering whether this issue falls within the social security reservation. We will simply report the matter.
Non-Domestic Rates (Levying) (Scotland) Regulations 2003 (SSI 2003/160)
The regulations are okay.
No points arise.
Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment) 2003 <br />(SSI 2003/162)
The lawyers present will be pleased that the act of sederunt is okay.
I do not think that there are any solicitors present.
I am so sorry. [Interruption.]
I am sorry. One lawyer may be pleased.
Advice and Assistance (Scotland) Amendment Regulations 2003 <br />(SSI 2003/163)
The point that we want to make relates to style and a gripe from the committee. The Executive acknowledges that the principal regulations should have been amended to take account of a point made in relation to the Civil Legal Aid (Scotland) Regulations 2002.
I remember this matter—it is very interesting.
The Subordinate Legislation Committee spotted the error. Do members know who was given the credit for that? You will never believe it.
That woman.
No, the Justice 1 Committee.
That woman.
I cannot think to whom the member refers. My nose was fair put out, but it is fine now.
In your heart of hearts, you know that you were responsible for pointing out the error.
Aye—we spotted the issue of cohabiting couples.
Common Agricultural Policy (Wine) (Scotland) Amendment Regulations 2003 (SSI 2003/164)
We have not started to make wine yet.
We do—Moniack.
I have never heard of it.
It is made at Beauly, beside Inverness. However, it is not vintage wine.
The record should indicate that the member screwed up his nose.
It is an acquired taste.
I have now offended all my relatives who live in Beauly.
This is all very serious, because the regulations originate from the European Union. We could raise many quibbles about the instrument.
Is this a spoof? Have we been set up?
No—the instrument is for real.
What about the reference to Osama bin Laden? You are kidding us on.
No. Surely members do not want me to explain why Osama bin Laden should figure in the affairs of the Subordinate Legislation Committee of the Scottish Parliament?
But these regulations relate to wine.
It is a mistake.
I know—the man does not even drink.
Are you sure that the regulations are not meant to refer to Oddbins?
Osama bin Oddbins. [Laughter.]
Speak for yourself.
We can ask the Executive about the matter.
Given climate change, we should note that Scotland is not yet a major wine-making country.
Just as it is not yet a major mink-producing country.
We banned fur farming.
That was very important.
Let us pass the wine.
Products of Animal Origin (Third Country Imports) (Scotland) Amendment Regulations 2003 (SSI 2003/165)
The instrument is fine.
Did we get a name check in the Executive's response?
No.
That is a shame and a pity.
I agree.
Prohibition of Fishing with Multiple Trawls (No 2) (Scotland) Amendment Order 2003 (SSI 2003/166)
The return of the nephrop.
We put the usual question to the Executive, concerning all the necessary consents, and the Executive's reply was that they had been obtained.
Is this the regulation that was drawn to our attention in an e-mail from a fishermen's organisation?
I think that it must be.
We think that the comments apply largely to the policy and should not necessarily detain this committee long.
Members may have received electronic communications from various fishing industry interest groups—fish processors and whatnot. It is obviously a serious matter. Those groups have taken heart from the proceedings in the chamber. On the basis of three SSIs on fishing, there was a debate on the general policy. I think that the fishermen hope that the same thing could happen on the basis of this instrument. However, that is not within the remit of this committee: it is for the lead committee to decide that.
Should we send the order to the lead committee?
Aye, we will draw it to the attention of the lead committee. The instrument breaches the 21-day rule, but do not they all?
How did we receive that communication from the fishermen's organisation?
Electronically.
Anti-Pollution Works (Scotland) Regulations 2003 (SSI 2003/168)
There is quite serious defective drafting in the instrument.
There is serious defective drafting, and we had to seek clarification from the Executive. The Executive has clarified the matter to its satisfaction, but we still have doubts. That will go into our report.
There are questions about convention rights and defective drafting. We should draw the matter to the attention of the lead committee.
Okay.
Action Programme for Nitrate Vulnerable Zones (Scotland) Amendment Regulations 2003 (SSI 2003/169)
The instrument is okay.
Waste Incineration (Scotland) Regulations 2003 (SSI 2003/170)
The regulations should have been implemented by 28 December 2002. That is not very good, is it?
No, it is not. However, it is a case of somebody going through their files and deciding that we had better get the regulations implemented. Is the instrument okay in substance?
Yes.
Waste Management Licensing Amendment (Scotland) Regulations 2003 (SSI 2003/171)
Again, this is a question of consolidation.
Are these EU regulations?
Yes. Are the regulations okay in substance? As the regulations are European, there are pages and pages of suggested drafting changes.
The instrument is in translation.
Yes. So, there may be some defective drafting.
Police Grant (Scotland) Order 2003<br />(SSI 2003/172)
The instrument is okay.
Financial Assistance for Environmental Purposes (Scotland) Order 2003<br />(SSI 2003/173)
There is no Executive note with the instrument. Not sending such a note may be a breach of proper legislative practice.
The administrator was on holiday when the documents were prepared.
Really?
Did you not read the response? It said that the administrator was on holiday.
I presume that there was a substitute.
The response does not say that the administrator was on holiday; it says that they were on leave. That might mean something different.
The same difference exactly. The work does not get—
They might have been on leave on an Executive note-drafting course.
In which case, there should have been a substitute Executive note drafter.
Okay. We are in that sort of mood. The Executive may have a reasonable excuse, as the person may have been away finding out how to do the job.
That is very generous.
Zoo Licensing Act 1981 Amendment (Scotland) Regulations 2003 (SSI 2003/174)
These regulations must go to the lead committee with a big "NB" attached. They are European regulations. The instrument is late and there is confusion over when the licences would have to come into effect. There is also confusion in the drafting.
There is confusion over the vires as well.
Our strong recommendation is that the lead committee should be very careful with the instrument.
Planning and Compensation Act 1991 (Amendment of Schedule 18) (Scotland) Order 2003 (SSI 2003/175)
The instrument is all right.
Council Tax (Discounts) (Scotland) Consolidation and Amendment Order 2003 (SSI 2003/176)
This instrument is probably just wrong, according to the advice that the committee has received. It refers to the student discount for council tax and seems to have confused the position. We could not work out whether it applies only to Scottish students or to foreign students and whether it applies only here or abroad. There was confusion over residency issues.
We gave the Executive informal notice of the kind of questions that we had to raise. However, the Executive's response fails to address the main issues concerning the application of the regulations and the discounts to students from other countries who are living here and to Scottish students who are studying abroad. Legal precedent suggests that the regulations, as drafted, are out of order under European convention rights.
You mean under Community law.
I am sorry—I meant under Community law. We need to make that clear to the lead committee and point out that there is serious doubt about the vires and justice of the order.
Referring to the Grzelczyk and D'Hoop cases might be appropriate.
Yes. We will make it go through D'Hoops.
We should emphasise to the lead committee that the matter is not only about defective drafting, but that the order might be seriously flawed. Is that agreed?
Rural Stewardship Scheme (Scotland) Amendment Regulations 2003<br />(SSI 2003/177)
The Executive has acknowledged that the wrong power has been cited. The regulations should have been made under section 2(2) of the European Communities Act 1972. The Executive says that the enabling powers could cover it. There is no doubt that the Executive has the powers to make the regulations, but technically, we consider the matter to be ultra vires. At the very least, there is defective drafting. Is that agreed?
Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2003<br />(SSI 2003/178)
No points of substance have been noted on the instrument.