Subordinate Legislation
Scottish Public Services Ombudsman Act 2002 (Amendment) Order 2002
Item 3 is subordinate legislation. The minister and an official from the Executive are here to take part in a debate on the Scottish Public Services Ombudsman Act 2002 (Amendment) Order 2002. The order is laid under the affirmative procedure, which means that Parliament must approve it before its provisions can come into force. Before I give members the opportunity to question the minister, I invite Peter Peacock to make his introductory remarks.
I will be brief in setting out the background to the order. Schedule 2 to the Scottish Public Services Ombudsman Act 2002 lists the bodies that are liable to investigation by the ombudsman. The order seeks to remove from schedule 2 the reference to the traffic commissioner for the Scottish traffic area.
At stage 2 of the Scottish Public Services Ombudsman Bill, I indicated to the Local Government Committee that Executive officials were involved in discussions with Whitehall colleagues over whether it was appropriate for a traffic commissioner for any part of the UK to be covered by an ombudsman. While that was in question, we considered that it was important to ensure that the public were able to complain to the ombudsman about the devolved functions of the Scottish traffic commissioner. Accordingly, the reference to the commissioner was retained in the bill. However, it is now clear to us that the devolved functions of the traffic commissioner should not fall to be considered by the ombudsman.
The commissioner's only devolved functions are: to determine appeals against local authority decisions on taxi fares; to appoint adjudicators to consider appeals against charging for and removing improperly parked vehicles in Edinburgh and Glasgow; and to receive and record registrations to run local bus services, and thereafter to monitor the bus operators' adherence to the operating conditions in such registrations.
The commissioner's role in respect of taxis and the registration of local bus services is as a tribunal and should not, therefore, be covered by the ombudsman. Any decisions of the commissioner as a tribunal are subject to judicial review and the ombudsman is not permitted, under section 7(8) of the Scottish Public Services Ombudsman Act 2002, to consider such matters.
The function of appointing adjudicators is contractual in nature and the ombudsman is prevented from investigating those matters by paragraph 7(1) of schedule 4 to the Scottish Public Services Ombudsman Act 2002. Accordingly, there is nothing for the Scottish Public Services Ombudsman to investigate in terms of the traffic commissioner's devolved functions—hence the order that is before the committee. I am happy to answer any questions.
Prior to our moving to consideration of the motion, do any members want to question the minister?
As there are no questions, I ask the minister to move motion S1M-3353.
Motion moved,
That the Transport and the Environment Committee recommends that the Scottish Public Services Ombudsman Act 2002 (Amendment) Order 2002 be approved.—[Peter Peacock.]
Motion agreed to.
I thank the minister and the Scottish Executive official for their attendance.
Environmental Impact Assessment (Scotland) Amendment Regulations 2002 (SSI 2002/324)
Agenda item 4 is two further pieces of subordinate legislation. They are both negative instruments.
The first instrument is the Environmental Impact Assessment (Scotland) Amendment Regulations 2002 (SSI 2002/324). It includes a provision that suspends mineral workings when an operator does not provide environmental information within a reasonable time to planning authorities that are reviewing mineral permissions. The regulations have been drafted so that the provision applies to review of mineral permissions applications that have not yet been completed. That aspect of the provision was included in response to petition PE225, from William Ackland, about such an application for Sheephill quarry at Milton, near Dumbarton. Members will recall that the committee wrote to the Executive to flag up the issue of applications that are currently under way. That resulted in the redraft of the regulations.
The only slight hitch with the regulations is that the Subordinate Legislation Committee raised concerns about defective drafting, with the result that the Executive intends to introduce revised regulations, which will revoke the regulations that we are considering today at the earliest possible opportunity. As the regulations have not been revoked at this stage, they carry on with their usual parliamentary progress.
We are in the unfortunate position of considering an instrument that has been recognised as flawed. Members will recall that during consideration of a previous item of subordinate legislation we raised concerns with the Subordinate Legislation Committee about defectively drafted instruments that were due to be revoked being put forward. We received a response, which members have had circulated to them, from the convener of the Subordinate Legislation Committee, Margo MacDonald. The response indicates that the decision to revoke an instrument lies with the Executive, which will almost always proceed with a faulty instrument until a new instrument is ready to replace it. The reason for that is that it may well be that aspects of the instrument are needed because they are sound or that items of existing legislation may be about to lapse. In addition, the response from Margo MacDonald suggests that, following consideration of such an instrument, the lead committee should provide a summary of its points on the instrument in a report in order to set its decision in context. Having made that introduction and noted the fact that the instrument responds to the committee's consideration of a public petition, I invite members to comment on the instrument.
I feel that I should say something, but not on the instrument. I merely comment once again on the fact that we appear to be presented with instruments that are faulty at the outset. Some box should be ticked somewhere. We could do better. I will leave my comments at that.
Is our sole option this morning simply to pass comment on the instrument?
We have to consider the regulations by 30 September. It is possible for us to put questions to the Executive and to consider the instrument at next week's meeting, if we wish.
This is a huge, detailed document that we have not had for very long. I suggest that we spend a week examining it and reserve comment until the next meeting.
Copies of the instrument were circulated to members on 22 August. Members have had the regulations for almost a month. I realise that we receive many items of correspondence, but it is incumbent on us to examine instruments and, if we have concerns about them, to be prepared to raise those.
I was speaking only for myself.
I suggest that in our report we note our continuing concern that an instrument, the drafting of which is regarded as defective, has again been placed before the committee. We should recognise that it is the role of the Subordinate Legislation Committee to alert the Parliament to such instruments and congratulate the committee on its vigilance. We should also note that the Executive intends to submit a redrafted instrument promptly to correct the defective drafting in this instrument. We should indicate that we have nothing further to report regarding the policy issues raised by the instrument. Is that agreed?
Did you mention that we should welcome the fact that the Executive has responded positively to a recommendation by the committee?
I did not, but I should have.
The fact that that has happened shows that the system is working. An issue has been raised and dealt with.
We can say in our report that we welcome the fact that the Scottish Executive has responded to issues that were raised in a petition and by the committee. Is that agreed?
Members indicated agreement.
A9 Trunk Road (Ballinluig) <br />(Temporary 50mph Speed Limit) (Continuation) Order 2002 (SSI 2002/371)
No member has indicated that they wish to comment on the order. No motion for annulment has been lodged. Are members content to report that we have nothing to report on the instrument?
Members indicated agreement.