Subordinate Legislation Committee, 19 Apr 2005

Meeting date: Tuesday, April 19, 2005

Official Report 253KB pdf

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Executive Responses

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Vulnerable Witnesses (Scotland) Act 2004 (Commencement) Order 2005 <br />(SSI 2005/168)

We move to agenda item 4, which is our consideration of Executive responses. The first order for our consideration is SSI 2005/168. Members will recall that we raised two separate points on the interpretation provisions in the order. The Executive response includes an acknowledgement of the errors in the order, one of which related to an unnecessary interpretation provision and the other to the inconsistent use of a term.

Are members happy to report the errors as a failure to follow normal drafting practice?

Members indicated agreement.

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Advice and Assistance (Scotland) Amendment (No 2) Regulations 2005 <br />(SSI 2005/171)

We raised a consolidation issue in relation to these regulations. The Executive has responded by saying that, as it is undertaking a strategic review of the delivery of legal aid, advice and information, it might be a bit silly to start consolidating the regulations until the review is in hand. Do members agree with that approach?

Members indicated agreement.

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National Health Service (Travelling Expenses and Remission of Charges) (Scotland) Amendment (No 2) Regulations 2005 (SSI 2005/179)

We raised two issues of concern in relation to these regulations, the first of which was the breach of the 21-day rule. Members will recall that we asked the Executive whether it was aware of the timescale involved. The Executive response argues that as the Department of Health did not confirm the final agreed changes to the English regulations until 8 March, the Executive had only from that date until 29 March to lay the regulations. Does any member have a point to raise on the response?

Did the English regulations also fail to meet the deadline?

We can find that out.

It becomes a footnote. Nonetheless it strikes me that what the Executive did in the circumstances was not unreasonable. I presume that there was good cause for both sets of amendment regulations to reflect each other and to come into effect on the same day, and the Executive per se cannot be criticised for the delay.

However, there might be a fault in the system, which would be worth knowing about. There is an indication that Scottish regulations follow UK regulations to a considerable degree and that the Scottish Executive may be left to hang on for decisions on points of substance before it knows what it wishes to include in its regulations. That probably happens more often than we see and may reflect a lack of equality between the two Governments regarding the detail of regulations. We may regard this as a politically contentious issue, rather than as an administrative problem that is deserving of severe censure. I am inclined to say that we are satisfied with the Executive's explanation. However, at some stage the committee may wish to examine the interface between UK and Scottish statutory instruments.

I agree with what most of what Murray Tosh has said. I was curious about some of the wording in the Executive's response, which states that regulations

"were only confirmed by Department of Health on 8 March."

Was the decision taken on 8 March or was the Scottish Executive informed of it on that date? Those are two entirely different things.

It would also be interesting to know whether the English regulations breached the 21-day rule. If the decision was taken on 8 March, the English regulations would have breached the rule; however, if the rule was observed in England, that tends to suggest that the decision was taken earlier and was revealed on 8 March, when information was given to the Scottish Executive.

Do we have time to write back to the Executive, or do we have to report on the regulations today?

I am afraid that we must report on the regulations today.

We can report on the regulations, but we could still ask about what happened elsewhere. Murray Tosh is right to say that there may be an administrative problem between what is happening in London and what is happening here in Edinburgh. That problem may need to be sorted out.

Absolutely. Ruth Cooper wants to clarify an issue.

I should clarify the point that Stewart Maxwell made about the 21-day rule. From legal advice, I understand that, although the rule is a precedent at Westminster, it is not statutory, as it is here. However, it might still be of interest to find out what the timescale was.

The timescale will be the same, regardless of whether the rule is statutory.

We can pursue the matter.

The issue that Ruth Cooper raises is important, because it offers an insight into the way in which the two Governments may handle statutory instruments. If the requirement at Westminster is less onerous, the issue may be for us to establish that that is the explanation for what has happened and to press for Westminster to amend its practices when it is dealing with parallel regulations, to ensure that the greater responsibility on the Scottish Executive can be honoured. An interesting inquiry into the issue may be held. For that reason, I would like to have the information that we have requested, although I do not think that it is germane to these regulations, which will become history.

We will do two things. We will send a letter to the Scottish Executive and ask all the questions that we have highlighted. We will also draw the attention of the lead committee and the Parliament to the explanation that we have received and indicate that there has been a justifiable breach of the 21-day rule.

The Executive acknowledges that regulation 6 ought to have included a cross-reference to the principal regulations and indicates that it will make an appropriate amendment when the principal regulations are next amended. Do we agree to bring that defective drafting to the attention of the lead committee?

Members indicated agreement.

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Intensive Support and Monitoring (Scotland) Amendment Regulations 2005 (SSI 2005/201)

The Executive acknowledges that section 70(12) of the parent act ought to have been cited in the preamble to the regulations, but points out that its vires are not affected. Do we agree to draw that defective drafting and failure to cite a relevant enabling power to the attention of the lead committee and the Parliament?

Members indicated agreement.