Civil Legal Aid (Scotland) Amendment Regulations 2012 (SSI 2012/64)
The next item is consideration of instruments subject to negative procedure. The regulations appear to be defectively drafted, in that they appear not to deliver the intended policy of transferring certain moneys from a general account held by the Scottish Legal Aid Board to the Scottish legal aid fund. Although the regulations expressly disapply obligations to make payment of those moneys contained in regulation 40(4)(e)(i) and (ii) of the Civil Legal Aid (Scotland) Regulations 2002, they do not disapply the obligation to deposit the moneys in a general account contained in regulation 40(4)(d) of the 2002 regulations. Furthermore, it appears doubtful whether reliance can be placed on a determination made by the Scottish ministers impliedly to disapply the express obligation in regulation 40(4)(d). Does the committee therefore agree to draw the regulations to the attention of the Parliament on reporting ground (i)?
I have to say that I am extremely concerned about these regulations because it seems that, as a result, two conflicting provisions will apply at the same time. That cannot be a good position to be in. The regulations would be subject to challenge and, although I might need to take advice on this matter, I understand that it might well be open to challenge not just by the immediate beneficiaries but by their heirs and successors. After all, diligent solicitors seeking to gather in funds for an estate might find that moneys were owed to it even though the person to whom they were owed had not claimed them. The regulations must be made much clearer and I very much share colleagues’ views that they are defectively drafted.
I will ask our legal advisers to comment on John Scott’s point in a moment, but I also wonder whether they can tell us how it might be corrected. If the way forward is to make a single correction to disapply the appropriate regulation, we might want to suggest that to the policy committee.
Absolutely.
Our advice to the committee is that disapplying the provision in regulation 40(4)(d) of the 2002 regulations might well be a method of resolving this apparent difficulty and the tension in these regulations.
What about John Scott’s point about the possibility of successors seeking to recover moneys?
Ultimately, individuals will have to take their own legal advice on that matter. They might well wish to consider it in the course of in-gathering an estate.
On the basis that our comments will be relayed to the Justice Committee, are members happy to leave the matter there and draw the Parliament’s attention to the regulations on reporting ground (i)?
Food Hygiene (Scotland) Amendment Regulations 2012 (SSI 2012/75)
The regulations raise the following devolution issue, which the committee might agree to draw to the Parliament’s attention on reporting ground (f).
First, I declare an interest as a farmer who has had animals affected in this way.
It is clear from our advisers’ comments that we are going to do what John Scott has suggested; indeed, we have already made that clear. After all, as John has pointed out, the issue lies not with the Scottish Government but with the tardiness of the Westminster Government. Nevertheless, there is clearly an issue that has to be dealt with.
We have the option of telling the Scottish Government that we recognise that what has happened is not its fault and suggesting that it defer the matter until the rest of the UK has indicated that it is going to catch up. Of course, that raises the question why the UK has delayed in the first place and what confidence anyone will have in a revised timetable. The Government might want to consider that.
If the Scottish Government does not have the power to make it because it would be incompatible to make it, then it is bad law ab initio. The question is whether in fact that is the situation.
So the answer, as always, is that we do not know and that the only place we will find out is in court, which is the last place we want to find ourselves. We certainly need to bring this discussion to the attention of the appropriate policy committee so that it, too, is aware of the issues.
Nevertheless, the situation that arises needs to be addressed. In recognition of the resulting difference of treatment between Scotland and the rest of the UK, the Food Standards Agency will be writing to enforcement authorities and the Crown Office and Procurator Fiscal Service to advise that no enforcement action should be taken until equivalent provisions are in force throughout the UK. Does the committee agree that it is most unsatisfactory to adopt a policy of ignoring the effect of subordinate legislation and electing not to enforce it? After all, we must have certainty over the actions that are to be subject to criminal sanction and those that are not.
I agree. In fact, I would word it a bit more strongly and would call the situation “untenable” or “unreasonable” rather than “unsatisfactory”. You can choose whichever word you like, but I would certainly beef up the term “unsatisfactory”.
I have already agreed with your use of the term “bad law”, John. I think that we also agree that the Scottish Government has been hung out to dry here.
Could some sort of checklist be put in place to ensure that we do not have this kind of thing time after time? Surely there could be a tick-box system showing all the European laws that have been enacted, whether the UK is affected, whether Scotland is affected and so on.
The Scottish Government recognises that it is subject to the Scottish Parliament and the UK Government is subject to the UK Parliament. I do not think that the UK Government can do anything more than try.
I am talking about all European laws or changes to statutes that have been enacted.
Forgive me, Chic, but there is a difference between directives and regulations.
Mr Brodie raises a very valid point. Can we not have better co-ordination between national and devolved Governments to ensure that each progresses at the same rate and that, when one goes to the trouble of implementing legislation that it is obliged to implement and the others fail to do so, someone somewhere is able to say what is happening?
We can ask the Scottish Government whether it was unaware that the other Administrations were behind with implementation. We can also raise the matter with the FSA, which has a UK-wide remit. Perhaps it, too, should have overseen the matter.
Absolutely. I am certain that Professor Milne will be very pleased to hear from you, because this is exactly the sort of matter that should be co-ordinated at that level.
Finally, does the committee consider that it would be possible to resolve the matter if the implementation of these measures were to be postponed until there is agreement that identical measures will be taken throughout the rest of the United Kingdom? That certainly seems to be the obvious solution.