Subordinate Legislation Committee

Meeting date: Tuesday, September 20, 2011

Official Report 275KB pdf

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Instrument subject to Affirmative Procedure

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Storage of Carbon Dioxide (Inspections) (Scotland) Regulations 2011 [Draft]

We turn to item 1 on our agenda. Members will note from the legal brief that there has been a failure to follow proper drafting practice, as the title of the regulations does not indicate that it amends the Storage of Carbon Dioxide (Licensing etc) (Scotland) Regulations 2011 (SSI 2011/24), which are the principal regulations. It implies instead that the regulations make standalone provision for inspections. Given that failure to follow proper drafting practice, does the committee agree to draw the regulations to the attention of the Parliament on the general reporting ground?

Members indicated agreement.

Members should also note from the legal brief that the regulations appear to be defective. Regulation 18(1)(c) of the principal regulations, which is inserted by the draft regulations, creates an offence that may be committed either knowingly or recklessly. However, the offence is committed by making a statement that the maker of the statement knows to be false or misleading in a material particular, and it appears to be impossible recklessly to make a statement that one knows to be false or misleading in a material particular, thereby defeating the apparent intention that recklessly making such a statement should be penalised. With that apparent defect in mind, does the committee agree to draw the regulations to the attention of the Parliament on reporting ground (i)?

I draw members’ attention to paragraph 3 on page 4 of the legal brief, which says:

“The Scottish Government was accordingly asked to explain ... how a person might fall within the ... situation”

that the convener has just described. The paragraph continues:

“Its response asserts that it is possible for this to occur, but does not provide any further specification.”

A rather spurious example is then given of what might be a similar case, but there is nothing related to a verbal commitment.

Also concerning is the last paragraph on page 4, which begins by saying that

“the Scottish Government comments that like provisions are to be found in other instruments”.

What on earth is going on with the drafting? Do we need a Roget’s thesaurus, or what?

That is an interesting point. Do other members have any thoughts? Our legal advice is clear: the drafting is defective. I do not know whether one can construe a situation in which one can recklessly make such a statement that one knows to be untrue. Perhaps one might be reckless as to the consequences, even if one knew that the statement was untrue but believed that it might not matter. I do not know, but it sounds as if we are getting into areas of legal philosophy.

Or legal conjecture. It should not be up to us to imagine a situation wherein these regulations might be applicable. The regulations should be self-evident, so it seems that they have not been properly drafted.

Is the committee content to draw the defective drafting of the regulations to the attention of the lead committee?

Could we also ask in what circumstances such a situation might arise? It does not make sense.

On the question whether we can discuss the matter with the Scottish Government or whether that is up to the subject committee, the advice that I have received is that we can go back to the Government while the matter is being referred to the subject committee and give that committee whatever response we receive, for its information.

I also welcome members’ support for the suggestion that when a criminal offence is created it should be clear what the offence is. The criminal law needs to be very clear to all. If this is not clear to us, it really must constitute a drafting defect.

Given that the regulations are subject to affirmative procedure, they must be subject to the most rigorous scrutiny. The regulations are self-evidently defective and therefore must be rectified.

Indeed. The points have been adequately made and we will report in those terms.