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Prisons and Young Offenders Institutions (Scotland) Rules 2006 (SSI 2006/94)
In relation to rule 165, the committee noted that there is no specific power to amend or revoke any direction that is issued under the rules and we sought an explanation for that. The Executive says that it does not consider it necessary to include express provision that enables ministers to amend or revoke directions under the rules.
Yes. Our point is about the definitions of rules, acts and regulations. Whether the Executive is right is another matter, but we should draw the Executive's explanation to the attention of the lead committee.
Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Amendments) Order 2006 (SSI 2006/95)
The committee asked the Executive why it chose to use powers under the 2005 act as the vires for the order rather than powers under the Town and Country Planning (Scotland) Act 1997. Members will recall that the issue was about whether a general or a specific power should be used. Members have the explanation that we asked for in front of them. Are we reassured by the Executive's explanation?
The explanation, which is fairly brief, just says that the power is specific to the policy and is therefore appropriate. I am interested to know whether there might be a more appropriate power in our view. In the end, we should just report the point to the lead committee.
Our point was general rather than specific. We did not question the vires of the order, although the Executive seemed to think that we did. The order is clearly fine—there is no problem with it. The issue is the more general one of whether the Executive should choose a general power when a specific one is available. We have come across several instances in which the Executive has used a general power when a specific one was available. We should take up the issue more directly with Executive officials to find out why that is happening. The Executive may have good reason for doing that—it has explained why it has done so in the order—but we should raise the general issue.
Okay. We will pass on the Executive's explanation to the lead committee, which is the Health Committee. We must do so quickly, as it will consider the order at its meeting this afternoon.
I do not know how many examples there have been, but we certainly should write to the Executive on the issue.
There have certainly been a few. We will ask the clerk and legal advisers to list them.
Yes, although the issue is not, in essence, one of volume. The number of cases has increased, which is a trend that concerns most of us, but the point is one of principle, about why the Executive chooses general powers when specific ones are available. We must get to the nub of the problem and find out why the Executive does that.
I could draft a letter and circulate it at a later meeting or, alternatively, members could delegate the task to me.
We will delegate it to you, convener.
Yes.
Excellent. We will pass on the explanation to the Health Committee.
We should make it clear to the Health Committee that we are not questioning the vires of the order.
Absolutely. We could even say that a more general issue arises and that we are taking it up.
Yes.
Police Act 1997 (Criminal Records) (Scotland) Regulations 2006 (SSI 2006/96)
We asked the Executive to explain the purpose and effect of the words
Police Act 1997 (Criminal Records) (Registration) (Scotland) Regulations 2006 (SSI 2006/97)
We asked the Executive about the definition of the term "statutory office holder" in regulation 2(1) and about the purpose and effect of words used in regulations 7 and 10. We also asked for an explanation of the reference to "appropriate police authority" in regulation 7. Given the Executive's response, the best thing would be to draw three issues to the attention of the lead committee and the Parliament. The first is the defective drafting in relation to point 1 of the three that I mentioned; the second is the failure to follow proper legislative practice in relation to point 2; and the third is defective drafting in relation to point 3, which the Executive has acknowledged. Is that agreed?
I think that we should emphasise point 1 above points 2 and 3. I am not saying that you skimmed over the points, convener—
It was just to save time.
I am sorry, convener, but point 1 is very important, while points 2 and 3 are relevant but lesser points. Point 1 may well be a serious drafting error, so it is important that we highlight that to the lead committee, rather than simply give the three points with the three answers and say that we disagree with the answers.
You are right. The legal brief states:
Yes. We should include extra information so that the lead committee knows exactly what we are talking about. The legal advice is that the defect is in the parent act, with the result that it specifically excludes acts of the Scottish Parliament. It is worth pointing out that problem to the lead committee.
It might be useful if we included in the letter to the lead committee paragraph 153 of the legal brief.
Good idea. Could we include paragraph 154, too?
I read that out, so it will be included in our report anyway, but we can put the two paragraphs together.
Strathclyde Passenger Transport Area (Variation) Order 2006 (SSI 2006/112)
We asked the Executive to explain why it did not narrate, in the preamble to the order, that consultation was carried out. The Executive response seems in order—it has basically accepted what we said. The legal advisers are happy with the explanation.
Diligence against Earnings (Variation) (Scotland) Regulations 2006 (SSI 2006/116)
We asked the Executive why it chose not to revoke the regulations that are superseded by these regulations. The Executive's response is that the prior regulations are not entirely redundant. Do members want to report the fact that we asked for further explanation and got it?
The previous regulations are probably redundant but, if there is any risk or possibility that they might not be, we should leave well alone and accept the Executive's argument.
I do not disagree with that, but it strikes me that, on other occasions, Executive responses have more or less implied that, because new regulations are in place, the old ones are automatically revoked. That strengthens the argument for having a specific statement on the matter in every new set of regulations if there is no revocation of the previous regulations on the type of grounds that the Executive has given in this case. Such a statement would significantly enhance our understanding of regulations and the understanding of any potential users or people who were affected by them. Without it, people might assume that previous regulations had been cancelled.
That is a good point. We could include that general point in the letter that we agreed to send to the Executive on another general point. Do members agree to include that issue?
Dairy Produce Quotas (Scotland) Amendment Regulations 2006<br />(SSI 2006/119)
We asked the Executive a couple of questions on the regulations. The big one was whether anyone will be disadvantaged under the regulations. The Executive response reassures us that no one will be disadvantaged, as no penalty will be applied in respect of statements that are submitted before the date when the regulations come into force. Are members content to pass that on to the lead committee and the Parliament?
I am very content, given my brother's interest in the matter.
A declaration. Are we agreed that all the issues were dealt with in the explanation?
Provision of Water and Sewerage Services (Reasonable Cost) (Scotland) Regulations 2006 (SSI 2006/120)
We asked the Executive to explain the policy intention behind regulation 3, as there were concerns about whether or how far it is intra vires. The Executive has supplied the detailed policy background that we requested. However, the meaning of the regulations might have been clearer if the items to which the Executive refers in its response had been described as matters not to be taken into account when calculating reasonable expense. Basically, the whole thing could have been clearer. We will make that point to the lead committee and the Parliament, and we will pass the Executive's response to the lead committee.
Non-Domestic Rates (Levying) (Scotland) Regulations 2006 (SSI 2006/124)
We asked the Executive to explain why it chose not to cite the Non-Domestic Rates (Levying) (Scotland) Regulations 2005 (SSI 2005/126) by the title given in that instrument, which provides that the SSI is to be cited as an order rather than regulations. The Executive has accepted that there is a mismatch between the citation and the title. I suggest that we draw the attention of the lead committee and the Parliament to the regulations on the ground of defective drafting.
The Executive has accepted our point about the mismatch and has said that it intends, as soon as possible, to make and lay a fresh set of regulations that contain the correct reference. That is great, but this is an example of a point that we raised in our inquiry, and a point that conveners have raised specifically. Conveners have been annoyed by having to go through things twice just because of minor errors. This is a perfect example of when laying an instrument in draft form would have prevented the problem, so that lead committees and this committee did not have to go through the process twice.
I think that we all agree on that.
Water Environment (Consequential Provisions) (Scotland) Order 2006 <br />(SSI 2006/127)
We asked the Executive to explain why it chose to use the powers under the Water Environment and Water Services (Scotland) Act 2003 as the vires for the order. The issue of general and specific powers arises again. The Executive has explained that all the provisions revoked or amended by the order are purely consequential on measures legislated for elsewhere. The Executive considers that the powers in section 37 of the 2003 act clearly envisaged instruments of this kind and intended their use for this purpose.
I suggest that we add something to the letter that is already going to the Executive. We are concerned that this issue could arise again. We should be clear about what we can expect from the Executive.
Do you mean something about general and specific powers?
Exactly—something about the use of general powers rather than specific powers.
Our legal adviser recommends that we highlight the Executive's explanation to both the lead committee and the Parliament.
The legal advisers seem to suggest that in this case it was appropriate to use the particular powers. This case is slightly different from the previous one, but it is in the same vein. There is no reason why we should not mention it.
Again, we come back to the point that the Executive should explain more why particular powers are used.
Waste Management Licensing (Water Environment) (Scotland) Regulations 2006 (SSI 2006/128)
We asked the Executive whether it had any proposals for consolidation. The Executive has said that it is undertaking a review, in stages, of the Waste Management Licensing Regulations 1994 (SI 1994/1056). It hopes later this year to introduce measures that will codify the provisions to which most amendments have been made. Do members agree that we should draw that to the attention of the lead committee and the Parliament?
Planning and Compulsory Purchase Act 2004 (Commencement No 1) (Scotland) Order 2006 (SSI 2006/101)
The committee considered that the commencement order was too limited and that there was a need to commence certain other provisions of the Planning and Compulsory Purchase Act 2004. We asked the Executive why it had not commenced sections 90(4) and 117(8). The Executive does not consider it necessary to commence those sections. It takes the view that, in the event of any doubt, under section 13 of the Interpretation Act 1978 anticipatory exercise of powers would enable the provisions as commenced to have full force and effect. Do we want to report this order on the ground of unduly limited use of the power?
Antisocial Behaviour etc (Scotland) Act 2004 (Commencement and Savings) Amendment Order 2006 (SSI 2006/104)
There is an issue with the order. The committee asked the Executive to confirm that all necessary consequential changes would be made to the coming-into-force dates of instruments brought fully into force by the order. The committee felt that if that did not happen doubt might arise as to whether the instruments in question were intra vires.
There is obviously a difference of opinion. However, if there is any doubt—and it seems that there is—would it not have been more sensible just to change the dates? Then there would be no argument from anybody and no possibility of anybody challenging the order on the basis of there being different dates. It is strange to defend the present situation rather than just change all the dates. If the dates were all in line, there would be no argument. The Executive takes a different view, so I suggest that we report that to the lead committee.
We can draw the attention of the Parliament to the order—it would not normally go to the lead committee. However, we should write a letter to the Communities Committee, as well as to the Executive.
Yes, we should make the point that it would have been sensible to change the dates. I apologise for my confusion, convener; I did not realise that this was a commencement order and that we would report to the Parliament rather than to the lead committee. However, it would be helpful to mention the issue to the lead committee by letter.
Does anyone disagree with the suggested course of action?
No.