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Nitrate (Public Participation etc) (Scotland) Regulations 2005 (SSI 2005/305)
The Committee asked the Executive to explain the reference in regulation 2(2)(a) to the wording
We should draw that to the attention of the lead committee and the Parliament on the basis of defective drafting.
Charities (Designated Religious Bodies) (Scotland) Order 2005 (SSI 2005/306)
The Committee asked the Executive to clarify why it chose not to narrate in the preamble to the order the statutory conditions to the exercise of the enabling power, as set out in section 3(1)(a) to (c) and section 3(2) of the parent act—the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
The briefing on the order was interesting. On the basis of the view that the Executive took, the order has been made in a valid way and therefore the vires is not in question. However, if the order is for bodies of 3,000 members or more it is intra vires, but if the body had fewer than 3,000 members, the order would not be intra vires. That is where there is a query.
Is it not even more worrying than that? Paragraph 70 of the draft copy of the legal brief—paragraph 116 in the copy that the committee is using today—makes the valid point that the Executive argues that
I was going to raise the same point that Murray has covered. The point is that there are five specific conditions. Where do we draw the line? If there were 10 or 100 specific conditions and the Executive said, "It is implicit that we have done this correctly", should we just accept that? Once we go down that road, there is no obvious point at which we should say, "Stop". Murray has made the point well that we should be quite strong and say that it is not acceptable.
We might therefore want to pass on quite a lot of what is in the legal brief when we report to the lead committee and Parliament on the improper drafting.
This order gives credence to the discussion in our draft report about the need for proper explanatory notes and supporting documentation. That is true not just for this committee; members of the lead committee or other committees that might be peripherally affected also get sight of instruments. We cannot know what is in other people's minds and if they do not give us the background information on which they have based their judgments, how are we to make a judgment?
We shall put all those points in our letter.
Wildlife and Countryside Act 1981 (Variation of Schedule) (Scotland) Order 2005 (SSI 2005/308)
The committee asked the Executive to explain why no Executive note was provided, and the Executive stated that the content and effect of the order were considered to be self-evident, that the text of the order was self-explanatory and that, accordingly, no Executive note was required.
I wonder whether we should tell the Executive that we feel absolutely humbled by the fact that we were so stupid as not to recognise what was self-evident. Perhaps not. The Executive's reply is just a little patronising, but we have been through it before so I do not think that there is any need to say it all over again.
When the Executive requires us to look at 30-odd statutory instruments a week, there is an issue about judging anything to be self-evident. There is clearly a workload issue here. It would not surprise me if the Executive did not provide a note because it did not have time, given the pressure that it has put itself under. It is certainly putting us under pressure to do a vast amount of business at very short notice. Perhaps we should make the additional point that the Executive should not assume that anything is self-evident, particularly not when the clear briefing from our legal advisers—in paragraphs 76 and 77 of the original briefing and 46 paragraphs further on in the updated one—is that we should not regard it as self-evident. Even if it were, the understanding is that the Executive will produce a note unless it is clearly superfluous. In this case, a note is not clearly superfluous.
Exactly. In fact, paragraph 123 of the legal briefing states:
Indeed.
The order is a bit like the previous one that we considered. It is not self-evident, self-explanatory or even implicit. The use of that sort of language in response to our concerns is clearly incorrect and is not helpful at all, either to the lead committee's deliberations or to Parliament's deliberations on the regulations.
We shall try to encompass all those points in our letter.
Mental Health (Content and amendment of care plans) (Scotland) Regulations 2005 (SSI 2005/309)<br />Mental Health (Content and amendment of Part 9 care plans) (Scotland) Regulations 2005 (SSI 2005/312)
The committee asked the Executive to explain why, in regulation 3 of each of those instruments, there is a reference to paragraph 1 but no reference to subsequent paragraph numbers. The Executive has acknowledged those drafting errors. Shall we report that to the lead committee?
Student Loans (Information Requests, Maximum Threshold, Maximum Repayment Levels and Hardship Loans) (Scotland) Regulations 2005 (SSI 2005/314)
The committee asked the Executive why new regulations 11A to 11F were inserted into part III of the Repayment of Student Loans (Scotland) Regulations 2000 (SSI 2000/110), when they appear to apply to all borrowers, not only those who are resident overseas. The Executive responded that the new provisions, which appear to apply to all borrowers, will apply only to overseas borrowers, because of a determination granted by ministers that collections should be made by the Inland Revenue through taxation by self-assessment and pay as you earn. The position is not at all clear from the regulations, without the detailed explanation given by the Executive. What are members' views?
I think that we should report the regulations.
Is it agreed that we report that defective drafting?
This is a good example of a case where something that might be self-evident to the drafter requires explanation to those who read it, because they do not have the privilege of being party to all the information that the drafter had at his or her disposal.
Good words, Murray.
I agree. This matter engendered a lot of debate and discussion last week.
I can imagine.
Given that the documents might have legal consequences, the regulations should make clear the meaning of the term "delivered". That could be done quite easily. As a result, I think that we should mention the matter in our report.
I think that our report will say that and make it clear that we have met this matter before.
By the end of last week's extensive debate, we had not reached a conclusion about what was meant. Given that we could not do so, I am not sure that the matter will be—to use a phrase that has been well-worn this morning—self-evident to everyone else. The Executive should be clear about these things. After all, we have dealt with this point before. Perhaps discussing whether these matters should be explicit or implicit should form part of the deliberations in our inquiry and in the work that might possibly lead to a bill.
When documents are served, are they sent by some form of recorded delivery?
We do not know.
That might be pertinent to the question of deciding whether delivery is the appropriate standard to adopt. Delivery based on the assumption that someone will get the document is entirely different from delivery based on the knowledge that someone will get it. Given that we will discuss the matter again as it evolves, it might be useful to know what the practice is and, indeed, to find out whether practice is consistent and whether there is a standard definition of serving a document. Is issuing a piece of information to someone serving a document? At what point does sending someone stuff through the post constitute serving a document? Is the practice consistent?
There are two issues to address. First, we will report to Parliament and the lead committee that the meaning of the provision could be made clearer. Secondly, we will write back to the Executive and find out what the general procedure is.
In legal terms, serving a warrant means that it is handed to a person at their door.
But we are talking about delivering something, rather than serving it.
We will clarify the exact procedural definition of the term and take into account Murray Tosh's points.
The committee also asked the Executive to explain whether the references to "paragraph 9(4)", "sub-paragraph 13(4)(a)" and "paragraph 13(1)" in regulations 4 and 5 should in fact be references to regulations. The Executive has acknowledged that those references are drafting errors and that they indeed refer to regulations. I suggest that we report that to Parliament and the lead committee as defective drafting. Are members agreed?
Local Government Pension Scheme (Scotland) Amendment (No 2) Regulations 2005 (SSI 2005/315)
The committee asked the Executive whether, in regulation 2(a) and (b), the references to paragraphs 132(1) and 132(3) should instead be to regulations 132(1) and 132(3). The Executive has acknowledged that those are drafting errors and that the references to paragraphs should be to regulations instead. Are members agreed to report to Parliament and the lead committee that the Executive has accepted this defective drafting?
Genetically Modified Organisms (Transboundary Movements) (Scotland) Regulations 2005 (SSI 2005/316)
The committee asked the Executive to comment on whether the provisions in paragraph 6 of schedule 2 to the regulations might breach the right of a person not to incriminate him or her self as guaranteed under article 6 of the European convention on human rights.
The Executive is correct to say that there is protection under the ECHR. However, it would have been helpful if the issue with regard to self-incrimination had been made absolutely clear in the regulations. It might not be strictly wrong for the Executive not to do so, but it is not helpful. After all, everyone should know exactly where they stand. As a result, we should include that comment in our report.
Are members agreed?
Gaming Act (Variation of Fees) (Scotland) Order 2005 (SSI 2005/319)
The committee asked the Executive to clarify why, in uprating the fees amounts set out in section 48 of the Gaming Act 1968, it did not amend all the figures in section 48(4) of the act to reflect the amended amounts in section 48(3).
I think that we should report the order to Parliament and the lead committee on the ground of defective drafting.
Are members agreed?
Prevention and Monitoring of Cetacean Bycatch (Scotland) Order 2005 <br />(SSI 2005/330)
We are nearly at the end.
Eggs (Marketing Standards) (Enforcement) (Scotland) Regulations 2005 (SSI 2005/332)
The Committee asked the Executive to comment on why, given that the principal regulations were amended by The Food Standards Act 1999 (Transitional and Consequential Provisions and Savings) (Scotland) Regulations 2000 (SSI 2000/62), the relevant parts of those regulations are not included in schedule 2 to the regulations, which lists the regulations that these regulations revoke and replace. The Executive has explained that the omission is unintentional, but that there is no practical effect, and has said that it will endeavour to rectify the point at the next available legislative opportunity. Do members agree to draw the attention of the Parliament and the lead committee to these regulations on the ground of failure to follow proper legislative practice?
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