Official Report 101KB pdf
Scotland Act 1998 (River Tweed) Order 2005 (draft)
We highlighted a number of errors in the draft order. The Executive has decided to withdraw its current draft and lay a new draft order in the new year. I suggest that we bring the Executive's response to the attention of the Parliament and the lead committee. Is that agreed?
Environmental Information (Scotland) Regulations 2004 (SSI 2004/520)
There is a difference between what has happened at Westminster and what has happened up here in Scotland as concerns the regulations. That is simply because in Scotland the Executive used section 2(2) of the European Communities Act 1972 for the purposes of drawing up the regulations. The United Kingdom regulations have been subject to the affirmative procedure; the Scottish regulations are subject to the negative procedure. I would like to hear whether members think that we should consider moving to the affirmative procedure, too. I stress, however, that the respective regulations have been drafted differently, which is why the negative procedure has been used in one case and the affirmative procedure has been used in the other.
Normally, I would recommend that we go for the affirmative procedure, because I believe that such things should be scrutinised by the Parliament, rather than being subject to somebody noticing them and lodging a motion to annul. In this particular instance, the timescale is short. If the committee agrees, we might tell the lead committee that we have noticed the issue and that we would normally recommend the affirmative procedure but that, in this instance, we are not doing so, because of the timescale. The committee might want to examine this matter in its review of the regulatory framework.
Are members happy with that?
The shortness of time is a problem, unfortunately. We will report to the Parliament and the lead committee, explaining why we recommend that we should keep the negative procedure for the regulations, although we recognise the advantages of the affirmative procedure. We will take up the wider issue in our review, referring to section 2(2) powers under the 1972 act.
Protection of Children (Scotland) Act 2003 Determination Regulations 2004 <br />(SSI 2004/523)
We asked the Executive why the regulations contained powers already contained in the parent act. Gordon Jackson made a few technical points about that last week. It is a question of whether we are content with the Executive's response. The Executive acknowledges that there is some duplication, but thinks that that is of benefit to the reader of the regulations. Should we pass the response on, or should we say that we think that legislative practice has not been adhered to in this case? Do you have any further comment on the matter, Gordon?
As you know, it is not a matter that I find myself terribly concerned about. I do not think that the regulations are ultra vires in the normal sense.
I understand that, technically speaking, it is not good legislative practice to repeat in regulations provisions that are already in the parent act. I appreciate the reasons for which the Executive has done so in this instance, which is to help the reader or user of the regulations to be absolutely clear about what matters are covered.
I would only add that the legal advisers have said that proper legislative practice has not been followed in this instance. We should possibly note that.
That is an important principle. In the last two cases where we decided not to stand on our normal grounds, we did so on the basis that there was a greater public good to be served, given the timescale involved. I think that this is a case of poor practice, however, and that we should comment on that. There are other ways in which the Executive can make instruments clearer; we have talked to them about including explanatory memoranda and writing the instruments in more comprehensible language. If the Executive thinks that it has done the right thing, that is fine, and it will not mind our drawing its attention to the fact that, technically, it has not done things in the right way. I think that we should stick with that view.
I am tempted to agree with Murray Tosh. In our review, it might be useful to examine the extent to which provisions should be repeated. Do members agree with the approach that Murray Tosh has suggested?
Fire Services (Appointments and Promotion) (Scotland) Regulations 2004 (SSI 2004/527)
We wrote to the Executive about the change from "rank" to "role" in the regulations. The Executive responded that it sees the term "role" as having the same meaning as "rank", and that there is not really an issue here. Are we in agreement about passing that on?
Salmonella in Laying Flocks (Sampling Powers) (Scotland) Regulations 2004 <br />(SSI 2004/536)
Members will remember that the committee asked the Executive to explain the purpose of paragraph 2 of regulation 6, because the offences to which the paragraph refers are covered by paragraph 1. Our legal adviser has seen the response from the Executive and suggests that the committee might want to report the regulations on the ground of defective drafting. It is for the committee to consider whether the Executive should amend the regulations, although given the timescale the Executive does not propose to do so. Members will remember that the powers in the regulations relate to a survey that is to be undertaken, so would operate only in the short term.
The survey is due to be completed by the end of October 2005. I am feeling magnanimous today; again, it is probably appropriate for the committee to accept the Executive's position and report the instrument on the ground of defective drafting.
In our report to the lead committee we could mention that the regulations need to be amended, but because they will apply only in the short term—
It would probably not be worth while to amend them.
Yes. Is that agreed?