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Civil Legal Aid (Scotland) Amendment Regulations 2005 (SSI 2005/112)
We move to item 3, which is consideration of Executive responses. The first response concerns the Civil Legal Aid (Scotland) Amendment Regulations 2005. We asked the Executive to confirm whether the provisions of section 26 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 would be brought into force on 4 April 2005. Are members content with the response?
We will therefore pass the response to the lead committee and to Parliament.
Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2005<br />(SSI 2005/113)
We move to the second Executive response. The committee asked whether progress has been made towards consolidation. The Executive explained that it is awaiting the outcome of the current strategic review, which it told us about previously. Are members content with that response?
Community Care (Direct Payments) (Scotland) Amendment Regulations 2005 (SSI 2005/114)
We raised two points on the regulations, which related to the citation of the enabling powers in the preamble. Do members want to report the regulations on the basis that they fail to comply with the proper legislative practice?
We asked why section 12B(6) of the Social Work (Scotland) Act 1968, which seems to be the relevant enabling power, had not been cited in the preamble. The Executive does not think that the power in section 12B(6) is used in the regulations. Given that there is a debate about the issue and that the regulations may not comply with proper legislative practice, do members agree to report the regulations?
Feeding Stuffs (Establishments and Intermediaries) Amendment (Scotland) Regulations 2005 (SSI 2005/116)
The committee asked the Executive why it had chosen to use the powers in section 2(2) of the European Communities Act 1972 as the enabling power, rather than section 56 of the Finance Act 1973. From the legal advice, I gather that that power should be cited, but that as we do not need the consent of the Treasury, the matter is perhaps not so important.
Our approach might reasonably be influenced by the view that the Joint Committee on Statutory Instruments has taken—we, too, might wish to comment on the unexpected use of the enabling power.
Do members agree to report the matter to the lead committee and to the Parliament?
National Health Service (Service Committees and Tribunal) (Scotland) Amendment Regulations 2005 <br />(SSI 2005/118)
As the principal regulations, which date from 1992, have been amended more than 10 times, we asked about consolidation. The Executive explains that it intends to review the operation of the principal regulations during the year and to carry out consolidation. Do members agree to pass on those comments to the lead committee?
NHS Quality Improvement Scotland (Establishment of the Scottish Health Council) Regulations 2005 (SSI 2005/120)
The reference to paragraph 2(b) in regulation 3 should have been to regulation 2(b). The Executive confirmed that that is an error and stated that it will amend the relevant cross-reference when the regulations are amended. Do members agree to report that matter to the lead committee?
National Health Service (General Ophthalmic Services) (Scotland) Amendment Regulations 2005 <br />(SSI 2005/128)
The committee asked the Executive what, if any, progress had been made towards consolidation of the regulations. The Executive stated that there is no immediate plan to consolidate the regulations, but referred to the Smoking, Health and Social Care (Scotland) Bill, which the Parliament has started to consider, part 2 of which will make changes to ophthalmic services. It may be sensible to leave the matter until the consideration of that bill is completed, after which the consolidation can be considered. Do members agree to pass on that explanation?
Intensive Support and Monitoring (Scotland) Regulations 2005 (SSI 2005/129)
Several points arise on the regulations. It is suggested that we draw the attention of the lead committee and the Parliament to the regulations. We would want to cover the doubt as to whether regulations 4 and 6(e) are intra vires; the defective drafting of regulation 6(f) and regulation 5(1)(c); the fact that we requested and received an explanation from the Executive in relation to regulation 5(1); and the failure to follow proper legislative practice in relation to the drafting of regulation 2 and the explanatory note. Is it agreed to pass on those points?
Antisocial Behaviour (Fixed Penalty Notice) (Additional Information) (Scotland) Order 2005 (SSI 2005/130)
The committee raised two points on the order. It questioned whether paragraph (e) of article 2 was sufficiently specific to adhere to the enabling power at section 130(3)(f) of the Antisocial Behaviour etc (Scotland) Act 2004 and it asked the Executive for its views. In response, the Executive stated that it considers that the reference to
I agree that article 2(e) could be clearer. It is not so clear to me that we should query whether the article is intra vires, but we could certainly make that first substantive point to the Executive.
We will pass on the Executive's response. Is that agreed?
We should also put to the Executive the second question that is raised in the legal brief about failure to follow proper legislative practice.
Common Agricultural Policy Single Farm Payment and Support Schemes (Scotland) Regulations 2005 (SSI 2005/143)
Two points were raised. Members will remember that regulation 2(1) contained two definitions of "farmer". The Executive explains that the inclusion of a definition of "farmer" in regulation 2(1) was an oversight that will be remedied at the earliest opportunity. The Scottish Executive Environment and Rural Affairs Department is considering further amendments in relation to recently agreed European Commission regulations that are due for publication. We should report these regulations as being defectively drafted in that regard.
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