Official Report 119KB pdf
Police (Scotland) Regulations 2004 <br />(SSI 2004/257)
Agenda item 2 is the consideration of Executive responses. Members will see from the information that we have received on the regulations, and from the legal advice, that various concerns remain. The first is a doubt about whether the regulations are intra vires. The main point, which we raised in point 2 of our letter to the Executive, is that the safeguards on hours of duty that we thought should, under the parent act, be in the regulations do not appear to be there. We also raised another possible intra vires issue in point 1 of our letter.
Shrimp Fishing Nets (Scotland) Order 2004 (SSI 2004/261)
We wrote to the Executive about the timing of the order. Do members agree to pass on to the lead committee and the Parliament the information that the Executive has supplied?
Advice and Assistance (Scotland) Amendment (No 2) Regulations 2004 <br />(SSI 2004/262)<br />Criminal Legal Aid (Fixed Payments) (Scotland) Amendment (No 3) Regulations 2004 (SSI 2004/263)
Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2004 <br />(SSI 2004/264)
We raised several issues on the regulations about legislative practice. It is recommended that we draw the attention of the lead committee and the Parliament to the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2004 (SSI 2004/264), on the ground of defective drafting, which the Executive has acknowledged. The legal adviser has drawn to our attention the need for a saving provision in the regulations. It has also been suggested that only relevant amendments should be mentioned in footnotes, which would certainly help our legal colleagues when they examine such instruments.
It is not only our legal colleagues who require simplification.
It is us as well.
The users of the regulations might well benefit from simplification.
Yes. Is it agreed to make those points to the lead committee?
Food Labelling Amendment (Scotland) Regulations 2004 (SSI 2004/269)
We asked about progress on the consolidation of food labelling legislation and have received information. Do members have any comments?
I welcome what the Food Standards Agency Scotland is doing and encourage it to carry on.
It is nice to be able to be positive about the Food Standards Agency Scotland.
Education Maintenance Allowances (Scotland) Regulations 2004 (SSI 2004/273)
A devolution issue arose because the reference to the Scottish ministers in paragraph 6(a)(i) of schedule 1 should have been to the Secretary of State for the Home Department. That mistake has now been acknowledged and will be corrected.
Waste Management Licensing Amendment (Scotland) Regulations 2004 (SSI 2004/275)
Again, we asked for and received information on consolidation, which we will pass on to the lead committee and the Parliament. Are there any other points?
There was the issue of the transposition note. Perhaps I should devise a form of words that could be referred to as standard paragraph 1 to go into our reports. We should mention the fact that a transposition note was not provided.
The Executive response states:
That is standard response (a).
Yes. It would be useful to send an encouraging letter back.
Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Order 2004 (SS1 2004/276)
It has been suggested that we draw the attention of the lead committee and the Parliament to the fact that the Executive has acknowledged a failure to follow proper legislative practice and that there is defective drafting.
Common Agricultural Policy Non-IACS Support Schemes (Appeals) (Scotland) Regulations 2004 (SSI 2004/278)
We should make a number of points to the lead committee and the Parliament. The meaning of regulation 4(4) could be clearer and regulation 8 either requires clarification or is defectively drafted. Are there any other points?
I wonder about paragraph 95 in our legal briefing, which flags up the role of a member of staff in what is presented to us as an external review, but states that that is not a matter for the committee. The issue may not be as dramatic as those of temporary sheriffs or planning inquiry reporters, but questions have been raised about people being genuinely independent from ministers, which have raised issues under the European convention on human rights. If we took a wider view, we could regard this as a devolution issue because it raises ECHR issues. We might want to pursue that matter further with the Executive in order to clarify what its thinking is, and we might want to advise the lead committee of the matter.
I suggest that we advise the lead committee of that. We do not have time to go back to the Executive, however.
Is it still worth asking the Executive about it?
Yes, we should ask the Executive about the general issue.
I do not pretend to know what the Carltona principle is—as I noted from the briefing, our legal advisers are extremely comfortable with it—but similar issues might arise again. We should lay down a marker on that general point.
We will write a letter to the Executive, asking about that matter in a general way. Well done, Murray.
Beef Carcase (Classification) (Scotland) Regulations 2004 (SSI 2004/280)
There is an issue around the use of the phrase "specified premises", specifically whether it alludes to a list that might already have been composed. It does not appear in the equivalent English regulations, and there was some concern about why it is in the Scottish regulations. It is suggested that we draw the attention of the lead committee and the Parliament to the regulations, either on the ground that the meaning of regulation 7(2) could be clearer, or that that regulation is defectively drafted.
The wording could be clearer there, but I do not think that I would go so far as to say that it constitutes defective drafting. Let us report the regulations on the ground that regulation 7(2) could be clearer.
Is that agreed?
I would not necessarily go to the wall on the matter, but if a regulation is not clear, then surely that implies that it is defectively drafted.
I think that, when we say that an instrument is defectively drafted, that is more to do with the fact that procedures have not been followed, as opposed to there being a question of clarity of meaning. The legal adviser is nodding her head. I think that it is more a question of meaning in this case. In particular, it is a question of whether a list of premises will be compiled.
I agree with the point about the list of premises, which is not clear at all.
Exactly. Does the committee agree that we will treat the meaning of regulation 7(2) as the main issue, saying that it could be clearer?
River Findhorn Salmon Fishery District (Baits and Lures) Regulations 2004 <br />(SSI 2004/259)
There is an issue about why the Executive is waiting until the orders applying to the Borders rivers are made before commencing the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003.
According to the legal briefing, there was a fair amount of pressure to deal with this area of legislation. Now, nothing has happened. It is reasonable for the committee to ask, in view of the pressure to get the act on to the statute book, why nothing has happened since it was passed.
Is that agreed?
We will draw the attention of the lead committee and the Parliament to the matter, and we will pass on to them the information that we obtained from the Executive. Are you suggesting, Christine, that we write back to the Executive, saying that we are still concerned—
That the 2003 act has not been commenced, despite the pressure for it to be passed.
Is it agreed that we do that?
Assynt - Coigach Area Protection Order 2004 (SSI 2004/260)
Members will have seen the letter from Dennis Canavan, which raises an important point: where there is a second application, the people who were involved with the first application should be informed and automatically involved in consultation. I hope that members agree that there is concern over the fact that that has not been the case. It is also of concern that the response from the Executive does not tell us too much about the consultation.
Although we could argue—as we might do next week—about whether the Executive has acted within the law, I do not think that it has acted within the principles that the Parliament is trying to espouse. If somebody objects to the first draft of an order, which is then withdrawn because it is seen to be defective, then the very least that we could do, in this day and age, is tell that person when a second order is being made. It might have been advertised in, say, the John O'Groat Journal, but I suspect that it might be possible to miss the exciting public information advert among all the other stuff that that journal contains. I do not think that the Executive has done what it should have done in the way of wider consultation.
I gather that we have enough time to return to the Executive on the matter. We can make those points and ask for more information about who was consulted and about the feedback from the consultation.
In asking the Executive that, are we going to mention that we are still concerned that the order might not be intra vires, because of the actions that have not been taken?
Yes—because of the way in which the consultation process has been dealt with, particularly in relation to the issues identified by Dennis Canavan.
Even if we did not have time to go back to the Executive with respect to the order, it is worth asking what it generally does about previous objectors to instruments. Alasdair Morgan is right to suggest that it is not so much a question of the law as of the spirit of the law. When the law is applied, local authorities are expected to be scrupulous in getting back to objectors and telling them what the outcomes of various processes have been. We can derive from that some sort of sense in which the body politic in Scotland is supposed to correspond with people and keep them in touch with what is happening. There is a clear indication that the Executive has not done so in this case. That is perhaps a more general issue, which does not apply just to the order before us. It is about an attitude of mind or a way of working—within a department or within the Executive as a whole. We might usefully explore that in the interest of ensuring, as Alasdair Morgan said, that the Executive lives up to the principles that we have espoused: those of being absolutely open and encouraging good communication and so on.
Absolutely. We have time to get back to the Executive about the order, so we can make both our specific point and the general point that Murray Tosh has outlined. Is that agreed?
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