Official Report 127KB pdf
Police (Injury Benefit) (Scotland) Regulations 2006 (SSI 2006/610)
I welcome members to the Subordinate Legislation Committee's third meeting of 2007. I have apologies from Adam Ingram and Murray Tosh.
The main problem that bothered us when we first addressed the regulations was the inconsistency. In this day and age, the mistake is bizarre and rather surprised me. I would not come down too hard on the Executive. It has explained clearly the meaning, which we all knew. However, we are right to report the inconsistency.
We will point out the inconsistency and say that the Executive failed to follow proper legislative practice on those two points.
Yes.
Do we agree to report defective drafting in regulations 24(2), 25(2), 28(4)(i), schedule 2 and schedule 3, as described in points 3 to 8 in the legal brief, which the Executive has acknowledged?
Point 9 in the legal brief was that the meaning of the word "hearing" in schedule 6 was unclear.
No.
Is that okay?
Yes.
Environmental Impact Assessment (Scotland) Amendment Regulations 2006 (SSI 2006/614)
We asked the Executive several questions about the implementation of the public participation directive and members will have seen the response. On the questions that we asked about implementation of the PPD, the delay in commencing consultation and the transposition note, are members content to report that information was sought from the Executive and to pass that on?
Yes.
The most serious point is on implementation, in paragraph 5 on page 2 of the supplementary legal brief, which says:
What a ringing endorsement.
I know. Do you want to read paragraph 5, which forms the crux of the argument?
I read the paragraph before the meeting and I reread it just now. In many ways, it is damning. If our advisers have such difficulty, what chance does anybody else have? The problem is not necessarily that the provision is wrong—it may well be fine; I do not particularly doubt that—but that proving whether the provision is correct involves much difficulty.
Do members mind if I ask Mairi Gibson to explain in more detail? What she has just said sounded more convincing than what I said.
The directive allows member states discretion as to how to implement its provisions on consulting the public. The regulations take a slightly different approach according to the subject. However, we cannot extrapolate that a different approach means incompatibility for subjects for which some provisions do not exist—more expertise in the general subject is required. I concluded that I did not feel able to go as far as saying that doubt exists about whether the directive has been implemented adequately. That is why I thought that I could go as far as to say that information had been sought and received. A difference exists according to the subject, but we cannot conclude incompatibility from that.
That is fundamentally what the convener said. The problem is that, without that expertise, we cannot be—
Conclusive.
Yes. That leaves us in a slightly difficult position, but we can do nothing other than accept what our advisers and the Executive have said.
Do members have other points?
I am not sure why we are making such a huge issue of the matter. The directive is about compliance with public participation measures and ensuring that people in other member states know about projects that we are implementing and which may affect them. Is that right?
Yes.
The directive is also about ensuring that people here are aware of projects in other member states that may affect them. My reading is that the Executive says that it is relying on other member states to ensure that the public are fully informed. Am I oversimplifying the matter?
I am not sure whether the explanation that the Executive gave covered how the Scottish public would be consulted about a project in another member state. Provision is made for some subjects but not others and the Executive response did not quite explain that. However, I did not feel able to extrapolate any other conclusion from that; the difference might have a policy justification.
I do not think that we are making a big issue of the matter. We are just pointing out the slight difficulty.
That is all that we are doing. We are pointing out that the legal advisers tell us that considerable effort would be needed to consider all the various elements in order to be conclusive.
Yes.
Paragraphs 12 to 14 of the supplementary legal brief concern the other point. Paragraph 14 gives a summary:
I do not think that that is a problem.
Are members content to report that there has been a failure to follow proper drafting procedure?
Products of Animal Origin <br />(Third Country Imports) (Scotland) Regulations 2007 (SSI 2007/1)
We asked two questions on the regulations. First, in relation to regulation 2(5), we asked why the Executive had omitted to cite paragraph 1A of schedule 2 to the European Communities Act 1972 as an enabling power. Members have seen the response and, given that the relevant provisions of the Legislative and Regulatory Reform Act 2006 have only very recently come into force, it is perhaps hardly surprising that the Executive has not reached any firm decision on its practice in this area. The arguments for and against citing new paragraph 1A of schedule 2 to the ECA as an enabling power appear to be finely balanced.
Secondly, we asked about the vires for regulations 5(2), 5(7) and 5(9) and 16(3). Members will have seen the Executive's response.
Before we move on, convener, I would like to say that, with regard to regulation 2(5), paragraph 44 of our legal advice says that the Executive will address the omission as a printing issue.
We will put that in our report and note that the Executive is grateful to the committee for drawing the matter to its attention.
That should be on the record.