Subordinate Legislation Committee, 23 Apr 2002

Meeting date: Tuesday, April 23, 2002

Official Report 98KB pdf

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Executive Responses

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Less Favoured Area Support Scheme (Scotland) Regulations 2002 (SSI 2002/139)

A good number of points arose on the regulations. We do not need to go through them one by one, but we should send a detailed note to the lead committee and the Parliament about them. In points 1, 2 and 3 of our letter to the Executive, we drew attention to defective drafting. In addition, we raised concern about the vires of the provisions and whether a devolution issue was involved. We also raised the question of the lack of clarity as to the point at which an applicant for the support scheme would be committing a criminal offence or simply not obeying the regulations. We asked for clarity on that point, but we have not received an assurance on it. We should draw that matter to the attention of the lead committee and the Parliament.

Point 6 of our letter raised the question of the unusually limited use of the powers in respect of the provisions for an appeal against ministerial decisions. The regulations specify the number of days inside which an applicant under the scheme has to make an appeal, but nothing is set out about the time limit within which the minister has to reply.

The report to the lead committee and the Parliament should draw out fully all the points that were of concern to the committee. That is because many of the points that were raised with the Executive have not been answered to our satisfaction. Is that agreed?

Members indicated agreement.

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Police Act 1997 (Criminal Records) (Scotland) Regulations 2002 (SSI 2002/143)

We asked the Executive a couple of questions on the regulations. We need to decide whether to draw the Executive's response to the attention of the lead committee and the Parliament.

We asked about the fees that are payable by volunteers for the issue of a certificate. The Executive responded that it does not intend to charge for that. However, the regulations do not say that.

If the convener reads the Executive response, she will see that the Executive has not said that it will not charge. It has said that it will charge volunteers, but will reimburse the fees.

That would seem to be an administratively expensive way of doing business.

Apart from that, it is also very confusing. Are fees to be paid or not?

I understand why the Executive has decided to do it that way—it makes sense from the point of view of internal accounting. Perhaps the instrument needs to spell out that there will be no cost to volunteer bodies.

Yes.

The regulations that apply in England make specific provision to exempt volunteers from having to pay charges. Perhaps the Scottish regulations should do the same thing.

We also asked about fingerprints, which could be taken for identification purposes relating to the issue of a certificate. Once again, the question arises of whether a fee is prescribed. The Executive's response does not make that clear. We should reflect that point in our report. We should draw the attention of the lead committee and the Parliament to those matters.

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Producer Responsibility Obligations (Packaging Waste) Amendment (Scotland) Regulations 2002 (SSI 2002/147)

The Executive has accepted that the explanatory notes to the instrument contain defective drafting. Members will recall that the target figure was increased from 56 per cent to 59 per cent and yet the explanatory note contained a figure of 60 per cent. The Executive said that the mention of 60 per cent in the explanatory note was a mistake. It has owned up. That is fine. We will draw the error to the attention of the lead committee and the Parliament.

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Food (Figs, Hazelnuts and Pistachios from Turkey) (Emergency Control) (Scotland) Regulations 2002 (SSI 2002/148)<br />Food (Peanuts from China)<br />(Emergency Control) (Scotland) Regulations 2002 (SSI 2002/149)

Someone who attended last week's meeting as a guest of the committee went out immediately after the meeting and checked the origin of the peanuts that she had purchased from a well-known department store. She found that they were from China. As we went through the instruments last week, it occurred to me that we should study carefully the best-before dates. Indeed, we should do so more carefully than we have done up until now.

There is a question of defective drafting in regulation 4(3) of both regulations, which the Food Standards Agency Scotland has acknowledged. The agency says that it will correct regulation 4(3) at an early opportunity. We asked for an explanation of the drafting in both regulations. That should be drawn to the attention of the lead committee and the Parliament.

There was also a question as to why powers under section 2(2) of the European Communities Act 1972 were used instead of, as in previous similar orders, the Food Safety Act 1990. I am reading the Food Standards Agency Scotland's response, but I do not understand why it has used the powers under section 2(2).

I am advised that, according to the Food Standards Agency Scotland, section 13 of the Food Safety Act 1990 was not wide enough to enable the provisions. If that is the case, that makes sense and I accept the agency's explanation. I must be confusing that explanation with something else, because it seems fair enough. I hope that I have not misled the committee. We should draw the regulations to the attention of the lead committee and Parliament on the ground that further explanation was required.

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Plant Health (Great Britain) Amendment (Scotland) Order 2002 (SSI 2002/164)

This is a difficult one. The form of the order was incorrect. We are advised that the instrument, instead of being an order, should have been in the form of regulations. I think that the Executive does not necessarily disagree with us on that matter. The Executive also said that consolidation needs to be done. Members can see from the briefing paper that much consolidation of previous orders needs to be done. We must thank the Executive for saying that it will undertake that consolidation, because it has taken on a pile of work.

The Plant Health Act 1967 does not appear to confer powers to remake or amend orders made under that act. The Executive has said that it should have used the 1967 act. Is that right? Did the Executive use section 2(2) of the European Communities Act 1972?

I am advised that that is the case. The Executive says that it should have used the 1967 act. We think that the Executive is right, so we will be saying, "Yes, we agree with you." Excuse me, I will need to take advice from the legal adviser on the matter.

I am advised that the Executive owned up and said, "We think that we were wrong to use section 2(2). We should have used the Plant Health Act 1967." However, our advice is that, in this instance, the Executive was probably right to use section 2(2) instead of the 1967 act. I think that we should just tell the Executive that. They must decide. We should just say, "We think that you were quite right to do as you did. Thank you very much for attending to the matter as quickly as you have and agreeing to consolidate the regulations so that the next time they come back we will understand them."

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Scottish Water (Rate of Return) (Scotland) Order 2002 (SSI 2002/165)

We felt that some definitions were not terribly clear to the lay person. In essence, the Executive's response is saying, "You are quite right. They were not particularly clear to the lay person, but we know what they mean and that'll be all right on the night."

That will be all right. We should say, "Thank you very much. We are glad that you know what they mean." When I read the Executive's response, it seemed reasonable enough. We queried terms with which we were not familiar.

Two points have been raised. There is defective drafting.

The order has a definition of "accounts direction" that should have been removed. The Executive accepts that not doing so was an error.

Yes. We will draw that to the attention of the lead committee and the Parliament.

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Water Industry (Scotland) Act 2002 (Consequential and Savings Provisions) Order 2002 (SSI 2002/166)

Again, there are questions on defective drafting, as noted in points 1, 2 and 4 of the briefing paper, and there is a failure to follow proper drafting practice, which is dealt with in points 3 and 5. We will just notify the lead committee and the Parliament about this.

The Executive has been quite gracious in acknowledging the points that we made.

Yes.

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Water and Sewerage Charges (Exemption) (Scotland) Regulations 2002 (SSI 2002/167)

We raised three points on the regulations with the Executive. We were not sure whether we were touching on policy.

We felt that if people made even a slight mistake in filling in their forms, there appeared to be a total loss of subsidy, which would be a dangerous thing. We thought that that was too strict. However, the Executive has pointed out that people can resubmit their application under regulation 8. An error might, therefore, hold things up a bit, but it would not prevent people from getting their subsidy.

We said that no distinction was drawn between a possible simple misunderstanding and a wilful attempt to defraud. However, if someone has to resubmit, that distinction does not matter.

Question 2 of the briefing paper concerns the explanatory note, which was defectively drafted. The explanatory note says that the regulations are made under sections 40 and 68(2) of the Water Industry (Scotland) Act 2002. However, the preamble states that the regulations are made under section 40 alone. We asked the Executive why section 68(2) has not been cited as an enabling power in the regulations. The Executive says that the regulations do not refer to section 68(2) because the Executive did not use that power. Section 68(2) is a general "sweeper" power that permits instruments under substantive power to contain, among other things, incidental and supplementary provisions. We probably agree with the Executive that citing section 68(2) is not strictly necessary.

The committee also asked the Executive to justify the vires of the degree of sub-delegation to Scottish Water in regulation 8(b). The Executive has given us a well-researched and thoughtful response. It must have been referring to Bennion's "Statutory Interpretation", which, I am told, is something that we must all read.

Convener, I think that you should read it and précis it for the rest of us.

Yes, okay.

On an A4 sheet.

Seemingly, Bennion's "Statutory Interpretation" is the answer to everything. I really must ask for it for Christmas. Right. There is nothing more on the regulations, other than that we should draw them to the attention of the lead committee and the Parliament.