Official Report 207KB pdf
Title Conditions (Scotland) Act 2003 (Consequential Provisions) Order 2003 (draft)
Item 2 on the agenda is Executive responses to our comments on instruments.
Police Pensions (Scotland) Amendment Regulations 2003 (SSI 2003/406)
There was some dispute as to whether the regulations should refer to "a medical practitioner" or to "medical practitioners". There was also an issue with regard to dispute resolution. We all agreed that the two points identified by our legal advisers on those matters should be raised with the lead committee because there is still an intra vires issue to do with the extent of the regulations and for reasons that we outlined previously. Is that agreed? We shall obviously also include the Executive's comments.
There is also an issue to do with consolidation, which comes up in relation to a number of other instruments. Perhaps at the end of the meeting you will allow us to discuss what we wish to do to make our views on consolidation known.
That is a good point. Thank you very much.
Animal By-Products (Scotland) Regulations 2003 (SSI 2003/411)
Members will remember that there were issues to do with the making and keeping of records and to do with sanctions and how they would be treated, and whether offences would be triable either way. Unless those points are taken on board, the regulations are still fairly misleading, despite the responses that we have received. We also hope that the Executive is moving towards having a transposition note. If the committee is agreeable, I suggest that we draw the attention of the lead committee and the Parliament to the issues that we have raised and to the Executive's response. Is that agreed?
The Executive response states that it is inherent in the nature of any record that it must be kept or otherwise retained for a period of time, but there is no definition of that period. Does it mean 10 minutes or 10 years?
Exactly.
Somebody should say what the period of time is.
These are the type of regulations over which disputes could arise.
Absolutely. Somebody could turn up asking for records and might get the reply, "We kept them for a week and then we destroyed them, because we didn't think we needed to keep them for any longer." What could people do about that? In such a case, the records might have been kept for the required time. The problem is that that time is not defined.
The issue of transposition notes is a recurring one, and we could perhaps take an opportunity at the end of the meeting to say what we would like to do in that regard. The Executive has said that it is considering the matter. Could all the bill teams be advised that that is the case? They might wish to amend their responses to us accordingly.
Okay. We will come back to that.
Food (Pistachios from Iran) (Emergency Control) (Scotland) Regulations 2003 <br />(SSI 2003/414)
It appears from the Executive's response that we are not much further forward with the regulations. Issues are raised to do with what we understand by the term "importing". I suggest that we pass on our concerns, together with the Executive's response, to the lead committee and the Parliament, particularly in relation to the drafting of regulation 3(1)(b). The issue arises again in regulations that we will come to shortly.
I thought that we had asked the Executive about the problem with the definition of importing. The response that we received was about marketing, which is not what we asked about. If the Executive is talking about marketing, but the regulations talk about importing, there is a problem. Its response suggests that there is a difference between what the regulations say and what they mean. It is important that we deal with the matter. I think that the Executive has made a bit of a mistake.
I agree.
It is noticeable that these regulations and the Food (Peanuts from Egypt) (Emergency Control) (Scotland) Regulations 2003, which are a similar type of instrument, have been drafted in a way that is not the norm for the Food Standards Agency Scotland. It might be appropriate to say to the lead committee, and perhaps to the agency, that such a departure from the norm has led to enormous problems. The agency might wish to consider going back to its previous style.
As we have now started a dialogue with the Food Standards Agency, I think that it would be constructive, hopefully for both sides, if we were to raise that point with it.
I would be happy for that to be done informally, if that is an appropriate way of doing it.
Yes, it might be better to do things informally in this case. We could emphasise again that the whole issue around importing and marketing is still not clear from the answer that we have been given. The matter might arise in other regulations, and we could just end up asking the same question.
I expect that there will be other nuts from other places.
If somebody is importing a product such as pistachios, it might be very difficult to analyse whether there are any problems with them at the point of origin. It is much easier to analyse them at the point of importation. Despite that, the situation is unclear. I can understand why we are being told that it is easier to analyse the product when it gets here, before it is released.
In which case—according to the regulations—the pistachios should not have been imported in the first place.
I understand that.
Under the regulations, it is not down to the importer to inspect and test the product; it is down to the member state concerned.
I realise that. There is considerable confusion.
Those points are all agreed, so we will move on.
Road Works (Recovery of Costs) (Scotland) Regulations 2003 (SSI 2003/416)
Unfortunately, there appears to have been an error in the drafting of our question to the Executive on these regulations. We have therefore not received an answer back. However, our question is the same as the one that we asked for the Road Works (Reinstatement) (Scotland) Amendment Regulations 2003, the answer to which we have. I recommend that we draw the attention of the lead committee and the Parliament to these regulations and the point that we made.
Should we still insist on an answer to the point that we intended to make, even though that might not fit the cycle for handling matters? Perhaps it is an issue that could go to the lead committee.
We could do that, but I am reminded that the question is exactly the same as the one that we asked for the Road Works (Reinstatement) (Scotland) Amendment Regulations 2003 (SSI 2003/417), the answer to which we have.
I am pleased to see that the definition of standard axles does not include the phrase "per annum", but relates to the anticipated life of the road. I am sorry—I have jumped ahead to the next statutory instrument.
We are agreed that, because we asked the same question on the Road Works (Reinstatement) (Scotland) Amendment Regulations 2003 (SSI 2003/417) as we did on these regulations, and because the answer is the same as the one that was given on those regulations, we will not lose anything. That would cover Murray Tosh's point.
Yes, that is right. Perhaps it was pressure of work rather than obtuseness that meant that the Executive was not able to relate the letter to the committee discussion of the instrument in question.
The legal adviser mentioned that.
Road Works (Reinstatement) (Scotland) Amendment Regulations 2003 <br />(SSI 2003/417)
We move on to consider the next road works regulations. Christine May mentioned the big issue to do with the 125 million standard axles, which was in the second question that we asked. Surprise, surprise—that is not a per annum figure; it is cumulative.
It relates to the full 20 years of a road's life.
In the light of that answer, the Executive will introduce an amending instrument to correct the defect that we highlighted. We will also raise the failure that we identified in our first point with the lead committee and the Parliament. Is that agreed?
Food (Peanuts from Egypt) (Emergency Control) (Scotland) Regulations 2003 <br />(SSI 2003/418)
These regulations are very similar to the Food (Pistachios from Iran) (Emergency Control) (Scotland) Regulations 2003 (SSI 2003/414). The points that we raised were very similar to the six points that we raised on the regulations on pistachios. Is it agreed that we draw the regulations on peanuts to the attention of the lead committee and the Parliament on the same basis as we did the regulations on pistachios?
Advice and Assistance (Scotland) Amendment (No 2) Regulations 2003 <br />(SSI 2003/421)
As Christine May has highlighted, the regulations are the first instrument in relation to which we have encountered a big consolidation issue.
The National Health Service (General Dental Services) (Scotland) Amendment (No 2) Regulations 2003 raise the same issue.
We will have the debate and try to resolve the matter now, if that is okay with Christine May.
Okay. There is a rule of thumb, or good practice, on consolidation. It seems that a common thread—that good practice slips—has run through all our deliberations to date. Although I appreciate that work on the major bills that are coming through occupies bill teams, that is not necessarily a sufficient excuse for not consolidating regulations. I would like some advice on what it might be most appropriate for the committee to do. Should we write a letter to the Executive, or should we pass the issue on to a committee or to the Parliament?
In the first instance, we can write a letter to the Executive; we can take it up from there.
I would not be hugely unsympathetic to an argument about disproportionate work load at any given time, but I wonder why the principal regulations were not consolidated at the fifth time of amendment. I suspect that the reason is that the Health Department was handling major legislation at that time. I also suspect that when the eighth, ninth and 10th amendments take place, the Health Department might be handling major legislation. We have been discussing health legislation for the past four years. If we accept that reason, it will always be a reason for not consolidating regulations. There has to come a point at which the Executive says that there is permanent revolution in the field of health and the Health Department will always be legislating so it will do what it has to do to get regulations consolidated, even if that means additional resources. Otherwise, the Executive will have to tell us that there will be a year when there is less legislation to consider and it is able to consolidate everything.
That leads me to ask whether the department has enough staff. From what Murray Tosh has said, it seems that it is doing legislation all the time.
The Executive will immediately say that it does not have enough staff.
I understand that, but maybe we should ask whether it is a serious issue. Is it a personnel problem? Is it a question of recruiting experienced people? Legislation is highly technical; does the Executive have enough people that are well trained in that area? I do not know the answers to those questions.
I look forward to cross-party support when the supplementary budget estimates for employing more staff come through.
Well said.
I have a point to make on the dental services regulations.
Before we move on to that, I just have to point out that the information has not been consolidated on the website. There are also various versions of the same regulations on the website. We should also include that point in the letter to the Executive.
National Health Service (General Dental Services) (Scotland) Amendment (No 2) Regulations 2003 (SSI 2003/422)
Christine May had a point about the regulations.
My point is also about consolidation. The principal regulations predate devolution so perhaps there is a greater imperative for consolidation in this case. I am informed that the regulations are becoming very difficult to follow. We could make that specific point in the letter.
Taking that point on board, are we agreed with the recommendation that the regulations should be consolidated?