Subordinate Legislation
Water Environment (Relevant Enactments and Designation of Responsible Authorities and Functions) (Scotland) Order 2011 (SSI 2011/368)
We move to agenda item 3, under which the committee will consider a negative instrument.
Members should note that no motions to annul have been received in relation to the instrument. I refer members to paper RACCE/S4/11/12/4. If there are no comments, is the committee agreed that it does not wish to make any recommendations in relation to the instrument?
Members indicated agreement.
Pigs (Records, Identification and Movement) (Scotland) Order 2011 (SSI 2011/327)
Pigs (Records, Identification and Movement) (Scotland) Amendment Order 2011 (SSI 2011/351)
Agenda item 4 is also on subordinate legislation. This item is to consider two pig identification instruments that are not subject to any parliamentary procedure. I refer members to paper RACCE/S4/11/12/5 and invite comments.
I am sorry to keep on bringing it up, but again there is an issue with subordinate legislation. I note that the orders are not subject to parliamentary procedure, but I refer the committee to extracts from the Subordinate Legislation Committee report on SSI 2011/327:
“Article 3(2) of the Order provides that, where it is necessary to prevent suffering to a pig, a notice, notification, authorisation or approval may be issued”.
The next paragraph states:
“The Scottish Government ... conceded section 83(1) had been overlooked in the preparation of this provision. The Scottish Government therefore accepted that article 3(2) of the order is ultra vires in so far as it relates to notices, and is of no effect.”
The next page of the Subordinate Legislation Committee report includes the Scottish Government response, which states:
“Unfortunately, section 83(1) of the 1981 Act, which requires all notices under orders made under it to be in writing, was overlooked in the preparation of this provision. It is therefore accepted that article 3(2) of the order is ultra vires in so far as it relates to notices. Legally, this means of course that it is of no effect.”
The next page of the report states:
“There has been a failure to follow proper drafting practice, as section 83(2) of the Animal Health Act 1981 has not been cited as an enabling power in the preamble.”
I find it astonishing that people who draft legislation day in, day out have missed those points. With the greatest respect, convener, this is the second order that I have noticed has been wrongly drafted. Can we write to the people who draft such laws and ask them to get their act—with heavy emphasis on that word—together?
I thank Richard Lyle for that. Are there any other comments?
There have been similar problems with statutory instruments in the past, and the point has been made that they have been carelessly drafted. It is certainly regrettable that such things still seem to be happening.
The instrument does not involve any procedure, so what is the process? We know what we could do if we were not happy about the way in which a negative instrument was drafted, but I am uncertain as to what happens now. Will the Government just lay another order that has been properly drafted and tell us about it?
I hope that the clerks can provide some clarity. My understanding is that an order was laid but it was ultra vires because, although the Scottish Government had indicated that there would be a benefit in allowing notification other than in writing in emergency circumstances, there was a failure in the drafting. That order therefore did not work.
The Government then came back with an amending order, but there is a mistake in it. It states that the notification should be in writing—which apparently raises a slight drafting concern because the order is deemed to be otiose, to use the clerk’s word—albeit that the point of the exercise seemed to be to cover scenarios in which writing is not required because of emergency circumstances.
I am a bit puzzled as to where we go now. Presumably, the point of the exercise was to allow notification other than in writing in emergency circumstances, which would be a good thing for a pig farmer who was caught in the circumstances that the order covers. However, I am a wee bit unclear about where we are now with regard to the efficacy of the amending order and what we do next.
The Subordinate Legislation Committee has drawn ministers’ attention to the order in response to the points that have been made about drafting and intention. As there is no procedure, we can note the instruments, but it is entirely possible—as Dick Lyle suggested—for us to write and say that we are concerned that loopholes are appearing and that we cannot understand why.
I share Dick Lyle’s sentiments entirely, although I might have used more temperate language with regard to how we might get that concern across. Following on from Annabelle Ewing’s point, how many attempts does one need to get it right? It is a good idea, whatever decision we take, for us to write and attempt to get that message across.
Indeed, we should enclose the Official Report of this meeting to underline our concerns.
I have no problem in letting the legislation go forward; I just wanted to tease out the issue to see what a lawyer’s perspective would be. I thank Annabelle Ewing for supporting my point and saying that she finds it outrageous too, and I take on board Graeme Dey’s comments.
I am happy to let the orders go, but I request that we write to whoever drafts the legislation and tell them that we are on their case and that they had better get it right in future.
Is notification other than in writing in emergency circumstances now possible, given that there have been two failed attempts? The motivation behind the orders was good, but I am not sure whether it is now possible for farmers to notify other than in writing. Where are we on the substantive issue?
We should include that question, too.
I had not thought that the Pigs (Records, Identification and Movement) (Scotland) Order 2011 would lead us to such a detailed discussion, but I am glad that members have studied their papers and recognised that we need clarity. We should include the questions about procedure and substance in our letter, along with a copy of the Official Report of this discussion. Are members agreed?
Members indicated agreement.
Thank you. Do members agree to note the instruments?
Members indicated agreement.
I remind members that the next meeting will be on 30 November, the agenda for which is currently being finalised. I thank members for their attendance and for a very useful discussion.
Meeting closed at 12:15.