Official Report 128KB pdf
Public Contracts (Scotland) Regulations 2006 (SSI 2006/1)
We had two questions for the Executive. The first was whether an "and" should have been an "or". The Executive agrees that it should have been, but says that it will not affect the validity of the regulations.
It was just because they did not send us the right information.
Exactly. If the directive has been amended a number of times, it is pretty important that we get those amendments so that we are kept up to date.
Given the history of the relationship between the committee and the Executive, it should have been clear that if it does not supply all the information, we are going to question that. All that the Executive has done is create unnecessary work for everyone; it should be a bit more careful in future.
We can pass that information on to the lead committee and the Parliament. Is that agreed?
Utilities Contracts (Scotland) Regulations 2006 (SSI 2006/2)
This is a similar point to that which we have just discussed. It is about the threshold figures in regulation 11(2). Are members agreed that we should again make the point about the supply of correct information if there are amendments to a directive?
We will pass on to the lead committee and the Parliament that we have asked for and received the information.
Food Hygiene (Scotland) Regulations 2006 (SSI 2006/3)
We sought explanation of the legal basis of regulation 24 and the restriction in paragraph 1(1)(c) of schedule 2 to the enabling power—the European Communities Act 1972. Kenny Macintosh had a point to raise here.
It was not me, but our legal advisers, who were concerned that the guidance effectively has legislative character. Although the Executive says that it is merely guidance, it is clear that it is enforceable, so there are questions about its vires.
Are we therefore agreed that we are still concerned about that point and that we should pass it on to the lead committee and the Parliament?
We should do that. This is an on-going debate with the Foods Standards Agency Scotland. Given that, I wonder whether we can do anything else. Clearly, there is a disagreement. It is fairly obvious in a commonsense way that if the FSAS issues such regulations it intends to enforce them. Therefore, the code of practice is legislative in character. I am not quite sure where the FSAS is coming from and what its reasons are. Can we seek further explanation from the FSAS as to why it takes that view? There is no point in continually going over the same ground. Perhaps we could move forward if we understood why it has that view.
We should also look back and find some other examples. Is that okay? Ruth Cooper says that that would be a good idea. Is it agreed that we write to the FSAS, given that this is a recurring theme? We will obviously pass it on to the lead committee and the Parliament.
Older Cattle (Disposal) (Scotland) Regulations 2006 (SSI 2006/4)
The legal advisers recommended that we ask the Executive several questions about the regulations, the first of which was to do with the drafting of regulation 10(a). Ken Macintosh wanted to ask about this.
The Executive has clearly made a mistake in confusing the standard scale with the statutory maximum. Our legal advisers have given a helpful explanation that I am sure we could—and have—learned from. I am sure that the Executive would be grateful if we sent it a full copy of the advice.
Paragraph 93 of the legal brief explains:
There seems to be a clear mistake here, although most of the time there is just a difference of opinion. When do the regulations come into force, or are they already in force?
They came into force on 23 January 2006.
Yesterday?
Yes.
That reinforces my point, which is effectively that regulation 10(a) clearly looks defective. What are we going to do if the regulation is defective but already in force? Will we do more than note it or mention it to the lead committee? This is one of those times when we have to say something quite strong.
It appears that the Executive is thinking about an amending instrument, although it has not said that to the committee. To get that information we should write back to the Executive and say that we are still very concerned about the regulations, even though they are in force. We will hopefully then get the information, which we will obviously pass on to the lead committee.
I would like those assurances to be on the record rather than just having an understanding. That would be helpful.
Yes, because we did not know the Executive's intentions.
We should just report it. Nothing else needs to be said about it.
I do not think that it is of the same order as the issues with the previous regulation.
The Executive has also said that it will rectify the error.
We move on to question 4. Members will remember that we discussed the United Kingdom Government's different approach to the drafting of its regulations, which seem better drafted than the equivalent Scottish regulations. We asked the Executive why the Scottish regulations were drafted differently. I invite members' comments on the Executive's explanation.
The Executive seems to suggest that the differences are about differences between Scots and English law, but that was not what we were talking about. There are of course such differences, but we deliberately laid that aspect to one side. We were talking about best practice, which in this case appeared in the English regulations. Frankly, we should seek best practice wherever it comes from. In my opinion, we did not get an answer to our question. What we do about that—other than report it to the Parliament—I do not know.
I think that all that we can do is report that it appears, from the information that our legal adviser gave us, that the English regulations are an example of best practice and that certain aspects of the Scottish regulations could have been improved if they had followed that example.
As I remember, Murray Tosh made a suggestion, with which I assume Stewart Maxwell agreed, that we should celebrate the Britishness of the best practice.
So that there is no misunderstanding, I put it on the record that I do not agree with that.
Okay. We will report the regulations on the grounds that we have discussed. The final point is the breaching of the 21-day rule. The main point here is why the Executive was not able to lay the regulations before Christmas, as the UK Government did for its regulations.
The Executive's response is slightly unclear. The point that we were trying to make was that Westminster received the information in time to act. The Executive may or may not have received the information in time to act—that is not clear. That is the point that we were trying to elucidate. We have not actually got information on that point, so I do not think that we can do much with it.
Given the timescale within which the regulations had to be drafted, we should perhaps concentrate on the most problematic issue, which is the first one.
Ken Macintosh is right; the issue is not the 21-day rule. It is why the English regulations were made on 22 December but the Scottish regulations were not made until 9 January. Perhaps it is just me, but I detect a common theme, particularly this week, whereby we write to the Executive and ask certain questions, but the answers that we get back are about something else, not about the questions that we asked. Is there a slight communication problem between ourselves and the Executive whereby, for some reason, we are not getting direct answers to direct questions? Perhaps we should ask the Executive, talk to the officials or put it down as one of the things with which we have an issue. We have a long list of such things. If we ask about something, we should get a direct answer. I do not see why the attempt is made to move it on to grounds that we are not asking about.
I have a question on the common theme to which Stewart Maxwell referred. I do not know whether Margaret Macdonald, our legal adviser, knows about this. Are the questions that we ask the Executive all answered from one place or do individual departments deal with particular questions? It is the latter, obviously.
It is the latter.
For a minute there, I wondered whether the same person answered all the questions, but that is not the case. If there is a common theme, it is perhaps for another reason.
That is a reasonable point, which might have answered my question, but the answers do not all come from one place. Perhaps it is a style of answering that more than one department has taken up.
There is no harm in our writing again to the Executive on that point, because we are writing to it again on the first point. The issue is co-ordination with what the UK department was doing, so we could ask the Executive to clarify why it did not lay the regulations before Christmas.
Yes, because we did not get an answer to our original question.
Let us ask the question again. There is no problem with that.
It is a matter of policy. If we ask a question, we are due a straight answer. If we do not get that answer, we should ask the Executive again.
We will ask the straight question this time.
Absolutely.
We were discussing the point that Gordon Jackson raised before the meeting started. We talked about the fact that the committee has relationships with many different parts of the Executive, which can itself lead to confusion. Perhaps we should address that in our report.
Yes, that is a good point. We will obviously put all those points to the lead committee and to the Parliament.
Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2006 <br />(SSI 2006/5)
There was no formal Executive note for the rules. If I remember correctly, that is because the Executive thought that we did not need one. Members will see from the legal advisers' briefing that the difference between an explanatory note and an Executive note is spelled out quite clearly; it would be only rarely that we would not want both.
It is odd that the Executive has given us that answer, given the clear explanation that we have in our legal advice of the difference between an explanatory note and an Executive note. Perhaps we should send the Executive a copy of that explanation, just to be helpful.
We could say that we want to clarify our understanding of the aim of an explanatory note and of an Executive note, and ask the Executive to explain why, in this case, it felt that an Executive note was not needed.
I will take your guidance on that, convener.
Do members agree to that?
This is quite important. The fact that we have not had Executive notes is one of the issues that we have flagged up a number of times. The clerk has pointed out that we need to report to the lead committee and to the Parliament. We are simply reporting that there has been a failure to follow proper legislative practice in this case.
In this case, would the Executive note have contained the same information as the explanatory note?
That is what we will ask the Executive.
I just thought that our legal adviser might be able to say that, in this case, it would have contained the same information.
I thought that it was implicit from our legal advice that the information would not be the same, and I see that the adviser concurs with that.
I see that. I am just thinking out loud.
We will report to the lead committee and to the Parliament.