Official Report 103KB pdf
Renewables Obligation (Scotland) Order 2004 (draft) (withdrawn)
The legal brief contains the Executive's response to the original draft of the order, which we were very unhappy with. That has now been withdrawn and the order has been relaid. The new one is in members' papers. It is suggested that, for completeness, it would be good to put the Executive's responses to the committee's questions into the committee's report.
There is no point in spending any time on this because the Executive has withdrawn the order and relaid it. However, it is important to state in the report that we asked the questions in the first place. People might wonder what happened to those questions if we did not do that.
The Executive was remarkably helpful in its treatment of the issue. Well done to everyone who put a lot of effort into it.
We can also say that the liaison between our legal advisers and the Executive seems to be working quite well.
Registration of Establishments Keeping Laying Hens (Scotland) Amendment Regulations 2004 (SSI 2004/27)
Members will recall that we have seen the regulations before.
Convener, will you excuse me at this point?
Yes.
I am going to a meeting of the Scottish Parliamentary Corporate Body.
You chose your moment well.
I have bigger eggs to scramble.
Members will recall that we had severe reservations about the regulations. Because the regulations are already in force, there are parts that we just cannot alter because that would involve making retrospective changes. However, there are some issues that we could raise.
Yes. The point is that someone could lose their livelihood because of an omission by someone else. They might not be aware that the other person had omitted to notify a change or was even required to do so.
Someone might take the blame for an action that was not their fault. Under the English and Welsh regulations the person would be fined, but in Scotland the person would lose their licence and, in effect, their livelihood. That seems rather extreme and we should certainly report on that point.
Are we agreed that we should bring the various points that are raised in the legal brief to the attention of the lead committee and the Parliament? The main points are that defective drafting remains, that the regulations continue to represent an unusual or unexpected use of powers and that the regulations raise devolution issues because they raise doubts about compatibility with the European convention on human rights.
Yes. The fact that the appeal is not seen to be to an independent body is a potentially serious point and lays the process open to challenge.
Exactly. I suggest that we pass on all the points that are raised on the six pages of the legal brief to the lead committee and to Parliament.
I know that we are going to report on the regulations, but I fail to understand why the Executive has dug its heels in on the "owner or keeper" issue. It seems clear that that will cause confusion. Who is responsible? Is it the owner or is it the keeper? We have asked a perfectly reasonable question and I do not understand why the Executive has dug its heels in and stated that what is in the regulations is clearer than saying either that the obligation is on the owner or that it is on the keeper. I am bemused by the Executive's response on that point. We should highlight that problem to the lead committee. I know that we have identified many other problems and issues but that point and the possible loss of livelihood are, as you have said, the main ones.
Is what I have suggested agreed?
Local Government Capital Expenditure Limits (Scotland) Regulations 2004<br />(SSI 2004/29)
It has been suggested—as the legal advice says, the matter is finely balanced and only a court could give a definitive answer—that there is slight doubt about whether regulation 2(2) is intra vires. I suggest that we raise that issue with the lead committee and with Parliament.
I agree. If we have a doubt, a doubt exists, or it is possible for a doubt to exist. Therefore, the lead committee should be made aware of the issue. It will be for it to decide what it wants to be done.
National Health Service (Tribunal) (Scotland) Regulations 2004 (SSI 2004/38)
We welcome the helpful explanation of the regulations in relation to the two points that we raised with the Executive and will pass the explanation on to the lead committee and to Parliament. Is that agreed?
Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2004 (SSI 2004/44)
Members will remember that we raised points about the order because we thought that the issue was particularly sensitive. Our legal advice is that three points are still outstanding. What are members' views on those points?
In view of the potential changes to the European regulations and the fact that a fresh set of regulations or amending regulations could come before us, it is sufficient at this stage for us to point out the Executive's correspondence to the lead committee.
Yes. Part (c) of question 1 raises the issue that the meaning could be clearer. Question 6 asks about the Executive's failure to follow proper legislative practice. Is it agreed that we pass those points on to the lead committee?
Local Government in Scotland Act 2003 (Commencement No 2) Order 2004<br />(SSI 2004/28)
There is an issue to do with the order not specifying a calendar date.
The date on which the order is made is on the order, but article 2(1) states that certain sections of the Local Government in Scotland Act 2003
Yes. It is recommended that we pass on to the lead committee and to Parliament our concerns about the failure to follow proper legislative practice.