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Community Care (Direct Payments) (Scotland) Regulations 2003 (SSI 2003/243)
Members will recall that this instrument breached the 21-day rule and failed to take account of the fact that the chamber office would be shut on 9 May. Any views?
The response indicates that the informal procedure that the Executive has relied on in the past failed on this occasion and that steps are being taken to ensure that that does not happen again. However, we should make the point at this stage that, in relation to something that is so important that it might be relied on in a court of law, all possible steps must be taken to ensure that the rules are complied with. We will talk about that principle again later on in this meeting.
We have a recommendation that we not only ring the need—with the lead committee and the Parliament—to change an informal agreement into a formal arrangement, but that we send a letter directly to the unit concerned. Is that agreed?
I agree with that. There is an unfortunate tone in the Executive response. We are told that
I agree. The excuse is feeble.
We are all agreed, I gather.
National Health Service Superannuation Scheme (Scotland) Amendment (No 2) Regulations 2003 (SSI 2003/270)
We found the use of the word "may" somewhat confusing in the regulations. The Executive has given us an explanation of the matter. What are our views?
I think that we should provide the explanation to the lead committee.
Is that agreed?
Urban Waste Water Treatment (Scotland) Amendment Regulations 2003<br />(SSI 2003/273)
We asked several questions about the regulations, one of which concerned the full out in regulation 1(3). Although the Executive has answered all the questions that we asked, we might want to send our letter and the response to the lead committee and point out the failure to comply with the proper legislative practice and the need for clarification of the meaning of the areas that we highlighted in points 3 and 4 of our letter.
Just a procedural one. Are all the Executive responses part of the public record of the committee?
Yes.
That means that the points in our letter that you refer to can be cross-referenced correctly. That is fine.
Yes, everything will appear in the committee's report, so there is no problem.
Sweeteners in Food Amendment (Scotland) Regulations 2003 (SSI 2003/274)
The regulations raised an issue that comes up in many of the instruments that we will discuss later. I want to ask members whether they want to be firm about the need for a transposition note in relation to the regulations.
We must be firm on this matter. Although the Food Standards Agency says that it "does not rule out" the possibility of providing transposition notes, we should insist on—and indeed expect—such notes at every available opportunity and wherever appropriate. It is unfortunate that we did not get one the last time. In that respect, the explanation is not very good.
Moreover, the agency does not refer to the consultation requirements that are set out in article 9 of EC regulation 178/2002. Such a reference is established good practice in Westminster and across other European Union states. It is not acceptable for the agency to say that it takes a different view and that, although such references should be made, it does not do so. I am not keen on the tone in which that comment is made; in fact, the same tone is used at various points throughout all these particular responses. If it is good practice, the reference should be included in the regulations. It is for the benefit not simply of members of the Subordinate Legislation Committee or those who draft the instruments, but of the people outside who have to implement regulations and to stand by their decisions.
I take your point.
If we examine all the FSA's responses at the end of the meeting, we will find that it does not appear to be taking the committee, the Parliament or the process all that seriously. Indeed, it seems to regard the need to fulfil our requirements as optional. We cannot really accept that to be an appropriate way of proceeding.
In its response, the agency says that it
Yes, because the agency's approach should not be minimalist. Instead, it should inform, clarify, explain, be explicit and make the comprehension of the documents as straightforward as possible for anyone who requires or wishes to read them.
I ask the clerk to clarify whether we can write directly to the FSA on this matter.
Yes, we can do that.
Are members agreed that we do so?
I agree with Murray Tosh's earlier comments. When I read the FSA's responses, I felt throughout that it was not taking the matter seriously. That is bad news.
I know that the issue will come up again in instruments that we will discuss later.
Home Energy Efficiency Scheme Amendment (Scotland) Regulations 2003 (SSI 2003/284)
We asked the Executive about the defective drafting of the explanatory note, and will bring its response to the attention of the lead committee and the Parliament.
Accountability of Local Authorities (Publication of Information about Finance and Performance) (Scotland) Regulations 2003 (SSI 2003/286)
Members will recall that we asked the Executive why the regulations do not mention the duty to consult imposed by the Local Government in Scotland Act 2003. The point of including a citation of the statutory provisions that require consultation is to make it clear that such consultation is mandatory. As a result, we felt that the regulations should refer to the duty to consult.
Not really, except that the Executive's statement at the end of its response that it
We will seek clarification on that point. We will also draw the regulations to the attention of the lead committee and the Parliament on the ground of the failure to comply with legislative practice and, in particular, the failure to mention the duty to consult.
Contaminants in Food (Scotland) Regulations 2003 (SSI 2003/289)
We raised again the need for a transposition note in relation to the regulations, although we should also note that the Executive has provided some useful additional background. We should draw to the attention of the lead committee and the Parliament those points and the various changes of substance.
Cocoa and Chocolate Products (Scotland) Regulations 2003 (SSI 2003/291)
We raised once more with the Executive the need for a transposition note, the fact that the regulations do not refer to article 9 of EC regulation 178/2002 and various changes of substance. We will bring the points and the FSA's response to the attention of the lead committee and the Parliament.
Road User Charging (Consultation and Publication) (Scotland) Regulations 2003 (SSI 2003/292)
The committee asked the Executive about the use of the term "police area". Are we happy with its explanation on that point?
I do not think so, convener. This goes back to my previous point that instruments should be drafted in a way that helps people. As Murray Tosh, I think, said earlier, helpful is good. Exactly what the regulations mean should be clear to those who implement them and to those who will be bound by them. People should not be confused by terms that are not used elsewhere; the same terminology should be used. As a result, the regulations raise certain issues.
The point is that the term "police area" was not helpful and should not have been used. It was not good practice. We will refer that to the lead committee and the Parliament.
Fruit Juices and Fruit Nectars (Scotland) Regulations 2003 (SSI 2003/293)
The FSA's response to our questions on these regulations highlights points that we have already made and that we will draw to the attention of the lead committee and the Parliament.
These points have come up again and again and again.
National Health Service (Charges for Drugs and Appliances) (Scotland) Amendment (No 2) Regulations 2003 (SSI 2003/295)<br />National Health Service (Pharmaceutical Services) (Scotland) Amendment Regulations 2003 (SSI 2003/296)
We asked the Executive to explain why the regulations did not contain a footnote about where copies of the drugs tariff might be obtained, nor was there any such indication in the explanatory note. Thankfully, the Executive agrees that it would have been helpful to have inserted such references. I assume that that information will be inserted into the web version of the regulations.
The only problem is that, when the matter was raised in relation to an earlier item in the agenda, the Executive said that it would insert the information into the web version. However, it has not said the same about these regulations. After all, if we are telling others that it is not a good thing to infer something, we should not infer anything. Perhaps we should just ask the Executive whether it will insert the information into the web version.
Good.
Stevenson College (Change of Name) (Scotland) Order 2003 (SSI 2003/297)
We questioned whether the word Scotland should be included in brackets in the title of the order. That is a wider issue that came up in relation to bills in another committee of which I used to be a member. It might be useful to have clarification on when the word Scotland, in brackets, should be included in a title. Are there any other views on that?
At the pre-meeting briefing, Stewart Maxwell indicated a desire to refer the matter to the Procedures Committee. I do not believe that he was suggesting that the Procedures Committee should rush off and start an investigation, but that we should draw the matter to that committee's attention as something that it might like to consider at an appropriate point in its work programme.
Collagen and Gelatine (Intra-Community Trade) (Scotland) Regulations 2003 <br />(SSI 2003/299)
It was noted again that the regulations were defectively drafted in relation to the requirement for records to be kept for a period of time. That requirement is not fully explained in the regulations.
Again, we are required to infer something from the text and one person might infer something different from another. The regulations are not clear; they are defectively drafted and we should report that.
The very fact that the committee questioned the regulations indicates that it is possible to infer more than one meaning, or at least to be unclear about the meaning. That we had to ask the question disproved the validity of the FSA's response. In general, the Executive should not be inviting anyone to infer meanings from its documentation; it should be so clear that inference is immaterial and irrelevant.
Do we agree to pass that point on to the lead committee and the Parliament?
Agricultural Subsidies (Appeals) (Scotland) Amendment Regulations 2003 (SSI 2003/302)<br />Oil and Fibre Plant Seeds Amendment (Scotland) Regulations 2003 (SSI 2003/304)
National Health Service (Functions of the Common Services Agency) (Scotland) Amendment (No 2) Order 2003 <br />(SSI 2003/306)
We asked that instruments should be consolidated on their fifth substantive amendment. In its response, the Executive has explained the position for these instruments. The Executive says that what the committee has recommended might prove difficult, but it is trying to take that on board.
Why would it be difficult?
I assume that it would be because of time constraints. I cannot think of any other reason.
Once there are three or four instruments to be consolidated it might be a big job, but if it is not done, it starts to get more confusing and therefore makes more work for other people.
To be fair, we would not want to hold up necessary change or amendment on the ground that everyone was tied up doing a consolidation exercise. If there is a glaring anomaly, or circumstances change, it is important to get legislation through quickly.
Are we agreed that we will pass this on to the lead committees and the Parliament?
Rural Stewardship Scheme (Scotland) Amendment (No 2) Regulations 2003 <br />(SSI 2003/303)
We asked the Executive about making the regulations available free of charge to those who could show that they had purchased SSI 2003/177 because it looked as if SSI 2003/303 had been drawn up because of an Executive error. The Executive has agreed that it will provide that free copy. It is, however, a worry that that has not been written in to the regulations. We should be saying that to the Executive. Is that agreed?
I am imagining all those people with their old copy, queuing down Lothian Road, past the Usher Hall. I cannot see it somehow.
Me neither.
If it is about rural stewardship and it is free, there will be farmers coming from everywhere.
All the way from Lockerbie to save a pound.
The drafter will be as rich as JK Rowling.
Pet Travel Scheme (Scotland) Order 2003 (SSI 2003/229)
The committee believed that the order was rather ambiguous at certain points. I welcome the explanation about who is referred to in the order, but I do not know whether it is now acceptable.
Again, I must comment about the Executive being helpful. It is important that amendments should make it clear who and what is being referred to. People should not have to go backwards and forwards through previous documents to try to find out. It is useful if people know where changes have been made so that they are not hunting for them; not everyone has that much time. If the committee has a doubt about who is covered by the order, we can be sure that someone is going to try and drive a coach and horses through it in order to get round it. Again, helpful is good, so let us have the drafting as clear as possible.
We will pass the order on to the lead committee and the Parliament and say how the committee has had to ask for an explanation on those points. Obviously, we have received an explanation from the Executive, but we are keen that instruments should be as clear as possible in the first instance.
Pollution Prevention and Control (Designation of Waste Incineration Directive) (Scotland) Order 2003 <br />(SSI 2003/204)
We asked whether directives made using the codecision procedure, involving the European Parliament and the European Council, are technically the same as European Council directives. We also had doubts as to whether the order was intra vires. How do members feel about the order and the Executive responses?
All three questions that the committee raised with the Executive—the failure to follow legislative practice, defective drafting and whether the order is intra vires—should be referred to the lead committee.
The question of whether the order is intra vires is probably the most important. If the committee is in doubt, and those who advise the committee have raised that doubt, I am sure that there are others who will raise the same doubt. It would good to be clear that the order achieves what is intended and that the full reference should be included in all similar instruments in future.
When you say the "full reference" do you mean a reference to whether the directive was made through a codecision?
Yes; it should say "Directive of the European Parliament and the Council" rather than "Council directive" because they are two different things.
Are we agreed on the suggested course of action?
National Health Service (Constitution of Health Boards) (Scotland) Amendment Order 2003 (SSI 2003/217)
It is suggested that we draw the attention of the Parliament and the lead committee to the defective drafting and the response that we received to our two questions. No further points arise.
Adults with Incapacity (Scotland) Act 2000 (Commencement No 3) Partial Revocation Order 2003 (SSI 2003/227)
Members will recall that, although we had some background earlier, the explanatory note could have been clearer. The Executive has accepted that point. Are there any further points?
I do not think so.
The Executive note was also missing from the order. The Executive's response says that Executive notes are not prepared to accompany commencement orders because they are usually self-explanatory. However, the Executive accepts that, on this occasion, it might have been of assistance to provide one, given the history of the commencement order. The Executive seems to accept that it could have given more background information. We must pass that on to the lead committee and the Parliament.
Is the Executive going to do that?
Yes.
Has it said so?
Sorry—it is a commencement order, so it is therefore a matter for the Parliament, not a lead committee.
It might be, but it would be helpful to have confirmation that such information will be provided.
No further points arise.
Adults with Incapacity (Scotland) Act 2000 (Commencement No 4) Order 2003 <br />(SSI 2003/267)
We turn now to a further commencement order. The issues that arise in relation to this order are very similar to those that pertained to the previous one. Is it therefore agreed that we raise the same points with the Executive?
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Draft Code