Official Report 139KB pdf
SFGS Farmland Premium Scheme 2003 (draft)
Now, remember this scheme? Brian Fitzpatrick is not with us today, but he was the only member, if I recall, who objected to having Scotland in the title—no, that was another instrument; it was not this one.
In this case, we objected to the fact that SFGS—which stands for Scottish forestry grants scheme—is a series of initials and there is no explanation of what it means.
Yes, it was me who objected that it was bad manners to use the initials without explanation; it was not Brian Fitzpatrick.
We recognise that the Executive has produced broadly satisfactory explanations on points 1, 2 and 3, but the response to point 4, on defective drafting, still raises some issues. The Executive says that it has drafted in a particular drafting style, but our legal advisers feel that style should not take precedence over substance.
We said that. Convenience in drafting should not be as important as the legal effect.
And we all know that Bennion, in "Statutory Interpretation", makes it clear that it is a drafting error that can have serious consequences.
You took the words right out of my mouth.
That is what Bennion said the last time I talked to him.
Did you enjoy the end of chapter 3? I thought that it was a good cliffhanger.
We like happy endings. Old Bennion can be relied upon.
Landfill (Scotland) Regulations 2003 (draft)
There are a couple of issues that we could draw to the attention of the lead committee and the Parliament.
We asked for explanations on points 1 to 3, which have been supplied by the Executive, and we can probably broadly accept them. However, point 4 involves the difference between the Scottish way of doing things and—
The inferior English way of doing things.
No, their way is sloppier. We insist on notification within seven days, when they say just "as soon as … possible", which is a pretty elastic definition.
I thought that our way of doing things was superior.
We need to tell the lead committee and the Parliament.
Okay.
Road Traffic (Vehicle Emissions) <br />(Fixed Penalty) (Scotland) Regulations 2003 (draft)
The Executive has acknowledged the defective drafting points that we brought to its attention. We also brought the Executive's attention to what we considered to be an unusual use of the powers. The issue was how a local authority would know if a vehicle was about to pass through its jurisdiction. You know all about this, Murdo.
That is right. We questioned how a local authority would know that cars were about to pass through. The Executive said that the authority could be testing outwith its boundary, which seems rather presumptuous. That may be an unusual use of the powers.
We will draw that to the attention of the Parliament.
National Health Service Superannuation Scheme (Scotland) Amendment Regulations 2003 (SSI 2003/55)
We will start with the best bit first. The Executive is considering consolidation, because this area is a bit of a minestrone.
People might feel that there is a bit of ambivalence about which "condition" or "conditions" are being referred to as far as locum practitioners are concerned. Apparently, the legislation stipulates two conditions, one of which must be satisfied. However, that is not clear from the way in which the regulations have been drafted.
We can draw the matter to the attention of the lead committee and the Parliament and point out that the regulation is still not very clear.
Registration of Foreign Adoptions (Scotland) Regulations 2003 (SSI 2003/67)
We pointed out that the regulations contain defective drafting. However, the Executive has not acknowledged that the wording of regulation 4(4) does not seem quite correct.
It is very grateful for our comments, though.
It did feel that other wording might have been more appropriate.
The Executive gave a good explanation for that, which I found entirely reasonable. However, I am not sure at all about the Executive's response to our first question. Nevertheless, we will draw the attention of the lead committee and the Parliament to the responses.
Road Traffic (Permitted Parking Area and Special Parking Area) (Aberdeen City Council) Designation Order 2003 <br />(SSI 2003/70)
Oh, here's the doozie. Again, we asked about defective drafting and failure to follow legislative practice in this designation order. Indeed, the Executive has acknowledged that it contains some drafting errors. I wonder whether the clerk can remind me how long we have to make comments on the order.
The 20-day period will be up in two days' time.
Does any member have any suggestions about what we can do about the bad drafting of this order?
What can we do within such a time scale?
All that we can do is raise the issue in our report and say that, as far as we are concerned, the order is defectively drafted. It is too late to go back to the Executive, which has already provided its explanations, although we regard them as generally unsatisfactory.
Some of the responses are unsatisfactory and some are not. We will do what Murdo Fraser has suggested. To be quite honest, I think that the situation is unsatisfactory. After all, this is such bread-and-butter stuff.
The Executive has done this before. This is another case of where it has simply used a style that it has used previously.
It comes on top of similar instruments in relation to Perth and Kinross, Glasgow and Edinburgh. We picked out mistakes in those instruments and asked the Executive to rectify them. However, it looks as though the Executive has just replicated them.
We also raised a fairly serious problem about paragraph 6 of schedule 2. Although it modifies section 82 of the Road Traffic Act 1991, it does not modify section 82(6) to change the reference to "Minister of the Crown" to "the Scottish Ministers". If such a change is not made, it throws the operation of some mechanisms into doubt. It has been suggested that, if that is the case, it will not be possible to make this a statutory instrument in legal terms.
Well, it will have a knock-on effect on the instruments that we are about to discuss.
I am sorry—that is right. If the change is not made in this instrument, there is a question whether the subsequent instruments are statutory instruments. We need to make that clear in some way. I realise that the issue is very technical; however, we are worried that allowing the designation order to go forward as it is will throw the status of any subsequent legislation on this matter into doubt.
There are two or three reasons why we need to raise the matter. We are bound to keep coming up against such cases where acts and regulations made in the Westminster Parliament that already apply in Scotland have to be changed if we introduce new legislation. As a result, it is much better to have a consistent approach to the matter. Any regulations do not require to be made in the form of a statutory instrument; however, if they must be made as a statutory instrument, it has to be done properly.
But the designation order in question is a statutory instrument. The point is whether the regulations that we will come on to discuss will be statutory instruments.
That is what I mean.
Road Traffic (Parking Adjudicators) (Aberdeen City Council) Regulations 2003 (SSI 2003/71)
Members should bear in mind what we have already said about the potential impact on the regulations of the designation order that we have just discussed. We asked the Executive some additional questions about a failure to follow proper legislative practice and an unusually limited use of powers. We will draw the Executive's response to the attention of the lead committee and Parliament.
Parking Attendants (Wearing of Uniforms) (Aberdeen City Council Parking Area) Regulations 2003 (SSI 2003/72)
We asked the Executive about defective drafting in the explanatory note.
We will draw that to the attention of the lead committee.
In any case, it will not affect the working of the regulations themselves.
The Executive has already undertaken to amend the reference in question on the website.
Taxi Drivers' Licences (Carrying of Guide Dogs and Hearing Dogs) (Scotland) Regulations 2003 (SSI 2003/73)
We raised the question of whether the regulations should be made available free of charge, given that they replace an earlier, erroneous instrument. If there is time, I think that we should ask the Executive about that.
The Executive should make the regulations available free of charge, and we will ask it to do so. After all, it has acknowledged that the situation is due to a mistake on its part.
The Executive has widened the references to charities.
That is fair enough. Can we say to the Executive that we note its intention, but that its drafting could be less ambiguous?
Sea Fish (Prohibited Methods of Fishing) (Firth of Clyde) Order 2003 <br />(SSI 2003/79)
We should bring this order to the attention of the lead committee, because it contains defective drafting.
I agree—the Executive has said so. Was it you or Ian Jenkins who picked up the difference between "species" and "specified"?
It was not me—it must have been Ian.
He spotted it right away.
In any case, the Executive has acknowledged the defective drafting, which it plans to correct as soon as possible.
Tobacco Advertising and Promotion Act 2002 (Commencement No 4) (Scotland) (Amendment and Transitional Provisions) Order 2003 (SSI 2003/80)
We have again pointed out something that the Executive has recognised as a valuable point and which it is moving to correct. It has sent us a helpful response recognising that there are defects to be addressed and saying that it will do so as quickly as possible.
Okay. Nevertheless, that could have been serious.