Health and Community Care Committee, 25 Mar 2003

Meeting date: Tuesday, March 25, 2003

Official Report 115KB pdf

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Subordinate Legislation

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Fish Labelling (Scotland) Regulations 2003 (SSI 2003/145)

There are 12 negative instruments on today's agenda.

The Subordinate Legislation Committee

"holds to its view that late implementation of EC directives is, given the explicit terms of section 57(2) of the Scotland Act, a breach of Community law and to that extent raises a devolution issue. The Committee therefore draws the Regulations to the attention of the lead committee and the Parliament on that ground. It observes, however, that in the case of these Regulations, it may be that the breach is more apparent than real."

I am sure that, had we the time, we would go back and question what "more apparent than real" means. However, at this stage, no members' comments have been received, and no motion to annual has been lodged, so the recommendation is that the Health and Community Care Committee make no recommendation in relation to the regulations. Is that agreed?

Members indicated agreement.

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Regulation of Care<br />(Registration and Registers) (Scotland) Amendment Regulations 2003<br />(SSI 2003/148)

The Subordinate Legislation Committee has made comments to the Executive on defective drafting, which the Executive has acknowledged and will take account of in future instruments. No members' comments have been received and no motion to annul has been lodged, so the recommendation is that the Health and Community Care Committee make no recommendation in relation to the instrument at this time. Is that agreed?

Members indicated agreement.

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Regulation of Care<br />(Requirements as to Care Services) (Scotland) Amendment Regulations 2003 (SSI 2003/149)

The Subordinate Legislation Committee

"observes that it is customary to give an indication in the instrument text of the subject matter of the provisions amended. In the Committee's view, failure to do so does not comply with proper legislative practice and it reports the instrument to the lead committee and the Parliament on that ground."

No members' comments have been received and no motion to annul has been lodged, so the recommendation is that the committee make no recommendation on the instrument. Is that agreed?

Members indicated agreement.

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Regulation of Care<br />(Requirements as to Limited Registration Services) (Scotland) Regulations 2003<br />(SSI 2003/150)

The Subordinate Legislation Committee has made several comments and considers the regulations to have been defectively drafted. No members' comments have been received and no motion to annul has been lodged, so the recommendation is that the committee make no recommendation on the instrument. Is that agreed?

Members indicated agreement.

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Regulation of Care<br />(Applications and Provision of Advice) (Scotland) Amendment Order 2003<br />(SSI 2003/151)

The Subordinate Legislation Committee has made comments to the Executive on defective drafting, which the Executive has acknowledged and will take account of in future instruments. No members' comments have been received and no motion to annul has been lodged, so the recommendation is that the committee make no recommendation on the instrument. Is that agreed?

Members indicated agreement.

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Regulation of Care (Fees) (Scotland)<br />Order 2003 (SSI 2003/152)

The Subordinate Legislation Committee has made comments to the Executive on defective drafting, which the Executive has acknowledged and will take account of in future instruments. No members' comments have been received and no motion to annul has been lodged, so the recommendation is that the committee make no recommendation on the instrument. Is that agreed?

Members indicated agreement.

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Health Education Board for Scotland Amendment Order 2003 (SSI 2003/154)

The Subordinate Legislation Committee has made comments to the Executive on defective drafting, which the Executive has acknowledged. No members' comments have been received and no motion to annul has been lodged, so the recommendation is that the committee make no recommendation on the instrument. Is that agreed?

Members indicated agreement.

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Adults with Incapacity<br />(Management of Residents' Finances) (Scotland) Regulations 2003 (SSI 2003/155)

The Subordinate Legislation Committee

"noticed that, in Schedule 1 on the Note to the form (page 4 of the instrument), it states that the certificate ‘shall be reviewable' within three years in certain circumstances. In fact, section 37(7)"

of the Adults with Incapacity (Scotland) Act 2000

"states that the form ‘shall be reviewed' in those circumstances, which is significantly different. The point was raised with the Executive … the Executive accepts that the Note to the form in Schedule 1 does not exactly reflect the wording in section 37(7) of the 2000 Act. The Regulations will be amended at the next available opportunity … In the Committee's view, this constitutes a serious error. The Note to the form did not reflect the wording of the Act. It suggests that a review is discretionary whereas, under the parent Act, it is mandatory. To that extent there is a serious doubt as to whether the Regulations are intra vires. The Committee therefore draws the attention of the lead committee and the Parliament to the Regulations on that ground and to the Executive's undertaking to make an appropriate amendment at the next available opportunity."

We should put on record the fact that although we have run out of time to do anything about the regulations, we support strongly the Subordinate Legislation Committee's view—the breach is serious.

No members' comments have been received and no motion to annul has been lodged, so the recommendation is that the committee make no recommendation on the instrument. Is that agreed?

Members indicated agreement.

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National Assistance<br />(Assessment of Resources) Amendment (No 2) (Scotland) Regulations 2003<br />(SSI 2003/156)

The Subordinate Legislation Committee draws our attention to regulation 2(2) on the ground of

"defective drafting acknowledged by the Executive and to the Executive's undertaking to correct the error."

No members' comments have been received and no motion to annul has been lodged, so the recommendation is that the committee make no recommendation on the instrument. Is that agreed?

Members indicated agreement.

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National Health Service (Dental Charges) (Scotland) Regulations 2003 (SSI 2003/158)

The Subordinate Legislation Committee has made comments to the Executive on defective drafting, which the Executive has acknowledged and will take account of in future instruments. No members' comments have been received and no motion to annul has been lodged, so the recommendation is that the committee make no recommendation on the instrument. Is that agreed?

Members indicated agreement.

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National Health Service<br />(Optical Charges and Payments) (Scotland) Amendment Regulations 2003<br />(SSI 2003/200)

The Subordinate Legislation Committee has noticed five instances of defective drafting in the regulations, which the Executive has undertaken to correct through an amending instrument. That committee welcomes the Executive's undertaking and notes that its action should take account of any technical difficulties. No members' comments have been received and no motion to annul has been lodged, so the recommendation is that the committee make no recommendation on the instrument. Is that agreed?

Members indicated agreement.

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National Health Service<br />(General Ophthalmic Services) (Scotland) Amendment Regulations 2003<br />(SSI 2003/201)

The Subordinate Legislation Committee has made no comments on the instrument. No members' comments have been received and no motion to annul has been lodged, so the recommendation is that the committee make no recommendation on the instrument. Is that agreed?

Members indicated agreement.

The Executive's draftspeople did not cover themselves in glory with that little lot.