Subordinate Legislation Committee, 25 Sep 2001

Meeting date: Tuesday, September 25, 2001

Official Report 128KB pdf

---

Rural Stewardship Scheme (Scotland) Regulations 2001 (SSI 2001/300)

Item 2 on the agenda is Executive responses. We raised five points on the regulations. The first point concerns the fact that the regulations are made under two acts—the European Communities Act 1972 and the Environment Act 1995, as we discussed at our previous meeting—and the difficulties that can arise from that. Does the committee agree that we should draw the Executive's response to the attention of the lead committee and the Parliament?

My view is that it is important that the European Commission should be able to work out how its legislation is being enforced and that the people who will fall under the remit of the regulations should know where the regulations are coming from. The committee must decide whether the regulations correctly implement a Community obligation. Does anyone wish to comment?

The principle is clear. If a new criminal offence is created, people who are caught by such a provision ought to know the regulations under which they have been apprehended and the penalties to which they might be subject. Although it is possible to make provisions under two different enabling powers—it happens elsewhere—it is not good practice. We should draw attention to that.

We will draw those points to the attention of the lead committee and the Parliament.

Our second question on the regulations concerns the meaning of the terms "application" and "application for aid". The committee might simply draw the point to the attention of the lead committee and the Parliament on the ground of defective drafting—it is no big deal.

We also asked the Executive whether regulation 16, which simply states the legal position, should have been included. I must confess that I did not understand all of the issue, but it seems that English legislation has been interpreted to fit Scots law, which has led to difficulties in the wording. Is that right?

There seems to have been a transposition of the English terminology into the Scottish regulations, which are not wholly clear as a result.

As the issue centres on debt recovery, we should make the regulations clear. We will draw the point to the attention of the lead committee and the Executive on the ground of defective drafting. We did not really understand the intention behind the provision and it might cast doubt on the effect of other legislation.

As some of the regulations are embodied in previous legislation, they are not quite necessary.

There must be a word for that.

Mr Mundell used a term earlier.

Convener, some people might say that the regulation was otiose.

Well, I wish those people would come to the committee. We would all like to be able to use that word.

I suggest that we draw those points to the attention of the lead committee and the Parliament.

Fourthly, we asked the Executive for an explanation of why regulations 17(3) and (4) appear to repeat the provisions of section 136 of the Criminal Procedure (Scotland) Act 1995. Such repetition in the provisions—and, accordingly, the unclear intention behind them—might mean that they are ultra vires, as they concern the time limit that applies to any enactment. We should therefore draw that point to the attention of the lead committee and the Parliament, again on the ground of defective drafting. It is unnecessary to repeat the wording of section 136 of the Criminal Procedure (Scotland) Act 1995; indeed, it makes the provision technically ultra vires.

I should ask Mr Mundell whether that is another example of an otiose provision.

I think that it might be.

He is very perceptive.

Indeed.

We also asked the Executive why regulation 14(5), which provides for the service of notices by post, was considered necessary. The Executive replied that the issue was an illustration of the danger of combining powers under different enabling acts in the same instrument. It is ironic that the Executive should acknowledge that problem with regard to this question and not any of the others that we asked. I suggest that we draw the point to the attention of the lead committee and the Parliament on the same ground as that of question 1.

Do any members oppose my suggestion?

We should draw the matter to the attention of the lead committee and the Parliament in terms of the legal advice that we have received.

We will leave the matter just now, although it seems to crop up very often. We have already made comments about defective drafting to the Executive. The problem is that some of these provisions are quite important.

There seems to be a huge amount of defective drafting in the instruments that come before the committee. As I have never been involved in the legislative process, I do not know whether that is usual. It might well be the case in every Parliament that, with the volume of legislation, there are always mistakes and drafting errors that the legal adviser picks up. However, I wonder whether the number of errors that we find is usual, because it does not seem acceptable to me. We are doing nobody a favour if we do not point that out.

I am glad that Mr Jackson, as a professional, has raised the matter. As a complete amateur at his second Subordinate Legislation Committee meeting, I am surprised to see instruments that are defectively drafted and ultra vires.

I do not know—I am not a professional in that sense—perhaps every Parliament has this problem and the number of errors that we pick up is only average. However, I find the matter disturbing.

So do I.

We will have the pleasure later of hearing Mr Mundell's report on the scrutiny of legislation conference that he attended in Sydney. I am sure that he listened out for some handy—and by no means otiose—hints on the matter.

That said, I take Gordon Jackson's point seriously. As in any other operation, there will be allowances for mistakes and corrections, which is one of the reasons why we are here. If the norm in the House of Commons for such errors is 5 to 10 per cent, I presume that that sets some benchmark and it would be reasonable for the committee to ask whether the Executive is hitting that target. If it is not, how much is that down to the fact that so many people in the Executive are new to their jobs? I am with you, Gordon; I want to know why there is so much defective drafting. We seem to spend a fair amount of the time on the problem.

For the avoidance of doubt, I am not being condemnatory.

Neither am I.

There might well be a perfectly good explanation. Perhaps there are teething troubles with all the new people in the Executive. I am not sitting on some high horse and criticising everyone. However, I would like to hear why we are finding so many mistakes.

The committee sees the results of defective drafting. If our suspicions about the number of errors are borne out, perhaps we could make suggestions for improvements. We will not know until we ask, so we will ask. The obvious point is training. As there is a bit of money left in last year's kitty, perhaps some training could be carried out, if that were required.