Official Report 128KB pdf
We raised four points on the regulations. We asked why the changes to the current regulations are not highlighted in the explanatory note. The Executive said that there was so much other stuff around that even though the changes were not included in the explanatory note, the information was available. The committee felt that the information might be there, but that the situation could change—things go out of print, get lost and all the rest of it—so it would be just as well to have that information in the explanatory note.
If it is custom and precedent to have an explanatory note, it should be explanatory.
We should draw that to the attention of the lead committee, noting that the explanatory note failed to indicate the changes made by the regulations and that it is not good enough to say that that information can be found elsewhere. Is that agreed?
There was some repetition in the regulations—we made a similar point about SSI 2001/301—and we should draw that to the attention of the lead committee and the Parliament on the ground that regulation 11(1) is defectively drafted in that it contains a reference to committees that is duplicated in regulation 11(5). The provision does not make clear whether the associates of committee members who are not committee members are covered, although that is the intention. People who read the regulations will understand what that means—the Executive has not been clear about the status of committee members and people who might be drafted on to the committee. Do we agree to send that back to the lead committee and the Executive?
We asked for an explanation of the relevance of the reference to paragraph 6 of schedule 1 to the National Health Service (Scotland) Act 1978.
The Executive repeated information in regulation 4 that is already included in paragraph 6 of schedule 1 to the parent act. Perhaps it is a belt-and-braces approach.
That is correct.
We should draw those points to the attention of the lead committee.
Yes. The committee also asked the Executive why regulation 2(1) states that members of boards are to be appointed by the Scottish ministers when paragraph 2 of schedule 1 to the National Health Service (Scotland) Act 1978 contains the same provision. It is not a huge point, but does the committee want to draw the attention of the lead committee and the Parliament to the provision on the ground that it unnecessarily repeats provisions of the enabling act? Technically, that makes the regulations ultra vires and is yet another example of defective drafting.
Would it be better to set out an explanation of the way in which a statutory instrument would work in the explanatory note? It would read better if, for example, the note said that the parent acts gives such and such a power.
Does that not happen already? I thought that that was what the explanatory note was supposed to do.
That is what I am saying. Perhaps that is the point that we should make to the Executive.
The explanatory notes are just not clear enough.
I follow the Executive's explanation here. To use David Mundell's word, the Executive accepts that regulation 2(1) is otiose, but says that it makes sense. Excuse my ignorance, but why is repeating a provision, which is not contrary to another provision, ultra vires?
As far as I can work it out, the act gives the power, therefore the provision is unnecessary.
I can see that it is otiose, but why is it ultra vires?
I will seek advice.
Right.
We will get a written explanation that will go to all members of the committee. I have asked the question two or three times and have understood the explanation while it was being given, but when I tried to recall it two minutes later, I could not.
That is something that we all suffer from.
We will get a written explanation and paste it in the back of our papers each week, so that we all know what it means.
Last week we decided to have some sort of training day.
We are having one. That is in hand.