Subordinate Legislation Committee, 25 Sep 2001

Meeting date: Tuesday, September 25, 2001

Official Report 128KB pdf

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Scottish Social Services Council (Appointments, Procedure and Access to the Register) Regulations 2001 (SSI 2001/303)

We raised four points with the Executive in relation to the regulations. The Executive was asked to explain why the preamble makes no reference to the fulfilment of the statutory obligation on the Scottish ministers, contained in section 56(2) of the Regulation of Care (Scotland) Act 2001 and schedule 2, paragraph 7, to consult prior to making the regulations.

The Executive said that it understood why we had asked the question and that the omission was an oversight. That does not affect the validity of the regulations and details of the consultation were set out in the Executive note that accompanied them.

Are we satisfied with that?

We could draw the matter to the attention of the lead committee and the Parliament. The Executive has accepted that there is defective drafting and we are pointing out that the preamble does not refer to the statutory requirement to consult prior to making the regulations. That should be in the document.

The committee's second question asked the Executive to explain the vires of regulation 2(1), which appears to empower the Scottish ministers to appoint "such number of members" as they "think fit". This is another case of matters being detailed in the legislation. Regulation 2(1) partly repeats the wording of paragraph 2 of schedule 2 to the Regulation of Care (Scotland) Act 2001. The Executive has said that it considers that it was desirable to do that as a first step in setting out clearly the scheme of appointment that is envisaged by the regulations.

There is a question as to whether the Executive has the power to do that. I suggest that the committee should draw the instrument to the attention of the lead committee and the Parliament on the ground that it is technically ultra vires. It is another example of defective drafting.

The other issue is inconsistency, as only parts of the original provisions are contained within the regulations. For example, no restrictions are contained within the regulations. If the Executive was being consistent, the regulations would have included restrictions.

That answers Gordon Jackson's question. If the Executive is going to repeat provisions, it should repeat them exactly, so that there is no difference.

That will be drawn to the attention of the lead committee and the Parliament.

Members indicated agreement.

The committee's third question on the regulations was to ask the Executive to explain which provision of the parent act justifies the sub-delegation to the Scottish social services council contained in regulation 13(3).

We should draw the response to the attention of the lead committee and the Parliament.

The fourth question on the regulations was on fees. As section 56(1)(b) of the Regulation of Care (Scotland) Act 2001 provides for fees to be specified in the regulations, the committee asked which power justifies the sub-delegation of fees, contained in regulation 13(5), to the Scottish social services council.

The Executive reckons that section 56(1)(b) empowers the Scottish ministers to make regulations that require the council to secure that access to the register shall be afforded to any person on the payment of

"such fees as may be specified in the regulations".

The provision is potentially ultra vires. Should we draw this to the attention of the lead committee and the Parliament?

Those are difficult issues. I am not disagreeing that we should draw this to the attention of the lead committee and the Parliament, but it is difficult to know whether it is sub-delegation. Sometimes we do not have the ability to adjudicate on such matters. We should point out that we have raised the issue.

The issue will be drawn to the attention of the lead committee and the Parliament.

Members indicated agreement.