Official Report 143KB pdf
TSE (Scotland) Amendment (No 2) Regulations 2005 (SSI 2005/469)
We asked the Executive three questions on the regulations. The first point related to new regulation 10A(3)(c), which imposes an obligation on ministers to give written, reasoned notification of a determination under the provision. The committee asked to whom such notice is to be given, and the answer is that it is the occupier of the slaughterhouse.
I have one or two questions about the response. First, it would seem odd to inform the occupier of a slaughterhouse but not to inform the official veterinary surgeon who made the point in the first place. Secondly, in a multiple occupancy slaughterhouse, would all occupiers be informed or just the one with whom the problem lay? When the Executive says occupier, does it mean occupier in the sense of the person who rents the space in the slaughterhouse, does it mean the owner or does it mean both? Although we have been given a direct answer it does not clarify the position particularly well. I am not sure whether there is time to go back to the Executive on that—
No.
We should report these questions to the lead committee. We have got an answer, but it has not really cleared things up.
I agree with Stewart Maxwell. Are there any other points?
I agree that if we do not have time to raise the matter with the Executive we should take the course of action recommended by Stewart Maxwell. However, we should also flag up to the Executive our concerns about the lack of a clear meaning in all this.
The clerk recommends that we send the section of the Official Report relating to the issue to the lead committee to give it the fullest details possible.
On the second point, the committee asked the Executive to explain why the definition of "relevant bovine animal" in new regulation 10A(9)(b) includes an exception by reference to an instrument that will be revoked by the time this instrument comes into force. Members will see from the Executive's response that it accepts that that was an error on its part, which it intends to correct.
I accept that, but I am still not happy with the explanation. The words are slightly erroneous. I do not understand what "the correct test" means. It goes without saying that the test should be linked to the animal. It is a slightly odd phrase to use, and the Executive's answer does not clarify it a great deal. "The correct test" suggests an incorrect test, and it sounds odd.
It could be suggested that the Executive has not chosen the right term. However, given that time does not allow us to go back to the Executive, we should pass that comment to the lead committee, saying that even though we have been given an explanation, we have concerns about the use of that term. Is that agreed?
Pollution Prevention and Control (Designation of Public Participation Directive) (Scotland) Order 2005 <br />(SSI 2005/461)
We asked whether the order could be seen as intra vires because we were concerned that the enabling power did not cover co-decisions of the European Council and the Parliament. Members will note that the Executive does not share that view. It thinks that the enabling power covers such decisions and that there is not a problem. Do members have further thoughts on that?
We raised the point because it had been an issue for the committee on a previous occasion. We wanted to clarify whether the Executive had been consistent and it has been.
As have we.
Are there any further points? I do not think that there is much more that we can do.
We have raised the matter in relation to a series of instruments and I assume that we anticipate that the issue will come up again. If we decide to let the matter go in this case, that means that we will be letting it go in all cases, as there is no point in our going through the same dance repeatedly, only to drop our concern at the last minute. If we accept the Executive's position, we must accept that that will be its general position in subsequent cases in which there are
How could we rectify the situation?
We have accepted the Executive's explanations so far, but we could say that we would prefer it to reconsider its approach of treating co-decisions in the same way that it treats decisions of individual European institutions.
Surely there is not enough time—[Interruption.]
Just a minute, Ken. Let Stewart finish.
I seek clarification from Ken Macintosh. Are you suggesting that we should report on the matter in the same way that we reported the last time that it arose and that we should then write to the Executive separately in an effort to progress the general point?
That is right. The Executive is taking an approach to co-decisions that we are slightly uneasy with. We could write to the Executive to say that we accept the position that it has taken on SSI 2005/461 and on the previous order on which it adopted such a position but, in future, we would prefer it to approach co-decisions in a way that we would be more comfortable with. In other words, we could ask it to reconsider its approach.
I wonder whether the legal adviser has any helpful suggestions to make to the committee.
The legal adviser thinks that it might be difficult to do anything different. We are looking for the position to be made clearer. There is not time to do anything further on SSI 2005/461, but we can ask the Executive whether there is any way in which it could make the general position clearer. Does that fit in with what you are thinking?
Yes.
We do not seek only clarification. Ken Macintosh suggested that we ask the Executive to come up with a way of dealing with instruments that relate to co-decisions that would meet our concerns. It is not simply a matter of obtaining clarification; we want to make the request that Ken Macintosh made earlier.
I want to go further than to ask for clarification. The Executive has adopted a certain position so far, but it does not have to maintain that position; in future, it could take a different position on instruments that relate to co-decisions.
The legal adviser thinks that that would require a change in primary legislation. I think that we can construct a letter on the issues that have been raised. We can ask the Executive whether the position on instruments that relate to co-decisions could be made clearer and can mention the points that Ken Macintosh has made.
I have a vague recollection that we had a similar discussion the last time that the issue came to light. The legal adviser is correct to say that a change in primary legislation would be required. The only other way of bringing about change would be through a court challenge. We are simply expressing unease about the fact that the Executive's approach might be open to court challenge. That is all that we are saying.
I think that we should send a letter in which we express concern about what could happen and ask whether there are ways of getting round the problem. Changing the primary legislation would be one such way. Is that agreed?