Subordinate Legislation Committee, 25 Oct 2005

Meeting date: Tuesday, October 25, 2005

Official Report 143KB pdf

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Draft Instruments Subject to Approval

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Draft Instruments Subject <br />to Approval

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Regional Transport Partnerships (Establishment, Constitution and Membership) (Scotland) Order 2005 (draft)

We move on to agenda item 4. Paragraph 3(5) of schedule 2 to the draft order provides that a transport partnership may determine to amend its standing orders to require that certain specified decisions be determined by a two-thirds majority. However, it is not clear that that meets the requirements of the enabling power, which is contained in section 1(2)(e)(iii) of the Transport (Scotland) Act 2005, which states that

"for the purposes of any decision which is to be determined by a vote",

the order shall secure that

"the minimum voting capacity of all the councillor members of the Partnership is not less than two-thirds of that of its whole membership".

The issue is whether those two requirements are compatible.

I thought that paragraph 3(5) of schedule 2 to the draft order tended to undermine the conditions that are laid out in section 1(2)(e)(iii) of the 2005 act.

That is right. We should ask for clarification of that.

There is a minor point to do with the uncertainty of what "they" in paragraph 4(1) of schedule 2 to the draft order means, which we should also ask about.

I do not think that that is a minor point. The use of "they" or any impersonal or non-clear designation in legislation is extremely poor practice, so we should raise the matter formally. A quality assurance procedure ought to be built into the process to ensure that it is always absolutely clear to whom an act or a piece of subordinate legislation is referring.

Is that agreed?

Members indicated agreement.

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Civil Partnership Act 2004 (Consequential Amendments) (Scotland) Order 2005 (draft)

Articles 5 to 7 of the draft order amend the Marriage (Scotland) Act 1977 to equate the position of civil partnerships with that which applies to marriage as regards relationships between persons within specified degrees of affinity. However, the European Court of Human Rights recently found the United Kingdom's rules in that respect to be in breach of the European convention on human rights. The legal briefing provides quite a lot of detail on the case in question. We might want to ask the Executive to explain how articles 5 to 7 of the draft order are compatible with the ECHR.

The Scotland Act 1998 requires that all our primary legislation should comply with the ECHR, but I understand that, in law, that may not apply to subordinate legislation. Would it be appropriate to ask the Executive whether it accepts that, in practice, it must always ECHR-proof subordinate legislation, given that the draft order appears to seek to introduce into Scottish law a regulation that, in another context, has been found to be incompatible with the ECHR?

I assume that subordinate legislation would have to comply with the ECHR.

I would have thought so, too, but the draft order seems to be an example of a back-door way of avoiding such compliance. I see that the legal adviser does not agree with me on that, so perhaps we could ask her to advise the committee.

Is it agreed that we should ask the Executive that question?

Members indicated agreement.

Are we not going to ask the legal adviser for her opinion?

As well as the specific point, there is a general issue to ask about.