Official Report 120KB pdf
National Health Service (General Dental Services and Dental Charges) (Scotland) Amendment Regulations 2002<br />(SSI 2002/99)
On previous occasions we have told the Executive of the committee's view on the consolidation of regulations. We did so in the case of these regulations, but I am not entirely satisfied with the Executive's response. However, I have some sympathy for the Executive because of pressures on its time.
There is a huge amount of work to be done on regulations such as these.
I agree, but can we say to the Executive that the regulations are at the pointy end?
Scottish Commission for the Regulation of Care (Staff Transfer Scheme) Order 2002 (SSI 2002/108)
The order represents an unexpected or unusual use of the powers that are conferred by a parent act. That is because individuals in the staff transfer scheme are named. The order acts to transfer people—or rather to transfer jobs—from one body to another. The order mentions by name the people who are to be transferred. On a previous occasion, we indicated disquiet about that.
The question is whether the workers and their trade unions prefer to have a list.
There is doubt as to whether the workers and the trade unions concerned were informed that their names would appear in the order that is to be laid before the Parliament.
If there is doubt, we should refer the order.
I have a doubt.
Okay.
Perhaps one of the legal eagles present would give an opinion as to whether article 8 of the European convention on human rights, which concerns the respect for private life, would be compromised by the naming of people in such a way.
I do not profess to know everything about the convention, but it would be okay if the people concerned knew that that was to happen and were happy for their names to be published. Brian Fitzpatrick has pointed out to me that that safeguards their individual terms and conditions.
Their job.
No, not their job, but their individual terms and conditions.
Aye.
It is an unusual situation, is it not?
Yes.
The situation would depend on whether that had been spelt out in the consultation period. Should we query that point?
Dairy Produce Quotas (Scotland) Regulations 2002 (SSI 2002/110)
We asked three questions of the Executive about the instrument. There is genuine doubt about the words:
Our third question to the Executive related to the provision of appeals, including in those situations in which a penalty is imposed. The response acknowledged that there should be an appeal process and that one would shortly be put in place. That would mean that no affected person would be prejudiced by the current absence of an appeal procedure. However, it seems odd to proceed with legislation in the knowledge that an appeal process should be in place, but that it is not. We should draw that to people's attention.
That point will also be made in our report of the meeting.
The absence of an appeal procedure must raise the question of civil rights. Surely that affects people, even temporarily?
That would be the case if an appeal procedure were not in place. Our report will include the committee's comments on that point.
National Health Service (General Medical Services and Pharmaceutical Services) (Scotland) Amendment Regulations 2002 (SSI 2002/111)
Three points arise. The Executive has acknowledged that the regulations contain defective drafting and that that has been corrected. We also pointed out that the regulations are not drafted in gender-neutral terms. The Executive has responded that that is because the original regulations were not drafted in that way. The need for consolidation arises again in respect of these regulations. Gender-neutral terminology can be introduced at that stage.
Plant Protection Products Amendment (Scotland) Regulations 2002 (SSI 2002/117)
Once again, the question of consolidation arises. The Executive has agreed that the instrument will be consolidated. We will draw that to the attention of the lead committee and the Parliament.
Restriction of Liberty Order (Scotland) Amendment Regulations 2002<br />(SSI 2002/119)
This is an interesting instrument. We raised four points with the Executive because it has to comply with European Community law. Had the instrument not been drafted properly, breaches of European Community law might have arisen. However, those breaches might have arisen not with regard to the restriction of liberty, but with regard to trade.
We need to worry that Italian manufacturers of hanging equipment are on a level playing field. That is very important.
I am glad that you mentioned that. In case anyone thinks that we have anything against the Italian hardware industry—
I understand that the Italians have a long history of producing such things, particularly in the 1930s.
I see.
I am not sure that it is politic to mention that now.
Certainly not from the right.
However, there is one matter on which we might wish to comment lightly. In the past, we have expressed the view that statutory instruments that no longer have any life should be cleared from the statute books. Perhaps that would apply in this case.
It is fair to say that we have discovered that the level of defective drafting is stunning. There is too much. We have discovered a huge amount of defective drafting.
You are absolutely right but, as we have said, we need to find another way of indicating the seriousness of the defect.
There might be something in that because otherwise people will say that we are always objecting. However, that is what we are here for.
Is that intended to be an objective measure across the range of subordinate legislation? It strikes me that defective drafting of restriction of liberty orders might be more serious—even if the defect is minor—than, dare one say it, the plant protection products amendment order.
You are allowed to say it, Brian.
I am sure that there are possibly many issues about the drafting of dairy produce quotas that are likely to have serious knock-on effects—
Oh no, the dairy issue is serious. Although it is not necessarily the committee's job, we tend to separate sheep from goats. That is an old in-joke. As a steer to the lead committee, we try to say what it should pay particular attention to. We might need just to change our phraseology.
We could use the terms "major" and "minor".
I feel strongly about defective drafting. We should not have to pick it up as often as we do. We do it constantly. I would not want to give out the signal that half of it does not matter. I agree with what we have said about serious stuff, but I am tired of the Executive getting its drafting wrong.
It might be lack of resources.
I am not criticising individuals. It might be a system failure. Brian might be right—it might well be a resource problem. I am not suggesting that they are not able people—they might be fabulous people. I am just saying that the committee gets far too many instruments that are not right.
When I first came on to the committee, I heard the same sort of discussion. Then I heard that there was going to be a training programme because so many people had been recruited at once. The advice that I now have is that the situation is improving. People are beginning to show the effects of having had a bit of training, but they need a bit more experience.
Adults with Incapacity<br />(Public Guardian's Fees) (Scotland) Amendment Regulations 2002<br />(SSI 2002/131)
There is doubt about the vires of the regulations.
We do not need to make any further comment other than to draw that to the attention of the lead committee and the Parliament. We have asked the Executive about the issue and should now draw its answer to the lead committee's attention.
Seemingly, the parent act is at fault and we cannot do anything about that.
We must flag up the issue.