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Fire (Scotland) Act 2005 (Relevant Premises) Regulations 2005 (draft)
We raised a number of technical points and the Executive has agreed to make some changes. However, it cannot make the change that we suggested be made to the preamble. Are we content with what the Executive is saying?
I am happy about the changes that are being made and am satisfied that the Executive has gone as far as it can go at the moment, given the situation that it faces. However, I still think that we should report the instrument to the lead committee and the Parliament on the ground of failure to follow normal drafting practice.
Absolutely. Do we agree to do that?
Miscellaneous Food Additives Amendment (Scotland) Regulations 2005 (SSI 2005/214)<br />Smoke Flavourings (Scotland) Regulations 2005 (SSI 2005/215)
The committee was concerned that the consultation requirement contained in article 9 of regulation EC 178/2002 of the European Parliament and of the Council is not referred to in the preambles to these regulations. The Executive is still saying that it is normal drafting practice not to include a reference to article 9 in the preambles to orders and regulations made under European directives. Members will be aware that that approach is different to the approach that is taken in Westminster.
I do not disagree, and I am prepared to support the recommendation. However, for the record, I say that we appear to have reached an impasse. We are not going to get agreement. There is a legal basis for the route that the Food Standards Agency has taken, and we have to accept that. Nevertheless, I find the reason for refusing to countenance a reference to article 9 of regulation EC 178/2002 in the preambles a little perverse—maybe that is too strong a word, but it is almost perverse. The fact that such a thing was never done in the old Scottish Office is not a good enough reason for not doing it now. Practice has been changed at Westminster in the interests of transparency and clarity. It is reasonable that reference to article 9 be given the same prominence in our instruments. I hope that we will refer to that point in our report on our review of the regulatory framework.
I agree. It has not been Scottish practice, but one is tempted to say, "So what?". Westminster has said that whether including a reference to the article is strictly necessary or not, it makes instruments clearer and it is better practice. It is not clear to me why we should sit on our high horse and say, "We've never done it like that." Maybe I am missing something.
I do not think that you are.
I support what colleagues have said on the ground of clarity. That is the important point. The convener's opening remarks referred to being different from Westminster, but whether we are different from Westminster is neither here nor there. The problem is that the Executive has not explained why the particular route was chosen. If it gave us a solid reason we might feel that it was all right, but we do not know. The driving force behind what we are saying is that the regulations must be made as clear as possible for the user, which I absolutely support. Whether the situation is the same as or different from Westminster is irrelevant.
I have no objection to the convener's suggestion, which is an attempt to get us closer to some sort of agreement. I agree with colleagues. The regulations fall short of the standard of drafting that we have asked for. The drafting is defective and we should stick to our guns. I agree that there is probably no point in writing letters backwards and forwards to get the same old answer. I have no difficulty with simply stating in all our reports on orders that do not cite article 9 of regulation EC 178/2002 that the drafting is defective. We can note our position, but we should make it clear and hold to it until the Executive either comes up with a really convincing explanation or—as I think it will have to do at the end of the day—accepts the consistency and logic of what we say.
Adam, do you have any further points?
No. Colleagues have covered the ground. Your suggestion is fair enough, convener.
As Murray Tosh said, we will inform the lead committee and the Parliament that the drafting is defective, which we can elaborate in our letters to them. We will take the issue further in our review of the regulatory framework, so that we get the clarity to which Christine May and Stewart Maxwell alluded. We will send a letter to the Executive informing it of our position, but we are not going to go backwards and forwards. We will address the issue in our review and take it up later.
Are you going to include your suggestion on making the footnote clearer?
Yes.
Plant Health (Import Inspection Fees) (Scotland) Regulations 2005 (SSI 2005/216)
Members will see from the brief that there is an issue with the regulations, because the 10 per cent uplift is difficult to justify legally. There is a general issue, because the procedure might be used again. What happens with other countries that do not have the euro?
The Executive's explanation of the practical reasons for proceeding in this way was clear and detailed and I have no problem with it. However, the question is not about the practical reasons for proceeding in this way, but about the fact that that way does not appear to be legally acceptable. The Executive was given two options, but it chose neither. Instead, it chose to include the 10 per cent uplift. The question is whether the Executive has a legal basis for doing that, not whether it is a practical solution to the difficulty that it faces. We have to draw the measure to the attention of the Parliament on the basis that it appears to be ultra vires. The Executive is in difficulty, but it also looks as if it is technically wrong.
I agree entirely. I note from the briefing that the Department for Environment, Food and Rural Affairs has used the same measure in the English regulations. It might be worth asking the Executive by informal letter or some other means to check with its colleagues in DEFRA whether the advice of the European Commission was sought and, if so, what that advice was.
That would be a good avenue to pursue.
We also need to address the point on having a level playing field for importers throughout the UK.
Yes, that is important. The discussions with Westminster have been helpful in terms of the level playing field. I acknowledge Stewart Maxwell's point that the Executive has had to deal with a difficult situation, which reinforces the view that we should examine the general as well as the specific issue.
I am not sure that I am adding anything, but I think that the general picture is important. I wonder if these are the only fees that are or will be affected in this way, or whether there is a bigger picture of which we should be aware. If there is a question of the legality of some or all such fees, they should be scrutinised.
I will summarise. We will bring to the attention of the lead committee and the Parliament our concerns about the legal basis. We could also comment on the general issue and state that we are taking it further. In a letter to the Executive we can address the points raised by Christine May on the discussions that Westminster has had with the Commission.
I suggest that we ask whether advice was sought from the Commission not just on the uplift in these regulations but in other regulations, as Murray Tosh mentioned. I presume that a legal opinion was sought from the Commission, perhaps in addition to opinions from the different directorates general.
It has been suggested to me that we send a copy of our letter to the Executive to the lead committee as well, so that it is kept fully informed. That is a good idea. Is that agreed?