Delegated Powers Scrutiny
Aquaculture and Fisheries (Scotland) Bill: Stage 1
This is the 26th meeting of the Subordinate Legislation Committee this year. Sylvia Jackson is still not very well. She will not be back next week either, but she has promised to be back in the convener's chair after the holidays next month. Jamie Stone also apologises.
A couple of weeks ago, we raised some points about the Aquaculture and Fisheries (Scotland) Bill, and we now need to report to the lead committee. We asked the Executive how it intends to exercise the power in section 4(2) to modify the definition of the term "parasite" in section 4(1). That would be done subject to the negative procedure. The Executive has indicated that only two species of parasite are of concern and that amendments to the list in section 4(1) are expected only infrequently. The Executive therefore felt that it would be helpful to name those species in the bill and to include a power to add or omit species from the list as appropriate. The Executive will consult fish farmers and those who have interests in wild fish.
Does that sound okay for the purposes of delegated powers? There are only two known species concerned. The negative procedure seems appropriate. The only question that we might ask is whether there should be a statutory requirement to consult. However, I would not push the matter in this case, bearing in mind the rather unusual nature of the circumstances.
The Executive has already stated that it will consult. That is fine.
We will trust the Executive.
Section 14 adds new section 2ZB, "Preliminary designation of area: Gyrodactylus salaris", to the Diseases of Fish Act 1937. We asked the Executive why it had opted for the procedure whereby an instrument is laid but is not subject to parliamentary procedure, rather than the 28-day procedure, under which the Parliament would have some control. The Executive has gone for a 30-day option, which is extendable to 60 days.
We have received quite a sensible response. The Executive has told us that the proposed procedure is consistent with other provisions in earlier statutes. It is also linked to the temporary nature of the proposed orders. Furthermore, the 28-day procedure fails to meet the needs of an emergency order within the scheme of the 1937 act. Perhaps vitally, the intention is not to seek to extend such orders beyond 30 days, or 60 days at most.
We asked what happens after that. The Executive explained that, by that time—usually earlier—it would know whether or not a parasite was present and it would therefore introduce an order under the older legislation. That seems a sensible explanation from my point of view.
I think that we questioned the Executive on this matter last week because of the lack of consistency in such temporary or emergency orders—I am not quite sure of the distinction between the two. I do not have any particular problem with how the power is to be exercised. In many ways, I do not want to replace it with 28-day emergency powers that may be exercised in the same way as those that are used for paralytic shellfish poisoning and so on. That affirmative procedure would be too onerous for the policy.
The bill reveals the difficulty that we have with emergency procedures involving subordinate legislation in general. There seems to be a wild variation between having an overly onerous 28-day affirmative procedure and, in this case, no parliamentary scrutiny whatever. I do not, however, have any particular problems with how the power will work in practice. I am grateful for the Executive's reassurance, although this example certainly shows up the weaknesses in the system.
I agree with that, but this is probably not the instance on which we should go to the barricades.
If we wished to beat the drum about the recommendations that we have worked up in our review of the regulatory framework, we could choose to make a sacrificial victim of the Aquaculture and Fisheries (Scotland) Bill. Clearly, however, it is not worth doing so.
It is not the best example.
The power should go through. However, it highlights many of the issues that we have argued about, and it strengthens our general case for reviewing and overhauling procedures.
Okay—but we will let the matter go in this case.
On sections 19 and 27, we suggested that consequential amendments to the 1937 act were required. That is being done, and we will watch to see that it happens.
Section 35(1) is our old favourite, a power to make "incidental, supplemental, consequential" and what-have-you provisions. We noted that section 35(2) provides a power to modify "any enactment". We asked—as we would—whether that could allow amendment of the bill once enacted. As members know, we have been over the same course a lot recently. It is good to have it on the record that the Executive has confirmed that it does not intend to use the power to amend the eventual act itself. However, there is a degree of doubt about what the word "enactment" means. Although the Executive has stated its intention, we work on the basis not of the present Executive, but of a future Executive. Do we leave it, or do we want an express provision in the bill to the effect that the term "enactment" does not include the bill itself?
Since the Executive has stated that it does not intend to use the power or the wording in that way, we should ask it to put that in the bill, so that the matter is clear. I cannot see why the Executive would not agree to do that.
Nor can I. If the Executive does not think that the power will be used for that, it should remove the ambiguity for the future.
Prostitution (Public Places) (Scotland) Bill: Stage 1
There is only one delegated power in the Prostitution (Public Places) (Scotland) Bill, which has been drafted in plain English, I am told. It is the standard power, in section 4, to commence the act by way of statutory instrument. There is not normally anything odd about that, but it seems a little odd that such an order-making power is needed in the case of this bill, which has only a single purpose and under which no real preparatory work or staged commencement requires to be done. Will we ask the Executive for an explanation as to why it has bothered doing that in this case, or is it not worth it? It is not, is it?
I do not think so. We could argue about it, but it is a small bill, and it will go through without any particular problem—unless anybody feels differently about it.
Not at all. It is worth noting for the record something that was highlighted in the legal brief—although we need not necessarily bring it to the Executive's attention—which is that one of the difficulties that lawyers and members of the public have with acts is finding out when they commence. The Executive should be commended for introducing a bill in plain English. Perhaps it could have followed through the logic of that and made it more transparent and accessible by not leaving any ambiguity about when its provisions are to be commenced.
Okay. I get the impression that, although one or two issues are coming up, the targets are not big enough to be useful for our arguments.