Official Report 177KB pdf
Local Governance (Scotland) Act 2004 (Allowances and Expenses) Regulations 2007 (draft)
We move on to agenda item 3. We asked the Executive to explain why it had chosen to use in the same set of draft regulations a combination of enabling powers that are contained in different enabling acts and which are subject to different parliamentary procedures. Two weeks ago, we wrote to the Executive to convey our general concerns about the increasing use of that method. We have received replies on both points.
We need to draw the attention of the lead committee and the Parliament to the regulations at hand.
Okay. Do members agree to report that the Executive, in using in the regulations a combination of enabling powers, some of which were subject to affirmative procedure and some of which were subject to negative procedure, did not follow proper legislative practice? It has acknowledged that and remedied the situation by relaying the regulations.
The second issue was the combination in a single instrument of negative procedure and no parliamentary procedure. The Executive has set out its position and the legal briefing contains a commentary on it. I invite responses from members.
My view has not changed since the last time we discussed the matter. The Executive has failed to make its argument. It is simply not possible to combine those two separate procedures in the same instrument. As the legal briefing says, if there was an objection to a part of an instrument that contained provisions made under powers that were subject to no parliamentary procedure, it is not clear whether it would be possible to annul the instrument as a whole on the basis of that objection. It is a minefield and I do not know why the Executive wants to step into it. I hold to the view that the two procedures should be kept separate.
Paragraph 33 of the legal briefing says:
Our legal briefing includes a quote on the issue from a report by the Joint Committee on Statutory Instruments. It makes the point that if someone moved a motion to annul such an instrument—I think that at Westminster a prayer for annulment has to be moved—considerable difficulties would be caused because some provisions would be subject to parliamentary proceedings and some would not be. We have yet to receive from the Executive a sensible explanation of why it might be appropriate to combine procedures in that way.
It is an important point, so shall we add it to our legacy paper?
The matter should be pursued with the Executive, given that the JCSI says that
Exactly. If the committee agrees, I would like us to take from the legal briefing its explanation of the reasoning behind our opposition to what the Executive proposes. Does anyone have a problem with that?
The legal briefing is very clear.
Shall we use that and put it in the legacy paper?
Renewables Obligation (Scotland) Order 2007 (draft)
We asked the Executive to explain the reference in article 24(4)(b) to subparagraph (c), when no such subparagraph exists. The Executive has acknowledged that there is no subparagraph (c), but does not think that the words have any legal effect. I am just waiting for Stewart Maxwell to suggest that it would be much easier if the draft order could be amended.
Our view on the matter is on the record, so there is no point in bringing it up again. [Interruption.]
What did you say, Murray?
I was just asking the legal people whether the reference to a non-existent paragraph was otiose. We always try to look for examples of things that are otiose.
We will report to the lead committee and the Parliament that the draft order contains defective drafting. Is that okay?
Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007 (draft)
We asked the Executive four questions about the draft order and we have received its response. In relation to our first point, the Executive has acknowledged its failure to follow proper legislative practice and, on our second, third and fourth points, it has provided adequate explanations. Do members have any comments?
No.
Members are content with what the Executive has said.
Avian Influenza (Preventive Measures) (Scotland) Order 2007 (SSI 2007/69)
We asked the Executive to explain which powers enable articles 5 to 7 of the order, as they do not appear to be enabled by sections 1 and 8A of the Animal Health Act 1981. The Executive explains that, in its view, articles 5 to 7 are enabled by section 1 of the 1981 act. However, it is argued that if the Executive was content to rely on section 1 of the 1981 act to enable all measures necessary to prevent the spread of animal disease, it would not have considered it necessary to insert into that act new section 8A. What do members want to draw to the attention of the lead committee and the Parliament?
I would not go any further than to say that, in the light of the examples with which the legal briefing provides us, articles 5 to 7 have been made by an unusual or unexpected use of the powers in the 1981 act. Apart from that, the order seems to be okay.
As no other members have points to raise, we will just report that articles 5 to 7 have been made by an unusual or unexpected use of the powers conferred by the parent act.
Housing Revenue Account General Fund Contribution Limits (Scotland) Order 2007 (SSI 2007/73)
We asked the Executive to explain the delay between the making and the laying of the order, and it has told us that it was caused by the absence from work of the relevant official. What do members want to say about that? Was it a justifiable delay?
I do not want to say anything about it. If someone was off work, that could not be helped. The delay was not intentional; I am sure that the order was laid as soon as it could have been.
Yes, but if somebody is off and something has to be done, should somebody else not do it? Should the office not be managed in such a way as to absorb staff absences? Everybody else's office should be; why should this Executive office be any different? The explanation is not very impressive.
I agree, but it was a relatively short delay. It was not inordinately long.
Euan, have you any further points?
I do not think that we should detain ourselves on the matter.
Okay. Are we going to report that a satisfactory explanation was given?
Murray thinks that it was not satisfactory—although it was an explanation.
We can always add that somebody else might have been able to undertake the work. I am easy—we could phrase a response along those lines.
Euan does not wish to be detained and I would hate to be the cause of detaining him.
Okay, in our report to the lead committee and Parliament we will accept the explanation given.
Housing (Scotland) Act 2001 (Alteration of Housing Finance Arrangements) Order 2007 (SSI 2007/74)
We asked the Executive to explain the purpose of the word "year" in article 2 of the order, and to explain—as with the previous order—the reason for the delay between making and laying. The reason given for the delay was the same as that given for SSI 2007/73; and the Executive has confirmed that the word "year" should have been deleted but that the meaning of the order is unaffected. Do members agree that we should report in the same way as we will report on SSI 2007/73, and that we should explain about the word "year"?