Official Report 114KB pdf
The instrument raises a vires issue in relation to section 57(2) of the Scotland Act 1998, which the Executive has not answered satisfactorily. Just because something might be beneficial, that does not make it legal. We cannot simply wish things into existence.
Consolidation seems to be the order of the day. Is anyone keeping a wee note of the number of times that we have raised the vires issue, even since I have been a member of the committee? Every week, we find one or two examples of the ambiguity sewn into the Scotland Act 1998. Perhaps such ambiguity was a good idea before we had seen the lie of the land; however, now that we are beginning to see it, should not our statutory instruments become legal?
We will be writing a general letter to the Executive on NHS matters and we are trying to arrange a meeting with the rural affairs department. We will shortly be able to meet representatives of the relevant departments face to face and ask them such questions.
I agree with that approach. We need to sit down with the drafters of statutory instruments and discuss some of our concerns about the question of vires. As you said, convener, no one is disputing that the aims of various regulations are sound, but we must ensure that the regulations are legal if they are to stand up in court.