Subordinate Legislation Committee, 27 Mar 2007

Meeting date: Tuesday, March 27, 2007

Official Report 116KB pdf

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Executive Responses

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Napier University (Scotland) Order of Council 1993 Amendment Order of Council 2007 (SSI 2007/160)

I welcome members to the Subordinate Legislation Committee's 12th meeting in 2007, which is our last meeting of the parliamentary session. I will say a few words about that later. I have apologies from Adam Ingram, Euan Robson and Janis Hughes.

Item 1 is Executive responses. Last week, the Executive was asked to explain why terms that are defined in the order of council are different from the terms that are used. Members will have seen from its response that the Executive tends to accept what we say, but sees no problem because it thinks that the draftsman's intention is clear. Do members have comments?

I agree that the intention may be clear—I am not saying otherwise—but the simple point is that if the Executive had stuck with the same wording, no possibility of doubt arising would exist. The intention is clear, but when people see different wording for the same thing, they tend to think that there must be a reason for that and wonder what that is. Sticking to the same wording would have been better. I agree with the recommendation in the legal brief that we should report the order of council on the ground of defective drafting.

Do we agree to report the defective drafting to the lead committee and to Parliament?

Members indicated agreement.

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Firefighters' Pension Scheme Amendment (Scotland) Order 2007 (SSI 2007/200)

We asked the Executive why it included in a footnote on page 1 a reference to an order that transferred functions to the Scottish ministers that no longer has effect. Members will have seen the Executive's explanation. Do members have comments or are they content?

Content.

Good.

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Police Pensions (Scotland) Regulations 2007 (SSI 2007/201)

We asked two questions about the regulations—one was about a reference in schedule 3 and the other was about the sum of £30,000. The Executive acknowledged the cross-referencing error but does not think that it affects the validity of the regulations. It also explained why the amount of money is, as the committee said last week, different from the equivalent in England.

To be fair, we were pretty sure that the difference was a policy matter and was not a typographical error. We just wanted to double-check that, as the difference between the two figures is large.

Do we agree that the first point is defective drafting and are members happy with the explanation on the second point?

Members indicated agreement.

We should probably write to let the police in England know about the difference.

The figure is higher here.

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Business Improvement Districts (Scotland) Regulations 2007 (SSI 2007/202)

Members will recall that we asked the Executive how a vote could be exercised jointly. I do not know what members think about the response, which I understand to say that if the parties that have a joint vote cannot agree, they will not be able to vote.

Is it only me who thinks that that is odd? I am sure that what the Executive says is exactly what the regulations say. The committee has no technical reason to take a view on that, because it is a policy issue. However, it is odd to have a vote that can be exercised jointly but which cannot be exercised if people disagree.

Perhaps the Local Government and Transport Committee will take up the point this afternoon.

Yes, perhaps it will.

There are no further points from that response.

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National Health Service (Travelling Expenses and Remission of Charges) (Scotland) Amendment Regulations 2007 (SSI 2007/225)

We asked the Executive to explain the vires for regulation 2, which gives another provision retrospective effect. We have dealt with the issue before. As I understand it, the Executive is arguing that it has taken the approach based on the idea of fairness. However, as members will see, the legal brief states that that argument does not really apply, as there should be a power in the original act if a provision is to apply retrospectively. What are members' thoughts?

I do not think that any member will disagree that we want to be fair to students throughout Scotland, particularly to those from more deprived backgrounds. There is no lack of sympathy for the policy intention. However, as a committee, we should address our concern about the use of retrospective powers that are not expressly provided for.

Our legal advisers make a strong argument, but I thought that perhaps the most worrying comment was towards the end of the brief, where they point out that there have been four such examples in recent years—civil legal aid regulations account for the other three—which may amount to a trend.

It was in months rather than years.

In months—sorry. That trend is what is particularly worrying about the idea of justifying retrospective legislation in this manner, which is effectively what the Executive is doing.

I agree with Ken. There are a couple of issues.

First, despite the fact that I agree with the fairness argument—in this case, in the effect on students—we can never claim that when we are being fair to somebody we are not being unfair to somebody else. I am not sure that the Executive's argument holds water. In the previous cases, with civil legal aid regulations, the argument was about fees. At the end of the day, it was the taxpayer who had to fund those fees, so were we being unfair to the taxpayer when we were being fair to those involved? It is not logical to say that the fairness argument holds. It may be that nobody will challenge it legally, but I believe that there is a difficulty in the logic of the Executive's argument.

My second point is that, even if we accept that the Executive is trying to do the right thing, once it brings about uncertainty in the law it creates difficulty. People should be able to expect that the law will be certain at any one time, and we should be cautious about the idea that the Executive can come along later and introduce retrospective legislation when nothing in the original act provides that it can do so. If there is such a provision, that is fair enough—people will expect it to happen. However, when there is no such provision, they would not expect it to happen. An Executive taking a power to apply retrospectively something that is not in the original act is a dangerous road to go down. It opens up all sorts of possibilities. Even if we agree with the policy intention in the four cases so far, I am concerned that we will end up in a situation in which the procedure has become the norm and that future Executives could say that there is precedent. My concern is general; it is not about the policy intention, but about using the powers in that way.

What do members think about paragraph 29 of the legal brief, which mentions the Joint Committee on Statutory Instruments at Westminster?

It is an interesting comment, and the conclusion is clearly that the Executive should amend primary legislation rather than tinker with secondary legislation, draw inferences and go beyond its powers.

The Parliament has the power to apply retrospective legislation. However, in this case, although I suppose that we are being consulted, the Parliament is not really being consulted or giving its approval in an appropriate manner for such a major digression from accepted practice. We should flag up our concerns.

We have not really been consulted—we have just noticed that it is happening on the way past. If we had been consulted and somebody could have said whether it is good practice, that might have been a better position for the Executive to find itself in. However, it is clearly just winging it.

Okay. We will bring two points to the attention of the lead committee. First, regulation 2 appears to give regulation 3(2)(c) retrospective effect, but the parent act contains no authority to do that. Secondly, because of that, there are doubts about the vires of regulation 2.

Will the Local Government and Transport Committee consider the regulations this afternoon?

Yes.

Will we be able to get our arguments to the committee before it meets this afternoon?

Yes, thanks to the speed of our clerical staff.

I know that they are fantastic. I just wanted to check.