Subordinate Legislation Committee, 27 Apr 2004

Meeting date: Tuesday, April 27, 2004

Official Report 83KB pdf

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Executive Responses

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General Medical Services and Section 17C Agreements (Transitional and other Ancillary Provisions) (Scotland) Order 2004 (SSI 2004/163)

I was spared last week's discussion on the order, having instead been trapped in a ScotRail train for three hours, but I gather that the committee really went to town on it. The legal adviser has made a number of recommendations about changes. First, there is defective drafting at the 10 points that were highlighted in our papers.

We were concerned that article 8 mentioned the health board giving a general practitioner notice of its intention to remove a person from his list. The other articles, however, mention consulting the GP. In its response, the Executive has said that the substance and the effect is the same. In plain English, consulting and giving notice are not the same. One is aware that both are happening, but consulting involves a greater degree of two-way traffic than simply giving notice.

There is no doubt about that—giving notice to and consulting a doctor are not remotely the same. I do not know how the Executive can say that they are the same.

We will draw those points to the attention of the lead committee and the Parliament, as recommended in our legal advice.

The ninth point that we made to the Executive concerned the failure to follow proper legislative practice. The 16th point that we made was considered to be a big one by our legal adviser.

The legal advice is correct in that trying to modify changes made by the Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (SI 2004/957), which was made under section 104 of the Scotland Act 1998, is clearly outwith the vires of the Scottish Parliament. We have to ask the Executive why it takes the view that that is within devolved competence. The whole point of having vires is that one cannot go against them willy-nilly. However, we all agree that we are dealing with a purely technical matter that does not open wide the floodgates that lead to independence, or hugely broaden the Parliament's power.

Although provisions are made in paragraph 3 of schedule 4 to the Scotland Act 1998 for this Parliament to tread into reserved matters that are purely consequential or technical, it is surely not beyond the wit of man to come up with some other provision that would be within the vires of the Parliament to allow us to make modifications. At present that can only be done by making yet another order at Westminster, which is clearly undesirable. We should take up the matter as part of our inquiry. Perhaps we should ask the Secretary of State for Scotland or the Advocate General for Scotland for their views on how the anomaly could be addressed.

Alasdair Morgan makes a good point. We are dealing with two separate issues. The first is how we fix what is wrong. There is provision, albeit slightly dodgy, for sorting what is currently ultra vires—and it must be sorted. The second question is Alasdair Morgan's main point—how do we sort it so that such modifications can be made in future without raising questions of vires? The matter is technical—we have a single United Kingdom national health service and therefore, regulations have to be complementary so that folk can move about and do their work. A way has to be found to sort the matter. If the Scotland Act 1998 needs technical amendment to ensure that it is more difficult for mistakes such as this to happen, that is well and good. If that makes it easier for those who draft the legislation, which applies north and south of the border, let us get it done.

There are two points. The first is to highlight the seriousness of the matter to the lead committee by making the point in bold that something must be done. The example that we have had is the Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (SI 2004/957), made under the Scotland Act 1998.

Secondly, we might add that we are looking at the issue as part of the inquiry, but we must ensure that the matter is added to the material that we are accumulating for the inquiry. Are we agreed?

Members indicated agreement.

When we get documents from the Executive, they are certified as true copies. However, in its comments to us the Executive accepts that the copy we received last week might not have been a true copy. That is not good enough. The committee is part of the legislative programme of Parliament and if such documents are certified as true copies then they should be true copies. The Executive needs to take considerably more care over the documents that are sent to us.

Are we agreed?

Members indicated agreement.

The final point is that we should draw to the attention of the lead committee—in bold—the generally unsatisfactory nature of the order.

Members indicated agreement.

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National Health Service (Travelling Expenses and Remission of Charges) (Scotland) Amendment (No 2) Regulations 2004 (SSI 2004/166)

We are advised to draw the attention of the lead committee and the Parliament to the regulations on the ground of defective drafting, which has been acknowledged by the Executive, and to make the point about amending the explanatory note to ensure that it reflects the contents of the regulations. Are we agreed?

Members indicated agreement.

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Liquor Licensing (Fees) (Scotland) Order 2004 (SSI 2004/157)

Again we are advised to draw the attention of the lead committee and the Parliament to the order on the ground of defective drafting. Are we agreed?

Members indicated agreement.