Subordinate Legislation Committee
Meeting date: Tuesday, September 27, 2011
Official Report
267KB pdf
Instruments subject to Affirmative Procedure
Scottish Local Government Elections Order 2011 [Draft]
Good afternoon, members, and welcome to the sixth meeting of the Subordinate Legislation Committee in the fourth parliamentary session. As usual, I ask everyone to ensure that they have switched off their mobile phones.
The first item on the agenda is consideration of instruments subject to affirmative procedure. The legal brief notes that there appears to be a doubt as to whether the offence provision in rule 27(8) in schedule 1 is intra vires, given the strong presumption against the creation of offences by subordinate legislation, rebuttable only by express provision or clear inference, neither of which appear to the committee to have been satisfied in this case. Given the doubts whether the offence provision is intra vires, does the committee agree to draw the draft order to the Parliament’s attention on reporting ground (e)?
Members indicated agreement.
In light of a previous discussion that we had, do members have anything to add or are we simply happy to report as suggested?
Maybe it is just a lawyer thing, but I get very concerned when I read the sort of comment that appears in the third paragraph of page 5 of the legal brief. It says:
“However in our view the Committee would be entitled to consider that, in this instance, the proper drafting practice has not been followed.”
Is there any mechanism for ensuring that drafting practice is followed next time?
Thank you for that question. It is not the immediate question that I had asked, but we might well pick up the point later.
Members will note from the aforementioned legal brief that two further points arise on the draft order. First, in article 5(3)(a), the reference to paragraph (1) of regulation 2 of the Representation of the People (Post-Local Government Elections Supply and Inspection of Documents) (Scotland) Regulations 2007 (SSI 2007/264) should be to paragraph (2). Secondly, the commencement provision in article 1(1) does not follow proper drafting practice. It is suggested that proper practice would have been to have made provision that the order had no effect for the purposes of any election to be held on or before 2 May 2012, instead of making an exception from the provision for the order’s commencement date.
Reflecting on those two issues, does the committee also agree to draw the draft order to the attention of the Parliament on the general reporting ground? In so doing, does the committee wish to welcome the Government’s commitment that the error in article 5(3)(a) should be appropriately corrected and also to recommend that that should be done as soon as possible?
Members indicated agreement.
Returning to Chic Brodie’s question about how something can be improved, those matters are reported. We bring them to the Government’s attention and subject committees can also do that. The hope is that with statistics and the annual report to help us, the Government will see it as its duty to improve what it drafts.
When it gets the orders laid seems to be a major issue, particularly when we are talking about elections.
You will note that the Government argues that we get to the same result by two different routes, but the point is that there is a proper way of doing it. Our advisers constantly suggest to us that we should argue for the proper way, because there are right ways of doing things and if we did it the right way we would not have those issues.
Thank you.
Are members content?
Members indicated agreement.