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Products of Animal Origin (Third Country Imports) (Scotland) Amendment Regulations 2005 (SSI 2005/323)
Committee members might remember that we asked the Executive for an explanation of the delay between Council regulation (EC) No 1774/2002 becoming applicable and the coming into force of the regulations. We have a response, which states that the regulations required cross-departmental consultation and that the Executive regrets the delay. What is the committee's response?
We have consistently urged the Executive to undertake cross-departmental consultation and, throughout our regulatory framework inquiry, consistently heard industry's views on regulations being made without cross-departmental co-operation, so we should welcome the fact that, in this instance, there has been cross-departmental consultation. However, other committee members might wish to comment on the length of time that the consultation has taken.
Council regulation (EC) No 1774/2002 became applicable on 30 April 2003, which is more than two years ago. I also note that the corresponding English regulations were made in 2004. I presume that the English had some sort of cross-departmental consultation, so, given that they managed to make their regulations at least six months ago or perhaps a year or more ago—I do not know when in 2004 they were made—the question why it took the Executive so much longer to indulge in cross-departmental consultation than it took Westminster still hangs in the air. It is not that such consultation is not welcome, but it seems an awfully lengthy period to have taken before the regulations were brought before us.
I remember, for example, that there was a lot of discussion about the Horse Passports (Scotland) Regulations 2005 (SSI 2005/223), which is why the length of the consultation period for those regulations was extended. I do not know the history of these regulations, but there might have been a similar situation. I am not sure.
The Executive response does not give us the background to the regulations; it simply says that there was a need for cross-departmental consultation. That is fair enough, but it would have been helpful if the response had included a bit more explanation.
We will pass those points on to the lead committee and Parliament. Is that agreed?
Cereal Seed (Scotland) Regulations 2005 (SSI 2005/328)
The committee asked three questions of the Executive on the regulations. First, we asked for an explanation of why section 17 of the Plant Varieties and Seeds Act 1964 had not been cited as an enabling power. Committee members will see from the response that the Executive feels that that section is not an enabling power. However, members will also have read the comment from our legal advisers, who still consider that the section could be interpreted as having some enabling function, although perhaps not in the strictest sense. Are there any further comments on the regulations?
I agree with what you said, convener. It is evident from reading the regulations that section 17 of the 1964 act is effectively being taken as an enabling power. Therefore, we should report the point on the ground of failure to follow proper legislative practice.
Is that agreed?
The second question that we asked was whether the reference to regulation 21(5) in paragraph 12 in part VI of schedule 6 to the regulations was correct. The Executive has confirmed that the reference should be to regulation 22(6) and has agreed to change that at the next available legislative opportunity. I am sure that we welcome that.
I have one point. The legal advisers are right when they say that this is not the first time that the committee has drawn a similar provision to the attention of the Executive. Does that make the Executive a cereal offender? I could not resist the pun.
Can we request another change of committee?
At least he keeps us happy.
Can we request a failure of the recording equipment for that comment on the ground of good taste?
Are we agreed to bring those three points to the attention of the lead committee and Parliament?
Fodder Plant Seed (Scotland) Regulations 2005 (SSI 2005/329)
I challenge Stewart Maxwell to think of something equally funny for these regulations.
The two other points are first, that we asked the Executive to confirm whether the drafting of paragraph (c)(i) of the definition of "Basic Seed" in regulation 3 is correct. Although the conditions in paragraphs (a) and (b) appear to be cumulative, the definition refers to
Local Authorities' Traffic Orders (Procedure) (Scotland) Amendment Regulations 2005 (SSI 2005/338)
We asked the Executive a couple of questions about the regulations. The first question was whether there is any limitation on extensions following the six-month period that is allowed for the first extension of the two-year time limit. The intention is that each extension be limited to a maximum of six months. In the regulations, a time limit is imposed only in respect of the first extension. There is no similar express time limit in respect of further extensions. The matter is not clear. Such a time limit might be implied, but it is not self-evident.
We should not go down the route of last week's discussion on things being implied. It might be the Executive's intention to have a further four extensions, each of which may be of six months. However, if the regulations do not say that, they are poorly drafted at best. They should make it absolutely clear that the periods should be of six months, rather than some other indeterminate period.
I have a form of words in front of me. We could report the regulations on the ground of
That is probably the case.
That wording is good.
We also asked the Executive whether an application for an extension must be made before the expiry of the two-year limit, or whether it could be made after that date. As members can see from the Executive's response, it has indicated that, although the regulations do not explicitly state that the application for an extension must be made within the two-year time limit, that is implicit within the regulations. The order cannot be made after two years unless new paragraph (4) of regulation 16 of the Local Authorities' Traffic Orders (Procedure) (Scotland) Regulations 1999 (SI 1999/614), as incorporated by the regulations before us, applies. The order will fall unless the application for an extension has been made.
I have a sense of déjà vu about this. We are back on things being implicit. My view, with which other members of the committee probably agree, is that we would prefer things to be explicit, rather than implicit. If the regulations do not say that applications for extensions must be made within the two-year time limit, it would be unreasonable to have a situation where somebody went beyond the two-year limit while assuming that they could apply retrospectively and then fell foul of the regulations. We should report the regulations on that basis.
There are two courses of action that we can take. We can report the regulations either on the ground of unduly limited use of the power or on the ground of defective drafting.
I think that it is a case of defective drafting.
We said the same thing for a previous set of regulations; this case seems similar.
Pollution Prevention and Control (Scotland) Amendment (No 2) Regulations 2005 (SSI 2005/340)
The committee asked the Executive to explain why regulation 5 states that new regulation 12(1) of the Pollution Prevention and Control (Scotland) Regulations 2000 (SSI 2000/323) is subject to new paragraphs (4) and (5), as paragraph (5) appears to be a separate condition in its own right. The Executive has explained that it does not consider that the words "Subject to paragraph … (5)" in any way adversely affect the operation of regulation 5 of the amendment regulations. Our legal advisers do not agree. They consider that there is nothing in new regulation 12(1) that implies that work could be carried on once notification had been given. New regulation 12(5) is a separate condition, rather than a qualification of regulation 12(1). However, the point is a small one, and it will not adversely affect the operation of the regulations. We need to decide whether to report the regulations on the ground of failure to follow proper legislative practice, given the inclusion of superfluous words.
I think that we should. I am glad to see that my triffids—the mobile plants—will be able to be controlled, and that their control will not be adversely affected by superfluous words. However, good legislative practice means not using unnecessary words. Therefore, we should report the regulations on that ground.
Are we all agreed on that?
With respect to the matter of the insertion of the words "or mobile plant" after the word "installation", which Christine May has mentioned, the Executive has confirmed that an error was made, and that it will amend the regulations.
Education (Graduate Endowment, Student Fees and Support) (Scotland) Amendment Regulations 2005 (SSI 2005/341)
We put three questions to the Executive about the regulations, two of which were to do with defective drafting. Those are the quickest points to deal with, so I will deal with them first. First, members will recall that we sought an explanation about the definition of "relevant day" in regulation 2(2)(c), as that amendment appears already to have been achieved through regulation 2(2)(b) of the Education (Student Fees and Support) Temporary Protection (Scotland) Amendment Regulations 2005 (SSI 2005/217). The Executive has acknowledged the oversight, and has undertaken to rectify the error at the next legislative opportunity.
I agree with our legal advice. I appreciate that we should try to be consistent across different regulations. In this case, however, that aim has been inappropriately applied, and it has ended up causing more confusion. The Executive's approach might have achieved consistency, but the regulations are opaque. It would have been better to have drafted them differently, to avoid the problem of the only definition of European Union excluding the United Kingdom, which seems rather bizarre. Consistency has its place and its merits. In this case, however, the Executive should have thought twice.
It is suggested that we pass the Executive's response on to the lead committee and the Parliament either for information or on the basis of a failure to follow proper drafting practice. It has included the definition on one occasion, and has then clarified it somewhat. We could say that. Is that agreed?
The approach that the Executive has taken is circuitous, but is it wrong?
I do not think that it is wrong, but it is not very effective. The appropriate clarity has not been given in the circumstances.
If it is not effective, it must be defective.
Yes. We can expand on that by saying that the wording does not give the clarity that we would expect, although we can see what the Executive was trying to do for the sake of consistency.
Fire (Additional Function) (Scotland) Order 2005 (SSI 2005/342)
We had noted that article 8 contained a paragraph (1), yet no further paragraphs followed. It has been accepted that the "(1)" should be removed. The printing error will be amended for the annual edition, and the wording will be adjusted on the office of public sector information website. That was a good result. We will pass that on to the lead committee and the Parliament.
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