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Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 2004 (draft)
Under item 5, the first Executive response that we must consider concerns the draft order dealing with functions exercisable in or as regards Scotland. It is suggested that the committee should draw the attention of the lead committee and the Parliament to the fact that we are now content that the required explanation has been given. Is that agreed?
Solicitors (Scotland) Act 1980 (Foreign Lawyers and Multi-national Practices) Regulations 2004 (SSI 2004/383)
It is suggested that we draw the attention of the lead committee and the Parliament to the defective drafting of the regulations, which has now been acknowledged by the Executive. Is that agreed?
Community Health Partnerships (Scotland) Regulations 2004 (SSI 2004/386)
It is suggested that we draw the attention of the lead committee and the Parliament to the regulations on the grounds that are listed in points (a) to (f) of the legal adviser's briefing. Most of the points are about the need to make meanings clearer and to improve the drafting. Are we happy to make those points?
Yes, we are happy to make those points.
Mental Health (Advance Statements) (Prescribed Class of Persons) (Scotland) Regulations 2004 (SSI 2004/387)<br />Mental Health (Patient Representation) (Prescribed Persons) (Scotland) Regulations 2004 (SSI 2004/388)
Discussion has already taken place between the legal adviser and the Executive about the vires of the regulations. The Executive intends to remake the instruments to make the changes that have been recommended.
We welcome that.
National Assistance (Assessment of Resources) Amendment (No 2) (Scotland) Regulations 2004 (SSI 2004/389)
The committee might want to consider drawing the attention of the lead committee and the Parliament to the regulations on the ground that information was requested on the consolidation of the principal regulations. I am sure that members made a few points about that.
We did.
We certainly asked the Executive about consolidation of the regulations and its response is best described as less than helpful. Frankly, the Executive does not seem to pay much attention to consolidation, even though we seem to raise the issue almost every week. Given that the principal regulations have been so heavily amended, it might be worth sending a separate letter to the Executive, to indicate that it will have to pay attention to consolidation exercises. The Executive always seems to send us an answer in which it says that it will undertake consolidation when time and resources permit. In my view, that is not good enough. I accept that people are busy, but perhaps that is a resourcing issue for the Executive.
I agree that we should do that, because the issue is on-going—we encounter it almost weekly. Is that suggestion agreed?
Teachers (Medical Requirements for Admission to Training and Registration) (Scotland) Amendment Regulations 2004 (SSI 2004/390)
The committee might want to draw the attention of the lead committee and the Parliament to the regulations on the ground of defective drafting, which the Executive has acknowledged. Is that agreed?
Fireworks (Scotland) Regulations 2004 (SSI 2004/393)
Although the first point that was asked about has been answered and the Executive has supplied the relevant information, point 2, which is about Crown application and the binding of the Crown, has not really been answered at all. Unfortunately, there is no time to go back to the Executive, so it has been suggested that we draw what is an important issue, along with point 1, to the attention of the lead committee and the Parliament.
Is there a procedure whereby, if we have only one meeting at which to consider an instrument and the information that we receive in response to our request does not answer our question, we can get the relevant official to come to the next meeting? Can we do that when the legal adviser becomes aware that we do not have a good answer, given that if we do not get the official to come to that meeting, it will be too late to do anything about the situation? I wonder whether there is any way of doing that, as it would be helpful in cases such as the present one.
With some of the bills that we have considered, we have had Executive officials available to come to our meetings. That might be the procedure that we should try to follow.
We are obviously not going to ask the Executive to send its civil servants to the next meeting every time that we ask a question, because nine times out of 10 the answer that the Executive provides is fine. It is only occasionally that we might need to have a procedure whereby we bring people into a meeting, even though we have not planned that ahead.
I will ask the clerk whether we must request such a procedure formally, in a letter, or whether we can do it informally.
That could be done on an ad hoc basis.
That raises a follow-up question. If we bring along a civil servant or an official who suddenly agrees with our point, does that person have the authority to change the instrument in question? Who makes those decisions and how do we get at the decision maker? Points are bandied backwards and forwards, but how does the Executive decide when we are right? Do we know how it decides that? That is perhaps a theological question.
The relevant minister will obviously make the decision. Gordon Jackson is talking about another opportunity for us to voice our concerns and get back a bit more information. That would avoid our being in a situation of being able to do nothing more.
At the very least, it would allow the lead committee to be provided with a much more intelligent report.
I wanted to make two points, one of which Gordon Jackson has just made. If an Executive lawyer agreed with the point that we were making, the Executive could go back to the lead committee and say that, on reflection, it thought that we had a good point.
Absolutely. I am just saying that the present case is an example of a situation in which it might have been legitimate to say that we needed a better answer. When that happens, we should perhaps just bring the relevant officials to the meeting there and then, because we do not have an extra week. We do not need the whole committee to decide that.
I understand that that is all doable.
Are there any other areas in which we might consider the scheme of delegation to get quicker responses? On some occasions, the legal advisers obviously feel that they want the strength of the committee behind them before they raise certain questions, but on other occasions they go straight to the originators of the legislation to try to get the answers for us. I am not clear which conditions operate in which contexts. It may be that scope exists to consider the scheme of delegation and to identify where we can streamline procedures even further.
That is another good suggestion but, in all fairness, many discussions already take place between the legal adviser and Executive officials. The evidence of that is the fact that regulations have been withdrawn and then brought back to us. However, there is no harm in adding your suggestion to those that have been made. Is that agreed?
We will just have to pass on our point about the regulations to the lead committee and the Parliament.
Can we please emphasise to the lead committee and the Parliament the seriousness of our concern?
Absolutely.
Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (Scotland) Amendment (No 3) Regulations 2004 (SSI 2004/399)
The committee might wish to consider drawing the attention of the lead committee and the Parliament to the defective drafting that the Executive acknowledged in relation to point 1 and the information that the Executive has supplied in response to the second point that the committee raised at last week's meeting, which I am sorry that I was not here for.
Can we also point out to the lead committee and the Parliament that, in the circumstances, a transposition note would have been most helpful?
I think that we should go further than that, by adding the point about the transposition note to the separate letter that we are sending about consolidation. Those are both on-going issues. Is that agreed?
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