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Assynt - Coigach Area Protection Order 2004 (SSI 2004/260)
I welcome members to the 23rd meeting of the Subordinate Legislation Committee this year. I have apologies from Murray Tosh, who is attending a meeting of the British-Irish Inter-Parliamentary Body. I also have apologies from Mike Pringle, who made arrangements before the recess dates were changed.
Although the Executive has followed the letter of the law, that is not the point. Dennis Canavan feels—and I think we feel—that in this day and age there should have been a more significant degree of consultation. At a minimum, those people who objected to the first order should have been contacted, especially because the second order is substantially different, as the Executive admits. I do not see that doing that would have incommoded the Executive in any way and it would have been in the spirit of what we hope is our approach to legislation.
Absolutely.
I support that entirely. In support of Alasdair Morgan's view, I cite the fact that we and the Executive urge the public to become involved, to take an interest and to participate. Here we have an example of people who are doing just that by putting forward their objections, and they are almost being ignored. That is not how to engender public support and trust. If nothing else, the Executive might want to consider what it might do on a formally informal—if I can put it that way—basis from now on in such circumstances.
I agree with both the members who have spoken. It comes down to natural justice and best practice. The rules of natural justice have been ignored, and this is not best practice. I was unhappy when I read the briefing the first time around. Dennis Canavan makes some very pertinent points, as do the objectors he represents. Clearly, the objectors should have been informed. I do not think that we should leave the issue at that. As Alasdair Morgan pointed out, although the Executive did not break any laws or rules, we should bring the matter to the attention of the Parliament. In particular we should point out to the lead committee what Alasdair Morgan said about lack of consultation.
We cannot formally bring the order to the attention of the lead committee, but we could send a letter or a copy of the report.
Rather than just sending a copy of the report and saying nothing, I think that we should at least send a letter to the convener.
We will draw the attention of Parliament to the order on the ground that we are concerned about it; that can be documented. We will also draw our conclusions when we have that information from the Scottish Executive. We will write a letter to the lead committee along the same lines and we will include a copy of our report. Do we want to write to the Scottish Executive?
My view is that we should let the Executive know the view that we have come to as a result of Dennis Canavan's comments. More important, we should ask the Executive if it proposes to make arrangements or lay down guidelines for dealing with such matters in future.
The Executive seems to be missing a trick on its own behalf. Although it is not clearly detailed in the letter, presumably some of the objections to the first order were taken into account. So it would be to the Executive's benefit to write to the first set of objectors to tell them that it has listened to them and changed the legislation as a result.
Absolutely. Our legal advice says that it is not clear what points have been taken on board. The Executive could have shown that it had done a lot more work on the order.
Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2004<br />(SSI 2004/281)
It is recommended that we draw the drafting of the regulations to the attention of the lead committee and the Parliament. The drafting will not really affect anything, but it is not good. Is that agreed?
National Health Service (Transfer of Property between Health Boards) (Scotland) (No 2) Regulations 2004<br />(SSI 2004/285)
A number of issues arise about the vires of the regulations. Paragraph 28 of the legal brief covers the point about the modification of section 5(5) of the parent act, the Public Appointments and Public Bodies etc (Scotland) Act 2003. If members do not have any additional points to raise, other than what is in the legal brief, I suggest that we draw the attention of the lead committee and the Parliament to the information that has been provided to us. There are still doubts about the vires of the regulations.
Environmental Protection (Restriction on Use of Lead Shot) (Scotland) Regulations 2004 (SSI 2004/289)
We now come to the regulations that have been causing us most concern. The legal advisers have identified four main points. First, that
I wonder how we highlight to the lead committee that we have really serious concerns about the vires and enforceability of the regulations. The regulations seem to have been got so wrong. We were amused by our earlier discussion about disjunctive ands, but the point is that the regulations should have been advertised in both the London Gazette and the Edinburgh Gazette, yet that requirement appears simply to have been ignored. That really will not do. We cannot have folk running round the country trying to arrest people on the basis of flawed regulations. That certainly will not do. We need to have wording that expresses our real, serious concern to the lead committee. We suggest that the Executive withdraws the regulations, or that the lead committee asks the Executive to withdraw and re-lay the regulations.
At certain points in the regulations, the degree by which they are ultra vires is beyond a simple technicality, as is sometimes the case. There are substantive issues, particularly around the power of arrest and the search of persons, as opposed to the search of premises.
What kind of Scottish statutory instrument is it?
It is subject to annulment.
I wonder what the duty of the committee is in this instance. If we take the view that an instrument is a dud, I do not suppose that we have any right or duty simply to stop the instrument.
No.
We could speak against it, or that sort of thing.
We could do. We could make a recommendation.
In the case of an affirmative instrument, which comes before the Parliament, would we be entitled to stand up and speak against it, saying that it is our job to check things and we think that the instrument is a dud and should not go through? I am curious about what exactly our powers and duties are.
It might be possible to pray against the instrument.
We do not have any powers in this regard, but we certainly have a duty.
Yes—I am just asking what we are meant to do.
Any member could speak against the instrument when it comes before the Parliament.
But this instrument will not come before the Parliament.
The lead committee is looking at the regulations tomorrow. We need to get something to it speedily.
Which is the lead committee?
It is the Environment and Rural Development Committee.
When does the 40-day period expire? Will the 40-day period still be live after the recess?
No.
What happens as far as the clock is concerned? Unless the 40-day period expires this Friday, does the clock carry on ticking during the recess, or does it stop?
The clock stops, but there might not be time to accommodate the process of the lead committee recommending to the Parliament that the regulations be annulled. Upon such a recommendation, the Parliamentary Bureau would have to lodge a motion to annul for consideration in the chamber, and there would not be time for all that to happen on the other side of recess.
Any member may lodge a motion to annul within the 40-day period. Is that something that we could do at the beginning of September, if we were so inclined?
Under standing orders, that could happen. The parliamentary timetable in early September, following the summer recess, might make it necessary to hold meetings outside of the usual schedule. The Parliamentary Bureau would need to consider the matter. It is for the bureau to lodge a motion to annul for debate in the chamber and it might be necessary to arrange business specifically for that. Your suggestion is possible in theory, but those additional actions would be required.
What I am picking up from this is that we must first alert the lead committee to the difficulties with the regulations. What can the lead committee do?
The lead committee can debate the regulations and recommend that the Parliament annuls them. The bureau would then have to lodge a motion to annul, which the whole Parliament would consider.
And that will come up in September. We could recommend that to the lead committee.
I think that that is what we should recommend.
The lead committee could not discuss a motion to annul at its meeting tomorrow, unless the convener were to change the agenda today.
A motion to annul the regulations would need to be lodged—by any member of the Parliament—at the chamber desk.
I have done it before—I have tried to have an instrument annulled.
This committee could ask the convener of the lead committee to lodge a motion to annul at the chamber desk.
The committee could make that recommendation.
Is it for the lead committee to do that? Could we do that?
The standing orders provide for a debate on a motion to annul to take place at the lead committee. An hour and a half is allowed for that debate, although any member can lodge a motion to annul.
I previously lodged a motion to annul an SSI for consideration at a committee, which held a debate on that motion. I didn't win, right enough.
It has to happen sometime.
It was quite a big debate on a serious issue.
Is the matter on the agenda for discussion by the Environment and Rural Development Committee tomorrow?
The instrument is on its agenda for tomorrow.
Will that committee be having a discussion that could lead to its lodging a motion to annul?
Yes, but notice of such a motion would normally be expected to be given, so that anyone who wanted to attend the committee's debate on that motion could do so. The Minister for Environment and Rural Development is entitled to speak in that debate. It would need to be publicised so that the minister knew to turn up. In such circumstances, the minister will usually wish to speak to his or her legislation.
If we do nothing, or if we simply communicate with the lead committee, which debates the instrument tomorrow and decides that it agrees with this committee, then it will not be until after the recess that the lead committee could discuss a motion to annul. That is, unless it were to decide to have another meeting this week.
The day that is set aside for committee meetings in the week following the recess is Thursday 9 September. We are trying to check the procedure and due process according to which the instrument would be considered again on that Thursday.
Normally, when a motion is debated by a lead committee, that is when the decision would be taken by that committee to recommend annulment. Subsequently, a motion to annul the regulations would be lodged by the Parliamentary Bureau for debate in the chamber. As I understand it, chamber business is to come first during the first week after the recess, so that could happen on the Wednesday of that week, which is 8 September.
Do we know when the 40-day period ends with respect to the regulations?
Around mid-September.
So we have time.
We would have time.
Or relaid, if that is the correct term.
I have a doubt about such issues. Presumably, the Executive lawyers think that they are right. Perhaps that is not the case and they have just dug themselves so far into a hole that they will not stop digging—I do not know what is going on in their minds. However, I have always thought that once the Executive lawyers adopt a position, the only place where that can ultimately be tested is in court, once somebody has been charged. It is hard for us, whether we are lawyers or not, to arbitrate on such issues. We have experienced that problem before. Once the Executive lawyers adopt a legal interpretation, part of me just says, "Hell mend them." If their position works, it works; if it does not, it does not. I never quite know how the Parliament decides on a legal argument.
Given human nature, they might just have dug themselves into a hole. As far as is possible, we need to test whether that is the syndrome.
Absolutely.
Could we do that after the summer recess?
We would need to hear that evidence on 9 September.
In the absence of a detailed explanation of what the Executive lawyers have based their arguments on, the matter is very difficult.
Without committing myself to anything, I must say that, on the surface, the Executive lawyers' arguments do not look good. However, they might be right.
Given that the 40 days do not finish until the middle of September, could we take evidence from the Executive officials on 14 September?
Leaving the matter until the second week after the recess—until our meeting on 14 September—would be rather late, given the practicalities. The lead committee would need to debate a motion, and the Parliamentary Bureau would need to lodge a motion and timetable it into parliamentary business.
We have two alternatives. We can draw the matter to the attention of the lead committee as swiftly as possible and write to the Scottish Executive to express our concern. Alternatively, or additionally, we can ask Scottish Executive officials to give evidence at our first meeting after the summer recess, which would need to be on Thursday 9 September.
My preference is that we do elements of both. We should draw the regulations to the attention of the lead committee and express our grave concern, as we have already agreed to do. In addition, although we might prefer not to have a meeting in the first week back in September, we should take that opportunity to hear a detailed explanation from the Executive, if it agrees. It is always possible to stop or withdraw regulations; it is more difficult to lay another instrument at the last minute.
Is it agreed that we should do that?
National Health Service (Vocational Training for General Dental Practice) (Scotland) Regulations 2004 (SSI 2004/292)
Several issues should be drawn to the attention of the lead committee and the Parliament. First, the meaning of the date within five years of which training must be completed for the purposes of regulation 2(1)(b)(ii) should be made clearer. The Executive has, as requested, supplied an explanation of that and has confirmed that the date referred to is the date of the application for a vocational training number that is made under regulation 2(1). Secondly, an explanation was requested from and supplied by the Executive. Thirdly, defective drafting has been acknowledged in part by the Executive on points 3 and 4.