Subordinate Legislation Committee,

Meeting date: Tuesday, May 30, 2006

Official Report 143KB pdf

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Delegated Powers Scrutiny

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Animal Health and Welfare (Scotland) Bill: as amended at Stage 2

I welcome members to the 18th meeting of the Subordinate Legislation Committee in 2006. I have apologies from Adam Ingram. I remind members to switch off their mobile phones and put their cards into their consoles.

Item 1 is delegated powers scrutiny of the Animal Health and Welfare (Scotland) Bill after stage 2. We must report to Parliament today, because the stage 3 debate is tomorrow. Members will recall that we considered the bill last week and asked the Executive a number of questions. The first question was about section 2, "Slaughter of treated animals", and section 8, "Specified diseases". We asked the Executive why, as we see it, there is no alternative provision in those sections for non-urgent situations and whether it would consider introducing an amendment to bring the procedure in those sections in line with that of sections 1 and 3.

The Executive has explained that those sections are designed to deal only with emergency situations in which the ability to act quickly is essential. It does not consider it necessary or appropriate, therefore, to provide an alternative procedure for non-urgent situations or to introduce an amendment. The Executive adds that the 28-day order-making procedure was specifically chosen for those sections to allow for an enhanced level of parliamentary scrutiny. Members will recall that we went through what that entailed. Are members content with the Executive's response?

Yes, as long as we are persuaded that, as the Executive states, sections 1 and 3 are designed to deal with both emergency and non-emergency situations. That is why there is a different choice of procedure in those sections from that in sections 2 and 8. If that is the case, there is nothing else for us to pursue. Given that the stage 3 debate is tomorrow, there is no time for us to lodge amendments, other than manuscript amendments. I do not feel that strongly about the matter.

It depends whether the committee feels sufficiently strongly about it to go through all that procedure.

The legal brief says that amendments would be substantial. Given that the Executive clearly considers that the current situation is all right, I cannot imagine that it would accept our amendments at such a late stage. It would seem to be a lot of work for no good reason.

And we have got it on the record now as well.

We made our views known previously. At an earlier stage, we might have persuaded the Executive to use a different approach, but in this case it has assured us that it does not intend to use the two measures that we cannot express our views on—the two emergency orders—other than for emergency situations. At least we have that reassurance in print and on the record.

We will report to the Parliament on that.

On section 5, "Animal gatherings", you might recall that we had concerns about a non-Executive amendment at stage 2. However, the Executive has lodged an amendment to remove that non-Executive amendment.

That is good.

Things have happened as we wanted.

On section 7, "Seizure of carcases etc", we asked the Executive for clarification on the definition of "creatures". It explains that the meaning of the word is clear from its context in new section 36ZB of the Animal Health Act 1981 and, in its ordinary sense, is a broad term that means a created or animate being other than man. Are members happy with that explanation?

I think that we made the point that the Executive could have used a different term to make the drafting more consistent, but the term is understandable and does not affect the vires of the bill. Therefore, we should note the explanation and take no action.

Members indicated agreement.

I welcome Gordon Jackson to the meeting.

I am sorry for being late. The 9 o'clock train was cancelled. For once, I have a reason.

We are on agenda item 1. On section 34, "Animal welfare codes", we asked the Executive why there is no provision for prior consultation on the revocation of a code, as there is for the publication of a code. The Executive explains that a code is most likely to be revoked as part of a replacement and therefore would be subject to consultation. It also reassures us that the revocation of a code is subject to the affirmative procedure. Are members content with that?

We accepted last week that it was fine that, if a new code was created at the same time as one was revoked, there would be consultation. However, that was not the question; the question was about what would happen if, at any point, the Executive revoked a code without making a new one and there was no consultation on that revocation. The Executive's only answer is that the revocation order would be subject to the affirmative procedure, but so would revocation as part of a replacement. There would still be no consultation on a revocation that did not involve replacement.

You might want to look at paragraph 17 of the legal brief, which gives a wee bit of help:

"the fact that consultation is not a statutory requirement does not prevent a consultation exercise being carried out if, in a particular case, that were appropriate. However, in the Executive's view, the only real question to be considered here would be whether the code should be revoked or not. In any event, it appears to the Executive that interested parties would be able to make relevant representations on this issue without the need for formal consultation."

Would you like us to get that on the record and state that we would expect consultation to take place?

That is all that we can do, and I was not going to go any further than that. The point that you made is correct. There would be no consultation on a revocation order if there was no replacement, but I accept what the Executive says. However, some revocations might be contentious, as people might object to revocation without replacement. It is entirely reasonable that, if there is no statutory consultation, a revocation is at least well publicised so that the Parliament and interested parties know, and so that the latter can comment on it through their elected representatives.

I welcome Murray Tosh to the meeting.

I hope that we have given you enough time to sort out your papers, Murray. We are discussing the revocation of animal welfare codes, in which you were interested the last time that we discussed the bill. If you look at the legal brief—

I have not received one, convener.

Okay. Paragraph 17 of the legal brief is about the fact that there would not necessarily be any consultation about a revocation if a new code was not introduced. The Executive suggests that, because the affirmative resolution procedure applies, there would be sufficient time to deal with the matter. Relevant parties would be alerted and could make representations. As Stewart Maxwell said, that is the least that we would expect. If a revocation happened without something else being brought in, that would be contentious.

What opportunity is there for consultation purely on the basis that the affirmative procedure is to be used? The instrument is made, and it is unchangeable—unless the Executive, in response to the consultation, decides to withdraw the instrument and remake and re-lay it, but that strikes me as unlikely. It is not really much of a consultation concession to say that the affirmative procedure is to be used.

I think that that is Stewart Maxwell's view, too.

Sorry—I was not listening when he spoke. If that is what he said, it was an incisive comment.

Stewart Maxwell's main point is that some revocations could be contentious. If a revocation is contentious, it should perhaps be subject to consultation. It is a question of how strongly we feel about the matter.

Put me down as a "don't feel strongly". If colleagues feel that it is an issue, I would be happy to support them, but I do not have a strong personal view.

Do you have a particular opinion about it, Ken?

No.

So you are thinking along the same lines as Gordon Jackson.

There is no statutory requirement for consultation, but the Executive has said that it is quite happy to consult if the matter in question is at all contentious. The instrument will be subject to the affirmative procedure. It is not as if it will go through the Parliament unchallenged—the Parliament has to agree to it. There are plenty of opportunities for people to make their views known. If other members feel strongly about it, that is fine, though.

The first sentence of paragraph 17 of the legal brief says:

"The Executive observes that the fact that consultation is not a statutory requirement does not prevent a consultation exercise being carried out if, in a particular case, that were appropriate."

We have not got time—

That is a better response than saying, "Hey, it's affirmative."

I am sorry; say that again.

That response is better than merely saying that the affirmative procedure is to be used.

Yes.

The use of the affirmative procedure is almost incidental.

I suppose that there is no opportunity, unless a relevant amendment is made, to make any points about the matter during the stage 3 debate.

I do not feel strongly about it. The only point that I was making, which Murray Tosh repeated, was that saying that the affirmative procedure is to be used does not address the matter. However, as long as there will be notification and as long as the Executive is going on the record as saying that it will consult when there is, or is perceived to be, some debate about an issue, that is good. I hope that the Executive will stand by that. That is probably as much as we can achieve at the moment.

That is on the record. That brings us to the end of today's consideration of the Animal Health and Welfare (Scotland) Bill. The stage 3 debate is tomorrow. With all the provisos that we have discussed, we are fairly content with the bill.