Draft Instruments Subject <br />to Approval
Management of Offenders etc (Scotland) Act 2005 (Supplementary Provisions) Order 2006 (draft)
I refer members to what the legal brief says about section 22(1) and section 22(2) of the Management of Offenders etc (Scotland) Act 2005. Paragraphs 35 and 36 of the legal brief outline our previous concerns. Members will remember our concerns about the Bankruptcy and Diligence etc (Scotland) Bill. Paragraph 38 of the legal brief states:
The Executive has used powers that are supposed to allow it to make
You are referring to paragraph 46 of the legal brief, which states that an order could be laid—
—under section 104 of the Scotland Act 1998. We should go back to the Executive, because the points that have been raised are important and we should report our concerns to the lead committee. Is there enough time to get a response?
The 40-day period starts again.
In that case, we can go back to the Executive.
I tend to think that that is how to proceed.
There are obviously real concerns. I do not have the expertise to know what to make of it all, but I certainly want to ask the Executive questions.
In a sense, that is not the point.
I know. It is not our business whether the result is good or bad.
In every previous case on which we have corresponded on the matter with the Executive, it said that the powers would be interpreted in a limited way, that they have limited scope and that they could not be used in the way that concerned us. The Executive said that recently in relation to the Bankruptcy and Diligence etc (Scotland) Bill. However, the order breaches that very point, which has been made certainly for the three years for which I have been on the committee. I am sure that Gordon Jackson agrees that we should be concerned about the order because, even if the Executive's purposes are reasonable, what is to prevent it from doing the same thing again? A precedent will be set for a much wider use of the power.
For the avoidance of doubt, I totally agree. I did say that the result is irrelevant. The Executive's purposes could be rotten, but we would still say that the order was okay as long as it was done properly. The purposes are not our business. It is just ironic that, in this case, the purposes are good.
As in the old saying, the ends do not justify the means, especially as there are competent ways in which the Executive could achieve the same ends. It is important that, in our letter to the Executive, we make it clear that we are not quibbling about the policy intention. We are simply saying—"simply" is perhaps the wrong word, although it is simple in a sense—that there is a better way to achieve what the Executive wishes. The matter is not simple, at least in relation to paragraph 46 of the legal brief and the use of section 104 of the Scotland Act 1998.
Absolutely.
Agreed.
I think that we should write quite a strong letter because the order would create a precedent.
I say this tentatively. In the past—although not so much in your time, convener—we have asked officials to come to the committee when we thought that an instrument was going down a really bad path.
I wonder whether we should do that in this case.
Normally, we ask for a response, we get the response, and we are all snookered. I am open to other members' views, but in this case we should perhaps say to the Executive, "If you think we're wrong on this and you don't agree, you'd better come to the committee, explain why you're right and let us question you about it." Is that fair?
We do that so seldom, but it is a legitimate exercise and it will signal to the Executive how concerned we are about the issue.
We will send a letter outlining our concerns and asking the officials to come and explain. Is that agreed?
We will try to do that for next week.
I agree with the gist of what Murray Tosh said but, for clarification, I do not think that the provision in the order is a Henry VIII power. The Executive is using the provision in lieu of primary legislation; it is not amending primary legislation. It is providing something that should be done by primary legislation.
It is not exactly a Henry VIII power.
No.
It is more like a Henry VII-and-a-half power with more or less equal status. The legal advisers are on my side—I am sure that they take on Ken Macintosh on these issues with some trepidation.
Do the officials have to come next week? I ask because I will have to send my apologies—I have to go to something else next Tuesday morning. As I suggested that we call the officials, I quite fancy being here.
We will look at the timetable. It depends how it impacts on the lead committee. If we can fit it in so that it is on the agenda in two weeks' time when we can have you here, we will do so.
It does not matter, but I am quite interested in the issue.
Okay. Is that agreed?
We will not write to the lead committee until we have met the officials.
Civil Partnership Act 2004 (Consequential Amendments) (Scotland) Order 2006 (draft)<br />Family Law (Scotland) Act 2006 (Consequential Modifications) Order 2006 (draft)
There are no substantial points on the orders, but there is a minor point on each that we could raise informally with the Executive. Is that agreed?
Human Organ and Tissue Live Transplants (Scotland) Regulations 2006 (draft)
The legal advisers have liaised with the Executive on drafting errors that were identified in the regulations. Those have now been rectified, so we thank the legal advisers for that. There are no other points, unless members have any. Is that agreed?
International Criminal Court (Immunities and Privileges) (No 1) Order 2006 (draft)<br />International Criminal Court (Immunities and Privileges) (No 2) Order 2006 (draft)
No points arise on the orders. Are there any other points?
No.
Scotland Act 1998 (River Tweed) Order 2006 (draft)
Members may know that there has been a long period of discussion between Westminster and the Scottish Parliament on the order. The legal advisers have been involved in the matter. We have now more or less got there. I gather that a couple of typos will have to be rectified, but the order is at the draft stage. The affirmative procedure will be used. There is nothing else to tell the committee, if members are happy with that.
Forgive me for being stupid, but what does the order do?
If you give me two seconds, I have the information.
The brief promises that the legal adviser will speak to the item at the meeting. We are all sitting comfortably.
The legal adviser gave me all the background, so that I could speak about the order. The explanatory note states that the order consolidates, with some amendments, the existing salmon and freshwater fisheries legislation. There was discussion with Westminster because the legislation covers both areas.
Is it, in terms of our report, a pure consolidation, or does it include policy changes?
There are certain changes. The Tweed commissioners are reconstituted in a slightly different form and there are various modernisations throughout. This could have been incorporated in the consolidation of the salmon acts a few years ago, in which I think Gordon Jackson was involved, but it was decided to do it separately.
I vaguely remember that there was a lot of fuss about the consolidation because a lot of people got very excited about it.
I asked the question about policy only out of interest. In respect of our remit, do any matters need to be drawn to our attention?
I sincerely hope not, because the order has been argued over for years.
You take personal responsibility for this.
Margaret Macdonald takes a lot of responsibility.
I will make a slightly facetious comment. Remember that the order is on fishing. Article 10(1) states:
Not in the River Tweed, I hope.
Does nobody think about things when they write them down?
Wonderful. That is almost on a par with the regulation about the width and length of a pig. Well spotted, Gordon. You always provide a high note. Are members happy with the order?