Official Report 118KB pdf
Instruments Subject <br />to Annulment
Food Hygiene (Scotland) Amendment Regulations 2007 (SSI 2007/11)
No substantive points arise on the regulations, but there are two minor points that we can raise informally. Is that agreed?
Prohibition of Fishing with Multiple Trawls (No 2) (Scotland) Amendment Order 2007 (SSI 2007/13)
Members will note that this order replaces the Prohibition of Fishing with Multiple Trawls (No 2) (Scotland) Amendment Order 2006 (SSI 2006/602), which we considered at a previous meeting. The Executive agreed that that order was defectively drafted. The order generally prohibits fishing with more than one trawl, but it allows the use of two trawls in certain specified circumstances. A few points arise, which members will see in the legal brief.
Secondly, we should ask why the explanatory note does not make it clear that the order replaces an order that was defectively drafted. That is important.
So SSI 2007/13 would come into force the day before SSI 2006/602. Is that right?
Yes. That would be the best way to do it. We could ask about that.
Strictly speaking, they should not come into force at the same time. If they do, what effect will that have on the revocation?
We will ask why SSI 2007/13 will not come into force the day before SSI 2006/602.
The final point is that we should ask the Executive to explain the drafting of new article 3(2) and, in particular, whether "or" rather than "and" should have been used at the end of article 3(2)(c)(iii).
As with several of the instruments on the agenda, there are queries about accuracy and errors have crept in. However, I am glad that the Executive is listening to the committee and amending instruments in line with our suggestions. It has done so in relation to all the instruments that we are considering today.
Absolutely.
Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2007 <br />(SSI 2007/14)
The regulations provide that they may be applied retrospectively, but that does not appear to be authorised under the parent act—the Legal Aid (Scotland) Act 1986. We have raised the issue of retrospection with the Executive on a number of occasions. Do members wish to raise it again or should we let the matter rest? I think that we should raise it again.
I agree. The point is still valid. Even if it feels as though we are hitting our heads against a brick wall, it is still worth raising the issue.
Shall we ask about that point as well?
What Stewart Maxwell is saying is that, although it is unlikely that lawyers themselves will question the fact that their fees will be retrospectively raised, that makes it more important for us to exercise our public duty.
Okay.
Antisocial Behaviour (Fixed Penalty Offence) (Prescribed Area) (Scotland) Regulations 2007 (SSI 2007/15)
No substantive points arise on the regulations. There is a minor point that can be raised informally.
Tenements (Scotland) Act 2004 (Prescribed Risks) Order 2007 <br />(SSI 2007/16)
No points arise on the order.
Tweed Regulation Order 2007<br />(SSI2007/19)
There are two questions about the order. We could ask the Executive to explain why it chose to use a combination of powers, not all of which are subject to procedure, and why it chose to disregard the requirement in article 36(1) of the enabling order—the Scotland Act 1998 (River Tweed) Order 2006 (SI 2006/2913)—regarding the citation of instruments that are made under that provision.
In general, I do not think that the combination of powers that are subject to parliamentary procedure and powers that are not will create practical difficulties. It could do, but I doubt it. However, the point remains valid that it is not good practice to use in a single instrument a combination of powers that are not all subject to the same procedure. The exercise of the powers under articles 36, 53 and 68 of the enabling order is not subject to parliamentary procedure so we can do nothing about them. That seems odd, given that we could challenge other powers. There might not be practical difficulties, but the approach is odd and we should raise it with the Executive. It is not good practice.
It is not.