Mental Health (Safeguards for Certain Informal Patients) (Scotland) Regulations 2005 (draft)
We asked the Executive to explain why the definition of "the 2003 Act" is included in regulation 1(2), given that the term "the Act" is used in the body of the regulations. The Executive has confirmed that that results from an oversight stemming from an earlier draft of the regulations. It has undertaken to remedy the defect at the earliest legislative opportunity. Are we happy with the explanation that we have received? Should we report the draft regulations to the lead committee and the Parliament on the ground of defective drafting?
It is appropriate to report the draft regulations on the basis of defective drafting, although I welcome the fact that we will get an early remedy.
Agreed.
Common Agricultural Policy Single Farm Payment and Support Schemes (Scotland) Amendment Regulations 2005 <br />(SSI 2005/257)
The Executive has provided us with further information about the oversight leading to its breach of the 21-day rule. What are members' feelings about the Executive's explanation?
The original comment was about an oversight. Then the Executive said that communication had broken down in this instance. I accept that that is what happened. Human error will obviously occur. However, given the fact that there are time rules in place and the fact that businesses and individuals are affected by such instruments, there is an onus on the Executive to ensure that channels of communication do not break down. It needs to be more proactive in checking that the appropriate measures are being taken and that the deadlines for laying such instruments before the Parliament are adhered to. I accept that the breach was accidental and that there is nothing that we can do about that, but I still think that the Executive should perhaps look again at its channels of communication and ensure that it is up to speed in that regard.
I suggest that we do two things. First, we should report the explanation that we received. Secondly, I propose that we write to the Executive and ask about its procedures and how it liaises with colleagues in Westminster.
That would be appropriate. Judging from the terms of its response, the Executive has obviously tried to mitigate the impact on individuals. That is to be welcomed. This is another instance in a series where we have identified points worthy of scrutiny on the relationship between the Executive and Westminster in the processing of subordinate legislation. Perhaps we should look into that more closely at a future date, when our programme is not as congested as it currently is.
And as it will remain for a few weeks.
Additional Support for Learning (Appropriate Agency Request Period and Exceptions) (Scotland) Regulations 2005 (SSI 2005/264)
The committee asked for clarification on the wording used in regulations 2 and 3(3). It was not clear what the Executive meant by a request being "made". We were fairly certain that it meant when a communication was received, but we needed clarification on that, which we now have before us.
As expected, "made" means "received" in this instance. As the legal briefing points out, there is no problem when a communication is made by e-mail, but that is obviously not always the case. Such matters should not be left open to interpretation; instruments should be absolutely clear about what is meant. In this case, however, I do not think that anybody could reasonably argue that "made" referred to when a letter was posted or handed over to a company to deliver, for example. It is pretty clear that the reference is to when the communication is received, although the matter should not be open to interpretation. The Executive should have made the wording a bit tighter.
Do we agree to report that the drafting could have been clearer?
Additional Support for Learning <br />(Changes in School Education) (Scotland) Regulations 2005 (SSI 2005/265)
We asked for clarification on the use in regulation 3(2)(b) of the words:
Yes. We should pass that on to the lead committee.
Additional Support for Learning <br />(Co-ordinated Support Plan) (Scotland) Regulations 2005 (SSI 2005/266)
Two points arose on the regulations. First, we asked the Executive why it had repeated a provision of the parent act—the Education (Additional Support for Learning) (Scotland) Act 2004—at regulation 3(1)(b)(iv). The Executive agreed that that was superfluous, but considered that it would help in the understanding of the regulations. We have a wee bit of sympathy with that point of view. However, that does not appear to follow proper legislative practice. I suggest, if members agree, that we pass that observation on to the lead committee and the Parliament.
The committee's second point was on the meaning of regulation 5, which includes a reference to
But we should still report the matter. That was defective drafting.
Absolutely. We must report the defective drafting. It was incorrect.
We will report to the lead committee and Parliament on the matter of defective drafting.