Delegated Powers and Law Reform Committee

Meeting date: Tuesday, December 3, 2013

Official Report 264KB pdf

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Instruments subject to Negative Procedure

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Water Environment (Shellfish Water Protected Areas: Environmental Objectives etc) (Scotland) Regulations 2013 (SSI 2013/325)

Regulations 8 and 9 make reference to “relevant enactments”. The Scottish Government has confirmed that the expression “relevant enactments” in regulation 9 is intended to impose duties on the Scottish ministers and the Scottish Environment Protection Agency when they exercise their functions under “relevant enactments” by reference to a specific technical definition found in section 2(8) of the Water Environment and Water Services (Scotland) Act 2003 and the Water Environment (Relevant Enactments and Designation of Responsible Authorities and Functions) (Scotland) Order 2011 (SSI 2011/368). Those functions include functions under part 1 of the 2003 act. The Government relies on a general rule of interpretation to attract that meaning rather than explicitly setting it out in the regulations.

By contrast, the Government intends the expression

“in exercise of powers conferred by the Act”—

that is, the 2003 act

“or any other relevant enactment”

in regulation 8 not to be restricted by the list of relevant enactments that is set out in SSI 2011/368, which, along with part 1 of the 2003 act, make up the “relevant enactments”. The use of the term in regulation 8 involves its ordinary, non-specific meaning of any enactment that is relevant. Again, however, the regulations do not explicitly provide for that.

The committee might consider that, where an expression is, or two closely related expressions are, intended to take different meanings within an instrument, that should be clearly and explicitly expressed. Does the committee agree to draw the regulations to the Parliament’s attention under reporting ground (h), as the meaning of the regulations could be clearer?

Members indicated agreement.

I would be willing to accept the Government’s explanation were it the case that legislation was only ever intended to be read by lawyers and members of the legal profession. However, it is an important principle that legislation should be accessible to and comprehensible by laypeople, so the committee should always strive for clarity and impress on the lead committee and the Government that they should do the same.

Indeed. I think that the committee is absolutely inclined to agree with you there. What is meant should be explicit in the regulations unless it is clear that some statutory interpretation applies.

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Water Environment (River Basin Management Planning: Further Provision) (Scotland) Regulations 2013 (SSI 2013/323)

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Water Environment (Shellfish Water Protected Areas: Designation) (Scotland) Order 2013 (SSI 2013/324)

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Food Safety, Food Hygiene and Official Controls (Sprouting Seeds) (Scotland) Regulations 2013 (SSI 2013/333)

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Adoption (Recognition of Overseas Adoptions) (Scotland) Amendment Regulations 2013 (SSI 2013/335)

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Food (Miscellaneous Amendments) (Scotland) Regulations 2013 (SSI 2013/336)

The committee agreed that no points arose on the instruments.