Official Report 79KB pdf
I welcome committee members, witnesses and members of the press and public to the meeting.
Pig Carcase (Grading) Amendment (Scotland) Regulations 2003 (SSI 2003/565)
Members asked for further information on the consultation process with the industry to ensure that its views on the potential impact of the Pig Carcase (Grading) Amendment (Scotland) Regulations 2003 had been properly considered. We have received a memorandum from the Scottish Executive. Is everyone happy with the content of the memorandum?
In that case, are members content with the regulations and happy to make no recommendation to the Parliament?
Prohibition of Keeping or Release of Live Fish (Specified Species) (Scotland)<br />Order 2003 (SSI 2003/560)
We requested clarification from the Executive on the definition in the Prohibition of Keeping or Release of Live Fish (Specified Species) (Scotland) Order 2003 of "Scotland" and its relationship with territorial waters. We also requested further clarification from the Subordinate Legislation Committee of its recommendations on the order. An extract has been circulated of the Subordinate Legislation Committee's 14th report, containing the recommendations, along with the memorandum from the committee's legal adviser and the memorandum from the Scottish Executive. Do members have comments or questions?
I do not want to make a large issue of this, because it is fairly clear from the advice that we have had how the order will be interpreted—any matter reaching the courts would be marginal. However, because the definition of "Scotland" has to be the definition in the Scotland Act 1998 as read with the Scottish Adjacent Waters Boundaries Order 1999, I wonder whether we might alert the Executive to the possibility of amending the primary legislation to take the new definition into account.
Having read the briefing from the Subordinate Legislation Committee, I think that there are two ways in which to deal with the order. One is for the Executive not to include article 2 in the order; the other is for somebody to provide a judicial interpretation of the definition. I do not think that there is a problem with the order in the context of the issue that we are discussing. However, as we have the Executive officials here, it might be worth asking them for a view. Why is article 2 in the order?
Article 2 was included in the order to clarify its scope. We are always mindful of the need to clarify the scope of an offence where provision is made in a Scottish statutory instrument. That is one of the issues that the Subordinate Legislation Committee raised with us. Given that there is no precise definition of the boundary judicially or in acts of the United Kingdom Parliament, we included article 2 to give the precise definition, so that a person releasing fish into the wild would know precisely the scope of the offence.
The advice that we have taken is that the issue of the boundary is not clear. Is that a correct interpretation?
The Executive's position is that the boundary as set in article 2 is the same as the boundary that would have been set pre-devolution. Our position is that the meaning of "Scotland" pre-devolution was the land and internal waters of Scotland and the territorial sea adjacent to Scotland. The same definition has been adopted in the order, following the Scottish Adjacent Waters Boundaries Order 1999 and the definition in the Scotland Act 1998.
I remember us getting into this issue previously—
Agreed.
At length in the Parliament.
I was just listening to Mr McMillan's explanation. I must be missing something, because I thought that it was straightforward. I understand what he means and have no difficulty or delicacy with the explanation. We should just move on as quickly as we can to the next item.
We have had different interpretations of what the issue means.
That is the point that I am trying to make. We have just had a clear and straightforward explanation and I do not think that we should waste any more of the committee's time or of the officials' time.
I see members nodding. Do you want to dissent from what has been said, Rob, or are you happy to move on? The fact that we have interrogated the matter will be reflected in the Official Report.
As I said, I am happy with what is in the statutory instrument. At the same time, I wish that the instrument had been brought to us in a clearer form. I have had my say.
You have logged your point.
Registration of Establishments Keeping Laying Hens (Scotland) Regulations 2003 (SSI 2003/576)
The Registration of Establishments Keeping Laying Hens (Scotland) Regulations 2003 seem a bit more complex. Everyone will have received all the additional papers. Are there any comments?
I do not want to go first, because I missed the pre-meeting briefing.
I have read all the paperwork and I feel that the advice from the Subordinate Legislation Committee is different from what we usually get, in that that committee has made quite a lot of detailed comments about how the instrument will be implemented. Strong comments have been made about whether there are effective sanctions and clear obligations and about whether the penalties have been set correctly. Having read all the paperwork, I question whether we can recommend that the regulations be passed in their current form, especially given the strong guidance that we have had from the Subordinate Legislation Committee about their defectiveness in certain respects.
I do not have a query. There is a de facto system in place, so there are no worries about that. The English legislation is coming into effect late and the Scottish legislation will be late. I do not see what is wrong with the Scottish legislation being later, as long as it is right, given that we are not going to be out of step with England and Wales. I do not think that we will lose anything by lodging a motion to annul the instrument. The point is to get the legislation right; if we do, we will gain quite a lot.
We would be negligent if we allowed the instrument to be passed. I do not think that we have any option. We might have to lodge a motion of annulment, but we should give the minister the opportunity to respond to the Subordinate Legislation Committee's concerns by early January, with a view to having a meeting, if necessary, on 7 January. We have to send a clear message to the Executive that we are not messing about and that, if we do not get a satisfactory response, we will lodge a motion to annul.
I agree with Karen Gillon. There is a distinct lack of clarity about what the sanctions are if the regulations—if one can work them out—are broken. We cannot allow the instrument to be passed. That would be a dereliction of duty. We ought to seek an annulment unless the Executive comes up with a greatly improved version.
I think that I will be the final member to speak on the regulations, which is probably the best place for an afterthought.
It would be useful to have the point clarified about the extent to which there is a difference.
Yes.
I have questions about the instrument, as do other members. I suggest that we write to the minister and make those points. We should ask him to consider withdrawing the instrument or to amend it at the earliest opportunity, although I do not know whether we would be happy with that.
That allows us to consider the instrument again in the new year. We can keep in touch on whether we need to have a meeting.