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Subordinate Legislation Committee SUBORDINATE LEGISLATION COMMITTEE Tuesday 11 December 2007 Session 3 £5.00 Parliamentary copyright. Scottish Parliamentary Corporate Body 2007. Applications for reproduction should be made in writing to the Licensing Division, Her Majesty‘s Stationery Office, St Clements House, 2-16 Colegate, Norwich NR3 1BQ Fax 01603 723000, which is administering the copyright on behalf of the Scottish Parliamentary Corporate Body. Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by RR Donnelley. CONTENTS Tuesday 11 December 2007 Col. DECISION ON TAKING BUSINESS IN PRIVATE .............................................................................................. 115 REGULATORY FRAMEWORK INQUIRY ........................................................................................................ 116 DELEGATED POWERS SCRUTINY .............................................................................................................. 144 Public Health etc (Scotland) Bill: Stage 1 ............................................................................................ 144 SCOTTISH GOVERNMENT RESPONSE ........................................................................................................ 148 Foot-and-Mouth Disease (Export and Movement Restrictions) (Scotland) Regulations 2007 (SSI 2007/518) .............................................................................................................................. 148 INSTRUMENTS SUBJECT TO ANNULMENT ................................................................................................... 149 Water Environment (Drinking Water Protected Areas) (Scotland) Order 2007 (SSI 2007/529) ................ 149 Seeds (Fees) (Scotland) Regulations 2007 (SSI 2007/536) ................................................................. 149 Fishery Products (Official Controls Charges) (Scotland) Regulations 2007 (SSI 2007/537) .................... 149 Meat (Official Controls Charges) (Scotland) (No 2) Regulations 2007 (SSI 2007/538) ............................ 149 Licensing (Vessels etc) (Scotland) Regulations 2007 (SSI 2007/545) ................................................... 150 Registration Services (Fees, etc) (Scotland) Amendment Regulations 2007 (SSI 2007/531) .................. 150 Title Conditions (Scotland) Act 2003 (Rural Housing Bodies) Amendment (No 2) Order 2007 (SSI 2007/535) .............................................................................................................................. 150 Police (Promotion) (Scotland) Amendment Regulations 2007 (SSI 2007/528) ....................................... 150 Title Conditions (Scotland) Act 2003 (Conservation Bodies) Amendment Order 2007 (SSI 2007/533) ..... 150 Food Labelling (Declaration of Allergens) (Scotland) Regulations 2007 (SSI 2007/534) ......................... 151 INSTRUMENTS NOT LAID BEFORE THE PARLIAMENT .................................................................................... 152 Water Environment and Water Services (Scotland) Act 2003 (Commencement No 7) Order 2007 (SSI 2007/530) .............................................................................................................................. 152 Act of Sederunt (Rules of the Court of Session Amendment No 10) (Miscellaneous) 2007 (SSI 2007/548) .............................................................................................................................. 152 Act of Sederunt (Fees of Messengers-at-Arms) 2007 (SSI 2007/532) ................................................... 152 Act of Sederunt (Lands Valuation Appeal Court) 2007 (SSI 2007/539) .................................................. 152 SUBORDINATE LEGISLATION COMMITTEE 15th Meeting 2007, Session 3 CONVENER THE FOLLOWING ALSO ATTENDED : *Jamie Stone (Caithness, Sutherland and Easter Ross) Judith Morrison (Legal Adviser) (LD) THE FOLLOWING GAVE EVIDENCE: DEPU TY CONVENER Sylvia Jac kson *Gil Paterson (West of Scotland) (SNP) Iain Jamieson Murray Tosh COMMI TTEE MEMBERS *Richard Baker (North East Scotland) (Lab) *Jac kson Carlaw (West of Scotland) (Con) CLERK TO THE COMMITTE E *Helen Eadie (Dunfermline East) (Lab) Gillian Baxendine *Ian McKee (Lothians) (SNP) *John Park (Mid Scotland and Fife) (Lab) SENIOR ASSISTANT CLERK Dav id McLaren COMMI TTEE SUBSTITU TES Bill Aitken (Glasgow ) (Con) ASSISTANT CLERK Christopher Harvie (Mid Scotland and Fife) (SNP) Jake Thomas Elaine Smith (Coatbridge and Chryston) (Lab) Margaret Smith (Edinburgh West) (LD) LOC ATION *attended Committee Room 6 115 11 DECEMBER 2007 116 Scottish Parliament Regulatory Framework Inquiry Subordinate Legislation 14:16 Committee The Convener: We come to item 2, whereupon we welcome Murray Tosh, member of the previous Tuesday 11 December 2007 Subordinate Legislation Committee; Sylvia Jackson, former convener of the committee; and [THE CONVENER opened the meeting at 14:15] Iain Jamieson, the adviser to the committee‘s inquiry in the previous session. We are taking evidence on our predecessor committee‘s inquiry Decision on Taking Business in and seeking to understand the issues so that we can make recommendations to Parliament, which I Private hope that we will do in the new year. We want to explore the previous committee‘s thinking on the The Convener (Jamie Stone): I welcome current system of scrutiny of subordinate everyone to the Subordinate Legislation legislation so that we can understand the reasons Committee. We have not received any apologies; I why you—or perhaps I should say we— expect that we will see John Park in due course. I recommended that it be replaced, and discuss the ask everyone to turn off any mobiles or Scottish statutory instrument procedure, or SSIP, BlackBerrys that they have switched on. in more detail. We move swiftly to item 1. We are going to take I welcome the witnesses. It is good to see our oral evidence today and next week. It is suggested old friends again. I will kick off with the first that the committee take stock of that evidence in question, which might seem a bit cheeky. The private at the end of the meetings. Are members previous Executive said in its response to the therefore content to take in private item 7 on committee‘s report that the current system works today‘s agenda and any future discussions of the well; that it is well known; and that although there evidence that we have heard? are eight procedures, they are not all necessary— Members indicated agreement. [Interruption.] I am sorry. The Executive said that all the procedures were necessary. Do I have the right specs on? I have this problem—colleagues correct me frequently, as members know. The Executive also said that the system offers flexibility to deal with all eventualities. What are your views on that? Who would like to go first? Sylvia Jackson: Hello. It is nice to be back, if only temporarily. When we were developing the report—the former committee was pretty unanimous in its recommendations—some of the big issues were the complexity of the system, the number of procedures and the fact that not all the procedures were used. Although the system seemed complex, on many occasions it basically came down to whether affirmative or negative procedure was being used. I think that Stewart Maxwell MSP, who was also a member of the previous committee, would agree that the biggest issue was getting amendments made. We could see the changes that needed to be made—on technical issues; substantial policy issues do not fall within the committee‘s remit—but found that they could not be made without the instrument being withdrawn and relaid, which we saw as a waste of time. Murray Tosh: As the committee will be aware, the procedure for dealing with subordinate legislation in the Scottish Parliament is entirely the Westminster system. It would be remarkable if it 117 11 DECEMBER 2007 118 were fit for purpose, because every other aspect of the session, when a massive volume of of the government of Scotland, by the mere fact of complex legislation was going through the devolution, was clearly regarded as not fit for Parliament. purpose and requiring to be re-examined and The distinction in principle between negative and rebuilt more or less from first principles. It always affirmative procedures is artificial. It is a glory of struck me as a fairly depressing commentary on the British constitution and belongs in a museum the innate conservatism of the Scottish civil with all the other glories of the British constitution. service that it fought to the last drop of blood to In the new session, with no secure majorities, the retain this scrap of the ancien régime. committee should take the opportunity to assert Our system of subordinate legislation has been Parliament‘s right and ability to scrutinise seen as unsatisfactory at Westminster, where the subordinate legislation, where committees think Joint Committee on Statutory Instruments has that there is a need for them to do so on either been created. The House of Lords, in particular, technical or policy grounds. has made a determined attempt to subject The Convener: I see that you have lost none of subordinate legislation to proper scrutiny. We your style, Mr Tosh. Does Iain Jamieson have concluded that that was required in the Scottish anything to add on this point? Parliament, too. Iain Jamieson: I endorse what both the The simple fact is that if a statutory instrument previous committee members said. There are two comes into force after 21 days and it spends 20 other issues. First,
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