23rd Report, 2008 (Session 3)

Subordinate Legislation

Remit and membership

Remit:

1. The remit of the Subordinate Legislation Committee is to consider and report on-

(a) any-

(i) subordinate legislation laid before the Parliament;

(ii) Scottish Statutory Instrument not laid before the Parliament but classified as general according to its subject matter,

and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation; and

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation.

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:
Jackie Baillie
Jackson Carlaw
Helen Eadie
Ian McKee
John Park
Gil Paterson (Deputy Convener)
Jamie Stone (Convener)

Committee Clerking Team:

Clerk to the Committee
Gillian Baxendine

Senior Assistant Clerk
David McLaren

Assistant Clerk
Jake Thomas

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 27 May 2008 the Committee determined that it did not need to draw the attention of Parliament to the instruments listed in the Annex to this report on any of the grounds within its remit.

2. The report is also addressed to the following committees as the lead committees for the instruments specified:

Instruments subject to annulment

The Food Labelling (Declaration of Allergens) (Scotland) Regulations 2008 (SSI 2008/180)

1. At its meeting on 19 May, the Committee agreed to askthe Scottish Government to explain, given that regulation 3(2)(a) purports to revoke the Food Labelling Amendment (No. 3) (Scotland) Regulations 2005 which appear to be made (in part) under sections 6(4), 16(1)(f) and 26(1)(b) and (3) of the Food Safety Act 1990 and these provisions have not been referred to in the preamble to these Regulations, what powers are being relied upon to revoke the 2005 Regulations.

2. The Food Standards Agency’s response is reproduced in the Appendix.

3. Regulation 3(2)(a) revokes the Food Labelling Amendment (No. 3) (Scotland) Regulations 2005 (SSI 2005/542).  The 2005 Regulations were made under sections 6(4), 16(1)(e) and (f), 17(1), 26(1) and (3) and 48(1) of the Food Safety Act 1990.  However, the Committee noted that the preamble to these Regulations refers to the Regulations being made under section 16(1)(e), 17(1), 26(1)(a) and 48(1) of the Food Safety Act 1990 and “all other powers enabling [the Scottish Ministers] to do so”.  There is no reference to these Regulations also being made under sections 6(4), 16(1)(f) and 26(1)(b) and (3) of the Food Safety Act 1990, which are referred to in the preamble to the 2005 Regulations. Accordingly, the Committee was not clear whether the necessary powers have been relied upon to revoke the 2005 Regulations in these Regulations.

4. The response from the Food Standards Agency advised that the “missing” powers were not considered to have been necessary to make the 2005 Regulations, therefore the powers cited in the 2008 Regulations are sufficient to revoke them. However, the Agency did not provide any analysis or explanation to support this view. The Committee would have found it helpful for the Food Standards Agency, as the sponsor department, to have clarified why this conclusion was reached.

5. Nevertheless, the Committee considers, that were the “missing” powers in fact required to have been used, the sweep up provision (“all other powers enabling them to do so”) could be relied upon to include the powers for the purpose of making the Regulations in accordance with the principles set out in the case of Vibixa Ltd v Komori UK Ltd & Ors [2006] EWCA Civ 536¹. It is therefore satisfied as to the availability and exercise of the enabling powers in relation to this instrument.

6. The Committee draws this instrument to the attention of the lead committee and Parliament on the grounds that an explanation of the use of the enabling powers was sought from and provided by the Scottish Government with which it is satisfied.

ANNEX

Draft Instruments subject to approval

The Charity Test (Specified Bodies) (Scotland) Order 2008 (SSI 2008/draft)

The Human Tissue (Scotland) Act 2006 (Consequential Amendment) Order 2008 (SSI 2008/draft)

The Nutritional Requirements for Food and Drink in Schools (Scotland) Regulations 2008 (SSI 2008/draft)

Instruments subject to annulment

The Public Transport Users’ Committee for Scotland Amendment Order 2008 (SSI 2008/186)

Instruments not laid before the Parliament

The Planning etc. (Scotland) Act 2006 (Commencement No. 4) Order 2008 (SSI 2008/191)

The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (Commencement No. 4) Order 2008 (SSI 2008/192)

The Nature Conservation (Scotland) Act 2004 (Commencement No. 3) Order 2008 (SSI 2008/193)

APPENDIX

The Food Labelling (Declaration of Allergens) (Scotland) Regulations 2008 (SSI 2008/180)

1. In its letter of 19 May 2008 the Committee asks the Scottish Government––

to explain, given that regulation 3(2)(a) purports to revoke the Food Labelling Amendment (No. 3) (Scotland) Regulations 2005 which appear to be made (in part) under sections 6(4), 16(1)(f) and 26(1)(b) and (3) of the Food Safety Act 1990 and these provisions have not been referred to in the preamble to these Regulations, what powers are being relied upon to revoke the 2005 Regulations?

2. The Food Standards Agency responds as follows––

The provisions cited in the preamble to SSI 2008/180 are considered to be sufficient to empower revocation of the 2005 Regulations. It is appreciated that sections 6(4), 16(1)(f) and 26(1)(b) and (3) of the Food Safety Act 1990 were cited in the preamble of the 2005 Regulations as enabling powers, but on reflection it was considered that these powers were not in fact utilised in the making of those Regulations and should not therefore have been mentioned in the preamble.

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