27th 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
Shelagh McKinlay

Senior Assistant Clerk
David McLaren

Assistant Clerk
Jake Thomas

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 10 June 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:

The Feed (Hygiene and Enforcement) (Scotland) Amendment Regulations 2008 (SSI 2008/201)

1. On 3 June, the Committee asked the Scottish Government––

(a) whether it agrees that the consultation requirement in section 84(1) of the Agriculture Act 1970 is engaged by this instrument;

(b) if it agrees it is engaged whether and how that requirement has been complied with; and

(c) if it does not agree, the reasons for that view.

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

3. At its meeting on 3 June, the Committee considered that consultation is required under section 84(1) before the Scottish Ministers could make these regulations. The Food Standards Agency’s response agreed with this view.

4. It was noted that the response provided further detail as to what consultation is being relied upon for this purpose.

5. The validity or operation of the instrument is not affected by satisfaction of the precondition not having been narrated on the face of the instrument. However, it is normal drafting practice to narrate the compliance with consultation requirements in the preamble to instruments as a means of recording that compliance.

6. The Committee draws this instrument to the attention of the lead committee and Parliament on the grounds that, while it is satisfied with the Food Standards Agency’s explanation of how the requirements of section 84(1) of the Agriculture Act 1970 were fulfilled, the Scottish Government has failed to follow the normal drafting practice of narrating the satisfaction of that precondition in the preamble to the instrument.

ANNEX
Instruments subject to annulment

The Individual Learning Account (Scotland) Amendment (No. 2) Regulations 2008 (SSI 2008/204)

The Education (Student Loans) (Scotland) Amendment Regulations 2008 (SSI 2008/205)

The Education (Means Testing) (Scotland) Amendment Regulations 2008 (SSI 2008/206)

The Education (Assisted Places) (Scotland) Amendment Regulations 2008 (SSI 2008/213)

The St Mary’s Music School (Aided Places) (Scotland) Amendment Regulations 2008 (SSI 2008/214)

The Feeding Stuffs (Scotland) Amendment Regulations 2008 (SSI 2008/215)

The Spreadable Fats, Milk and Milk Products (Scotland) Regulations 2008 (SSI 2008/216)

The Register of Sites of Special Scientific Interest (Scotland) Regulations 2008 (SSI 2008/221)

The Registration of Fish Farming and Shellfish Farming Businesses Amendment (Scotland) Order 2008 (SSI 2008/222)

The Graduate Endowment (Scotland) Regulations 2008 (SSI 2008/235)

Instruments not laid before the Parliament

Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2008 (SSI 2008/223)

APPENDIX

The Feed (Hygiene and Enforcement) (Scotland) Amendment Regulations 2008 (SSI 2008/201)

1. In its letter of 3 June 2008 to Paul Johnston, the Committee asked the Scottish Government the following––

“(a) whether it agrees that the consultation requirement in section 84(1) of the Agriculture Act 1970 is engaged by this instrument;

(b) if it agrees it is engaged whether and how that requirement has been complied with; and

(c)  if it does not agree, the reasons for that view.”

2. The Food Standards Agency responds as follows––

(a) The Food Standards Agency agrees that section 84(1) of the agriculture Act 1970 is engaged by this instrument (“the 2008 Regulations”).

(b) There was no separate consultation carried out prior to the making of the 2008 Regulations.  This reflects the fact that the 2008 Regulations were brought forward to address an issue raised by the Committee in its letter of 27 November 2007 and to ensure that the OFFC 2007 Regulations achieved their intended policy.   As a result the consultation that was carried out in relation to original instrument (the Official Feed and Food Controls (Scotland) Regulations 2007), is the consultation that is relied upon by the Ministers in making the 2008 Regulations.  In addition there were relevant consultations carried out in relation to the subject matter of the 2008 Regulations (zootechnical feed additives) in relation to both the Official Feed and Food Controls (Scotland) Regulations 2005 and the Feed Hygiene and Enforcement (Scotland) Regulations 2005 and the Feeding Stuffs (Application to Zootechnical Additives etc.) (Scotland) Regulations 2005.

These consultations taken together have covered the issue of how various pieces of legislation including OFFC and Feed Hygiene were to apply to zootechnical feed additives.  There has been no change in Agency policy with regard to treatment of zootechnical feed additives.  Any change in the application of the law was the result of inadvertence and so the original consultations are still relevant to the current instrument.

Food Standards Agency accepts that it would have been desirable to mention that there had been a consultation in the preamble (although there was no separate consultation carried out specifically in relation to the 2008 regulations) and then to better detail history of consultation in the Executive note.

(c) as the Food Standard Agency accepts that section 84(1) is engaged there is no need to address this final question.