37th Report, 2012 (Session 4): Subordinate Legislation

SP Paper 167 (Web Only)

SL/S4/12/R37

37th Report, 2012 (Session 4)

Subordinate Legislation

Remit and membership

Remit:

The remit of the Subordinate Legislation Committee is to consider and report on—

(a) any—

(i) subordinate legislation laid before the Parliament;

(ii) [deleted]

(iii) pension or grants motion as described in Rule 8.11A.1;

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;

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

(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and

(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Chic Brodie
Nigel Don (Convener)
James Dornan (Deputy Convener)
Mike MacKenzie
Michael McMahon
John Pentland
John Scott

Committee Clerking Team:

Clerk to the Committee
Irene Fleming

Assistant Clerk
Rob Littlejohn

Support Manager
Daren Pratt

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 19 June 2012, the Committee agreed to draw the attention of the Parliament to the following instruments—

Wildlife and Countryside Act 1981 (Exceptions to section 14) (Scotland) Order 2012 (SSI 2012/173);

Wildlife and Countryside Act 1981 (Keeping and Release and Notification Requirements) (Scotland) Order 2012 (SSI 2012/174);

Trade in Animals and Related Products (Scotland) Regulations 2012 (SSI 2012/177); and

African Horse Sickness (Scotland) Order 2012 (SSI 2012/178).

2. The Committee’s recommendations in relation to those instruments are set out below.

3. The instruments that the Committee determined that it did not need to draw the Parliament’s attention to are set out at the end of this report.

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Wildlife and Countryside Act 1981 (Exceptions to section 14) (Scotland) Order 2012 (SSI 2012/173) (Rural Affairs, Climate Change and Environment Committee)

4. This Order purports to specify certain types of animal to which section 14(1)(a)(i) or 14(1)(b) of the Wildlife and Countryside Act 1981 (“the 1981 Act”) does not apply. It also specifies certain types of plant to which section 14(2) of that Act does not apply.

5. Section 14 of the 1981 Act creates a number of offences in relation to non-native species of animals and plants. It is an offence to release or allow to escape from captivity any animal to a place outwith its native range (section 14(1)(a)(i)). It is also an offence otherwise to cause an animal outwith the control of any person to be at a place outwith its native range (section 14(1)(b)). It is further an offence to plant, or otherwise cause to grow, any plant in the wild at a place outwith its native range.

6. The Order is subject to the negative procedure and will come into force on 2 July 2012.

7. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 1.

8. Section 14(2B)(a) enables the Scottish Ministers, by order, to specify types of animals to which subsection (1)(a)(i) or (1)(b) does not apply. Article 2(1) does not specify which of these subsections is intended to be disapplied by this Order. Instead, it purports to specify the types of animal listed in Part 1 of the Schedule “for the purposes of section 14(2B)(a) of the 1981 Act”. It is accordingly unclear which subsection the Ministers intend to disapply, although the Executive Note and the heading to Part 1 of the Schedule suggest that the intention is to disapply subsection (1)(a)(i) only.

9. The Scottish Ministers were accordingly asked to explain whether they considered that article 2(1) effectively identifies the disapplied subsection and, if so, why that was the case given the absence of any operative provision in the instrument to that effect. The Ministers’ response indicates that they consider that there is a “respectable argument” that article 2(1), together with the heading in Part 1 of the Schedule, effectively identifies the disapplied subsection. The Committee accepts that the parenthetical part of the heading identifies subsection (1)(a)(i) as the disapplied subsection. However, it does not agree with the Ministers that reliance can be placed upon such a heading to remedy a failure to make an operative provision in the instrument.

10. In the Committee’s view, article 2(1) ought expressly to state whether it is subsection (1)(a)(i) or (1)(b) which is being disapplied. It is not convinced by the Ministers’ argument that the courts would simply rely on a heading to provide meaning to the operative provisions of the instrument. The Committee considers that clarity is important since the intended effect of the provision is to disapply offences in some cases and not in others.

11. The Committee also observes that the Scottish Ministers’ argument is inconsistent with the argument which they advance in relation to the Trade in Animals and Related Products (Scotland) Regulations 2012, which is dealt with later in this report. In that case, the Ministers argue that a parenthetical description which appears to restrict the scope of a provision is merely a signpost and does not override the fact that the operative reference is itself unqualified. Were that reasoning adopted in relation to this Order, it would follow that a similarly parenthetical description in a heading could not override the fact that the Ministers have failed to specify which subsection it is that they intend to disapply in an operative provision.

12. The Committee accordingly considers that, in making this instrument, the Scottish Ministers have failed to specify whether they wish to disapply subsection (1)(a)(i) or (1)(b) of section 14. It would therefore seem that the provision made by article 2(1) of and Part 1 of the Schedule to this Order is ineffective, and so it appears to be defectively drafted.

13. As the Scottish Ministers propose to amend this instrument before the summer recess to address other matters, the Committee calls upon them to address this matter at the same time, and in doing so to remove any doubt as to the effectiveness of the disapplication of section 14(1)(a)(i) in relation to fish caught by rod and line.

14. Separately, Part 2 of the Schedule lists a number of types of plant to which the offence in section 14(2) is not to apply. Column 1 gives the animals’ common names, and column 2 their Latin names. The note to the table in Part 2 of the Schedule provides that the common names are included by way of guidance only: they are not to be taken into account in the event of any dispute or proceedings. It follows that it is the Latin names in column 2 which specify the various types of plant for the purposes of article 2(2).

15. The Scottish Ministers were asked whether there were in fact errors in the names of certain of the plants in Part 2. In their response, the Scottish Ministers agree that there are errors in the listings of Spergula arvensis (corn spurrey) and Euphorbia peplus (petty spurge). They explain that there are differences in expert opinion in relation to the Latin name for Nootka cypress, and that the name contained in the instrument is one of those presently in use.

16. Standing that admission, the Committee considers that it is doubtful whether the section 14(2) offence has been properly disapplied in relation to Spergula arvensis and Euphorbia peplus, particularly as in the case of the latter the erroneous reference (to “Euphorbia peplius”) might just as easily be intended to refer to Euphorbia peplis (purple spurge). The Scottish Ministers do not express a view on the effectiveness of Part 2 of Schedule 1. However, the Committee notes that they intend to correct these errors by amendment before the summer recess. It also notes that the Ministers intend to clarify the reference to Nootka cypress at the same time.

17. The Committee accordingly reports that Part 2 of Schedule 1 appears to be defectively drafted, in respect that it is doubtful whether it effectively disapplies the section 14(2) offence in respect of Spergula arvensis and Euphorbia peplus when it seems that it was intended to do so.

18. The Committee therefore draws the instrument to the attention of the Parliament on reporting ground (i) as the instrument appears to be defectively drafted in two respects.

19. First, there has been a failure effectively to specify whether it is the offence in subsection (1)(a)(i) or in subsection (1)(b) of section 14 of the Wildlife and Countryside Act 1981 which is intended to be disapplied by article 2(1) of and Part 1 of the Schedule to this Order. Secondly, it is doubtful whether Part 2 of the Schedule effectively disapplies the section 14(2) offence in respect of Spergula arvensis and Euphorbia peplus when it seems that it was intended to do so.

20. In doing so, the Committee welcomes the Scottish Ministers’ commitment to lay a corrective instrument before the summer recess which will amend this Order to address the issues identified by the Committee in relation to Part 2 of the Schedule.

21. Further, the Committee calls on the Scottish Ministers to take the opportunity to address the point raised in relation to article 2(1) of and Part 1 of the Schedule to this Order at the same time in order to resolve the doubt as to the effectiveness of those provisions.

Wildlife and Countryside Act 1981 (Keeping and Release and Notification Requirements) (Scotland) Order 2012 (SSI 2012/174) (Rural Affairs, Climate Change and Environment Committee)

22. This instrument makes provision about the keeping, release and notification requirements in relation to invasive animals. In particular, it prohibits the release of deer on certain islands, it prohibits the keeping of the invasive animals specified in Part 2 of Schedule 1, and it requires occupiers of land to notify Scottish Natural Heritage (“SNH”) should they become aware of the presence on their land of animals of a type listed in Part 3 of Schedule 1. Failure to comply with these provisions is a criminal offence.

23. The Order is subject to the negative procedure and will come into force on 2 July 2012.

24. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 2.

25. It appears clear from the Executive Note that the Scottish Ministers intended to specify the island of Arran as one of the places to which Part 1 of Schedule 1 would apply. However, column 3 of Part 1 contains a typographical error and refers instead to the island of “Aaran”.

26. As the provision in column 3 of Part 1 of Schedule 1 is integral to the creation of the offence, in that it specifies the places in which it is an offence to release deer, the Committee considers that it is doubtful whether, standing this error, the island of Arran has properly been specified. In their response, the Scottish Ministers accept that they have not effectively specified the island of Arran for the purposes of the offence. They advise that they intend to remedy this defect at the earliest opportunity by laying an amending instrument before the summer recess. The Committee accordingly considers that Part 1 of Schedule 1 appears to be defectively drafted.

27. Separately, Part 2 of Schedule 1 lists a number of types of invasive animal which may not be kept in Scotland. Column 1 gives the animals’ common names, and column 2 their Latin names. The note to Schedule 1 provides that the common names are included by way of guidance only: they are not to be taken into account in the event of any dispute or proceedings. It follows that it is the Latin names in column 2 which specify the various types of animal for the purposes of article 3.

28. A number of the animals specified appeared to have been reclassified at some point, so the Latin name given for them was no longer the one in current scientific usage. This appeared to make it doubtful whether they were adequately specified for the purposes of the offence provision, and the Committee therefore sought clarification of the Latin names.

29. The Scottish Ministers, in their response, accept that there is a doubt in relation to three of the types of animals (blageon, pikeperch and toxostome) and advise that, while they consider the Latin name for European bitterling to be valid, the additional specification of its alternative Latin name would put the matter beyond doubt.

30. The Committee considers that it is doubtful whether specifying a Latin name which is no longer considered valid is sufficient to identify an animal for the purposes of the section 14ZC(1)(a) offence. The policy intention of the Scottish Ministers appears to be that these animals should be listed and that it should be an offence to keep them. The Committee thinks it doubtful whether the Ministers have achieved that objective. The Ministers themselves do not express a view on the effectiveness of Part 2 of Schedule 1. However, the Committee notes that they intend to correct these errors by amendment before the summer recess. It also notes that, notwithstanding the Ministers’ position on European bitterling, they also intend to clarify this matter when amending the instrument.

31. The Committee accordingly reports that Part 2 of Schedule 2 appears to be defectively drafted in respect that it is doubtful whether it effectively specifies certain types of animal which were intended to be included in it.

32. The Committee draws the instrument to the attention of the Parliament on reporting ground (i) as it appears to be defectively drafted in two respects.

33. First, Part 1 of Schedule 1 to the Order fails effectively to specify the island of Arran as a place where it is an offence to release, or allow to escape from captivity, any animal of the genus Cervus (deer), although the Scottish Ministers' policy intention was that the offence should extend to that island.

34. Secondly, Telestes souffia (Blageon), Sander lucioperca (Pikeperch) and Parachondrostoma toxostoma (Toxostome, or French nase) have all been reclassified and are now known by these Latin names, but in Part 2 of Schedule 1 to the Order they are referred to by older Latin names which are no longer in use. As the types of fish are specified by reference to their Latin name, it is doubtful whether Part 2 effectively specifies these types of fish as invasive animals which it is an offence to keep, have in one's possession or have under one's control, and it is accordingly doubtful whether the Scottish Ministers have achieved their policy intention of specifying these fish for the purposes of the offence provision.

35. In doing so, the Committee welcomes the Scottish Ministers' commitment to lay a corrective instrument before the summer recess which will amend this Order to address the issues identified by the Committee.

Trade in Animals and Related Products (Scotland) Regulations 2012 (SSI 2012/177) (Rural Affairs, Climate Change and Environment Committee)

36. This instrument implements for Scotland four European Directives relating to the trade in animals and animal products. It consolidates and replaces the Animals and Animal Products (Import and Export) (Scotland) Regulations 2007, the Products of Animal Origin (Import and Export) Regulations 1996, the Products of Animal Origin (Third Country Imports) (Scotland) Regulations 2007, and instruments which amend them.

37. The Order is subject to the negative procedure and will come into force on 1 July 2012.

38. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 3.

39. The Scottish Government accepts that there are errors in two of the offence provisions provided in this instrument, Regulation 33 makes it an offence to fail to comply with regulation 25(5) when it should make it an offence to comply with regulation 25(4). Regulation 33 also applies a defence of reasonable excuse to the offence of knowingly signing a false certificate when it is not intended that the defence be available in these circumstances.

40. The Scottish Government also indicates that it intended to make a failure to comply with article 18A(1) of the Bluetongue (Scotland) Order 2008 (which is inserted by paragraph 1 of Schedule 4 of the instrument) or failure to comply with a notice served under article 18A(2) an offence. However, the drafting fails to achieve this.

41. The Committee considers that the instrument is defectively drafted in these three respects.

42. Regulation 33 also makes it an offence to fail to comply with regulation 23(3)(b), which requires the importer of a product which has been refused entry by a third country to “destroy the consignment as animal by-products”. The Scottish Government considers that this provision would be sufficiently clearly understood in practice and that it is unlikely that significant difficulties would arise. However, it has agreed to amend the provision to avoid any risk of confusion. The Committee considers that the current wording is insufficiently precise to be acceptable as the basis for imposing criminal liability. It concludes that the instrument could be clearer in this respect.

43. Given that these errors relate to the imposition of criminal liability, the Committee considers that these are matters which merit rectification prior to the instrument coming into force. The Committee welcomes the Scottish Government’s commitment to address these points prior to 1 July.

44. Regulation 33 also makes it an offence to fail to comply with paragraph 5(2) of Schedule 2. That regulation and paragraph both describe the subject matter of the provision which is being enforced as the “keeping of records”. However, article 8 of the relevant Commission Regulation does not just require the keeping of records but also includes provision about the manner in which certain animals are to be kept. The Committee queried whether the intention was to ensure compliance with all the requirements of article 8 and whether this was clearly stated.

45. The Scottish Government accepts that the content of article 8 could have been framed in wider terms. It offers the view that this description acts only as a signpost to the reader and does not override the fact that the provisions refer to article 8 without qualification. This appears to run contrary to the argument offered in relation to SSI 2012/173 (referred to above) that a heading is capable of limiting the effect of the substantive provisions which it introduces.

46. The Committee considers that it would be preferable for the matter to be clarified given that the provision relates to criminal liability and as a corrective instrument is being made to address the other points.

47. The Committee draws this instrument to the attention of the Parliament on ground (i) as the instrument is defectively drafted in the following respects.

48. First, regulation 33 makes it an offence to fail to comply with regulation 25(5) which enables declarations to be amended when regulation 33 was intended to make it an offence to fail to comply with the prohibition on bringing any animal or product in to Scotland in breach of a declaration set out in regulation 25(4).

49. Secondly, regulation 33 provides for a “reasonable excuse” defence to the offence of signing a certificate knowing it to be false when that defence was not intended to be available.

50. Thirdly, paragraph 1 of Schedule 4 inserts a new article 18A in to the Bluetongue (Scotland) Order 2008. It is intended that any person who fails to comply with article 18A(1) or a notice served under article 18A(2) is guilty of an offence, but the way in which article 18A is drafted omits to provide for such offences.

51. Furthermore, the Committee draws this instrument to the attention of the Parliament on ground (h) as the instrument could be clearer.

52. Regulation 33 makes it an offence to fail to comply with regulation 23(3)(b) which requires an importer of a product which has been refused entry by a third country to “destroy the consignment as animal by-products”. The Committee considers that this requirement is insufficiently precise to be acceptable as the basis for imposing criminal liability for non-compliance.

53. In taking the above action, the Committee welcomes the Scottish Government’s undertaking to correct these matters by way of an amending instrument by 1 July 2012 when the instrument comes into force.

54. Given that the Government has committed to making a corrective instrument, the Committee recommends that the Government take the opportunity to address at the same time the point raised in question 1(d) on the subject matter of the offence in paragraph 5(2) of Schedule 2 and regulation 33, and the minor typographical error identified in the citation of the Animals and Animal Products (Import and Export) (Scotland) Regulations 2007 referred to in paragraph 7 of Schedule 4. .

African Horse Sickness (Scotland) Order 2012 (SSI 2012/178) (Rural Affairs, Climate Change and Environment Committee)

55. This Order implements in Scotland the provisions of Council Directive 92/35/EEC laying down control rules and measures to combat African Horse Sickness. The Directive is currently implemented through other legislation, and this Order brings all relevant provisions under the one instrument.

56. The Order is subject to the negative procedure and will come into force on 1 July 2012.

57. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 4.

58. The Committee sought clarification of the legal basis for provisions in the Order which appear to delegate power to the Scottish Ministers, when issuing declarations relating to zones, to specify that other measures are to apply. Similar powers are also given to the Chief Veterinary Officer relative to measures which may be taken following the suspicion of disease. The Committee notes that, as a general rule, the exercise of delegated powers cannot confer further powers to legislate unless that is expressly authorised by the enabling Act.

59. The Scottish Government advises that it makes these provisions using section 1 of the Animal Health Act 1981. It considers that this is a very broad power under which the Scottish Ministers can make such orders as they think fit in respect of a range of matters. These include orders for the purposes of, in any manner, preventing the spread of animal disease.

60. The Scottish Government considers that the power in section 1 extends to the setting out of a suitable framework that gives appropriate authorities an appropriate package of functions for tracking animal disease in specific cases which occur, and to those authorities being given appropriate discretion in relation to the measures which are necessary in a given case of disease.

61. While acknowledging that section 1 is a very broad power, the Committee considers that it is important to distinguish between the breadth of what is permitted to be given effect to in the Order itself and whether it is possible to reserve a discretion to the Government, or any other delegate, to prescribe further control measures of an unspecified kind by executive action. The Committee notes the general rule that sub-delegation must be expressly authorised and that there is no express grant of a power to prescribe further controls by declaration in section 1 of the Act, and it considers that in consequence the presumption against sub-delegation applies.

62. The Committee recognises the importance of the Scottish Ministers having a broad range of powers available to them given the seriousness of preventing the spread of animal disease. Those powers are afforded to them under section 1, and that is not at issue. Indeed, the Committee considers that, were the Ministers to confer a broad range of specified options for action or preventative steps from which they could select the appropriate measures to be taken in the case of declaration of a particular zone, so as to deliver the purposes described above, then this might be regarded as an acceptable delegation of an administrative action which might then be taken at a later date. In that situation, in making the declaration and implementing the necessary measures which subordinate legislation puts at their disposal, they would not be exercising a power to legislate further but selecting from measures which had been authorised by a legislative procedure.

63. Measures specified in exercise of these powers could have a direct effect on individuals and could result in criminal sanctions being applied. The discretion afforded to the Scottish Ministers is extremely wide. It appears to enable a potentially limitless range of measures to be imposed on an unspecified range of persons. Failure to comply with such a measure could result in a person committing an offence and in consequence being liable under the 1981 Act to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

64. The Committee considers that where there is the potential for criminal sanction it is essential that there is vires for those provisions, the breach of which may result in such sanctions being applied. The authority for doing so should be plain, and there should be clarity in regard to the range of persons who may potentially be liable and what might constitute action likely to result in an offence being committed.

65. Taking everything into account the Committee concludes that there appears to be a doubt whether the articles detailed below are intra vires.

66. The Committee draws this instrument to the attention of the Parliament on ground (e) as there appears to be a doubt whether the instrument is intra vires.

67. In particular, articles 17(5), 18(9) and 19(3)(b) delegate power to the Scottish Ministers to impose any other measures relating to the control of African horse sickness in certain circumstances, without specification as to the range of measures and the persons on whom these could be imposed. Articles 9(11) and 10(10) delegate similar powers to the Chief Veterinary Officer. The Committee considers that, in the absence of express provision to delegate the ability to prescribe further control measures of this kind, these provisions are of doubtful vires.

NO POINTS RAISED

68. At its meeting on 19 June 2012, the Committee also considered the following instruments and determined that it did not need to draw the attention of the Parliament to any instrument on any grounds within its remit:

Economy, Energy and Tourism Committee

Energy Act 2011 (Commencement No. 1) (Scotland) Order 2012 (SSI 2012/191 (C.17))

Justice Committee

Act of Adjournal (Criminal Procedure Rules Amendment No. 2) (Miscellaneous) 2012 (SSI 2012/187)

Infrastructure and Capital Investment Committee

Homeowner Housing Panel (Applications and Decisions) (Scotland) Regulations 2012 (SSI 2012/180) (Related correspondence in Appendix 5)

Water Services etc. (Scotland) Act 2005 (Commencement No. 6) Order 2012 (SSI 2012/192 (C.18))

Local Government and Regeneration Committee

Energy Performance of Buildings (Scotland) Amendment Regulations 2012 (SSI 2012/190)

Rural Affairs, Climate Change and Environment Committee

Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No. 4, Savings and Transitional Provisions) Order 2012 (SSI 2012/175 (C.16))

APPENDIX 1

Wildlife and Countryside Act 1981 (Exceptions to section 14) (Scotland) Order 2012 (SSI 2012/173)

On 8 June 2012, the Scottish Government was asked:

1. Section 14(2B)(a) of the Wildlife and Countryside Act 1981 (“the 1981 Act”) enables the Scottish Ministers, by order, to specify other types of animals to which subsection (1)(a)(i) or (1)(b) does not apply. Article 2(1) of the Order specifies the types of animal listed in Part 1 of the Schedule to the Order “for the purposes of section 14(2B)(a) of the 1981 Act”. It appears from the heading to Part 1 of the Schedule and from the Executive Note that the intention was to disapply subsection (1)(a)(i) as regards the types of animal listed in Part 1 of the Schedule. However, the instrument does not appear to contain any operative provision to this effect. The Scottish Government is accordingly asked to explain:

a. whether it considers that the provision made by article 2(1) effectively identifies the disapplied subsection;

b. if it does, the basis for taking that view in the absence of any operative provision to that effect.

2. The note to the Schedule provides that the common names in column 1 of the table in the Schedule are not to be taken into account in any dispute or proceedings, and are provided for guidance only. It accordingly appears that the Latin name in column 2 is the operative provision specifying the types of plant for the purposes of section 14(2B)(b) of the 1981 Act. We note the following apparent errors in the Schedule. The Scottish Government is asked to explain whether it considers that these are in fact errors. If so, it is asked to explain the effect of each error and how it intends to correct it.

c. Corn spurrey: the Latin name is given as Spregula arvensis when it appears that it ought to be Spergula arvensis;

d. Nootka cypress: the Latin name is given as Chamaecyparis nootkatensis but it appears that this tree may have been redesignated Cupressus nootkatensis;

e. Petty spurge: the Latin name is given as Euphorbia peplius. It appears that this is a reference either to Euphorbia peplus (petty spurge) or Euphorbia peplis (purple spurge);

f. Tilia cordata: the common name appears to be given incorrectly as Small-leaved ime instead of Small-leaved lime.

The Scottish Government responded as follows:

1. The Scottish Government considers that the instrument requires to be read as a whole and that there is a respectable argument that article 2(1) alongside the heading in Part 1 to the Schedule effectively identifies the disapplied section. Section 14(1)(a)(i) make it an offence for any person to release, or allow to escape from captivity, any animal to a place out-with its native range. Section 14(2B)(a) enables the Scottish Ministers to specify by order other types of animals to which subsection (1)(a)(i) or (1)(b) does not apply. The Scottish Government considers that the operative provision is the reference to section 14(2B)(a) in article 2(1) of the Order. This read alongside the reference in the heading to Part 1 of the Schedule to the Order makes it clear that the types of animal listed in Part 1 of the Schedule are the types of animal to which the offence in section 14(1)(a)(i) does not apply.

2. The Scottish Government agrees that there are typographical errors in the listing of Spergula arvensis, Euphorbia peplus and Small-leaved lime.

The Scottish Government notes that there are differences in expert opinion on the taxonomic classification of Nootka cypress. Both Chamaecyparis nootkatensis and Cupressus nootkatensis are in use.

The Scottish Government accepts that the typographical errors referred to in paragraph 2 require correction and accordingly will remedy these errors and lay an amending instrument prior to the summer recess. The Scottish Government will take the opportunity to clarify the position in relation to Nootka cypress.

APPENDIX 2

Wildlife and Countryside Act 1981 (Keeping and Release and Notification Requirements) (Scotland) Order 2012 (SSI 2012/174)

On 8 June 2012, the Scottish Government was asked:

1. Article 2 and Part 1 of Schedule 1 to the Order together bear to specify that it is an offence in terms of section 14(1)(a)(ii) of the Wildlife and Countryside Act 1981 (“the 1981 Act”) to release, or to allow to escape from captivity any animal of the species of the genus Cervus (deer) on, inter alia, the island of “Aaran”. It appears that this provision was intended to create that offence in relation to the island of Arran. Given that these provisions taken together create a criminal offence, does the Scottish Government consider that it has effectively specified the island of Arran for the purposes of that offence? If not, does the Scottish Government intend to remedy this error?

2. The note to the Schedule provides that the common names in column 1 of the tables in Parts 1, 2 and 3 of the Schedule are not to be taken into account in any dispute or proceedings, and are provided for guidance only. It accordingly appears that the Latin name in column 2 is the operative provision in the table in Part 2 specifying the types of invasive animal for the purposes of section 14ZC(1)(a) of the 1981 Act. We note the following apparent errors in the Schedule. The Scottish Government is asked to explain whether it considers that these are in fact errors. If so, it is asked to explain the effect of each error and how it intends to correct it.

a. Blaegon: the Latin name is given as Leuciscus souffia, but it appears that this fish may have been reclassified as Telestes souffia;

b. European bitterling: the Latin name is given as Rhodeus sericeus, but it appears that that name refers to the Amur bitterling and that the European bitterling is referred to as Rhodeus amarus;

c. Pikeperch: the Latin name is given as Stizostedion lucioperca, but it appears that this fish may have been reclassified as Sander lucioperca;

d. Toxostome (or French nase): the Latin name is given as Chondrostoma toxostoma, but it appears that this fish may have been reclassified as Parachondrostoma toxostoma.

The Scottish Government responded as follows:

1. The Scottish Government considers that it has not effectively specified the Island of Arran for the purposes of the offence and accordingly intends to remedy this error at the earliest opportunity and lay an amending instrument prior to summer recess.

2. The Scottish Government accepts that the species Blageon has now been reclassified as Telestes souffia; Pikeperch has now been reclassified as Sander lucioperca and Toxostome (or French nase) has now been reclassified as Parachondrostoma toxostoma. The Scottish Government takes the view that Rhodeus sericeus is still considered a valid name for European bitterling, but accepts that including Rhodeus amarus also would eliminate any room for doubt. The Scottish Government intends to lay an amending instrument prior to the summer recess which will reflect the reclassified names.

APPENDIX 3

Trade in Animals and Related Products (Scotland) Regulations 2012 (SSI 2012/177)

On 8 June 2012, the Scottish Government was asked:

1. Regulation 33 makes a failure to comply with the following provisions without reasonable excuse a criminal offence.

a. Should the reference to regulation 25(5) in fact be a reference to regulation 25(4)? If so, what is the effect of this error and does the Scottish Government propose to amend this.

b. Regulation 6(6) provides that no person may sign a certificate knowing it to be false. Can the Scottish Government explain in what circumstances it considers it would be reasonable to sign a statement which the person knows to be false?

c. Regulation 23(3) requires the importer to directly transport a consignment or destroy it “as animal by-products”. Can the Scottish Government explain what “destroy the consignment as animal by-products” requires and whether this is sufficiently clear to impose criminal liability if it is not complied with?

d. Paragraph 5(2) of Schedule 2 and regulation 33 describe the subject matter of the offence as the keeping of records but article 8 of the relevant Commission regulation also makes provision about the keeping of animals. Is each provision within article 8 intended to be covered by the offence provision and if so is this clear?

e. Paragraph 6 of Schedule 2 requires that the consignment of certain products to another member State or the bringing in of such products to Scotland from another member State must comply with article 48 of regulation EC 1069/2009. That article imposes various conditions for import and export, some of which must be carried out by the competent authority. Other requirements are not clearly stated as to who is responsible for fulfilling them, such as the sealing of containers. Can the Scottish Government explain which of the requirements must be fulfilled and by whom in order to avoid criminal liability under regulation 33 and whether this is clear?

2. Can the Scottish Ministers explain why it considers the power delegated to Ministers to suspend etc. the entry of products the Scotland under regulation 25(2) by written declaration which is intended to have legal consequences (failure to comply with it is a criminal offence) is permitted by paragraph 1 of Schedule 2 to the European Communities Act 1972.

3. Paragraph 1 of Schedule 4 inserts a new part 3A into the Bluetongue (Scotland) Order 2008 using the power in section 2(2) of the European Communities Act 1972 to do so. New article 18A(1) prohibits the export of certain products unless certain EU requirements are complied with. Is it intended that this prohibition is to be enforced by way of a criminal offence? If that is the case, how is this to be done since neither the 2012 regulations, nor the 2008 Order make it an offence. Article 18A having been made using the powers in section 2(2) of the 1972 Act would not appear to be covered by the scope of section 73 of the Animal Health Act 1981. It is that section which provides for the enforcement through the criminal law of the provisions currently in the 2008 Order which were made using the powers in the 1981 Act. If it is not intended to enforce this provision by way of a criminal offence has the EU requirement referred to been implemented effectively?

4. Is it intended that the reference to Regulation 1266/2007 in new article 18A(1) of the 2008 order is ambulatory in its effect? In order to achieve that it would appear that the defined term used in the 2008 order “Commission Regulation” should have been used, since this is what attracts the ambulatory reference but the provision does not do so.

The Scottish Government responded as follows:

1a. The reference to regulation 25(5) should indeed be a reference to regulation 25(4). The Scottish Government will bring forward an amendment to regulation 33 to correct the reference by 1st July 2012.

1b. It is accepted that the “reasonable excuse” defence in regulation 33(d) is stated too widely in that it applies to the offence of failing to comply with regulation 6(6). The Scottish Government will bring forward an amendment to regulation 33 to correct the reference by 1st July 2012.

1c. Regulation 23(3)(b) is intended to give the importer the option of destroying the consignment in accordance with the relevant legislative requirements concerning animal by-products, which are principally to be found in Regulation (EC) No 1069/2099. It is considered that the current framing of the provision would be sufficiently clearly understood in practice that it is unlikely that any significant difficulties would arise. But again, in order to avoid any risk of confusion, the Scottish Government will bring forward an amendment to regulation 23(3)(b) at the same time as the amendments mentioned above.

1d. It is intended that a contravention of any part of Article 8 of Commission Regulation (EC) No 1739/2005 is an offence. It is accepted that the parenthetical description of that provision in paragraph 5(2) of Schedule 2, and the description of it in the table in regulation 33, refer only to the keeping of records. While it is acknowledged that the description could have been framed in wider terms, it is considered that it, like all such descriptions, acts only as a signpost for the reader and does not override the fact that the provisions refer to Article 8 without qualification. Paragraph 5(2) of Schedule 2 may be usefully contrasted with paragraph 5(3), in which a reference to a single paragraph of Article 10 of the Commission Regulation is made.

1e. Paragraph 6 of Schedule 2 provides that animal by-products may only be consigned to another member State or brought into Scotland from another member State in accordance with that Article. It would be the failure to consign or bring in (as the case may be) animal by-products to which Article 48 of Regulation 1069/2009 applies in accordance with that Article which would be an offence under regulation 33. The responsibility therefore falls on the person who is consigning or bringing in such animal by-products.

2. Paragraph 1(1)(c) of Schedule 2 to the 1972 Act provides that the powers conferred by section 2(2) of the 1972 Act do not include power to confer any power to legislate by means of orders, rules, regulations or other subordinate instrument, other than rules of procedure for any court or tribunal. For the purposes of that paragraph, sub-paragraph (2) goes on to provide that a power to give directions as to matters of administration is not to be regarded as a power to legislate within the meaning of paragraph 1(1)(c).

In the present case, the Scottish Government considers that regulation 25 does not involve the conferral on the Scottish Ministers or the Food Standards Agency of a power to legislate but is instead the conferral of a power to take administrative action. A useful distinction may be drawn between the general and the particular and that a legislative act is the creation and promulgation of general rules of conduct without reference to particular cases. Regulation 25 confers power on the Scottish Ministers and the Food Standards Agency to take specific action in relation to a particular threatening disease, zoonosis, phenomenon or event arising in a particular third country (or part of a third country). In the view of the Scottish Government, regulation 25 is accordingly more properly characterised as the conferral of a power to take administrative action to deal with a particular event. It is not thought that the fact that failure to comply with a declaration is a criminal offence in and of itself means that the declaration is a legislative act, given that many functions which are clearly not legislative in character are enforced in this way.

3. It is indeed intended that a failure to comply with new article 18A(1) of the 2008 Order, or a notice served under new article 18A(2), is to be enforced by way of a criminal offence. In formulating this provision the Scottish Government has overlooked the fact that section 73 of the 1981 Act makes a criminal offence only something which is a failure to comply with a provision made in an order under that Act and, accordingly, that in order to make these provisions criminal offences under the 2008 Order it would be necessary to declare them to be offences against the 1981 Act by way of an exercise of the power conferred by section 72 of the 1981 Act. The Scottish Government is grateful to the Committee’s legal adviser for pointing this out and will bring forward an amendment to address this point at the same time as the amendments mentioned above.

4 The Scottish Government accepts that by not using the defined expression “Commission Regulation” the reference to Regulation 1266/2007 in new article 18A(1) of the 2008 Order is not ambulatory in its effect. As indicated in the preamble to the instrument, it is only the EU instruments set out in Schedule 1 which are intended to be ambulatory.

APPENDIX 4

African Horse Sickness (Scotland) Order 2012 (SSI 2012/178)

On 8 June 2012, the Scottish Government was asked:

Several provisions of the Order, for example, articles 17(5), 18(9) and 19(3)(b), appear to delegate to the Scottish Ministers the ability, when issuing declarations under those articles, to specify that other measures are to apply. Also, articles 9(11) and 10(10) appear to delegate similar powers to the Chief Veterinary Officer relative to measures which may be taken following suspicion of disease.

1. Can the Scottish Government explain the vires for these powers, which would enable further unspecified measures to be imposed, and in relation to unspecified persons, given that the enabling powers cited do not specifically permit such delegation? Further, and having regard to section 73 of the 1981 Act, what is the intended legal effect of the provisions concerned and how are they to be enforced?

2. To explain whether, in the absence of further definition, it is considered to be sufficiently clear what is meant by the term “non-captive horse”, in relation to which the Order makes provision at article 16 and elsewhere. Can it also be explained how provisions relating to the requirement to pay compensation (article 32) are to be applied given that ownership of such a horse may, presumably, be unknown?

The Scottish Government responded as follows:

1. In making these provisions, the Scottish Ministers proceed in reliance on section 1 of the 1981 Act. This empowers them to make such orders as they think fit for (among other things) the purpose of in any manner preventing the spread of animal disease. This is clearly a broad power. It is thought that these provisions are within that power. Given the nature of animal disease, it is thought that section 1 extends to the setting out of a suitable framework giving appropriate authorities an appropriate package of functions for tackling those diseases in specific cases which occur. It is further thought that section 1 extends to those authorities being given appropriate discretion in relation to the measures which are necessary in a given case of disease, given the wide range of possibilities which may be faced and the impossibility of catering for all of them, exactly, in an Order prepared in advance. The functions concerned are exercisable only within the general framework of disease control laid down by the Order in the context of a particular case in which premises have, or are to have, a particular disease control status. And they are exercisable only where the authority concerned considers that to do so would be necessary to prevent the spread of African horse sickness virus in that particular case. It is thought that this is within the power conferred by section 1 and does not amount to unauthorised delegation of that power.

It is considered that a person who failed to comply with a measure imposed under these provisions would commit an offence under section 73 of the 1981 Act. The powers in articles 9(11) and 10(10) are exercisable by way of the notice declaring the premises concerned to be “infected premises”. Article 26(2) provides that “A person must comply with the terms of any notice served under this Order”. Article 25(3) provides that “Any person on whom a restriction or other measure is imposed by virtue of article 17(5), 18(9) or 19(3) must comply with it.” It is accordingly considered that a person who does not comply with a measure imposed using any of these powers would be failing to do a thing which by the Order the person is required to do. Section 73(b) of the 1981 Act makes it an offence against the Act where a person, without lawful authority or excuse, fails to do anything which by an order of the Scottish Ministers the person is required to do.

2. Article 16 of the Order makes provision where a veterinary inspector suspects that a “non-captive horse” may be infected with African horse sickness virus. The measures which may be taken are different to the general arrangements which Part 3 makes in relation to horses which may have African horse sickness virus because of the different circumstances which are faced when a horse is not captive. For example, article 16(6)(b) confers power to “capture and detain” a non-captive horse. The Scottish Government considers that it is sufficiently clear in the context that a “non-captive horse” is one which is not living in a controlled environment but is, instead, essentially roaming free. It is thought that veterinary inspectors are well placed to make the appropriate assessment of that matter.

Article 32 places the Scottish Ministers under a legal obligation to pay compensation to the owner of a horse killed under the Order. As is pointed out, this includes non-captive horses killed under article 16. It is correct that the ownership of such a horse may, at the time of its killing, be unknown. It is considered that in these circumstances, compensation is, realistically, only payable if a person comes forward and proves the person’s ownership of the horse. It is not thought that article 32 can reasonably be read as requiring the Scottish Ministers to pay compensation where no such claim is made.

APPENDIX 5

Homeowner Housing Panel (Applications and Decisions) (Scotland) Regulations 2012 (SSI 2012/180)

On 8 June 2012, the Scottish Government was asked:

Regulation 24 specifies when a homeowner housing committee will be deemed to be properly constituted, in the absence of a member of the committee. It states that is the position, if at or after the beginning of a hearing, a member of the committee other than the chairman is absent, if the parties consent to the hearing being conducted by the chairman and the remaining member. No provision is made in the Regulations for the absence or incapacity of the appointed chairman, nor, it appears, in the 2011 Act. On the other hand, regulation 26(2)(b)(iii) provides that the document recording any decision of a committee must, in the event of absence or incapacity of the chairman, be signed by another member of the committee.

1. Is it intended that a committee would be properly constituted in the event of absence or incapacity of the appointed chairman during a hearing? If so, how do the regulations provide for this?

2. In particular is any further provision needed to clarify:

(a) (in that event) whether the hearing will be properly constituted and conducted by the two remaining members, only with the consent of the parties?

(b) which of the two remaining members in the absence or incapacity of the chair has a casting vote for the purposes of regulation 26(2)(a), which provides that where the committee are constituted by two members, the chair has a casting vote?

(c) whether a majority vote is not required in the absence or incapacity of the appointed chair, as regulation 26(2)(a) also provides for a majority requirement, unless the chair is there to make the casting vote?

The Scottish Government responded as follows:

1. It is not intended that a committee would be properly constituted in the absence of the appointed chairman during a hearing and the regulations do not therefore provide for this.

Regulation 26(2)(b)(iii) is intended, for example, to enable another member to sign a decision of a committee in the event of absence or incapacity of the chairman occurring after a hearing where the chairman was present. This reflects regulation 26(1) of the Private Rented Housing Panel (Applications and Determinations) (Scotland) Regulations 2007 (SSI 2007/173).

In light of our reply to the first question, the follow-up questions do not require to be answered.

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