9th Report, 2013 (Session 4): Subordinate Legislation

SP Paper 259 (Web Only)

SL/S4/13/R9

9th Report, 2013 (Session 4)

Subordinate Legislation

Remit and membership

Remit:

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

(a)

(i) subordinate legislation laid before the Parliament;

(ii) any Scottish Statutory Instrument not laid before the Parliament but classed as general according to its subject matter;

and, in particular, to determine whether the attention of 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;

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Nigel Don (Convener)
Jim Eadie
Mike MacKenzie
Hanzala Malik
John Pentland
John Scott
Stewart Stevenson (Deputy Convener)

Committee Clerking Team:

Clerk to the Committee
Euan Donald

Assistant Clerk
Elizabeth White

Support Manager
Daren Pratt

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 29 January 2013, the Committee agreed to draw the attention of the Parliament to the following instrument—

Bovine Viral Diarrhoea (Scotland) Order 2013 (SSI 2013/3).

2. The Committee’s recommendations in relation to the instrument 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 NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE

Bovine Viral Diarrhoea (Scotland) Order 2013 (SSI 2013/3) (Rural Affairs, Climate Change and Environment Committee)

4. This Order restates with amendments the Bovine Viral Diarrhoea (Scotland) Order 2012. The 2012 Order introduced requirements on keepers for the mandatory annual screening for bovine viral diarrhoea (“BVD”) of breeding cattle herds and bovine animals, as part of the Scottish BVD eradication scheme. It also required the keepers of non-breeding herds to test any calves born. Under the 2012 Order, a first screening test was required by 1 February 2013, with intervals thereafter of up to 13 months between tests.

5. The Order is not subject to any parliamentary procedure and comes into force on 9 February 2013.

6. In considering the instrument, the Committee asked the Scottish Government for explanation of a matter in connection with articles 9 to 12. The correspondence is reproduced in Appendix 1.Articles 9 to 12 of the Order contain provisions requiring the keeper of a “breeding herd” or “breeding bovine animal” to take and submit samples to test for BVD virus. A “breeding bovine animal” is defined in article 2 as a breeding animal which does not form part of a herd. However paragraphs (a) to (f) of article 11(2) (which list the permissible types of sample that may be taken) all refer to samples from animals “in the herd”, or in a “separately managed group”, which is defined as a group within a breeding herd. None of those paragraphs make reference to animals which do not form part of a herd.

7. The Scottish Government has acknowledged in its response to the Committee that the Order does not implement the intention to provide for the sampling obligations of the keeper of a breeding bovine animal which does not form part of a herd. An amending instrument has been laid on 28th January to remedy this.

8. The Committee draws the instrument to the attention of the Parliament on reporting ground (i) as the drafting appears to be defective. Articles 9 to 12 purport to place requirements on a keeper of a breeding bovine animal which is not part of a herd to take and submit to approved laboratories samples to test for bovine viral diarrhoea virus. Article 11(2) specifies sampling requirements only in relation to breeding herds. Accordingly the Regulations do not implement the policy intention that sampling requirements should also be specified for the animals which are not part of herds.

9. The Committee notes, however, that the Scottish Government has laid an amending instrument to remedy this. Those provisions shall also come into force on 9 February 2013, together with the provisions in this Order.

NO POINTS RAISED

10. At its meeting on 29 January 2013, the Committee considered the following instruments and determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:

Infrastructure and Capital Investment Committee

Scottish Road Works Register (Prescribed Fees) Regulations 2013 (SSI 2013/8)

Rural Affairs, Climate Change and Environment Committee

Less Favoured Area Support Scheme (Scotland) Amendment Regulations 2013 (SSI 2013/9)

Parliament

Local Government Finance (Scotland) Order 2013 [draft]

APPENDIX 1

Bovine Viral Diarrhoea (Scotland) Order 2013 (SSI 2013/3)

On 18 January 2013, the Scottish Government was asked:

Articles 9 to 12 contain provisions requiring the keeper of a “breeding herd” or “breeding bovine animal” to take and submit samples to test for “BVDV”. A “breeding bovine animal” is defined in article 2 as a breeding animal which does not form part of a herd.

However paragraphs (a) to (f) of article 11(2) (which list the permissible types of sample that may be taken) all refer to samples from animals “in the herd”, or “separately managed group”- which is defined as a group within a breeding herd. None of those paragraphs make reference to animals which do not form part of a herd.

Please explain therefore how the Order makes provision for the taking and submission of types of sample by the keeper of a “breeding bovine animal” which does not form part of a herd, given the apparent absence of provision in article 11(2), or could this be clearer?

The Scottish Government responded as follows:

The policy intention was to provide for the sampling obligations of the keeper of a breeding bovine animal which does not form part of a herd, just as was the case under the Bovine Viral Diarrhoea (Scotland) Order 2012 which the Bovine Viral Diarrhoea (Scotland) Order 2013 (“the 2013 Order”) replaces.

However, having considered the Committee’s comments (for which we are grateful), we accept that, as currently drafted, the relevant provisions in article 11(2) of the 2013 Order refer to sampling only in relation to breeding herds.

That being the case, we are bringing forward an amendment as a matter of urgency, to clarify the sampling obligations in their application to keepers of breeding bovine animals not forming part of a herd. The intention would be to have those provisions in force on 9 February at the same time as the 2013 Order.

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