- The Convener:
We move on to agenda item 2, under which we have three Scottish statutory instruments to consider under the negative procedure: the Prohibition of Keeping or Release of Live Fish (Specified Species) (Scotland) Order 2003 (SSI 2003/560); the Pig Carcase (Grading) Amendment (Scotland) Regulations 2003 (SSI 2003/565); and the Plant Protection Products (Scotland) Regulations 2003 (SSI 2003/579).
The instruments have already been considered by the Subordinate Legislation Committee, which commented only on the first instrument. Copies of the relevant extract from the Subordinate Legislation Committee's report have been circulated to members. Do members have any comments?
- Nora Radcliffe:
Does anyone know about the pig carcase grading regulations? One way of grading is to be discontinued and I meant to try to get hold of someone in the pig industry to get an explanation of the regulations. The industry can now use something called AUTOFOM but authorisation has been withdrawn for the use of an apparatus called Ultra-FOM. I wondered whether there will be difficulties with the withdrawal of that authorisation, but for all I know it could be something that has not been used for 20 years. Has the company that produced one apparatus been superseded by another?
- The Convener:
The clerk has some background information from the Executive about the consultation process that was carried out before the regulations came to us.
- Nora Radcliffe:
That would be helpful.
- Mark Brough (Clerk):
The Executive note states that the Executive wrote to the industry in August regarding the proposed amendments, and that no objections were raised.
- Nora Radcliffe:
Presumably, anyone who uses Ultra-FOM is happy to move to AUTOFOM.
- The Convener:
Yes. If you want a note on that technical point, I suspect that it would be possible to find out some information. However, it seems that there has been a consultation, and no objections were received.
- Alex Johnstone (North East Scotland) (Con):
It is interesting that, in the industry, the only issue about pig carcase grading over the years has been lack of consistency in grading. Ultimately, anything that improves consistency will be welcomed by the industry.
- Karen Gillon (Clydesdale) (Lab):
It is an optional measure rather than a compulsory measure.
- The Convener:
It is a negative instrument, so it will go through unless someone is unhappy with it. Are members content?
- Roseanna Cunningham:
Can I ask about the issue that the Subordinate Legislation Committee raised on SSI 2003/560, on live fish?
- The Convener:
Shall we finish dealing with the pig carcase regulations first?
- Rob Gibson:
I do not want to prolong the discussion, but if we are moving from Ultra-FOM to AUTOFOM, or the other way round, is there a means of withdrawing the old chemical, process, or whatever it is?
- The Convener:
None of us is an expert on the matter, but there are one or two questions. The clerk has confirmed that we have the opportunity to bring the matter back next week so that the Executive can address and clarify the points that have arisen. We can get a note from the Executive and come back to the matter next week, if members want to do so.
- Rob Gibson:
Are we intending to meet next week?
- The Convener:
We must meet formally next week; the question is for how long.
- Karen Gillon:
I recollect that industries are very quick to make representations to us whenever they think that regulations are controversial. Given that no such representations have been made, my gut reaction is that the regulations are not controversial and that we should just get on with them.
- The Convener:
The matter is in members' hands. However, a number of questions have been asked, some of which we cannot answer as we did not receive in advance the notification that would have enabled us to seek more detailed information.
- Mr Alasdair Morrison (Western Isles) (Lab):
Karen Gillon is right. If the regulations were controversial we would already have heard about them from people who are informed about them and will be directly affected by them.
- The Convener:
We can take the matter forward in two ways. We can ask for supplementary information for those members who want it or we can formally defer consideration of the regulations until next week's meeting. I suggest that we choose the first option. Do members agree?
- Nora Radcliffe:
At next week's meeting it will take only half a minute to get reassurance on the points that have been raised today. I would rather that our questions were answered before we took any decision on the regulations.
- The Convener:
I am happy to defer consideration until next week. I do not think that the matter is controversial—
- Nora Radcliffe:
I am sure that it will prove not to be, but I would feel happier if our questions were answered before we gave the nod to the regulations.
- The Convener:
As a general point, if members want to raise points of clarification or technical questions, it is good practice to notify the clerks before the meeting, so that we can get the information, or chase it up if the Executive has not supplied it. That avoids a situation in which the matter has to appear twice on our agenda. In this case, we can defer consideration of the matter, but we will not always be in a position to do so.
- Nora Radcliffe:
I apologise for not doing the homework.
- The Convener:
Roseanna Cunningham wanted to raise a point about the Prohibition of Keeping or Release of Live Fish (Specified Species) (Scotland) Order 2003.
- Roseanna Cunningham:
I am puzzling over the Subordinate Legislation Committee's report on the order, which says that the committee has doubts about whether the order is intra vires or not, which I presume is a long way of saying that the committee thinks that the order might be ultra vires—I do not know why the report does not just say that. The report mentions a definition of Scotland that refers to the Scottish Adjacent Waters Boundaries Order 1999 (SI 1999/1126) and it includes the Scottish Executive's reasons for including in the order the reference to that definition. However, the definition in the instrument itself appears to come from section 126(1) of the Scotland Act 1998, so I do not understand the Subordinate Legislation Committee's point. That committee clearly has a problem with the order, but I am not clear about what that problem is: what the committee says in its report and what the order says do not seem to marry up at all.
- The Convener:
I agree. Having read the Subordinate Legislation Committee's report on the order too, I thought that we would spend time on the matter. Our job is to consider the subject matter of the order, so it is difficult for us to do anything about the order when the key point is whether or not it is intra vires, as we are not in a position to judge that.
We have enough time available to include the order on next week's agenda, and I would like the Subordinate Legislation Committee to clarify what we should do about it. The committee's report is not helpful; it simply raises an issue and Roseanna Cunningham is right to say that the committee and the Executive seem to use different reference points.
- Roseanna Cunningham:
The issue is technical and is not related to the subject matter, so when we send questions back to the Subordinate Legislation Committee, it might be a good idea to copy them to the Parliament's legal adviser, because the question whether an instrument is ultra vires is fundamental.
- The Convener:
The clerk tells me that the Subordinate Legislation Committee receives input from the legal adviser when it considers instruments.
- Roseanna Cunningham:
We might save some time by copying our queries about the order directly to the adviser.
- The Convener:
We could ask the clerks to make the point.
- Roseanna Cunningham:
We do not want to be in the position, in two years' time, of having agreed to an order that turns out to have been ultra vires. We would look stupid.
- Karen Gillon:
We need to get back to the Executive to clarify exactly which boundaries are being talked about. I am not convinced that there is necessarily a contradiction, but we need to check. The order raises some concerns with me.
- Roseanna Cunningham:
I suspect there might not be a contradiction but—
- The Convener:
Our problem is that from reading the paperwork we do not know.
- Karen Gillon:
We should get the full papers, put the issue on next week's agenda and consider it then.
- Nora Radcliffe:
The bit that may be ultra vires is the bit that defines Scotland. If it is ultra vires, does that negate the meat of the order, which is the prohibition on keeping or releasing certain live fish, or will the order stand whether the definition is intra or ultra vires?
- The Convener:
We need to receive proper advice from the Subordinate Legislation Committee and the Executive. I cannot see how we can make a rational judgment on the basis of the information that is in front of us.
- Rob Gibson:
I do not know whether the Scottish Adjacent Waters Boundaries Order 1999 supersedes something in the Scotland Act 1998—I do not think that it would. However, I know that adjustments were made to the boundaries during the Scottish elections in 1999—a year after the Scotland Act 1998 was written. I ask to be shown on a map the boundaries that are stated in the Scotland Act 1998 and the boundaries that are delineated in the order, because we know that in certain cases the boundaries may have changed in terms of offshore jurisdiction.
- Maureen Macmillan:
That is the point that I was going to make. There was a debate about where Scottish territorial waters should be and where the lines are drawn, as the boundaries may have been different from what people expected.
- Roseanna Cunningham:
The boundaries were only for certain purposes, not for all purposes.
- Maureen Macmillan:
But I presume that the debate was about fish, and the order is about the release of fish. I wonder whether that is where the Subordinate Legislation Committee is coming from.
- The Convener:
I could let the debate go on for some time, but we need additional information. We can come back to this issue next week. The clerks have captured the range of questions. We will see whether, having received the right information, we can have a proper discussion next week.
Does anyone have any concerns about the Plant Protection Products (Scotland) Regulations 2003 (SSI 2003/579)?
- Eleanor Scott:
That is a lovely way to describe pesticides—"plant protection products".
- The Convener:
If there are no concerns, are we happy to make no recommendation on the regulations?
Members indicated agreement.
- The Convener:
We have agreement on one piece of legislation. That is good. I clarify that the other two statutory instruments will come back to us at next week's meeting.
Meeting continued in private until 12:17.