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Subordinate Legislation Committee, 27 Mar 2007

27 Mar 2007 · S2 · Subordinate Legislation Committee

Item of business

Executive Responses

National Health Service (Travelling Expenses and Remission of Charges) (Scotland) Amendment Regulations 2007 (SSI 2007/225)

Maxwell, Stewart SNP West of Scotland Watch on SPTV

I agree with Ken. There are a couple of issues.First, despite the fact that I agree with the fairness argument—in this case, in the effect on students—we can never claim that when we are being fair to somebody we are not being unfair to somebody else. I am not sure that the Executive's argument holds water. In the previous cases, with civil legal aid regulations, the argument was about fees. At the end of the day, it was the taxpayer who had to fund those fees, so were we being unfair to the taxpayer when we were being fair to those involved? It is not logical to say that the fairness argument holds. It may be that nobody will challenge it legally, but I believe that there is a difficulty in the logic of the Executive's argument.My second point is that, even if we accept that the Executive is trying to do the right thing, once it brings about uncertainty in the law it creates difficulty. People should be able to expect that the law will be certain at any one time, and we should be cautious about the idea that the Executive can come along later and introduce retrospective legislation when nothing in the original act provides that it can do so. If there is such a provision, that is fair enough—people will expect it to happen. However, when there is no such provision, they would not expect it to happen. An Executive taking a power to apply retrospectively something that is not in the original act is a dangerous road to go down. It opens up all sorts of possibilities. Even if we agree with the policy intention in the four cases so far, I am concerned that we will end up in a situation in which the procedure has become the norm and that future Executives could say that there is precedent. My concern is general; it is not about the policy intention, but about using the powers in that way.