Committee
Environment and Rural Development Committee, 30 Jun 2004
30 Jun 2004 · S2 · Environment and Rural Development Committee
Item of business
Subordinate Legislation
Environmental Protection (Restriction on Use of Lead Shot) (Scotland) Regulations 2004 (SSI 2004/289)
The Subordinate Legislation Committee is so concerned about the instrument that it has written to the Scottish Executive to ask that it be remade and relaid. We passed our report to the Environment and Rural Development Committee speedily in the hope that procedures would allow the committee to reconsider the instrument after the summer recess.The main point is that the instrument raises vires issues, in that the regulations do not appear to follow the parent act, the Environmental Protection Act 1990. The first question that the Subordinate Legislation Committee raised with the Executive was whether notice of the making of the regulations was published in the London Gazette as well as in the Edinburgh Gazette. That might seem to be quite a small matter, but our legal advice clearly states that the correct procedure was not followed.Secondly, the committee asked the Executive to explain what power authorises the conferral of powers and duties on the police under regulations 5 and 6. The enabling power does not appear to permit provisions of that nature to be made in the regulations. I refer members to paragraph 8 of the extract from the Subordinate Legislation Committee's 30th report, which gives the Executive's response:"The Executive considers that section 140(3)(c) of the 1990 Act allows Ministers to authorise constables to exercise powers as specified in the Regulations and in particular those set out in regulations 5 and 6. The effect of regulation 5 is to directly authorise constables in relation to those functions. Although the expression ‘authorise' is not used it is clear that that is the effect of the provision."The committee's legal advice is not in agreement with the Executive's position. In paragraph 9, we say:"The Committee reads the enabling power not as saying that the Regulations may themselves authorise persons to carry out certain functions but that the Regulations may confer powers on the Scottish Ministers or any local or other authority to authorise persons to carry out certain functions."We go on to say that it is clear that the provisions of the enabling power"specifically provide that an authorised person can be accompanied by a constable for certain purposes."An "authorised person" is therefore a person other than a police officer.In paragraph 14, we say:"there is no doubt in the Committee's mind that, in purporting to confer enforcement powers on the police, the Regulations fail to respect the enabling power and to that extent there are serious doubts as to whether they are intra vires."In its third question—I am nearly at the end now—the committee asked the Executive to explain what power authorises regulation 5(1)(a), as nothing in section 108 of the Environment Act 1995 seems to authorise providing for powers to stop and search under the regulations. That is possibly the more serious of the three issues. The word "astonishment" could be used to describe the committee's reaction to the Executive's response. The Executive appears to admit that the enabling powers do not allow it to do what it wants to do, so it has simply ignored the enabling powers and drafted the regulations to meet policy requirements.Paragraph 22 says:"A power to stop and search is not … a minor point of detail but … controversial and a severe impingement on civil liberties."The report continues:"It is … the Committee's view that not only are these provisions"undoubtedly ultra vires"but they … also breach Convention rights and in particular Article 8 of the ECHR".The Subordinate Legislation Committee draws this committee's attention to the regulations on those grounds.The fourth question that we asked the Executive was about another vires issue. Questions 5 to 9 may be less important; they concern defective drafting.
In the same item of business
The Convener:
Lab
Members have the Subordinate Legislation Committee's detailed 10-page paper on the regulations, which has just arrived. That committee met yesterday and it i...
Dr Sylvia Jackson (Stirling) (Lab):
Lab
The Subordinate Legislation Committee is so concerned about the instrument that it has written to the Scottish Executive to ask that it be remade and relaid....
The Convener:
Lab
I thank Sylvia Jackson for that clear presentation. The issues are complex, but her explanation described her committee's concerns effectively.The suggestion...
The Convener:
Lab
I thank Sylvia Jackson for her attendance, which was helpful.