Delegated Powers and Law Reform Committee

Meeting date: Tuesday, September 5, 2017

Official Report 319KB pdf

Gender Representation on Public Boards (Scotland) Bill: Stage 1

Item 6 is consideration of the committee’s approach to the scrutiny of the delegated powers in the bill at stage 1. This is an opportunity to identify matters that the committee might wish to raise with the Scottish Government in relation to the delegated powers contained in the bill.

The bill’s policy objective is to increase the representation of women on public boards in Scotland. It contains three delegated powers, and it is suggested that the committee raise questions on the powers in section 8, which enables the Scottish ministers to make regulations to modify schedule 1 by adding or removing an entry of a public authority that is caught by the bill’s requirements or by varying the description of such an entry, and on section 11(2), which authorises the Scottish ministers to modify the bill when making regulations under section 8.

Regulations that are made under section 8 will be subject to the negative procedure. A useful comparator is the Freedom of Information (Scotland) Act 2002, which provides for a different approach. Section 4 of that act includes a power that allows the Scottish ministers by order to add or remove the public authorities listed in schedule 1 to which the right of access to information applies. Such an order is to be made under the negative procedure, except in particular circumstances in which the affirmative procedure applies by virtue of section 7 of that act. Those circumstances are when regulations list the authority only in relation to information of a specified description.

First, does the committee agree to ask the Scottish Government to explain why it is necessary for section 11(2) of the bill to provide the power to modify the bill as a whole, instead of the power being limited to amending schedule 2 in relation to its application to particular public authorities? In particular, can the Scottish Government provide examples of when it would be necessary for regulations made under section 8 to modify a provision in the bill other than schedules 1 and 2?

Secondly, does the committee agree to ask the Scottish Government whether, bearing in mind the approach taken to the regulation-making powers in sections 4(1) and 7(1) of the Freedom of Information (Scotland) Act 2002, it would be appropriate for regulations made under section 8 of the bill to be subject to the affirmative procedure when those regulations make any provision in the second column of the table in schedule 1 to exclude certain positions in a public authority from the bill’s requirements?

Thirdly, regardless of whether section 11(2) is limited to making modifications to schedule 2 rather than the bill as a whole, does the committee agree to ask the Scottish Government whether, given that the exercise of such a power in regulations made under section 8 would amend primary legislation, it would be more appropriate for the affirmative procedure to apply?

Members indicated agreement.