Delegated Powers and Law Reform Committee

Meeting date: Tuesday, January 31, 2017

Official Report 339KB pdf

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Digital Economy Bill

Item 7 is consideration of the Digital Economy Bill legislative consent memorandum. The bill is a United Kingdom Parliament bill that was introduced in the House of Commons in July 2016. It contains a wide range of measures, including measures to provide a broadband universal service obligation for the UK, to grant additional powers to Ofcom in respect of information provision and to grant powers to share data between public authorities. The bill confers a few powers on the Scottish ministers.

The committee has been afforded very little time—this meeting—to scrutinise the powers in the bill and particularly to scrutinise the broad and complex powers that part 5 proposes to confer on the Scottish ministers. To meet agreed timescales, the committee is asked to agree its conclusions on the LCM today.

It is worth noting that the House of Lords Delegated Powers and Regulatory Reform Committee published its 13th report of session 2016-17 on the powers that are contained in parts 5 to 7 of the bill, which we may wish to bring to the attention of the Scottish Parliament’s Rural Economy and Connectivity Committee, which is the lead committee for the LCM.

10:30  

In part 5, clauses 30(2), 30(6), 38(2)(a), 38(2)(c) and 38(3) include powers that are conferred on the Scottish ministers to make regulations to specify persons who may disclose information in relation to public service delivery and to specify objectives for which information may be disclosed. Does the committee agree to draw to the attention of the Rural Economy and Connectivity Committee the conclusions that are in paragraphs 24 to 27 of the House of Lords report? They were as follows:

“the authorities or descriptions of authorities who are to be ‘specified persons’ should be listed on the face of the Bill; and ... Ministers should not have power to add any public authority, or description of authority, but only those authorities engaged in the provision of the types of public service specified in the Bill. Only in these circumstances would we regard as appropriate a Henry VIII power allowing Ministers to amend the list in the Bill, recommended above, by affirmative procedure regulations ... It also follows that Ministers should not have power to specify very generalised objectives under clause 30(6) … They should instead be required to specify closely delineated objectives which can be properly scrutinised by Parliament.”

The House of Lords committee also said:

“We are also deeply concerned about the power to prescribe as a ‘specified person’ a person ‘providing services to a public authority’ (see clause 30(3)(b)) … We recommend that clause 30(3)(b) should be removed from the Bill, unless the Government can explain to the satisfaction of the House why it is needed and what safeguards are in place to prevent its misuse.”

Is the committee agreed on those points?

Members indicated agreement.

In part 5, clauses 31(4), 38(2)(b), 38(2)(c) and 38(3) include powers that are conferred on the Scottish ministers to make regulations to amend the list of permitted recipients of information from specified persons for use in connection with fuel poverty support schemes. Those clauses also amend the second condition that must be met for the disclosure of information to gas and electricity suppliers for fuel poverty purposes. Does the committee agree to draw to the attention of the Rural Economy and Connectivity Committee the conclusions that are in paragraphs 32 and 33 of the House of Lords report? They were as follows:

“As regards the power to add new persons or descriptions of persons in subsection (1), the memorandum explains that it is needed so as to enable ‘the list to be kept up-to-date with the persons that are required to deliver fuel poverty support or to administer, monitor and enforce the scheme’. We recommend that the power, which is drafted in very broad terms, should be amended so as to reflect the narrow policy intention set out in the memorandum.

The power to amend subsection (3) is also an open-ended one. It is justified in the memorandum on the basis that it would ‘enable the fuel poverty schemes to be updated should the statutory framework for the existing schemes change, or new frameworks for support schemes be created’. We consider that this power too should be amended in order to reflect that narrow policy intention.”

Are members agreed on those two points?

Members indicated agreement.

In part 5, clauses 41(4) and 48(2) include a power to make regulations to specify persons who may disclose information in relation to debt that is owed to the public sector. Does the committee agree to draw to the attention of the Rural Economy and Connectivity Committee the conclusions that were in paragraph 59 of the House of Lords report? They were as follows:

“the public authorities should be listed on the face of the Bill, as we do not consider it appropriate for Ministers to have the power to decide by delegated legislation which authorities should be entitled to disclose or receive information under this potentially far-reaching and broadly-drafted gateway ... Ministers should not have power to add any public authority, or description of authority, but only those authorities which they can show, by reference to particular criteria specified in the Bill, have difficulty in recovering debt. Only in these circumstances would we regard as appropriate a Henry VIII power allowing Ministers to amend the list in the Bill, recommended above, by affirmative procedure regulations; and ... the power to prescribe a person who provides services to a public authority as a ‘specified person’ should be removed from the Bill, unless the Government can provide a convincing explanation for its inclusion which, we note, is entirely absent from the memorandum.”

Does the committee agree to those points?

Members indicated agreement.

In part 5, clauses 49(5) and 56(2) include a power that is conferred on the Scottish ministers to make regulations to specify persons who may disclose information in relation to tackling fraud against the public sector. Does the committee agree to draw to the attention of the Rural Economy and Connectivity Committee the conclusions that were in paragraph 77 of the House of Lords report? They were as follows:

“the public authorities entitled to disclose or receive information under clause 49 should be listed on the face of the Bill ... Ministers should not have the power to add any public authority, or description of authority, but only authorities which they can show, by reference to particular criteria specified in the Bill, are involved in taking action in connection with fraud against a public authority. Only in these circumstances would we regard as appropriate a Henry VIII power allowing Ministers to amend the list in the Bill, recommended above, by affirmative procedure regulations; and ... the power to prescribe a person who provides services to a public authority as a ‘specified person’ should be removed from the Bill, unless the Government can provide a convincing explanation for its inclusion.”

Does the committee agree to those points?

Members indicated agreement.

Does the committee agree to draw to the Rural Economy and Connectivity Committee’s attention three further delegated powers provisions that are not powers to make subordinate legislation conferred on the Scottish ministers, as contained in annex B to the LCM, but which are other delegated powers in the bill that affect Scotland?

Members indicated agreement.

In addition, does the committee agree to highlight in our report our concerns about the very limited time that the committee has had to consider the LCM?

Members indicated agreement.

That concludes the public part of the meeting.

10:38 Meeting continued in private until 10:49.