Justice 2 Committee, 18 Jan 2005

Meeting date: Tuesday, January 18, 2005

Official Report 238KB pdf

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Subordinate Legislation

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Scotland Act 1998 (Modifications of Schedule 5) Order 2005 (Draft)

I welcome the Deputy Minister for Justice, Hugh Henry, and his advisers—Robert Marshall, Jill Clark, Johann MacDougall and Ian Snedden. We are grateful to you for joining us for the item on subordinate legislation. Members have received a copy of the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 2005—oh, no; I am talking rubbish. That instrument has been withdrawn. Members have received no such thing. The minister is no doubt enormously relieved to hear that. There is only one order for approval: the draft Scotland Act 1998 (Modifications of Schedule 5) Order 2005. In accordance with the affirmative procedure, I ask Hugh Henry to speak to and move the motion to approve the order.

We welcome the opportunity to outline to the committee the background to the proposed order under section 30 of the Scotland Act 1998, which will modify schedule 5 to the act. The purpose of the order is to amend the reservation in section H2 of schedule 5 in respect of health and safety to reflect the split in policy responsibility for fire safety matters in Scotland between the Health and Safety Executive and the Scottish Executive.

As members are aware, one of the objectives of the Fire (Scotland) Bill is the revision of fire safety legislation. We are keen to maintain a consistent approach throughout the United Kingdom to fire safety requirements for premises that are not private dwellings. The fire safety regulations will be the key piece of subordinate legislation in that respect, and I understand that my officials have given an early draft of the regulations to the committee to assist with its consideration at stage 2 of the bill.

At present, several health and safety matters in respect of fire safety are reserved. However, I can report that we have been successful in securing agreement in principle—and subject to the committee's support for the order—to devolve responsibility to the Scottish Parliament for a number of fire safety matters that are presently reserved.

The reservation at section H2 of schedule 5 to the 1998 act no longer reflects the distinction between general aspects of fire safety and its more specialised and technical aspects. Although specialised and technical aspects of fire safety are the responsibility of the Health and Safety Executive—and rightly so—the policy responsibility for general aspects of fire safety has been devolved to the Scottish ministers.

Consequently, we have reached an agreement with the Health and Safety Executive, the Office of the Deputy Prime Minister and Whitehall colleagues that policy on currently reserved areas of fire safety on construction sites and special premises, as listed at 1 July 1999 under the Fire Certificates (Special Premises) Regulations 1976, would be more appropriately devolved to the Scottish ministers. The draft section 30 order that is before the committee will extend the legislative competence of the Scottish Parliament to those areas to complement the transfer of policy responsibility.

We intend that the Fire (Scotland) Bill and the associated subordinate legislation will provide a one-stop shop for all general fire safety requirements in respect of premises in Scotland that are not regarded as private dwellings. The section 30 order brings us one step closer to achieving that. Once the order and the eventual act are brought into force, the powers will be used to bring special premises and construction sites under the new fire safety regime. At that point, fire and rescue authorities and joint fire and rescue boards in Scotland will become responsible for enforcing the new legislation in respect of special premises. The authorities will already be familiar with those premises for firefighting purposes. When preparing their integrated risk management plans, they will take into account their enforcing duties and include those relating to special premises. Our intention is to continue the existing regime for construction sites whereby the Health and Safety Executive is responsible for fire safety there.

As I have indicated, the section 30 order, together with the bill, will help to ensure consistency of approach throughout the United Kingdom, subject to differences between Scottish and English and Welsh legislation, and will introduce a level playing field with regard to the impact of fire safety requirements on industry and commerce.

I hope that the committee will support the order and the welcome extension of responsibilities to the Scottish Parliament.

I move,

That the Justice 2 Committee recommends that the draft Scotland Act 1998 (Modifications of Schedule 5) Order 2005 be approved.

You have clearly explained the change that is going ahead and the functions of the Health and Safety Executive and the Scottish ministers. Will you expand on the rationale behind the new split in responsibilities? Why has the line been redrawn now, and why is it not somewhere else? Why have we not transferred more functions to Scottish ministers than the draft order proposes?

We think that the proposed balance is probably the right one. We recognise that there are matters that are better left as the responsibility of the Health and Safety Executive. We have discussed the need for consistency throughout the United Kingdom. We have tried to demarcate areas that are more related to fire policy, which the Scottish Parliament, rather than the United Kingdom Parliament, determines. Having considered our areas of general responsibility and those areas in which responsibility lies with Westminster, we think that the present proposal offers better scrutiny and accountability, while allowing us to leave in place matters that we think are best dealt with at a United Kingdom level. There are some areas that we think are best left to the Health and Safety Executive to pursue.

Who knows? Perhaps in the fullness of time, and with experience, we might start to consider taking over responsibility for other matters, but as things stand now, we think that we have arrived at a sensible balance and that our proposals represent the right thing to do.

I hear what you are saying and I understand the approach that the Executive has decided to take, but will you give us one or two examples of areas that have been left with the Health and Safety Executive and explain in detail why that is the case and what the rationale is behind the Executive's thinking? You have spoken in general terms, but will you give an example to illustrate why you think it is better for a given area to be left with the Health and Safety Executive rather than being transferred to the Scottish ministers?

Do you want me to list all of the functions that rest with the Health and Safety Executive?

No. I would like you to give us some examples of the functions that you believe would best be left with the UK body.

We have considered the issue from a positive perspective rather than a negative one and have borne in mind issues such as our legislative competence, our policy responsibilities and the areas that we can directly influence. We have sought to bring across issues relating to those areas rather than identifying, in a negative way, issues that we would not be able to take over.

For the purposes of the Fire (Scotland) Bill, we believe that we are not able to legislate on policy in relation to, for example, vessels and hovercraft, mines and buildings on the surface of mines—that is perhaps not the issue that it once was in Scotland, but there could be some on-going issues in that regard—or premises that are specified in part 1 of schedule 1 to the Fire Certificates (Special Premises) Regulations 1976, which is probably more of a specialist area than anything else.

The question is, that motion S2M-2196, be agreed to. Are we agreed?

Motion agreed to.

That the Justice 2 Committee recommends that the draft Scotland Act 1998 (Modifications of Schedule 5) Order 2005 be approved.

I thank the minister and his many supporters for attending the meeting.