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Good morning. This is the 12th meeting of the Subordinate Legislation Committee. The first item on the agenda is the delegated powers scrutiny of the Ethical Standards in Public Life etc (Scotland) Bill. Last week we made representations on the bill to the Executive, from which we received a response. We are joined today by Trudi Sharp, John Paterson and Joanne McDougall of the Executive, who may wish to make additional comments before members put questions to them.
My name is Trudi Sharp and I am the bill team leader. I hope that that the letter that we sent to the committee clerk has been helpful in setting out the Executive's position on the subordinate legislation under the bill. My colleagues and I will be happy to answer your questions and to report to ministers anything that members wish to say.
We have a concern about section 7, which relates to the standards commission for Scotland. The section permits the Executive to add duties to the functions of the commission that are set out in the bill. The committee is concerned about the lack of opportunity for parliamentary scrutiny of the exercise of that power.
We envisage that the power will confer additional functions relating to the conduct of members of councils and devolved public bodies. We expect that those functions will be at the margins rather than huge new areas. For example, ministers might want to require the commission to inspect the registers that will be set up under section 6.
The power seems to be very widely drawn. There is a parallel with those provisions in the Standards in Scotland's Schools etc Bill that confer powers to the Executive in relation to the General Teaching Council. Those provisions allow the Executive to require the GTC to set up new committees but do not give any indication of how and in what circumstances those powers would be used—they would be blanket powers. That is a comparative illustration.
Section 7(2)(b) states that the power would relate to the
Section 50 of the Standards in Scotland's Schools etc Bill confers on ministers the power to require further committees to be set up and to specify who will be members of those committees.
Why does section 22(3), which provides for adjustments to schedule 3, adopt a negative rather than an affirmative procedure?
Section 23 relates to restrictions on legislation governing the conduct of members. The power is necessary to ensure that any statutory provisions or other pieces of legislation are consistent with the provisions of the bill. We envisage that that power will be transitory. It will allow a changeover from the current schemes that may apply to members of devolved public bodies to the arrangements that are provided for under the bill.
Do you accept that there would be no great inconvenience if an affirmative procedure were used?
Our position is that it would be unnecessarily onerous to make this procedure affirmative. Section 22(2) provides that ministers can add bodies to the list of bodies that are subject to the standards commission. Section 22(3) allows for amendment of existing legislation to facilitate the integration of those bodies into the scheme of the bill.
I understand that, but why would there be an increased work load if the procedure were affirmative rather than negative?
There would be an increased work load for Parliament rather than for officials.
Another concern that has been identified for the committee is about section 16, "Hearings before Commission". The section deals with disciplinary action against or investigation into councillors or members of devolved public bodies. Where legislation provides for a form of disciplinary procedure, there is usually a provision requiring rules to be made on the detail of the procedure for the hearings. In the present instance there is no requirement for rules to be in place before a hearing. That strikes me, as a lawyer, as rather odd.
Section 16 provides that the standards commission will broadly—within the constraints that are set out in the section—be able to decide on its own procedures. In effect, once it has done that, it will have rules of conduct. As we said in our response to the committee, we think that the flexibility for which the bill provides is appropriate.
That precedent was drawn to our attention. Of course, it is 30 years old. Your answer seems to indicate that there could be disciplinary hearings without there being written rules that could be promulgated to the person facing the disciplinary action. Do you think that that would comply with the European convention on human rights?
The commission would be expected to draw up broad rules for hearings. In section 16, subsections (2) to (9) set out the fundamental rules that will apply to hearings of the commission, and subsection (1) allows for a degree of flexibility. It is felt that it would not be appropriate to draw up, or to have the standards commission draw up, long, detailed rules that are similar to sheriff court rules, which seek to provide for every possible circumstance. The standards commission will be expected to draw up its own rules of procedure for hearings, but it will be able to finesse them in particular hearings.
I appreciate that there are difficulties and that the standards commission may not hear many cases. I am not without experience of having been disciplined and I think that I can safely speak for anyone in that situation by saying that one is acutely aware of the rules of natural justice. Any matter that goes before the standards commission would be bound to be a matter of huge controversy and probably public interest—it would therefore be a matter of sensitivity. That is why I emphasise the need to establish compliance with rules of natural justice by putting in place properly promulgated rules, rather than having no rules, or having a set of rules that can be finessed—that does not seem desirable in the public interest.
I recognise that we are here to answer rather than to ask questions, but I wish to ask one question of clarification. You speak about the need to have agreed rules. Would it be appropriate for the commission to write those rules, or should they be statutory and provided for by subordinate legislation?
I am no constitutional lawyer and am certainly not the Executive. I would have thought it desirable that rules were prepared by the Executive in consultation with members of the standards commission. Any body that draws up its own rules has a desirable flexibility, but it may be shoring up difficulties and dangers for itself if those rules are adjudged later to be in any way unfair to those to whom justice is being dispensed. Therefore, it would be sensible if the rules were drawn up by the Executive. We have rules for governing disciplinary bodies. The Executive must have a great pool of precedent from which to draw in order to carry out the difficult task of establishing a fair set of rules for a new body that is seized with responsibility for a new task.
I concur with Fergus. My experience of dealing with industrial tribunals is that, in the interests of natural justice, they would look unfavourably on a major employer that did not have clear rules or did not follow rules in a disciplinary case. We are yet to see Executive amendments on an appeals procedure, so we do not know what it will be like, but I imagine that anyone who is accused of a misdemeanour under the bill would understand the rules clearly and that the rules would be applied fairly and consistently. It would be desirable if the Executive were to put such rules in place.
We shall take receipt of your views and consider them.
Do you see any ambiguity between section 23(1) and section 23(3)? The bill seems to suggest that no further legislation is necessary, yet subsection (3) gives the power to make modifications.
Subsection 23(1) relates to a provision of an enactment or instrument, whereas subsection 23(3) appears to relate to consistency with the members' code.
It might be easiest if we take this matter away and look at it properly, and then write to the clerk.
Do committee members have any more questions?
We appreciate the difficulties and the complicated nature of the matter. You acknowledged several times in your letter that there were problems and that they would be examined. Please do not feel that we are trying to get at you; we want only to explore the nature of the difficulties.
Thank you very much for coming. The committee will consider what we have heard and report on it.
I was heartened by the fact that the witnesses seemed to be taking serious note of the points that were raised and that they will mull them over. The lead committee should pursue the points that have been raised by members.
It was during Fergus Ewing's line of questioning that I started to recognise the significance of section 16. I am also a member of the Local Government Committee, and that committee has been pursuing issues such as natural justice and rights of appeal. This committee should probably draw the issues surrounding section 16 to the attention of the Local Government Committee—the lead committee—because they relate to questions of natural justice and to the process as a whole.
On section 22(3), although I appreciate the Executive's endeavour not to overburden the committee unduly, I would prefer that the decision was for this committee and that the affirmative rather than the negative procedure was used. Although I take cognisance of the fact that the Executive is saving us from onerous tasks, this should be a matter for us. I would prefer to draw to the lead committee's attention the fact that the committee would prefer the use of the affirmative procedure, which would enable us to handle things more simply. Do members concur?
Section 23 has been taken away for consideration, as it were. In it there is a possible ambiguity, which will be reflected on. The other matters pertaining to the Ethical Standards in Public Life etc (Scotland) Bill were addressed in the written response.