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Protection of Children and Prevention of Sexual Offences (Scotland) Bill: Stage 1
I welcome the committee back for agenda item 2, which is delegated powers scrutiny relating to the Protection of Children and Prevention of Sexual Offences (Scotland) Bill at stage 1. The bill gives ministers the power to make subordinate legislation for two purposes. The first relates to sexual offences that an adult might intend to commit against a child as part of the grooming offence in section 1(5); the second relates to commencement orders, including transitional, transitory and saving provisions, which are dealt with in section 11.
We should do so for two reasons. First, I agree with Stewart Stevenson, who was here earlier, that, because the bill creates criminal offences, the statutory instruments should certainly be subject to the affirmative procedure. Secondly, it is the habit of the committee in such cases to recommend that the affirmative procedure be followed—at the very least. I think that we should make that recommendation on both those grounds.
It is not just a habit of the committee—it is a practice based on the clear understanding that we intrinsically dislike Henry VIII powers. Just a few moments ago, we heard evidence of why we should maintain that position. In practical terms, I would not want any extension of the legislation to be delayed because of the necessity for changes to go through the primary legislation process, so I am prepared to accept the use of subordinate legislation to amend the bill. However, the Executive would be surprised if we did not ask for the affirmative procedure to be followed.
Adam, are you in agreement with that?
I am, indeed.
Okay. We will write to the Executive on that point.
Charities and Trustee Investment (Scotland) Bill: Stage 1
We move now to item 3 on our agenda, which is delegated powers scrutiny relating to the Charities and Trustee Investment (Scotland) Bill at stage 1. The bill introduces a new regulatory regime for charities in Scotland and sets up a new charity regulator and a public register of charities. It contains a huge number of powers, as members can see. I hope that there will not be too much to say about many of them.
Section 6(1) is on applications and further procedure. Are members content with the legal advice on this power? It is suggested that the drafting of section 6(2)(a) be clarified in relation to section 4(d)(i). A similar issue arises with section 54(2)(d)(i). It is suggested that we should write to the Executive on those points. Do members wish to raise anything else?
It looks as if no points arise in relation to section 9 and section 15(1). Do we agree that they should go as they are?
Section 19(4) and section 19(8) are on removal from the register and protection of assets. It has been pointed out that the power in section 19(8) allows ministers, by order, to oust the jurisdiction of the court. Members have quite a bit more information about that in the brief. It is suggested that the subsection could be drafted differently and that we could write to the Executive to ask for further clarification on the use of the delegated power.
As we continue through the brief, we come to a list of subsections for which no issues appear to arise in relation to the powers. Section 23(2) is on entitlement to information about charities; section 25(3) is on the removal of restrictions on disclosure of certain information; section 35(1) is on transfer schemes; section 40(2) is on applications by a charity to reorganise; section 45(4) is on accounts; and section 48(1) is on procedure and interpretation in relation to dormant accounts of charities. Do we agree that no points arise?
Section 50(3) is on the constitution and powers of Scottish charitable incorporated organisations. Page 9 of the legal brief raises a few points. We are asked to consider whether section 50 provides a sufficient framework and whether there are "bones"—as the legal advice puts it—on which to put the flesh. It is probably okay, but I would like to hear members' views.
I think that we should be content with it as it is.
On balance, the legal advice is that it is okay.
Section 52(1) is on the name and status of SCIOs. It seems to be fine.
Section 63(33) is on regulations relating to SCIOs. Again, it seems fine.
Section 82(1) is on regulations about fundraising. The legal advice is that we should write to the Executive on two issues. Our brief asks us to consider
Sections 85(5)(d) and 85(10) are on local authority consents. The brief suggests that there are so many powers that this particular one might have been dealt with in a circular rather than in the bill. That is simply a point to be raised, rather than a recommendation to be made to the Executive.
It might be appropriate to put a line in asking the Executive about that point.
We could do that to make the general point and to say that that could have been a possibility for that section.
That would show the Executive that our legal advisers are as alert as ever.
Absolutely. The next few sections seem to be okay. Section 89(1) concerns regulations in relation to public benevolent collections. Section 90(1) concerns the collection of goods. Section 94(1) concerns the power to amend enactments. Are we agreed that those sections are acceptable?
We now move on to section 97(2), on transitional arrangements. Section 97(3) seems to be fairly sweeping and would appear to allow ministers to disapply any provision of the act in relation to any body or charity without limit of time. It is suggested not only that we might write to the Executive about that but that we might ask why it is not thinking of a cut-off date. Is that agreed?
Section 100, on ancillary provision, seems okay.
Section 104(2) is on the short title and commencement. If you look at your briefing paper, you will see the suggestion that, in order to be consistent with section 97, which is commenced on royal assent, section 103 ought also to be commenced on royal assent. If the bill does not also commence section 103 on royal assent, there ought not to be a reference to section 103 in section 97. It is a point of consistency. Is it agreed that we should write to the Executive about that?
All the other delegated powers seem to be okay, but I shall list them for the record. They are paragraph 1(3)(e) of schedule 1, and paragraphs 1(3)(d) and 4(1) of schedule 2. Do they seem okay?
Water Services etc (Scotland) Bill: Stage 2
We now move on to the Water Services etc (Scotland) Bill, as amended at stage 2. You will recall that there were a number of areas about which we had quite considerable reservations. We reported them to the relevant committee, which also had concerns. Considerable changes have been made as a result, you will be glad to hear. The first of those changes affects sections 4(7) and 5(7). The Executive added new subsection (8A) to section 4 at stage 2. As explained in the subordinate legislation memorandum, that new subsection qualifies the regulation-making powers that are provided for at sections 4(7) and 5(7), to address the issues that we and the lead committee raised at stage 1. Are members happy with that?
The second change is the introduction of section 12(3A), on the undertaking of water and sewerage services. The Executive indicated in its response to the committee's stage 1 report that it was considering ways of addressing our concerns. The new subsection can be seen to fulfil that undertaking and our legal advisers certainly seem happy with it. Is that agreed?
Subsections (1), (2) and (6) of new section 12A concern financing, borrowing and guarantees. The Executive cites flexibility as the principal justification for the delegated powers in that instance. It considers that the scrutiny that is available under the negative procedure, together with the additional safeguards in subsections (3) and (7), provides sufficient control over the exercise of power. However, there could be an argument as to whether the power under section 12A—particularly as it concerns financial matters—should be affirmative or not. On balance, our legal advice is that the current position is okay. Do members agree?
We shall leave that as it is. We now move on to section 17A(8), on continuation and discontinuation of sewerage services. New section 17A provides for the circumstances in which trade effluent services may be continued or discontinued. The power is similar to the power in section 16(3), regarding the notice of discontinuance of water services. Are members happy with that change?
We move on to subsection (1) of new section 19B, which seeks to give Scottish ministers the power to make an order that contains a code of practice on the assessment, control and minimisation of sewage nuisance. If I remember correctly, our legal advice is that no points of substance arise on this matter and that we should simply draw the Executive's attention to certain drafting points through an informal letter. Are members agreed?
We move on to section 20(3). Members will recall that we raised a point about the definition of "dwelling". However, of all the points that we brought to the Executive's attention, it was the one that we were least worried about. Our legal advice suggests that the Executive's approach is okay and that the point is perhaps not worth pursuing, but I want to ensure that members agree with that course of action. Are members agreed?
It shows what reasonable people we are.
As ever.
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