Subordinate Legislation Committee, 01 Nov 2005

Meeting date: Tuesday, November 1, 2005

Official Report 235KB pdf

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Delegated Powers Scrutiny

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Management of Offenders etc (Scotland) Bill: as amended at Stage 2

Any minor points that arise during our scrutiny of bills and instruments will be picked up together and put in an informal letter.

First, we come to the Management of Offenders etc (Scotland) Bill, as amended at stage 2. Members will remember that we raised two matters with the Executive. The first of those related to section 7(2), on the transfer of functions to the community justice authorities. The committee noted that the bill had been amended at stage 2 to include a duty on ministers to consult relevant local authorities and community justice authorities before laying a draft order before the Parliament. We suggested that that should be so and the Executive has said that it will do it, but we wondered why there had been a turnaround. The Executive's reply states that it had regard to the comments that we made and to other feedback, and considered that a turnaround was appropriate.

The second point related to section 11(1B), which seeks to introduce new section 1AA, on the release of certain sexual offenders, into the Prisoners and Criminal Proceedings (Scotland) Act 1993. Stewart Maxwell raised a point of clarification on that last week.

There seemed to be some dubiety about which section of the bill would be affected by what we had in front of us. I was concerned that it would affect the part to do with home detention curfews. However, on further examination, and with the helpful explanation from the Executive, it is clear that that is not the case and that it is a policy issue, which does not apply to this committee's work. I am happy with that now.

Members will see a letter that we received from Cathy Jamieson on this week's stage 3 debate on the Management of Offenders etc (Scotland) Bill. She has given us advance notice of an amendment about a new power. Does the committee have any concerns about that?

I have no particular concerns about the power that has been suggested. I am slightly concerned, however, about the late notification of the amendment. The stage 3 debate is this Thursday afternoon, and we have been handed the letter on the matter only now. That does not give us any time to examine the new proposal in any detail—or at all. Having inspected the proposal briefly, I think that the power looks okay, apart from that.

I am assuming that negotiations on the matter were on-going in the course of stage 2. I welcome the proposal in as much as we have found out about it before the stage 3 debate. I see your point, however. I am assuming that the need for the power was established very late in the day.

I, too, suspect that the Executive did not know until recently that it needed the power. It presumably thought that the inspectors could co-operate without such a specific power. Having discovered that it was required, the Executive was forced to take action speedily.

Absolutely. We can certainly listen to the stage 3 debate on the power. I am sure that any one of us can jump up and ask relevant questions.

In any case, I think that we can say that we welcome the power.

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Human Tissue (Scotland) Bill: Stage 1

Members will recall that we wrote to the Executive to clarify a number of points. The first of those related to section 15, which deals with restrictions on transplants involving live donors. The committee considered that, because of the wide power taken under section 15(3) and the sensitivity of the issue, affirmative procedure rather than the negative procedure was appropriate. The Executive has now agreed with the committee. I am sure that we are pleased about that.

Members indicated agreement.

Section 16 is headed "Records, information etc.: removal and use of parts of human bodies for transplantation etc.". The committee questioned whether the powers in section 16(1)(a) would provide sufficient vires for any relevant confidentiality provision in regulations made under section 16. The Executive has indicated that it is currently considering the issue of confidentiality in relation to the bill generally and that, if it considers that a specific confidentiality provision should be included, it will lodge a suitable amendment at stage 2. I suggest that we simply keep an eye on the situation and await developments at stage 2.

Members indicated agreement.

There are two further issues that came together, concerning section 35(2)(c), on the use of organs no longer required for procurator fiscal purposes, and section 43(2), on the use of organs removed before the day on which section 35 comes into force. We were concerned about the width of those powers.

The Executive response confirms that the only bodies that it currently intends to specify in regulations made under those provisions are research ethics committees and that it is not aware of any other body that could be specified, either at present or in the foreseeable future. Are members content with the information that has been provided, or do you still think that the power is rather wide, and that the issue should be reported to the relevant committee on that basis?

I am split between two thoughts on this. I accept the Executive's argument about flexibility, which is entirely reasonable. The name of the type of body might change. Things do change over time, and it is not unreasonable to have some flexibility to cover that. There is no doubt that the power is very wide, and that point still holds good. Our previous concern was that there was effectively no barrier to self-approval of research. Our legal brief states:

"there is no requirement in the bill for the body approving research to be at arm's length from the person seeking to carry out the research."

That is a relevant point. We should at least make the lead committee aware of our concern.

Yes. We have asked for information but we still think that there is some concern. We can pass on the relevant information from the Executive. Is that agreed?

Members indicated agreement.

There is a general point on part 3 of the bill. We were unable to ascertain what, if any, sanctions exist for failure to comply with the requirements of part 3. We also asked about parts 1 and 2. From reading the Executive's response, the position on what sanctions will apply for the retention and use of body parts in the circumstances that are described in part 3 does not seem clear. I do not know whether other members of the committee share that view.

I think that we should draw the matter to the attention of the lead committee. Part 2 of the bill relates specifically to the removal of tissue or body parts during a post mortem that a procurator fiscal has instructed to be carried out but, as many of us will know, it was the retention of body parts after a post mortem that caused concern prior to the introduction of the bill. There is no doubt that the Executive wishes to address the issue, but the bill will give rise to an anomaly. I have no wish to over-penalise someone who may breach the law as it is described in part 3 of the bill, but it seems inconsistent or anomalous to have quite severe sanctions for failure to comply with parts 1 and 2 of the bill and to have none for failure to comply with part 3.

Is it agreed that we highlight the matter to the lead committee?

Members indicated agreement.

Section 47 concerns the "Power to prescribe forms and descriptions of persons who may act as a witness". We were unclear whether it would be mandatory for forms to be used when they were prescribed or whether their use would be optional. The Executive has accepted that the bill does not accurately reflect the policy intention and will ensure that the necessary amendment is made at stage 2. I think that we are happy with that.

Our concern on section 48(13) related to the new sections 8A(2)(a) and 8A(2)(b) that it seeks to insert in the Anatomy Act 1984. The Executive was asked for clarification of the intention behind the drafting of section 48(13) because it implies that failure to observe the provisions in the code of practice could be an offence. The Executive has explained that although there is no statutory duty to observe any provisions in the code, failure to do so may be important to other civil and criminal proceedings. Are we content with that?

Members indicated agreement.

Section 50(1) is on the power to give effect to Community obligations. We asked the Executive why it was decided to take a specific power for that purpose, rather than to rely on section 2(2) of the European Communities Act 1972. The Executive's explanation is that although it accepts that the inclusion of a power to make regulations under section 50(1) is merely a confirmation of the general power, in the light of the on-going issues surrounding the tissue and cells directive, it considers it appropriate to make specific provision for that power and to provide that it is to be exercised using the affirmative procedure. Are we happy with the explanation that we got?

Members indicated agreement.