Subordinate Legislation Committee, 02 Dec 2003

Meeting date: Tuesday, December 2, 2003

Official Report 130KB pdf

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Delegated Powers Scrutiny

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Education (Additional Support for Learning) (Scotland) Bill: Stage 1

I welcome colleagues to the 15th meeting of the Subordinate Legislation Committee in Parliament's second session. I have received apologies from Mike Pringle.

The first item on the agenda is delegated powers scrutiny of the Education (Additional Support for Learning) (Scotland) Bill at stage 1. The notes that we have received from our legal adviser point us to section 7(4) of the bill, on co-ordinated support plans. There appear to be two points: first, although the terms in which the power is drafted are wide, they cannot alter the substance of CSPs as set out in section 7(2), so there is perhaps enough safety on that point.

The second point is of more concern and relates to disclosure of CSPs. In terms of the European convention on human rights, should we raise the issue with the lead committee? Members should note that disclosure has been dealt with differently in the drafting of section 11(7). Do members have any ideas?

I thought you had this all scripted, convener.

No—not at all.

I think that the suggestion that we pursue the issue is worthwhile.

The issue does crop up again. Is it agreed that we will pursue it?

Members indicated agreement.

Section 11(6) is on changes in schooling. The question is whether the correct balance has been struck between primary and secondary legislation, but there is also—again—the issue of disclosure of information. It seems that the balance is possibly okay, and we have already raised the disclosure issue. Are there any further points, or are members happy?

The balance seems to be okay.

Section 12(5) is on additional support needs tribunals. There is concern that the Executive appears to be unable to say how it proposes to exercise the power. We could ask the Executive for examples of how it thinks that the power would be used. Is it agreed that we do so?

Members indicated agreement.

Next, we must consider paragraphs 2(1), 3(1)(a) and 3(1)(b) of schedule 1 to the bill. Our legal adviser suggests that, on balance, the way in which the issue has been dealt with is okay. Do members have any other points to raise?

We have dealt with similar cases before; we wrote recently to the Executive about a similar case and the Executive was fairly categorical in its assurance that it would not take the avenue of avoiding implementation of regulations. Given that the Executive would probably lose any case that was brought under a judicial review, we should accept that the provision is okay.

There is enough safety in the system.

Yes.

Do members agree with that?

Members indicated agreement.

Paragraph 2(4) of schedule 1 seems to be okay—members should stop me if they do not agree—and there are no substantive points on paragraphs 3(2)(c), 11(1) and 16. On the provisions in schedule 1 for delegation of other powers, there are no substantive points to be made about paragraphs 7, 9(2), 9(3), 8(1), 8(3), 12 and 17.

Concern has been expressed that more detail is needed in the provisions on dispute resolution in section 17(1).

The Executive says that those regulations will cover disputes that concern matters that will not be eligible for referral to tribunals, but it has given no examples of the kinds of matters that it means, which would have been helpful. The provision is not clear, so perhaps we could ask the Executive to provide examples.

Yes. Does the committee agree to ask the Executive to provide examples in relation to section 17(1)?

Members indicated agreement.

There appear to be no substantive points on section 19(2)(c), which concerns specification of appropriate agencies. In section 19(4) a little more detail might be required on the circumstances in which exceptions can be made from the requirement to respond to a request for assistance within the specified time scale.

Section 20(1), on the power to prescribe standards and requirements relating to the conduct of special schools, raises a much bigger issue about the use of non-statutory guidance.

We have received interesting advice on that section. On the one hand, the Executive states that the power is being consolidated in the bill, but on the other, it admits that it has never used the power and has proceeded in the past by means of guidance. That seems to be extraordinary; we need to push the Executive quite hard on the matter. I do not think that it is legal to ignore statutory powers and simply to draw up one's own internal rules.

The situation is also unsatisfactory because a conspiracy theorist might suggest that civil servants were using guidance rather than statutory instruments in order to avoid parliamentary scrutiny. Perish the thought.

We could raise the specific point that relates to the bill and we could include the general issue on the list of matters that we intend to discuss informally with the Scottish Executive.

Our legal adviser's notes give details about previous cases in which ministers have come a cropper on the matter. Ministers do not seem to learn from such cases which—it occurred to me—is ironic in the context of a bill about support for learning. Perhaps a section should be added to the bill that would prescribe a mechanism for ministers to learn the lessons of their defeats in court.

Absolutely. Two notable defeats are mentioned in our legal briefing papers.

Some of that information is of stunning contemporary relevance.

We will say no more.

The cases show that coming a cropper is no bar to limited political advancement, at least.

That proves that you are not a conspiracy theorist, Alasdair.

Can I ask Murray Tosh what his view is on the recent leadership contest?

I am quite happy with the outcome—as I was with the outcome of the legal cases in question.

To spare your blushes, Murray, we will move on.

We welcome Gordon Jackson, who has just joined the meeting.

I am sorry that I am late.

We are still considering the Education (Additional Support for Learning) (Scotland) Bill, under item 1. We are considering publication of information under section 22(3). The legal advisers suggest that the way in which the bill is drafted points to use of the affirmative procedure. However, from looking at the substance of the provisions, it seems that the negative procedure would possibly be more appropriate in this case. Is that a sufficiently important point to make to the Executive?

We have, in effect, had this discussion before. We have been using a rule of thumb whereby we generally prefer that the affirmative procedure be used, but it is rather doubtful that the affirmative procedure is necessary in this case. It might be breaking the rule that we have adopted in the past, but I think that the negative procedure would probably be okay in this instance.

You think that the negative procedure is okay.

Yes.

Are we agreed that we will leave that provision as it is?

Members indicated agreement.

Section 23 covers the issuing of a code of practice and directions. The points that we have to raise on this section, which relate to the use of codes of practice in place of legislation, and to difficulties that arise from that, are similar to some that we have raised on previous occasions. A number of options are before us—in paragraph 69 of the legal brief—which are very similar to some options that we considered on a previous occasion. I propose that we write to the Executive expressing our concerns and presenting those options to them. Is that agreed?

Members indicated agreement.

Section 25 covers ancillary and commencement provisions. An issue arises around the use of words such as "supplemental". We have raised the same issue previously. Are there any other comments?

We have made the point before.

We will take the matter up with the Executive.

Schedule 2 to the bill covers placing requests. They are dealt with specifically under paragraphs 3(5), 4(3) and 6(6). No substantive points have been identified, however. Are members happy with that?

Members indicated agreement.

That brings us, rather quickly as it turns out, to the end of item 1.