Official Report 139KB pdf
I will have to take this step by step because there is a lot in front of us today. We are considering the supplementary delegated powers memorandum provided by the Scottish Government following amendments made to the bill during stage 2. Under rule 9.7.9 of standing orders, we report on new or substantially altered delegated powers provisions following stage 2 consideration. Members might wish to note that the stage 3 debate on the bill will be held on 12 March, and that the deadline for lodging amendments is Friday 6 March, which is nearly upon us, so there is not a lot of time.
No, convener, I am not content with that. This is one example of a power that is so significant that it should be subject to affirmative procedure. The issue has been debated here and in the Health and Sport Committee. It is unheard of for any minister to remove any elected member from any position in Scotland. If that were to be allowed in any particular case, the Parliament would want to take a view on it, and not simply allow a Government minister to do it by negative resolution. I hope that we can lodge a stage 3 amendment to that effect.
Is your point about elected members? They are not hit by the provision, are they?
My understanding is that the cabinet secretary yielded to the good arguments that we made at previous meetings and took elected members out of the equation, so we are really just talking about the ability to remove people whom the cabinet secretary has appointed in the first place. It seems reasonable that the cabinet secretary who appoints can dis-appoint.
Your point is reasonable, but paragraph 3 on page 3 of our legal brief does not make that clear. That is why I have raised the point today. The legal brief says that the issue could be controversial, and it is. I agree with Ian McKee; I thought that the minister had yielded the point at the Health and Sport Committee debate when we had that discussion. Paragraph 3 of page 3 of the legal brief says:
No, that is all right.
Is the distinction not that there will be people who are directly elected to the board, and other people, who have been elected to councils, who will be appointed by the minister to the health board? If the minister has taken care of the concern about the directly elected members, that is a good thing.
That is how I read it.
Okay, but however the council-elected member, if I can call them that, gets on to the health board—I acknowledge that the minister appoints them—it would set quite a precedent if someone who has been democratically elected could then be removed from their position on the health board by a minister. That is quite a big decision to take. The minister might feel that there were good reasons for it, but, at the very least, there could be political reasons. Surely a safeguard would be that any intention to do that should be subject to affirmative rather than negative resolution. It would just be a safeguard, because taking that action is quite a big step.
I can see Tom McCabe's point that those people are elected to a council and then chosen by the council to be on the health board, but the fact remains that they will be appointed to the health board by the minister. If the minister appoints someone, they should be able to remove them. Presumably, as the decision to appoint a health board member is not subject to affirmative resolution, the minister could choose right at the beginning not to appoint someone. The minister could say that they did not like the person. There would be political repercussions but, technically, if the minister appoints, then it is a ministerial appointment.
That is a reasonable argument, but it falls down because, if a minister has confidence in their decision they should not be afraid of the Parliament affirming that decision or otherwise. I still believe that the provision should be subject to affirmative rather than negative procedure. The minister might have good reason to remove someone from a health board, and Parliament might agree with it, but I still feel that affirmative procedure is right in this case.
Ian McKee makes a good point there. Surely if the minister has the power to appoint someone, they should have the power to deregister the same individual.
I am not convinced. I take on board what Helen Eadie said about the minister being confident about why they were removing someone whom they had appointed from the health board, so why not require affirmative procedure. However, by that logic, we would require affirmative procedure for everything that Government does. We would say that the Government should be confident of what it was doing, so everything should be put through under affirmative procedure. So I am not totally convinced. It is in effect a power of patronage for the minister to appoint in the first place, so the same functions exist in terms of relieving that person of their post.
The Cabinet Secretary for Health and Wellbeing has acknowledged that it would be controversial if an elected representative were removed from any board. Usually, a member would be removed only in criminal circumstances or in the other circumstances that are outlined in our papers for this meeting.
I want to make it clear that such instances would be rare, and that in the vast majority of them the minister would take an objective decision. Once a minister has taken a decision, and if Parliament chooses to consider it, we have to be confident that even a Parliament made up of different politicians would be able to be objective. We need to be confident about that; otherwise, we should not be wasting our time on this.
I totally accept that the minister, from whichever party they came, would be objective. However, there will be circumstances—if this ministerial power were ever used—in which it would not be in the interests of the individual or of society for the issue to be debated in Parliament, as it would be under the affirmative procedure. We should take that into account. For example, the individual's health may have to be discussed.
As I said earlier, the deadline for lodging amendments is Friday. We have had a good debate, and it will appear in the Official Report. I would rather not go to a division on this question, unless we absolutely have to. If Helen Eadie wishes, she could pursue the issue herself. She would be quite within her rights to do so.
Yes.
Would that be all right with the clerks?
Yes.
I undertake to ensure that our difference of opinion is flagged up. In our report, we should give our colleagues a steer to look at the Official Report of today's meeting, which will give the full flavour of our views.
All right, let us move on.
An additional provision in section 2(2) of the bill will insert schedule 1A to the 1978 act. Paragraph 3(2) of that schedule will provide that, if election regulations specify a division of a health board area into more than one ward, the regulations must also specify the number of elected members to be elected in each electoral ward. Is that acceptable?
Committee members can imagine that that issue is of some interest to me. Where I come from is part of a very large health board area.
Amended provisions in section 2(2) of the bill will insert paragraphs 7 and 8(1) of schedule 1A to the 1978 act, in relation to election regulations. Is that acceptable?
Those changes only clarify the drafting.
An additional provision in section 2(2) of the bill will insert paragraph 9(2) of schedule 1A to the 1978 act. It will provide that election regulations may disqualify from being a candidate an individual who holds a post that is on a list of restricted posts. The list will be maintained by the health board concerned for that purpose. Is that acceptable?
That is rather similar to what has happened in local government for many years.
We have achieved a bit of a result there, and I think that we can pat ourselves gently on the back, if MSPs are allowed to do that.
The second point is this. If Parliament were to fail to approve a draft roll-out order, the bill does not appear to provide that, or make clear whether, on the automatic repeal of sections 1 to 7, the Scottish ministers are permitted any delegated powers to make any further or consequential provisions that might be needed in regard to the pilot area arrangements. This is given that such arrangements for elections, or the reorganisation of the membership of health boards, may have been implemented up to the date of any rejection of a roll-out order, by virtue of the pilot order. That assumes that such powers are sought, or may require to be taken, by the Scottish ministers in those circumstances, which is a matter to be considered by the Government. Do we agree to draw that point, too, to the attention of the lead committee and the Parliament?
We have to go through such issues at length, for the purposes of the record. Our clerks will also bring those matters directly to the attention of the Scottish Government, given the very tight timescales involved.
On section 7(3A)(c), do we agree to ask the Government to explain urgently—after all, it is 3 March today and we need the response in sufficient time to meet the deadline for stage 3 amendments—why the period of 60 calendar days that is specified for Parliament and committee consideration of a proposed draft roll-out order does not exclude any days during which the Parliament is dissolved or in recess? We are putting the question because the effect may be to give an insufficient period for parliamentary consideration of a proposed draft roll-out order after it is laid.
I can see why the period does not exclude any days during which the Parliament is dissolved or in recess. Under certain circumstances, particularly if the order is laid just before the summer recess, the risk is that an inordinate length of time would be added to the passage of the legislation. We ought to take account of that before putting the question to the Government.
The difficulty in which we find ourselves is that this is the last meeting at which we can consider the Government's response to any request for further information. We should have a fall-back position. I suggest that that takes the form of a stage 3 amendment. If we receive a reassurance from the Government that makes everyone round the table happy, we can withdraw the amendment on the day. I propose that we proceed on that basis.
I agree with that. It is obvious why the Government has done that. That said, the fact that recess days are not included hampers the Parliament's ability to input to legislation. A contradiction is involved and it needs to be fixed, one way or another. As we have discussed, the 60-day period gives the Parliament the ability to input to legislation. However, if an instrument is laid immediately before the Parliament's summer recess, the 60-day period elapses before we resume. I can see why the Government is trying to avoid having a time period that goes on for ever, but there is a contradiction and it should be fixed.
The restriction will apply, no matter which Government is in power.
Today is 3 March. If we were to write to the Government tomorrow, we should receive a swift response. Depending on the response, are members content to leave it to me as convener to decide whether to lodge a stage 3 amendment?
Yes.
Yes.
What is the wording of the amendment that you would lodge if the Government response is not satisfactory, convener?
I would want to think about that. As Tom McCabe and Helen Eadie have said, we should have an amendment in our back pocket for use if necessary. I think that the response will be along the lines that Dr McKee suggests. That said, even if just to be tidy, we should have an amendment in hand.
Confident though I am in your impartiality, skills and intelligence, convener, I am slightly reluctant to back anyone in lodging an amendment that I have not seen.
If you turn to page 16 of the legal brief, you will see the proposed wording of the amendment.
I have read it, but surely it needs to be in the Official Report.
Absolutely. There is no problem in ensuring that. The amendment, which would be in my name, proposes to amend section 7(3A)(c), on page 8, line 25, by adding at the end:
That is using a sledgehammer to crack a nut. We are concerned about legislation that might be introduced just before the summer recess. The amendment is more general than it needs to be.
Perhaps we could be more specific. The time bar could apply to a period just before the summer recess. For example, we could say that the Government could not lay an instrument in the week before the recess.
The clerk has said that an amendment could be drafted to take on board that point. Obviously, I would not move an amendment in the chamber without you guys having seen it and without you being happy with it.
Bob Doris's point is a good one. People get a bad taste in their mouths when legislation is introduced right on the cusp of a recess and parliamentarians are not given the opportunity to express a view that reflects public opinion. Perhaps the clerks can draft a revised amendment and circulate it to members for agreement. Once that is done, the amendment can be lodged.
Helen Eadie made the point clearly. If we all coalesce on what she said, would that be acceptable guidance for the clerks?
We have no problem in drafting an amendment for members to consider informally.
Have you got the steer that you need from us?
Yes.
Is there any precedent for lodging such amendments?
There are precedents. I think that we did something similar about a year ago.
We lodged an amendment during stage 3 of the Glasgow Commonwealth Games Bill.
That is right.
Was there a similar process?
Yes.
On that occasion, did you not seek leave to withdraw the amendment, convener?
I did, but only with the consent of committee members. As members might recollect, I was hurtling around the chamber to seek your agreement before I did that.
That is right. I remember that.
First, I would like to see the reassurance that the Government gives us. In proposing the wording "one week", my intention was for the wording to be less open-ended than that of the proposed draft amendment.
I suggest that we write to the Government along the lines that I have set out and that we do that as quickly as is humanly possible. Depending on the reply, I further propose that the clerks frame an amendment—I hope that I am being clear—that is not as blunt as the amendment in our legal brief but will take account of our concern about the long summer recess and undue delay. I will leave the actual wording to the wordsmiths.
I suggest that we go for a two-week window before the summer recess. If an instrument is laid before any other recess, two weeks are lost in any case. If we were to suggest such a restriction, the effect would be the same for all recesses—with the exception of the February recess, which is only one week.
I have no intention of standing up in the chamber and speaking to an amendment for the glory of the moment or just to annoy the Government. I am not volunteering to do this for fun. I hope that we do not have to lodge an amendment, but if we come to that moment of truth, I would not be happy to stand up and speak to the amendment unless I had pretty much the unanimous support of the committee. If a section of the committee is deeply unhappy with the idea, it will not fly.
Members on both sides of the argument acknowledge the problem and agree that something needs to be done. As Bob Doris said, the Government's response will be helpful in any solution. Perhaps its observation will solve the problem, but we should have a back-stop nonetheless.
Are members content with that?
I thought that there were two further questions for the committee, but I have put them. We have got ahead of ourselves. Is that not clever?