Environmental Assessment (Scotland) Bill: Stage 1
I welcome colleagues to the 14th meeting in 2005 of the Subordinate Legislation Committee. I have received apologies from Mike Pringle; everyone else is here.
The power in section 6(2) is quite a narrow Henry VIII power and for that reason the negative procedure is appropriate. Are we content with that?
The Executive has clarified the point about the power being applicable only to individual schools, which was my main concern, so that is fine. I understand that there might be a slight anomaly in the way that the Henry VIII power is being used, but it is fairly narrow and I have no particular issue with it.
Is that everyone's opinion?
Management of Offenders etc (Scotland) Bill: Stage 1
The main purpose of the bill is to make provision for reforming the planning and co-ordination of offender management services in Scotland with the aim of achieving greater integration of the work of different criminal justice agencies.
It is reasonable to ask that question. After all, our legal advice makes it quite clear that the Executive is consulting on the first set of orders. Although the Executive will probably consult on future orders, it would be useful to ask its intention and then consider any action that we might want to take.
It might be worth asking the Executive to put on record that it intends to consult, even if that is not stipulated in the bill. That said, to be fair to the Executive, whatever else it does, at least it consults. In fact, most people I meet in the real world have consultation overload; they are fed up with it. Although I do not think that the Executive is guilty of not consulting, it might be useful to get it to say that it will consult.
Are members agreed?
Section 2(7) gives ministers the power to amend through subordinate legislation the list of a CJA's general statutory functions set out in section 2(5). That power is subject to the affirmative procedure. Are members agreed that that is appropriate?
Section 2(5)(c)(i) sets out the power of a CJA to issue directions to local authorities. Section 2(10) sets out the power of ministers to issue directions and guidance to CJAs. Our legal advisers seem to think that the powers are okay, although they suggest that we could ask the Executive about a laying power for any directions or guidance.
I note that an interesting argument about laying such matters before Parliament is made later in the legal brief. As a result, it is appropriate to ask about the Executive's intentions and to suggest that it looks positively at the idea of laying such directions and guidance before Parliament.
It can do no harm to raise the question. Are members agreed?
Section 2(16), which concerns the designation of "partner bodies", is one of the few provisions in the bill that are subject to the negative procedure. Such an approach seems to be fitting. Are members agreed?
Section 5(6) enables ministers to issue an enforcement direction to a CJA where they consider that a failure persists, even after the period of time for remedies set out in the preliminary notice. Section 5(11) obliges ministers to prepare a report whenever they issue, vary or revoke an enforcement direction and to lay that report before Parliament. Are members agreed that both provisions are adequate?
Section 5(12) sets out the power to amend section 5(2), which lists the bodies—including the chief inspector of prisons for Scotland and Audit Scotland—that may report to the minister on the failure of a CJA or a local authority to carry out its functions properly. Section 5(12) allows ministers by order to add to, amend or omit from that list.
According to our legal advice, it is inconceivable that the Executive would not consult the bodies involved. Even so, it is appropriate to ask the Executive about its intentions with regard to consultation to ensure that it agrees with our advice.
Are members agreed?
Section 7(2) confers on ministers the power by order to transfer the functions listed in section 27(1) of the Social Work (Scotland) Act 1968 from local authorities to CJAs. Given that such a transfer would be applicable only within the area of the relevant CJA, section 7(4) allows ministers in any such order to make different provisions for different CJAs.
Again, we should raise the issue of consultation.
Christine, do you want to raise that?
For the sake of consistency, we should ask that question.
This is not just a question of consultation; I think that we should also ask about the process and about how the Executive will use this power. Presumably, it will enforce the matter only when the bodies involved fail to agree. For clarity's sake, it would be worth asking the Executive not just about the consultation but whether it will define the process and set out the circumstances in which it will use the power.
I believe that your question centres on how sections 7(2) and 7(3) will work together. We could ask the Executive about those specific provisions.
I agree that we should ask about consultation. However, a wee bit of me wonders whether we are not crying wolf about this matter. We are reaching the stage at which we will be looking for bills to provide for consultation on almost every occasion when the Executive seeks to introduce a statutory instrument. Such an approach might well be rational, but I think that it will lead to overload in bills. Perhaps we should be a bit more selective and target the matters that really require consultation.
In all fairness—
I am not saying that that is the case in this bill.
In all fairness, I think that Stewart Maxwell is right about this.
The question about process is different, and I accept Mr Maxwell's point.
We need to clarify the process that will be used and the relationship between sections 7(2) and 7(3). Perhaps we can revisit the matter when things are a bit clearer.
I agree with Gordon Jackson that if we consult all the time it becomes meaningless. However, as I understand it, we are not trying to force the Executive to refer to consultation in the bill. We are simply asking about its intentions. Such a provision would not necessarily have to go into the bill.
I am just flagging up my slight concern that we might be crying wolf.
I entirely take your point, Gordon. I gather from Ruth Cooper that we have time to revisit the issue, so we should probably ask the Executive about the process first of all.
There is nothing wrong with asking all these questions.
Section 9(3) sets out the power to specify persons who must co-operate with the responsible authorities. That power is subject to the negative procedure. Are members agreed that that is appropriate?
Section 9(5) sets out the power for ministers to issue guidance to responsible authorities. Are members agreed that the provision seems okay?
Section 9(7) enables ministers to amend the list of responsible authorities. The power is a Henry VIII power and is therefore subject to the affirmative procedure. Are members agreed that that is appropriate?
We move on to the part of the bill that amends the Prisoners and Criminal Proceedings (Scotland) Act 1993. Section 11(3), which proposes to insert new section 3AA into the 1993 act, sets out the power to amend the home detention curfew scheme. In particular, the powers set out in proposed new section 3AA(6) appear to be very wide. However, our legal advice has set out a number of reasons why, given the other powers that are available, the provision seems to be okay. I seek members' views on the matter.
It is always legitimate to cite precedent in favour of what one is doing. However, I am not sure that we should ever be over-impressed by precedent that has been set in pre-devolution legislation. Because something is missing from the 1993 act, it does not mean that, per se, it is okay to leave it out of the 2005 act. I would rather that the legal brief argued from first principles; precedent might be a useful guide, but it does not always present a substantive argument.
Perhaps they did not. Do members have any other points?
It is worth noting that ministers already have much wider powers to amend such definitions for all prisoners. It would seem bizarre to impose a tougher requirement for consulting on amending an aspect that would affect only some prisoners. My bottom line is that the power is probably okay.
Is that agreed?
Section 11(8) sets out the conditions that are to be included in the licence for persons who are released under the new home detention curfew scheme. New section 12AA(3) will confer on ministers the power by order to prescribe the standard conditions, which may be different for different prisoners. I gather that the section provides for a fairly standard procedure, for which the negative procedure is appropriate. Is that agreed?
Section 11(8) will also have an effect on ministerial powers to specify monitoring devices. Are members happy with that?
Section 11(11) will have an effect on ministerial powers to make rules and issue directions to the Parole Board for Scotland. Are members happy with that?
Section 13 provides for powers to make regulations to recover compensation payments that are made under the criminal injuries compensation scheme. The section will confer on Scottish ministers two subordinate legislation-making powers. The first will allow ministers to make regulations under section 7A(1) of the Criminal Injuries Compensation Act 1995, which will be subject to the affirmative procedure. Legal advice indicates that that is perfectly okay. The second will allow ministers to make an order under section 7B(3), which will also be subject to the affirmative procedure. Again, that appears to legal advice to be appropriate.
The subordinate-legislation making powers are to do with the administration of the scheme rather than any great policy or huge change.
Absolutely. Do members agree that the powers are appropriate?
Section 14(1)(b) confers on ministers the power by order to amend, add or omit any of the functions of local authorities that are set out in section 27(1) of the Social Work (Scotland) Act 1968. The provision is a Henry VIII power, so any such order would be subject to the affirmative procedure. The issues that arise about the power are similar to those that arose under section 7(2), which we have already considered. I assume that the comments that we made about the powers under section 7(2) will also go for the powers under section 14(1)(b). Is that agreed?
Section 14(2)(a) provides ministers with powers to modify by order the definition of "relevant service". Any such order will be subject to the affirmative procedure. It is suggested that that is appropriate. Are we agreed?
Section 15 provides ministers with powers to make supplementary, incidental and consequential provisions and so on. We have met such powers often before. Are we agreed that no points arise on section 15?
Finally, the bill contains a commencement power, which is of the normal type. Are we agreed that no points arise on that?
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Executive Response