Public Bodies (Joint Working) (Scotland) Bill: Stage 1
Item 5 is consideration of the delegated powers in the Public Bodies (Joint Working) (Scotland) Bill at stage 1. The committee is invited to agree the questions that it wishes to raise in written correspondence with the Scottish Government on the bill’s delegated powers, and the responses that are received will help to inform a draft report on the bill that the committee will consider at a later date.
Section 1(3)(e) provides for the power to prescribe by regulations
“information about such ... matters as may be prescribed”
for inclusion in an integration plan. Does the committee agree to ask the Scottish Government to provide some examples of the information and matters that could be prescribed for inclusion in an integration plan and to ask why the power has been drawn to permit any matters to be prescribed about which prescribed information would need to be included in a plan without provision that such matters should relate to the matters that the plan will set out in accordance with section 1(3)(a) to (d)?
Members indicated agreement.
Given that the regulations under section 1(6)(a) and (b) are intended to prescribe the range of functions of local authorities and health boards that either
“must, may or may not be delegated under an integration plan”,
does the committee agree to ask the Scottish Government to explain why it is appropriate for section 1(6) to provide that Scottish ministers have the discretion, rather than a requirement, to make the regulations?
Members indicated agreement.
The bill neither expressly amends nor refers to section 56 of the Local Government (Scotland) Act 1973, subsections (6) and (6A) of which provide that a local authority’s functions in respect of setting amounts of council tax, borrowing money, approving annual investment strategies or reports and determining applications for planning permission for certain classes of property shall be discharged only by that authority. Under section 56(7) of the 1973 act,
“a local authority shall not make arrangements ... for the discharge for any of their functions under the Animal Health Act 1981 by any other local authority.”
Given that section 1 of the bill does not provide for any exclusion of those significant functions in the 1973 act from the powers to prescribe the functions that may be delegated in terms of an integration plan and agreed to be set out in a plan, does the committee agree to ask the Scottish Government to confirm, in relation to the scope of the powers, whether there is any intention to affect the operation of section 56(6), (6A) and (7) of the 1973 act? If not, could the bill be amended at stage 2 to ensure that “integration functions” could never extend to those functions?
Members indicated agreement.
The committee might also consider that paragraph 12 of the delegated powers memorandum does not satisfactorily explain why the negative procedure rather than the affirmative or super-affirmative procedure provides a more appropriate level of scrutiny of the powers in section 1(6). The powers are significant, as the regulations provide for the range of functions that
“must, may or may not be delegated under an integration plan”.
Does the committee agree to ask the Scottish Government to explain that further?
Members indicated agreement.
Section 12(1) provides that the Scottish ministers may by order make provision about various aspects of joint integration boards.
Does the committee agree to ask the Scottish Government why the power needs to be drawn widely to permit any provisions by order about, and so to determine, the membership of integration joint boards and why it could not be drawn more narrowly, to contain provision for the permissible number of members of a joint board—for instance, by stating a minimum or maximum number of members within which parameters an order could specify the number of members of a particular board—and also to contain provision for who may be a member, given that any joint boards will be public authorities that will either undertake or direct the carrying out of functions delegated by the constituent local authorities and health boards?
Members indicated agreement.
Section 12(3) provides that the Scottish ministers may, by scheme, make provision about the transfer to an integration joint board of staff, property, rights, liabilities or obligations of a local authority or a health board.
The delegated powers memorandum explains that, as a matter of policy, it is envisaged that any integration joint board established under the bill will not necessarily require to employ staff, that the delivery of functions is likely to be carried out by the constituent local authorities and health board, and that the option of direct employment of staff by a joint board is included as a safeguard, if locally agreed arrangements fail to work.
Does the committee agree to ask the Scottish Government to explain: the reasons for taking the power and the circumstances in which the power might be used to transfer staff, property and so on to an integration joint board; why it is necessary for the power to include the transfer of property, rights, liabilities or obligations as well as staff, when the similar power proposed in section 15 in relation to the other integration models between a local authority and health board is restricted to the transfer of staff; and why it has been considered appropriate that the exercise of the power should not be subject to parliamentary scrutiny, nor provision made for publication of a scheme, nor that it should be made in the form of a Scottish statutory instrument?
Members indicated agreement.
Section 15 provides a power for ministers to make a scheme for the transfer of staff from a person who is to delegate functions under the possible integration models between local authorities and health boards, except for the corporate body model.
Does the committee agree to ask the Scottish Government to explain the reasons for taking the power and the circumstances in which it might be used to transfer staff between a local authority and a health board, and why it has been considered appropriate that the exercise of the power should not be subject to parliamentary scrutiny, nor provision made for the publication of a scheme, nor that it should be made in the form of a Scottish statutory instrument?
Members indicated agreement.
Section 16(1) provides that the Scottish ministers may by order make provision about the establishment, membership, and proceedings of integration joint monitoring committees and any other matter relating to the operation of integration joint monitoring committees that the Scottish ministers think fit.
Does the committee agree to ask the Scottish Government why the power need be drawn so widely to permit any provisions by order about, and so to determine, the membership of integration joint monitoring committees, and why it could not be drawn more narrowly to contain provision for the permissible number of members of such a committee—for instance, by stating a minimum or maximum number of members, within which parameters an order could specify the number of members of a particular committee—and provision for who may be a member, given that any such committees will be public authorities, which will monitor the carrying out of integration functions for the area of a local authority?
Members indicated agreement.
Section 22(1)(a) enables an integration joint board to direct the local authorities or the health board that have delegated functions to it in accordance with an integration plan to carry out a function on its behalf. Section 22(1)(b) enables a local authority or health board that has had functions delegated to it in accordance with an integration plan to direct the local authority or health board that delegated the function to it to carry out the functions on its behalf.
In relation to the power to make directions under sections 22(1) to (7), does the committee agree to ask the Scottish Government to explain: the reasons for taking the power and the circumstances in which directions could be used; why it has been considered that it is appropriate to exercise the power in the form of written directions, rather than in a form of subordinate legislation such as an order; and whether it is intended that the directions would be published on being made and, if so, whether that should be provided for?
Members indicated agreement.
Section 36(3) provides that, in consequence of the replacement of an integration plan by a new plan, the Scottish ministers may by scheme make such provision about the transfer of staff, property, rights, liabilities or obligations of an integration joint board, a local authority or a health board as they consider necessary.
Does the committee agree to ask the Scottish Government to explain: the reasons for taking this power and the circumstances in which it might be used to transfer staff, property and so on upon a new integration plan being substituted under section 35; why it has been considered appropriate that the exercise of this power should not be subject to parliamentary scrutiny, nor that provision should be made for publication of a scheme, nor that it should be made in the form of a Scottish statutory instrument; why section 19 applies where by virtue of section 12(3) or 15(1) a scheme is made for staff transfer to set out the effects on contracts of employment, but does not apply when the power in section 36(3) is exercised; and why it is considered appropriate that the power in section 15 enables schemes about the transfer of staff only where an integration plan sets out one of the three integration models apart from the model where an integration joint board is established, and yet the power in section 36(3) extends to making provision about transfer of staff, property, rights, liabilities or obligations when a new integration plan setting out one of those models is substituted under section 35? That was a question.
Members indicated agreement.
Section 39(2)(a) to (e) lists five default powers that the Scottish ministers may exercise where a local authority and a health board fail before the day prescribed under section 7 to submit an integration plan for approval by them.
It appears that the functions of a local authority and a health board that may be specified under section 39(2)(a) on default to be delegated to an integration joint board are not limited by the prescription of functions by regulations under section 1(6). Section 1(6) relates to the prescription of functions that must, may or may not be delegated under an integration plan. Section 39(2) applies where such a plan has not been submitted for approval.
Does the committee therefore agree to seek clarification from the Scottish Government as to whether that is the intended position?
Why is this only about health boards working with local authorities? Why is it not about local authorities working with local authorities as well?
My advice from the clerk is that that is a very interesting question, but it is a question for the lead committee. At the end of the day, it is a policy question; there is no mention of delegated powers in it. I must encourage you to ask that question of the lead committee.
Can I not ask it here?
No, simply because it is probably not within our powers to put it.
We are asking a series of questions. I just wonder why we are limiting ourselves to the national health service and not including local authorities. I would be grateful if this committee could ask. We are simply asking a question and saying that there is perhaps an opportunity that we have not explored.
I think that may be a fair question. I will take comments from other members.
Could Hanzala Malik perhaps explain that a little further? I am really not sure what question is being asked. If the question that I am hearing is, “Why are there not delegated powers to allow local authorities to create joint authorities?”, I suspect that I know the answer, which is that the powers already exist. However, I am not sure that that is the question that is being asked. I find it difficult to take a position because I am not quite sure what question is being asked.
I think that is the question as I hear it. I think that Hanzala Malik is asking why we are talking only about the integration of local authorities and health boards that are contiguous before they start and why we could not have local authorities joining up with local authorities, which by definition would be neighbouring, in such a way that they could provide joint services. We can think of circumstances in which that would be helpful—indeed, it does happen and such services probably already exist.
Stewart Stevenson’s point might well be a fair one: that power already exists.
I am not sure that it does. That is why I asked the question. We are focusing on two areas: local authorities and the NHS. The convener has alluded to what I was thinking about. Sometimes there are clusters or hubs and it may well be beneficial for local authorities to be clubbing together in that way.
10:30
The reason why I responded in the way that I did is that Aberdeen City Council and Aberdeenshire Council already do a great deal of that. I am not trying to shut down the question entirely, but I am very familiar with my own area and I cannot identify from my knowledge of one of the local authorities in my constituency what powers are currently lacking, because there is considerable joint working and there are joint arrangements.
The powers that we have to consider are the delegated powers within the scope of the bill as it is before us. If it is restricted in the way in which I think it is, we cannot ask that question in the context of the report because that is not in the bill. However, the question is perfectly decent and I am sure that the member will want to explore it outside this committee. The subject committee might want to consider whether all the options that should be available are available, but that is outside our remit, certainly within the context of this particular set of questions.
Okay. I will perhaps take that up with the lead committee.
Contrary to the exercise of the powers under section 1(6), which it is proposed will be subject to the negative procedure, it is not proposed that the exercise of ministerial powers under section 39(2)(a), (d) and (e) to specify the functions to be delegated to an integration joint board and other matters be subject to parliamentary scrutiny. The specification of those matters by ministers does not require to be made in a Scottish statutory instrument and nor is there provision for publication or consultation requirements prior to the specification. Does the committee therefore agree to seek an explanation as to why that difference of approach to the powers in section 1(6) and those in section 39(2) has been considered appropriate?
Members indicated agreement.
Section 39(2)(c) provides that, on the failure of a local authority and health board to submit an integration plan for approval, the ministers may require the authority and health board to delegate the specified functions to the joint board before the day that is prescribed by regulations.
Does the committee agree to ask the Scottish Government to clarify whether that provision is intended to be a power to prescribe a day that is separate from the power in section 9(3) or whether it is intended only to refer to that power; whether that could be clearer, given that sections 39(1) and 9(1) state that the sections apply to different circumstances and it appears that the prescribed day is not defined in the bill; and, if section 39(2)(c) is intended to be a separate power, to explain the reasons for taking the power and why it is considered appropriate that its exercise is subject to the negative procedure?
Members indicated agreement.
Section 40 enables ministers to give binding, written directions to a health board, local authority or an integration joint board.
Does the committee agree to ask the Scottish Government to provide a full explanation of the reasons for taking those powers, which could be applied generally across a range of functions as well as to specific delegated functions, how the power to direct could be used, and the choice of direction as the appropriate procedure; and to explain in what circumstances that could introduce powers of direction by the Scottish Government over functions that are currently not subject to such powers or to direction by another authority, and why that would be appropriate?
Members indicated agreement.
Section 52(2) provides that the provisions of the act other than the general provisions in sections 49, 50, 52 and 53 will come into force on such day as the Scottish ministers may by order appoint.
Does the committee agree to ask the Scottish Government whether it is agreed that the effect of section 49 of the bill, read with section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010, is that it is proposed that a commencement order under section 52(2) would be laid in the Parliament and would be scrutinised by this committee?
Members indicated agreement.
Section 49 proposes that an order that makes transitional, transitory or savings provisions for the purposes of or in connection with the coming into force of the bill is subject to the negative procedure, except where textual amendment of an act is proposed. However, section 49 also proposes that a commencement order that is made under section 52(2) and that contains transitory or transitional provision or savings would be laid but would not be subject to further procedure. That appears to be inconsistent, as the parliamentary procedure will depend on whether the Government chooses to make a commencement order or a separate order under section 50(1)(b). Does the committee agree to ask the Scottish Government to consider that further?
Members indicated agreement.