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Agenda item 7 is to consider the delegated powers in the Transplantation (Authorisation of Removal of Organs etc) (Scotland) Bill, which is a member’s bill. The committee is invited to agree the questions on the delegated powers in the bill that it wishes to raise in written correspondence with the member in charge. The committee will consider the responses at a future meeting prior to considering a draft report.
The bill proposes to insert a new section 2A into the Human Tissue (Scotland) Act 2006 that would enable ministers to provide by regulations for the designation of persons or categories of person as authorised investigating persons for the purposes of the 2006 act. The delegated powers memorandum states that the persons anticipated to be designated as authorised investigating persons will be in clinical and administrative roles in the national health service. However, the power is drawn to permit any persons or categories of persons to be designated as authorised investigating persons.
Does the committee agree to ask the member in charge to explain what other persons or categories of persons might be designated as authorised investigating persons apart from NHS staff and to explain what NHS clinical or administrative roles or grades might be appropriate for designation?
Members indicated agreement.
The delegated powers memorandum justifies the negative procedure for scrutiny of the regulations on the basis that they are likely to be largely technical and expressed in terms of NHS grading and staffing arrangements. However, the power is capable of being exercised to designate persons or categories of persons beyond persons in an NHS role. The exercise of the power would also be highly significant to the proper operation of the opt-out system that is proposed in the bill. Does the committee agree to ask the member in charge to explain further why the negative procedure is considered to be more suitable than the affirmative procedure for scrutiny of the regulations?
Members indicated agreement.
Section 16(1) of the bill would enable the making of regulations to make provision for adults from countries with opt-out systems of organ donation. The delegated powers memorandum explains that the objective underlying the power is that, at the judgment of the Scottish ministers, there might in future be circumstances where a person dying in Scotland who met the requirements for an opt-out system of transplantation under their home system should be included within the opt-out provisions in new section 6B of the 2006 act, which would be inserted by section 6 of the bill. Section 16(1) of the bill would enable, by regulations subject to the affirmative procedure, any further modification of the 2006 act to cater for those circumstances.
Does the committee agree to ask the member to consider whether that power could be more suitably exercised by a super-affirmative form of procedure, which would enable the Parliament to consider an initial draft of the regulations, and, in that context, what the advantages and disadvantages of applying for such a procedure would be for the Parliament and others, in comparison with an affirmative procedure?
Members indicated agreement.