Scottish Parliamentary Commissions and Commissioners etc Bill: Stage 2
Item 2 is stage 2 consideration of the Scottish Parliamentary Commissions and Commissioners etc Bill. This is a committee bill, and I welcome to the committee Trish Godman, who was convener of the Review of SPCB Supported Bodies Committee, and her officials. Members should have in front of them copies of the bill, the marshalled list of amendments, and the groupings.
Section 1 agreed to.
Section 2—Functions of the Commissioners
Amendment 1, in the name of Trish Godman, is grouped with amendment 2.
Trish Godman (West Renfrewshire) (Lab)
The purpose of amendment 2 is to tidy up the Public Services Reform (Scotland) Act 2010, where it refers to bodies supported by the Scottish Parliamentary Corporate Body, to reflect the changes brought about by the Scottish Parliamentary Commissions and Commissioners etc Bill. I will refer briefly to the provisions of the 2010 act that are affected.
Among other things, sections 14 and 17 of the 2010 act give Scottish ministers the power to make provision by order to improve the exercise of public functions and to reduce the burdens on any person resulting from any legislation. In section 14(1), public functions are defined by reference to the functions of certain persons, offices and bodies that are listed in schedule 5 to that act. Schedule 5 includes the chief investigating officer, the Commissioner for Public Appointments in Scotland and the Scottish Parliamentary Standards Commissioner.
As members will be aware, following concerns expressed during stage 1 scrutiny of the Public Services Reform (Scotland) Bill, section 19 was introduced to restrict exercise by the Scottish Government of powers under sections 14 and 17 in relation to the SPCB-supported bodies. Such powers can be exercised only with the corporate body’s consent. The offices affected by section 19 are listed in schedule 6 and comprise the parliamentary commissioners, the Scottish Commission for Human Rights and the Scottish Public Services Ombudsman. Part 3 of the 2010 act imposes duties in relation to the publishing of certain information by listed public bodies. Section 35 provides that the listed public bodies to whom those duties apply are those specified in schedule 8. Again, schedule 8 includes the chief investigating officer, the Commissioner for Public Appointments in Scotland and the Scottish Parliamentary Standards Commissioner.
Amendment 2 ensures that all references to those offices that will be abolished as a result of the establishment of the commission for ethical standards in public life in Scotland are removed from the 2010 act.
Given that, under the Scottish Parliamentary Commissions and Commissioners etc Bill, the functions of the existing offices will be transferred to the new SPCB-sponsored body, the CESPLS—not a very nice acronym, but that is how it has ended up—including the public standards commissioner for Scotland and the public appointments commissioner for Scotland, references to those offices should be inserted as and where appropriate into schedules 5, 6 and 8 to the 2010 act. Amendment 2 also provides for that.
Under the bill, responsibility for sponsorship of the Standards Commission for Scotland is transferred from the Scottish Government to the SPCB. Amendment 2 also provides for the insertion of the Standards Commission for Scotland into schedule 6 to the 2010 act to ensure that all SPCB-sponsored offices are brought within the scope of section 19 of the 2010 act. Amendment 1 makes the necessary technical amendment, adding the 2010 act to the list of enactments that will be amended as a consequence of the establishment of CESPLS.
I move amendment 1.
Amendment 1 agreed to.
Section 2, as amended, agreed to.
Schedule 1—Consequential amendments of enactments referred to in section 2(5)
Amendment 2 moved—[Trish Godman]—and agreed to.
Schedule 1, as amended, agreed to.
Sections 3 to 17 agreed to.
Section 18—Advisers, assessors and other services
Amendment 3, in the name of Trish Godman, is grouped with amendments 4, 6, 14, 21 and 22.
15:15
Amendments 3, 4, 6, 14, 21 and 22 all relate to supervision by the Scottish Parliamentary Corporate Body of the appointment of advisers in relation to SPCB-sponsored bodies. Although each amendment relates to a different body, the effect of each is the same, and it is probably easier if I refer to amendment 3 throughout.
Section 18, as drafted, provides that the commission for ethical standards in public life in Scotland can obtain advice, assistance or any other service for use by itself or by a commissioner, the public standards commissioner for Scotland or the public appointments commissioner for Scotland. The commission determines who to appoint and what they should be paid. However, under subsection (3), appointment and payment of advisers are subject to approval by the SPCB.
The effect of amendment 3 is to remove the requirement for the appointment of advisers to be subject to SPCB approval. Its approval remains required for payments that are made to such advisers.
The provision in subsection (3) derives from my committee’s recommendation that the appointment of advisers should be agreed in advance with the SPCB, including their terms and conditions of appointment. In making the recommendation, my committee considered previous reports, such as that produced by Audit Scotland in 2006, which was followed by the Finance Committee report on accountability and governance. Both reports recommended that enhanced governance arrangements be put in place to ensure SPCB oversight of commissioners and ombudsmen in relation to financial matters.
Concerns have been expressed that the SPCB having powers over appointment could prove unwieldy as, in some cases, advisers are appointed on a regular—even weekly—basis. Delays could ensue if approval was not received timeously.
The process for seeking approval for the payment of advisers would be set out in a framework document.
SPCB power over approval of advisers’ appointments is now considered unnecessary and little benefit accrues from it having such a power, provided that the SPCB retains power over the payment of such advisers. Amendment 3 removes SPCB input into appointments made by the commission for ethical standards in public life in Scotland, while retaining the need for it to approve all payments.
Each of the other amendments in this group does likewise. Amendment 4 covers the Standards Commission for Scotland; amendment 6 covers the Scottish Public Services Ombudsman; amendment 14 covers the Scottish Information Commissioner; amendment 21 covers the Commissioner for Children and Young People in Scotland; and amendment 22 covers the Scottish Commission for Human Rights.
I move amendment 3.
Amendment 3 agreed to.
Section 18, as amended, agreed to.
Sections 19 to 29 agreed to.
Schedule 2—Amendments of the Ethical Standards Act
Amendment 4 moved—[Trish Godman]—and agreed to.
Amendment 5, in the name of Trish Godman, is in a group on its own.
Amendment 5 corrects an unnecessary addition in the bill. Paragraph 13 of schedule 2 to the bill inserts paragraph 10A into schedule 1 to the Ethical Standards in Public Life etc (Scotland) Act 2000, which requires the Standards Commission to produce a strategic plan and details arrangements for timing, content, consultation and review.
The effect of amendment 5 is to remove the public standards commissioner for Scotland from the list of bodies that must be invited to comment on the Standards Commission’s draft strategic plan. There is no good reason for the commissioner to be specifically consulted. Indeed, given his role in reporting on investigations to the Standards Commission, it would be unusual for him to be routinely required to seek views on matters that are not within his remit. Where the strategic plan proposes matters of direct interest or concern to the commissioner, that officer can be consulted, as appropriate, under new paragraph 10A(3)(c).
I move amendment 5.
Amendment 5 agreed to.
Schedule 2, as amended, agreed to.
Schedule 3—Amendments of the Scottish Public Services Ombudsman Act 2002 (asp 11)
Amendment 6 moved—[Trish Godman]—and agreed to.
Schedule 3, as amended, agreed to.
Schedule 4—Amendments of the Freedom of Information (Scotland) Act 2002 (asp 13)
Amendment 7, in the name of Jeremy Purvis, is grouped with amendments 8 to 13 and 18 to 20.
Amendments 7 to 10 are concerned with the restrictions on the appointment of an individual to be the Scottish Information Commissioner and amendments 11 to 13 and 18 to 20 are about the terms and conditions related to the appointment.
In his briefing, the Information Commissioner has pointed out why there should be balance in the restrictions both on someone who is coming into post as a commissioner and on someone who is seeking further employment after leaving the post. He points out that the restriction on employment in any other public authority in Scotland brings into consideration 10,000 such public authorities in Scotland, including general practitioner practices and others that are categorised as a public authority.
The issue is also linked, in paragraph 14 of schedule 4, to the on-going employment of a former commissioner. The essence of the amendments is to introduce an approach of reasonableness, which is to say that an appointment or place of employment will not be rejected by the SPCB unreasonably and that any request for approval will be dealt with timeously.
I think that my amendments are reasonable and that they acknowledge the range of public authorities in Scotland.
I move amendment 7.
I am particularly concerned with the problem that is addressed by amendments 18 to 20, which relate to what happens after a commissioner demits office. The effect of the bill as it stands would be to make it almost impossible for a commissioner, when they leave office, to have any role in public service for up to two years without the approval of the SPCB. That is disproportionate to the risk involved. It significantly limits the capacity of former office-holders to make a living in Scotland and may prevent experienced public servants from using their acquired knowledge and expertise to Scotland’s benefit and, equally significantly, it may deter potential candidates and mean that the post becomes attractive only to those approaching retirement or with alternative means of financial support.
Although the approval of the SPCB can be sought, there is nothing to indicate that it would usually be forthcoming, nor is there any clarity about how quickly approval would be given or refused. The opportunity to take up a position or enter into a contract may therefore be lost owing to the SPCB failing to give its approval within a reasonable period.
For all those reasons, I particularly support amendments 18 to 20. I shall listen to what Trish Godman says about the other amendments.
I will allow other members to make comments, to which Trish Godman can respond in total.
Derek Brownlee (South of Scotland) (Con)
I read the briefing note from the Scottish Information Commissioner from which Malcolm Chisholm took some of the concerns that he raised. It initially sounded like quite a reasonable list of concerns but, on rereading it, I have to say that it appears to be predicated on the assumption that the corporate body will act in a way that is unreasonable.
It is clear to me that the restriction that applies for two years does not prevent a former commissioner from being employed by a public body in Scotland, nor does it suggest that the corporate body would usually seek to impose a restriction. I would have thought—we may get more clarity on the issue—that the corporate body would exercise a power not to approve an appointment only in exceptional circumstances when it was thought that to approve it might lead to some question about the probity or appropriateness of a former commissioner moving into a particular role. It is difficult to think when those circumstances might arise but, nonetheless, it is reasonable to have a residual power in the statute book to allow the corporate body to exercise some oversight.
We need to be careful that we do not treat the Information Commissioner differently from the other commissioners. I think that I am right to say that, even if the amendments are agreed to, similar provisions will remain in relation to the commission for ethical standards in public life in Scotland, the appalling acronym for which was just read out. There should be a presumption of consistency between the commissioners.
We need to think carefully before we predicate judgments on the idea that the corporate body would somehow act in an unreasonable manner. There is no evidence from previous experience or anything that has been said publicly to suggest that it would.
In considering this group of amendments, it is appropriate that we consider the genesis and purpose of the new requirement that approval be sought before the Information Commissioner may hold office in or be an employee of another Scottish public authority. The provision forms part of a package of governance changes that follow from the written and oral evidence that was taken by the committee that I chaired. The committee did not decide off its own bat that the provision should be included, nor is it exclusive to the Information Commissioner, although I note that Jeremy Purvis is concerned only with that commissioner’s terms and conditions.
The committee was advised that, as a general principle, there should be restrictions on what posts the commissioner may hold both while they are in office and immediately afterwards, but we were also warned that a balance should be struck between introducing restrictions and ensuring that people are not deterred from applying for posts in the first place so that, after employment as the commissioner, the benefit of their knowledge, experience and skills is not automatically lost to the public sector.
We state in paragraph 95 of our report that restrictions should be in place
“to avoid the perception of conflicts of interest or allegations of corruption”.
The restrictions in the bill are proportionate. We restricted the period that was suggested to us and, importantly, added a safeguard to ensure some flexibility by giving the corporate body the power to consider requests. The bill restricts appointment in the first instance if the applicant is already an office-holder, employee or appointee of another Scottish public authority. Thereafter, if they want to take up another post while holding office, approval from the SPCB is required. Finally, when the commissioner demits office, any restrictions in their terms and conditions about subsequent employment will continue to apply for a specified period, which is until the end of the financial year following their leaving. This is a full-time post and we would expect it to remain the focus of the commissioner’s attention.
The commissioner was shown an earlier draft of the bill and he helpfully observed that an issue could arise in relation to membership of working groups and involvement in inquiries. I accepted that concern and added a provision that allows other positions to be held provided that the corporate body agrees. That seems a proportionate response that allows flexibility while recognising the underlying principle and reflecting where the commissioner’s priorities should lie.
Amendment 7 allows the commissioner to take up whatever post he wants between now and commencement and prevents the corporate body from doing anything about it. That cannot be right. It undermines the intention of the provision to avoid any perception of conflict, corruption or use of the position to secure another position. It is perhaps worth while to note that the commissioner’s terms and conditions of appointment already require him to seek permission from the Presiding Officer before accepting any outside employment or appointments.
Amendment 8 implicitly suggests that the SPCB might act unreasonably, but it already has an obligation to act reasonably under administrative law so, even without the provisions in the amendment, the SPCB could not withhold consent in an unreasonable manner. If it did so, it could be judicially reviewed. Amendment 8, like amendments 11 and 18, which are identical, is therefore unnecessary. It is not appropriate to suggest that, in exercising its functions under the bill, the corporate body will behave unreasonably.
15:30
Amendment 9 requires the corporate body to give a decision on an application to hold another post with a Scottish public authority within one month. On the face of it, that is reasonable, and I expect that the corporate body would always strive to respond timeously. In fact, I understand that it will seek to agree guidelines, if not time limits, in a memorandum of understanding covering a range of matters arising from the new powers given by the bill. However, that is quite different from having to reach a decision within one month.
If, for example, the corporate body wanted further information in relation to a request and, for whatever reason, there was a delay in receiving that information—perhaps the commissioner was on holiday or the corporate body was seeking information from another source or conducting its own research—the time limit would continue to run. Within one month from the application being received, the corporate body would then have to determine the request without necessarily having all the relevant information.
The current position is that, in considering a request, the corporate body must behave reasonably. Undue delay may not be reasonable, but neither is specifying an arbitrary time limit that applies regardless of situations or time of year. This is a matter that will require a degree of flexibility and one that the corporate body proposes to cover in a memorandum with the commissioner. That, in my view, is a better way to deal with such matters than through an inflexible provision in primary legislation. The position is the same in relation to amendments 12 and 19.
Amendment 10 requires that, if a request to take up another position is refused, the reasons for withholding agreement must be given in writing. The amendment is one of a number that are predicated on there being conflict between the commissioner and the corporate body. The corporate body has little option in this matter: if it does not give a written response to a written request and its decision is reviewed, it will have to provide reasons. A similar position arises on amendments 13 and 20.
I note absolutely all the points that Trish Godman has made.
There are some general points that I will ask members to reflect on. The first is about the restrictions that are sought to apply to the Scottish Information Commissioner. As members know, the bill puts restrictions on their appointment to any other Scottish public authority. There are 10,000 public authorities, which shows the scale of the operation, and it is balance that is the consideration.
Mr Brownlee considers that the amendments would not be fair for all the other bodies that are mentioned in the bill. He will have read the bill and will know about, for example, the amendments to the Scottish Commission for Human Rights Act 2006 in schedule 6 to the bill. That schedule provides for a restriction on employment by bodies in relation to which the commission has conducted an inquiry—there are no wider restrictions on employment. That is fair and understandable. However, the restrictions are not comparable across all the bodies that are affected by the bill, which is why I lodged the amendments.
I take on board absolutely the points that the Deputy Presiding Officer made about amendments 8 and 11. They are fair comment, and I will not pursue those amendments. On the time limit in amendment 9, I think that, given that the overall context is the sheer number of public authorities covered by the restriction, the burden should be on the corporate body preventing future employment if it believes that there is a strong case to do so, rather than on a former commissioner seeking approval for future employment. It is therefore reasonable for such a decision to be taken within a month. After all, this would be an individual seeking further employment having carried out work in post, so it is fair for the burden to be on the corporate body to respond timeously. With regard to amendments 8 and 11, I take the point about having to act in a reasonable manner.
I will press amendment 7.
The question is, that amendment 7 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Against
Brownlee, Derek (South of Scotland) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
Whitton, David (Strathkelvin and Bearsden) (Lab)
The result of the division is: For 2, Against 5, Abstentions 0.
Amendment 7 disagreed to.
Amendment 8 not moved.
Amendment 9 moved—[Jeremy Purvis].
The question is, that amendment 9 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Against
Brownlee, Derek (South of Scotland) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
Whitton, David (Strathkelvin and Bearsden) (Lab)
The result of the division is: For 2, Against 5, Abstentions 0.
Amendment 9 disagreed to.
Amendment 10 moved—[Jeremy Purvis].
The question is, that amendment 10 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Brownlee, Derek (South of Scotland) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
The result of the division is: For 3, Against 4, Abstentions 0.
Amendment 10 disagreed to.
Amendment 11 not moved.
Amendment 12 moved—[Jeremy Purvis].
The question is, that amendment 12 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Against
Brownlee, Derek (South of Scotland) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
Whitton, David (Strathkelvin and Bearsden) (Lab)
The result of the division is: For 2, Against 5, Abstentions 0.
Amendment 12 disagreed to.
Amendment 13 moved—[Jeremy Purvis].
The question is, that amendment 13 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Brownlee, Derek (South of Scotland) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
The result of the division is: For 3, Against 4, Abstentions 0.
Amendment 13 disagreed to.
Amendment 14 moved—[Trish Godman]—and agreed to.
Amendment 15, in the name of Jeremy Purvis, is grouped with amendment 16.
My amendments are linked to the amendments in Trish Godman’s name, which were agreed earlier, on the SPCB’s powers over the appointment of advisers, their terms and conditions and their payment. Those amendments improved the bill by retaining the independence of the commissioners, and my amendments complement them.
Amendment 15 ensures that, when the corporate body approves the payment of advisers, any subsequent payments within the envelope that has been approved will not require further approval by the corporate body.
Amendment 16 seeks to protect the payment of legal advisers, given that decisions on both the level and the scope of the payment of legal advisers can materially affect the extent and the level of the legal advice that an information commissioner can seek.
I move amendment 15.
I want, in particular, to speak in favour of amendment 16 because this takes us to the heart of a very important function of the Scottish Information Commissioner. He has responsibilities for enforcement and, as part of that, has no choice but to instruct legal professionals. In recognition that that is central to his quasi-judicial function, the current arrangement is that the Information Commissioner makes a call upon the office bearers’ contingency fund, held by the SPCB, to cover such costs. The Information Commissioner has pointed out to us that the consequence of what is now proposed would be very significant indeed. That is because if the SPCB is required to approve such legal action in advance, it would in effect—by virtue of approving the appointment and payment of solicitors and counsels—determine whether and on what terms the commissioner could pursue such action, for example whether junior rather than senior counsel was appointed or, indeed, whether the commissioner was in a position to legally defend or enforce decisions. As the commissioner points out, that strikes at the heart of the independence of the Information Commissioner in meeting his or her enforcement obligations.
I regard amendment 16 as the most important of all the amendments that Jeremy Purvis is moving today.
In speaking to the second group of amendments, which encompassed my amendment 14, I provided some background on the purpose of new subsections 42(9A) to (9C) of the Freedom of Information (Scotland) Act 2002. Members will recollect that those subsections are concerned with ensuring that the SPCB retains some control of the commissioner’s expenditure. They have their genesis in work that was done in the previous session by Audit Scotland and the Finance Committee. The new subsections will ensure that there is control over expenditure that is incurred by the commissioners. I also indicated earlier that the process for seeking approval for the payment of advisers would be set out in a framework document.
Amendments 15 and 16 undermine and undercut the provisions that are proposed in the bill and put the Information Commissioner in a unique position among office-holders. That alone undermines one of the main objectives of the bill, as suggested by the previous Finance Committee, which is to bring consistency to the governance arrangements. Worse than that, amendment 16 in effect allows the Information Commissioner unfettered discretion to spend whatever he determines appropriate on legal advice and removes all budgetary controls on the amounts that he might expend. In effect, it could top-slice the corporate body’s budget.
That said, I am unsure how amendments 15 and 16 work together and I am working on the basis that the member is seeking two separate bites at the same cherry. Amendment 15 reduces the amount of control that the corporate body can exercise by reducing the types of matters that require approval. Such a move is contrary to the thrust of the governance arrangements that the bill will put in place.
Perhaps I can reassure the member that there is no intention on the part of the corporate body to micromanage the commissioner’s operation, and that is why I have referred to the intention of the corporate body to enter into a framework agreement. I do not know what such an agreement might contain. That will properly be for the corporate body to suggest, but perhaps the committee might find reassurance from the operation of the framework agreement that is currently in place on financial matters. That allows for matters to be ultimately brought to the Finance Committee should disagreements arise. I do not understand that to have happened to date.
On the possibility of interference in functions, which lies at the heart of the amendments, perhaps I can further reassure the member with the words of the Information Commissioner in evidence to my committee:
“I must say at the outset that I do not think that there has been a conflict of interest. The SPCB has acted extremely well and I have experienced no interference with my role as a commissioner.”—[Official Report, Review of SPCB Supported Bodies Committee, 3 February 2009; c 97.]
Returning to amendment 16, it might be useful if I explain broadly what should happen with regard to potential legal costs. The commissioner has a budget line for legal fees and that becomes a first call to pay for legal advice. When that budget is exhausted or is anticipated to be inadequate, further expenditure is met from a contingency fund. Should that be exhausted, further costs can be met only from the corporate body’s budget, to the detriment of other services, or following an application via the Finance Committee for further funding. At all stages, decisions need to be made about respective priorities. I ask the committee to think long and hard before making a specific, open-ended exception for one or, indeed, any commissioner.
15:45
This is an important area. We require the legislation to be right, given what the Scottish Information Commissioner may well be involved in in the future. We simply do not know what will happen. The commissioner may seek legal advice on decisions that have been taken by the corporate body on behalf of the Parliament. We would not wish such a situation to arise, but we cannot rule it out. That is why I do not think that a framework agreement is the right mechanism. I think that the matter must be dealt with in statute.
I note Trish Godman’s comments on amendment 15, but I will press the amendment. There are areas in which it is perfectly appropriate for the corporate body to approve fees and allowances as an envelope, but I would be slightly concerned if, within that, payments had to be separately authorised by the corporate body.
The most important aspect is the payment of legal costs, which amendment 16 deals with. I take on board the point about making an open-ended exception in that regard, but I intend to move amendment 16. If the bill is amended to protect the commissioner’s ability to obtain legal advice independently of the corporate body—payment for such advice is a key element of that—and the corporate body wishes to test the matter with the whole Parliament, we can return to the issue at stage 3. It is extremely important that the commissioner can be independent when it comes to legal advice.
The question is, that amendment 15 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (Liberal Democrats)
Against
Brownlee, Derek (South of Scotland) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
Whitton, David (Strathkelvin and Bearsden) (Lab)
The result of the division is: For 2, Against 5, Abstentions 0.
Amendment 15 disagreed to.
Amendment 16 moved—[Jeremy Purvis].
The question is, that amendment 16 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Against
Brownlee, Derek (South of Scotland) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
Whitton, David (Strathkelvin and Bearsden) (Lab)
The result of the division is: For 2, Against 5, Abstentions 0.
Amendment 16 disagreed to.
Amendment 17, in the name of Jeremy Purvis, is in a group on its own.
The purpose of amendment 17 is to allow the commissioner to make representations to the corporate body and to ensure that it has regard to those representations when it makes a direction with regard to the sharing of services or other resources. The provision on the sharing of services or other resources is broad and may have an impact on the ability of the commissioner to carry out the legal duties that they are required to carry out and on the commissioner’s independence. Under new paragraph 8 of schedule 2 to the 2002 act, which paragraph 13 of schedule 4 to the bill seeks to insert, the commissioner would have to share services or resources with
“any other officeholder or any public body”
if the corporate body made such a direction.
Amendment 17 simply seeks to allow the commissioner to make representations in advance of the corporate body making a determination on shared premises, services or—critically—other resources, which is a reasonable addition.
I move amendment 17.
Amendment 17 is directed at proposed new paragraphs 7 and 8 in schedule 2 to the 2002 act, which will require the commissioner to comply with any directions given by the SPCB as to the location of the commissioner’s office and the sharing of premises, staff, services and other resources. At the risk of repeating myself, I remind the committee that those enhanced provisions are part of the improved governance arrangements that the bill introduces, which have long been sought by the committee and its predecessor.
Amendment 17 is unnecessary because consultation will occur in almost all situations and it is difficult to envisage an SPCB decision being made on anything significant on which consultation or, at the very least, prior discussion, has not taken place. In fact, consultation will absolutely be required when such powers directly affect contracts that are entered into by the commissioner in his name.
Where is the harm that the amendment brings? First, it would introduce an absolute requirement that applied across everything that the term “resources” encompasses, so no sharing of stationery or other such items could be directed without prior consultation. I make that point to highlight what a blunt instrument legislation can be and to suggest a need to be careful about what is put in a bill. On the practical application, the amendment would add nothing to the existing situation, as the commissioner would invariably have to be consulted.
I note the comments from Trish Godman. The significance of the issue is not necessarily to do with premises and stationery, as there is a wider aspect of sharing staff, given some of the functions that the Scottish Information Commissioner will perform. However, given that the member said that no decisions would be taken without prior consultation, I will take those comments on board and seek agreement to withdraw amendment 17.
Amendment 17, by agreement, withdrawn.
Amendment 18 not moved.
Amendment 19 moved—[Jeremy Purvis].
The question is, that amendment 19 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Against
Brownlee, Derek (South of Scotland) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
Whitton, David (Strathkelvin and Bearsden) (Lab)
The result of the division is: For 2, Against 5, Abstentions 0.
Amendment 19 disagreed to.
Amendment 20 moved—[Jeremy Purvis].
The question is, that amendment 20 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Brownlee, Derek (South of Scotland) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
The result of the division is: For 3, Against 4, Abstentions 0.
Amendment 20 disagreed to.
Schedule 4, as amended, agreed to.
Schedule 5—Amendments of the Commissioner for Children and Young People (Scotland) Act 2003 (asp 17)
Amendment 21 moved—[Trish Godman]—and agreed to.
Schedule 5, as amended, agreed to.
Schedule 6—Amendments of the Scottish Commission for Human Rights Act 2006 (asp 16)
Amendment 22 moved—[Trish Godman]—and agreed to.
Schedule 6, as amended, agreed to.
Sections 30 and 31 agreed to.
Schedule 7—Transfer of staff, property and liabilities and transitional and saving provisions
Amendment 23, in the name of Trish Godman, is grouped with amendment 24.
Amendments 23 and 24 are technical drafting amendments to correct references in paragraph 12 of schedule 7.
I move amendment 23.
Amendment 23 agreed to.
Amendment 24 moved—[Trish Godman]—and agreed to.
Schedule 7, as amended, agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill. We move into private to consider our work programme.
15:55
Meeting continued in private until 15:58.