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Welcome to the fifth meeting in 2002 of the Subordinate Legislation Committee. We have two bills to consider this morning.
Community Care and Health<br />(Scotland) Bill (as amended at Stage 2)
First, we are considering the Community Care and Health (Scotland) Bill at stage 2. We raised with the Executive our serious concerns about the bill at stage 1, in particular sections 1 and 2 of the bill, which provide flexible powers to regulate charging for social care. We were concerned about the scope of those powers and about definitions that can be changed.
I take it that all amendments have been lodged for stage 3 and that we have passed the stage of changing the bill?
Yes.
The deadline for amendments has passed.
That is all right.
I believe, however, that there is still scope for manuscript amendments because of the changes that were made to standing orders last Thursday.
Is there anything that you want to tell the committee?
We understood the committee's points about the scope of the powers. We tried to explain why the scope was so wide. Since we gave our earlier evidence to the committee, the care development group's report has been examined and the Health and Community Care Committee's stage 1 report asked us to lodge amendments to the bill that would define more precisely what free personal care means. We lodged amendments at stage 2 to make the broader powers in the bill more specific, and introduced the new parts of section 1 that define the care that will not be charged for, which is personal care, personal support, nursing care and the items listed in the schedule.
We appreciate that some effort has been made to address the comments and objections raised by the Health and Community Care Committee and by the Subordinate Legislation Committee. However, as you said, very little can be done now—the substance of sections 1 and 2 cannot be changed. The provisions do not appear to be clear.
The regulations were provided to the Health and Community Care Committee during stage 2 simply to give an indication of how the Executive would use the regulation-making power to implement the conclusions of the care development group. The figures of £145 and £65, which relate to free personal and nursing care, and the qualification that free personal care should be available to those over 65 years old are in line with the conclusions of the care development group, which ministers are committed to implementing. The regulations were not intended to be fully drafted—in a technical, legal sense—but were drawn up to flesh out the bare bones of the bill and to indicate how the regulation-making power would be used to deliver the policy agreed by ministers.
Does the figure of £145 relate to an amount of money per year or per month?
It is intended to be per week.
I know that it is nit-picking, but we need to know what exactly that refers to.
Are there any specific points to which the committee would like a formal response in writing? If there are, we could respond either this afternoon or tomorrow morning, so that the Executive's responses to any points raised will be available to members before the debate on the bill.
Yes. That seems reasonable, given that the debate is to be held tomorrow. Perhaps you could respond to the point about the scope of the powers.
Perhaps I can speak to the clerks afterwards to agree what question about the scope you would like us to answer.
It is so late in the game that I would not want to say that we want answers to A, B, C and D—that seems unreasonable. If you speak to the clerk afterwards, that should be okay.
I have it in mind that other members might find it helpful to have something in writing from the Executive about the points that the committee has raised.
Thank you for that offer.
Sometimes we put it more strongly. It is a principle that we must explore every time it comes up. A similar problem arises in respect of the Protection of Wild Mammals (Scotland) Bill, which is the next item for consideration.
It is a pity that the procedure is so compressed—we are considering this today, but stage 3 of the bill is tomorrow. That makes it hard for the people involved.
I recognise some of those points, but I echo the convener's initial comment that the Executive has gone some way to addressing the concerns of the Subordinate Legislation Committee and the Health and Community Care Committee. We should welcome the shift towards the affirmative procedure in particular.
Yes, that is true.
Protection of Wild Mammals<br />(Scotland) Bill (as amended at Stage 2)
Now for today's doozie: the Protection of Wild Mammals (Scotland) Bill. I am sure that I am not the only member of the committee who, having read the bill, is confused about what offence the bill is concerned with—it seems to be full of get-out clauses and contradictions. It may be that I have misread it, but I suspect not.
We are considering the amendments only because they relate to subordinate legislation.
Yes.
Are the members who lodged the amendments attending today's meeting?
No. That is why they have provided written explanations. I am very pleased that they have provided those explanations, because that will allow us to concentrate on the subordinate legislation elements. The bill itself is a distraction.
Spoken as a subordinate legislation purist.
David Mundell's amendment refers to excepted activities under section 1C. We must set aside any suspicion that there might be other agendas and consider whether the powers that the amendment would confer on ministers would allow the principles of the bill to be undermined. David Mundell's amendment would provide a power for ministers to make an order to add further exceptions. He agrees that such an order should be subject to the super-affirmative procedure, which would mean that there would be consultation and all the rest of it. Do we agree that subordinate legislation is suitable for such purposes?
The fact that an order would be subject to the super-affirmative procedure is helpful. If I understand the procedure correctly, there would have to be a debate in Parliament.
Yes.
That safeguards against any misuse or misapplication.
We also have to consider whether the power is technically perfect or imperfect. If we have decided that subordinate legislation is suitable, do we want to dispose of the question today, or do we want time to think about it and consider it again next week? We have another week with the bill.
I am concerned that the suggested power would provide the opportunity for some of the principles of the bill to be undermined by subordinate legislation. I suspect that that might be the intention behind the amendment, although we cannot guess that.
That is what I am saying.
The committee does not normally approve of the ability to undermine the principles of a bill by subordinate legislation. We would normally expect there to be further primary legislation to change the principles of a bill that Parliament had passed. We might wish to pursue that with the author of the amendment. It seems to me that this is different from what the committee would normally approve.
You are so right, Bristow. Does that mean that we invite David Mundell to come and talk to us about the amendment next week?
We could do that.
Are members so minded?
Is that to explore his intent or the legalities of the power?
His intent has nothing to do with it.
I know, I know.
It is merely for elucidation.
What a treat we have in store next week. Are you all right with that, Colin?
Why not? David Mundell is a nice chap.
I am sure that he will be delighted to return to his old committee.
He enjoyed the committee when he was here. We certainly miss him.
Are you not content with inviting David Mundell to the committee, Ian? The rest of the committee is content.
If the committee believes that that is the right thing to do, that is fine. I do not think that there is any great need for it, but I am happy if the committee is.
Everybody else on the committee is happy with that. The clerk will invite David Mundell to come and be questioned on his amendment.
The one question that I would raise is that there is only a power for ministers to add species to the list specified in the definition. There is no possibility for ministers to delete species from it. For example, even if one of the species on the list were to become an endangered species, it would, under the bill, still be listed as a pest species.
Is not there other legislation that covers that? I think that there is. Sorry, Bristow, good try. Other legislation looks after sick, small furry animals.
Six small furry animals?
No, sick, small furry animals. Six is too wee a number. Fergus Ewing suggests that the negative procedure should be used to add species to the list without any provision for consultation. Once again, that would change the bill, so perhaps the committee might agree that the negative procedure is not the correct one to use and that the affirmative procedure might be more sensible.
That would seem very sensible, convener.
Do we need the super-affirmative procedure, rather than the affirmative procedure? I am not advocating it; I am just asking.
I think that the affirmative procedure is sufficient.
Will we go for the affirmative procedure?
Section 9(2) would be affected by the amendment lodged by Murray Tosh. Once again we must lay aside motivation or inspiration and consider whether the power is a correct use of subordinate legislation. The power would allow ministers to postpone indefinitely the implementation of the legislation, which seems to subvert the whole idea, but I may be wrong.
I agree with what you said, convener. It is inappropriate to put in place a power by which ministers could indefinitely delay the commencement of a bill, particularly given that the Protection of Wild Mammals (Scotland) Bill is a member's bill. I refer to the precedent set by the Abolition of Poindings and Warrant Sales Act 2001. Ministers have the power to make a commencement order, but there is also a sunsetting provision in the section, which says that if that power is not exercised by a certain date, the bill will come into force on that date. That was a protection against a move—by any Executive—to ignore the will of Parliament and not implement a bill that had been passed.
Do we think that there has to be a sunsetting provision?
I would think so.
It is perhaps sensible to have that in. That would allow the ministers to decide when to implement the bill, but there would be a definite stop on their consideration.
I agree with that. The Abolition of Poindings and Warrant Sales Act 2001 has disappeared into limbo and we cannot have that if the Parliament is supposed to exercise some power.
The point with that bill is that it will have to be implemented by a set date. I cannot recall exactly what that date is; it might be later this year.
It will get there.
As we are inviting David Mundell, perhaps we should also invite Murray Tosh to come and speak to the committee about his amendment.
That will be a laugh. Let us invite Murray Tosh as well.
I think that that is fair.
Yes. What he has done is very ingenious, but we saw through it. We decided that it did not meet the standards of subordinate legislation that the committee would normally endorse. We must question him on it.