Official Report 296KB pdf
We come to agenda item 6: consideration of delegated powers in the bill at stage 1. The committee is invited to agree the questions that it wishes to raise with the Scottish Government on the delegated powers in the bill, and it is suggested that those questions be raised in written correspondence. The committee will have the opportunity to consider the responses at a future meeting before the draft report is considered.
Section 268 of the Mental Health (Care and Treatment) (Scotland) Act 2003, which I will hereafter refer to as the 2003 act, provides a right of appeal against detention in conditions of excessive security to patients held in hospitals other than a state hospital. Such a right is available to “qualifying patients” in a “qualifying hospital”, but the meaning of each term is left to be defined in regulations made by the Scottish ministers under sections 268(11) and (12). The right therefore relies on the making of regulations to give it practical effect.
Section 11 of the bill makes a number of amendments to section 268 of the 2003 act. Together with section 12, the bill reformulates the right of appeal against detention in conditions of excessive security for patients other than those held in a state hospital. The 2003 act continues to provide that the right of appeal is available to patients in a “qualifying hospital”, but section 12(3) of the bill inserts new section 272A into the 2003 act to provide that a “qualifying hospital”
“is a hospital other than a state hospital and ... falls within such further meaning (if any) as is given to that expression by regulations.”
The right of appeal therefore appears to be conferred upon patients in all hospitals other than a state hospital, with the possibility that regulations could be made that restrict that right by further defining the expression “qualifying hospital”.
Does the committee agree to ask the Scottish Government to clarify the intended use of that power? In particular, does it agree to ask the Scottish Government to explain whether it is intended that, in the event that regulations giving further meaning to the expression “qualifying hospital” are not made by the Scottish ministers, the effect of new section 272A(1) of the 2003 act as inserted by section 12(3) of the bill is that the right of appeal will be available to patients detained in all hospitals other than a state hospital?
Members indicated agreement.
Does the committee also agree to ask the Scottish Government why, if the Scottish Government agrees with that interpretation of the power, it is considered appropriate as a matter of principle to qualify the application of the right of appeal provided for in new section 272A(1) of the 2003 act in subordinate legislation, as opposed to specifying in the bill those patients to whom the right will and will not apply?
Members indicated agreement.
New section 272A(3) of the 2003 act as inserted by section 12(3) of the bill provides that
“Regulations may make further provision as to the operation of sections 268 to 271”
of the 2003 act
“in particular circumstances.”
Does the committee agree to ask the Scottish Government whether it can provide examples of the “particular circumstances” in respect of which regulations made in exercise of the power in new section 272A(3) of the 2003 act may apply?
Members indicated agreement.
11:45
The bill makes provision for a victim notification scheme for the victims of mentally disordered offenders by amending the Criminal Justice (Scotland) Act 2003. Section 43(3)(b) of the bill amends section 16 of the Criminal Justice (Scotland) Act 2003, while section 48(2) inserts new section 18B into the same act. Section 16 as amended and the power in new section 18B(1)(c) both permit the modification of new section 18A of the Criminal Justice (Scotland) Act 2003 as inserted by section 47(2) of the bill. Does the committee agree to ask the Scottish Government why it is considered necessary to take two separate powers to modify section 18A of the Criminal Justice (Scotland) Act 2003: the power in section 43(3)(b), and the power in new section 18B(1)(c) as inserted by section 48(2) of the bill?
Members indicated agreement.
Does the committee agree to ask whether the Scottish Government considers that it would be clearer to consolidate the two provisions into a single provision?
Members indicated agreement.
It would certainly make my life a lot easier.
Section 45 of the bill inserts new sections 17B to D into the Criminal Justice (Scotland) Act 2003. New section 17B affords a victim who is to be given information by virtue of the victim notification scheme a right to make representations before certain decisions are taken in respect of the offender. New section 17C(2) of the Criminal Justice (Scotland) Act 2003 obliges the Scottish ministers to issue guidance on how written and oral representations by victims or their families under new section 17B are to be made. Although the guidance will be published on the websites of the Scottish Government and the Scottish Courts and Tribunals Service, there is no requirement in the bill to publish the guidance that is issued, simply a statement to that effect in the delegated powers memorandum.
Does the committee agree to ask the Scottish Government whether it considers it necessary to include in the bill a requirement that the guidance issued in exercise of the power be published?
Members indicated agreement.
As that completes the public section of the meeting, we will now move into private session.
11:46 Meeting continued in private until 11:52.