Subordinate Legislation Committee, 05 Sep 2006

Meeting date: Tuesday, September 5, 2006

Official Report 170KB pdf

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Delegated Powers Scrutiny

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Adult Support and Protection (Scotland) Bill: Stage 1

I welcome everyone to the 23rd meeting in 2006 of the Subordinate Legislation Committee. Apologies have been received from Sylvia Jackson and Jamie Stone. We have been joined by Maureen Watt, who clearly has a taste for excitement. If she would like to join in our discussion, she should give me a nod—that is not a problem.

Members will recall vividly that we considered the Adult Support and Protection (Scotland) Bill on 27 June and that we wrote to the Executive on a number of points. Members should have in their papers copies of the responses.

On section 3, "Adults at risk", we were concerned about the apparently unlimited power to modify the definition of adults at risk. We asked the Executive to provide further justification for the power and to indicate how it thought that it might be used and whether there ought to be a consultation requirement in the bill.

The Executive has said that, in time, practice may highlight gaps in the definition of "adults at risk" and that ministers would wish to deal with those without resorting to primary legislation. It has also been made clear to us that there is no intention to use the power to restrict the definition. We have not been provided with specific instances in which the power would be used, although I can understand that, and we have not received an answer to our question about the consultation requirement. Are members happy that the case for delegating the power has been made?

The Executive repeats the argument that it makes in the explanatory notes to the bill and in the policy memorandum. It is still open to question whether it is desirable for the core definition in the bill to be amendable. We should draw our doubts about the power to the attention of the lead committee. If it is agreed to in its current form, changes to the definition should be subject to consultation and to the affirmative procedure, at the very least. I have outstanding doubts about the power. The Executive has repeated the argument that it made initially, but it is difficult to foresee the exact circumstances in which it would need to use the power. I am open to persuasion either way, but I have doubts about whether it is necessary to include the power in the bill.

The Executive has not given us an example, so it is difficult to see how the power would be used. However, I take some comfort from the statement that it will not restrict the definition.

I agree with Ken Macintosh that the Executive's response is deeply unconvincing. If there had been any indication that difficulties with the definition in the Adults with Incapacity (Scotland) Act 2000 had become apparent during the implementation of the act, presumably the Executive would have highlighted those to support its case here. The fact that there have been no difficulties—or none that the Executive is prepared to tell us about—suggests that the case for the power is particularly weak.

On the other hand, if the intention is never to change the definition in such a way as to restrict it, as the Executive's response indicates, the Executive may be prepared for the bill to be amended to restrict the scope of the power. If the power is never used or is used only in a direction that is harmless and that is subject to consultation, it will be less damaging. In that case, the Executive's reasons for seeking the power would be perplexing, but that is a matter not for us but for the lead committee. Our role is to highlight to the lead committee how the power might be made acceptable.

I have the impression that the committee does not really see the need for the power and that it leaves us ill at ease. We should report that to the lead committee and say that, at the very least, any change should be subject to the affirmative procedure, that the scope of the new power should be restricted so that it can be used only in the way in which the Executive describes and that there should be a consultation process before it is used. We should set out our views specifically to the lead committee.

I agree, but what you have outlined is a fallback position. In my view, instead of any change being subject to consultation, the Executive should not have the power. According to the legal brief, the current definition includes "disability" and "infirmity" and it is impossible to figure out what would not fall into those categories. The Executive has failed absolutely to give us even a hint of what it thinks might fall outwith those categories. I do not see the need for the power. The example that it gives from the Protection of Children (Scotland) Act 2003 is not analogous to the issue that we are discussing. The Executive has failed completely to explain why we should support the power.

You have expressed your views clearly on the record. I said that the committee was unhappy with the power and did not really see the need for it, but that if it was introduced certain safeguards should be built in. I phrased that as a fallback position. Are members content for us to express that view to the lead committee?

Members indicated agreement.

Sections 55(1) and 56(2) insert sections into the 2000 act. We have no problem with the substance of the provisions, but there is a drafting error. The Executive will clarify the ambiguity that we have identified. We will report the matter to the lead committee and keep our eye on it to ensure that the necessary change is made.

Section 61(1)(d) deals with guardianship orders. We noted that the power is potentially sensitive but is subject only to the negative procedure. We asked the Executive to consider restricting the power in the bill and to include a statutory requirement for consultation with the Mental Welfare Commission. Both recommendations have been accepted. Amendments will be lodged and we will report on and monitor those.

Section 64(1)(c) deals with adjustments between councils in relation to social services and includes another drafting error. We will report on and monitor the matter to ensure that the necessary change is made. We received a satisfactory answer on three of the four matters on which we reported.

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Transport and Works (Scotland) Bill: Stage 1

I remind members that the purpose of the bill is to remove the need for private bills for the purpose of enabling transport-related developments by conferring on ministers appropriate order-making powers. Anyone who has served on a private bill committee will say hurrah to that general proposition. The bill reproduces for Scotland part 1 of the Transport and Works Act 1992. The wording in sections 1 and 2 of the bill follows the provisions of the 1992 act very closely.

Before we discuss individual sections of the bill, we must deal with a general matter. Section 27(6) includes a sweeping power that relates to incidental and supplementary provisions and that could have an effect on the way in which every power in the bill is exercised. Do members wish to comment on the power, which is worded in a very wide-ranging way? Our legal adviser, Margaret Macdonald, tells me that the provision is not included in the equivalent United Kingdom statute.

This is the section that includes

"provision amending, repealing or revoking any enactment".

An enactment is defined as the bill or any provision under it. The power is slightly worrying. At a previous meeting, we had a general discussion about our unease about the wide interpretation that can be applied to the words supplementary and supplemental. In this case, the provision is very specific—it indicates that the power can be used to amend anything in the bill. At the very least, we should ask the Executive why it thinks that the power is necessary. After we have received a response, we can discuss the matter further.

In principle, this is the same sort of argument that we have been having repeatedly. Like all Executives, this Executive likes to have powers such as the one that we are discussing. However, this may be more than the usual argument about the definition of supplemental. We may want the Executive to provide real justification for needing the enactment to be repealable, in theory, by a statutory instrument.

Is there an element of retrospection in this? Would this power apply to private transport bills that have previously been enacted?

Yes.

It would. Therefore, the Waverley Railway (Scotland) Act 2006, the Edinburgh Tram (Line One) Act 2006 and the Edinburgh Tram (Line Two) Act 2006 could all be amended, revoked or repealed by the Transport and Works (Scotland) Bill when it is enacted. I think that that perhaps explains the Executive's desire to have the power in section 27(6), but I do not think that that is necessarily a convincing argument as to why it should have that power.

In a debate that we had on one of the Edinburgh tram bills—my apologies to those stalwart souls who served on the committee but I do not remember which one it was—there was a suggestion that one of the tram acts might be only partially implemented. Further, there was a dispute during the course of the Waverley Railway (Scotland) Bill about attached conditions that the people responsible for the funding, who might include the Executive, could find burdensome in the fullness of time. There are areas where the powers are enabling, so the Executive does not really need the section 27(6) power because an enabling power does not have to be enacted. A private bill does not need to be repealed if it is not implemented. It simply gathers dust, I imagine, unless there are issues about removing it specifically in order to lift things such as blight and potential compulsory purchase orders. There is a possible argument there for the relevance of the section 27(6) power. However, I would be more concerned about the possibility that we were handing ministers the power to amend by instrument something that the Parliament had expressly included at the point of passage.

I certainly do not want to sound as if I have any legal expertise on this matter, but I do not think—and I am happy to ask the Executive about this—that the Executive could use the power in section 27(6), for example, to repeal the Waverley Railway (Scotland) Act 2006. Clearly, the power is for making changes—

The power could amend the conditions attached to the 2006 act.

I read it as referring to things that could be done to change the Transport and Works (Scotland) Bill that might coincidentally or consequentially mean amendments and revoking elsewhere. Any act usually affects lots of other acts. I think that it is about the power affecting other acts as it makes changes to this one, rather than the Executive simply coming along and saying, "As from tomorrow, the Waverley act has gone away." Is that not right?

I am not suggesting that the Executive will do that; I am suggesting that issues that have arisen in the course of previous private transport bills may have persuaded the Executive that it wants a degree of flexibility. I am arguing that I think that that is dangerous because, as the debates on those previous bills have shown, there have been areas in which the Parliament has had a different view from that of the promoters and the Executive and has attached conditions—which the Executive accepted in the case of the Waverley Railway (Scotland) Bill.

The Executive might feel that previous debates raised issues that focused its mind on the section 27(6) power, but that should work the same way for us. We should be very careful about giving the Executive substantial powers that could, as in the example given, result in an important part of a bill being vitiated, if that is the word. I am not saying that that is the Executive's intention; I am saying that that illustrates the potential of the section 27(6) power to give the Executive powers that would be very sweeping indeed. I think that before we could be happy with that we would want to know how the Executive envisages the power being implemented and what conditions would attach to it. It may be that we would feel that the wording of the power and the hedging in of it on the face of the bill is not adequate to protect the rights of Parliament.

We can deal with the matter in two ways. First, we can ask the Executive to comment on the power. Presumably, if we do that we can refer it to the Official Report of this discussion, so that it can see laid out in detail what your concerns are. Secondly, we can get the Executive officials to sit in front of us and speak to us. You can express your concerns and they can explain what precisely the section 27(6) power can and cannot do and what it is meant for, in their view. That would allow us to have a dialogue, in case we get an answer back in writing next week that raises more questions than answers. If you feel strongly enough about the matter, we will get the officials to come and sit at the table. Any thoughts?

It is more of a question really. You commented, convener, that the section 27(6) power would have just a coincidental, knock-on effect on other bills, but that is not quite how I read the bill.

I may be wrong.

Section 2(3)(a) states that an order under section 1 may

"apply, modify or exclude any enactment which relates to any matter as to which an order could be made under that section".

If we have doubts about how such powers would affect other acts, I have no problem about getting the Executive officials to come and talk to us.

I think that that might be worth while.

I think that we should do that, convener.

I have no difficulty whatsoever with that. I have been on this committee forever and, as I said, we used to do that quite regularly years ago.

We could knock this matter backwards and forwards, but I think that the section 27(6) power is obviously the key concern or power in the bill that we need to address. The fact that the power is not in the equivalent UK bill to my mind suggests that we need to explore with the Executive officials why it is in the Transport and Works (Scotland) Bill. If it is to do with the kind of experience that Murray Tosh has detailed to us, that is all the more reason for having a dialogue with the officials. [Interruption.]

Could you all check your mobiles or pagers? Somebody is causing us sound problems and for once it is not me.

I have nothing against bringing the Executive officials along. If the situation is as Murray Tosh suggested, we certainly need to consider the matter in depth. I do not have fears that the bill would give the Executive such wide powers, but I am still concerned about exactly the range of powers that the bill would give. I assumed that it would be able to reform incidental and supplementary provisions within an act; I did not realise that it would be able to make policy changes. If it could do so, that is even more reason to consider it.

We are interested in the Transport and Works (Scotland) Bill because many of the issues in private transport bills take a huge amount of parliamentary time to discuss. They can be relatively uncontroversial matters, but can involve a lot of detail. What we are trying to do is to put through a bill that would allow such detail to be dealt with by the Executive in a non-parliamentary way. Obviously, we are also trying to keep some sort of parliamentary control. However, that is the debate—that is what I am worried about. The point of the bill is to take a lot of powers away from the Parliament and give them to the Executive and that involves a huge amount of trust. We want to ensure that we have got that part of the bill right.

Before we get the Executive officials along, which would be fine, I would not mind seeing a more detailed written explanation first. However, the bill is only at stage 1, so we have a long way to go.

The officials will be able to see from this discussion what our concerns are. I would hope that they would give us a briefing on what their position is before they came to a meeting, in order that we might then discuss it with them.

If we are doing it that way, convener—I am not unhappy with that—let me flag up a further issue, which is the kind of ratchet effect of expanding the section 27(6) power. It is a particularly wide power and it seems that every time we look at this supplemental etcetera power, the scope for it to do more seems to grow.

I call it the Topsy power.

The Topsy power if you like, convener—that is eloquently put. However, Topsy grew of course without any particular strategy or vision, as I understand the metaphor. In this particular case, I wonder whether the Executive is just pushing the door further and further ajar. One of my concerns about the power is the implication for its expansion in future bills. It may be that the power is specific to the type of legislation that the Transport and Works (Scotland) Bill is, given that it is focused on the implementation of specific projects. There may be arguments that such bills should be amendable and that projects may go on and off the agenda and that the Executive would not therefore try to use a section 27(6)-type power in the same way in other legislation. However, I think that that might be something that we would like to see addressed in the Executive's response.

We have a note of all that. I am told that our session with officials is likely to be in a fortnight's time, not next week.

We now consider bills on a fortnightly cycle, when that is possible.

So we expect officials to appear before us in two weeks' time.

Section 1 of the bill, "Orders as to transport systems and inland waterways", deals with the power to make orders on the construction or operation of specified transport systems. The affirmative procedure will be used for orders that relate to developments that are of national significance, but orders that concern developments that are not of national significance will not be subject to parliamentary procedure. Ministers can exercise discretion in that regard.

With regard to the content of an order, section 27(9) places a limit on the penalties that can be imposed for an offence that is created under any order that is made under section 1. Although we would usually disapprove of a power that allows offences to be created by subordinate legislation, it is suggested that that would be impractical in this case. Are we content that, in principle, the restriction in section 27(9) provides sufficient control on the exercise of the power to which section 1 relates?

Members indicated agreement.

Section 2(3) contains wide powers to amend primary legislation. That might seem okay, but we can discuss the issue—which Stewart Maxwell has already mentioned—when the officials come before us. The power to make incidental or supplemental provisions that is contained in section 27(6) extends the powers in section 2. We will discuss all that with the officials.

I mentioned that some orders relate to developments that are of national significance, which are defined in section 13(1)(a). That definition must be read along with the Town and Country Planning (Scotland) Act 1997 and the Planning etc (Scotland) Bill, which is being considered by the Parliament. Orders that are made under section 13 will not come into force unless they receive parliamentary approval under the affirmative procedure. I ask Margaret Macdonald to explain what that means.

After being made, such an order will have to receive parliamentary approval. The procedure is unusual.

Are we content with that?

Members indicated agreement.

There are two other points on which we will seek clarification from the Executive: the first relates to orders that authorise the carrying out of works of national significance and the interpretation of the word "procedure" and the second concerns sections 13(6) and 13(1)(b) and the exercise of ministerial powers. We will also ask about the potential loophole that exists in section 12(14).

Are we content that, apart from the orders that will be subject to the procedure that is provided for in section 13, orders that are made under section 1 will not to be subject to any parliamentary procedure?

Members indicated agreement.

We have identified those areas that we want to discuss with officials.

Under section 4, "Applications", rules that relate to the form of an application will be subject to affirmative resolution in the first instance and negative resolution thereafter, except when they amend the text of an act, when they will be subject to affirmative resolution. That will provide more scrutiny than is provided for under the Transport and Works Act 1992. Are we content with that?

Members indicated agreement.

We might want to find out why the Executive thinks that the power in section 4(4)(a) is necessary for information that is supplied by ministers.

There is no statutory obligation to consult on the rules, but we do not think that that is necessary in this case.

Section 6, "Orders made otherwise than on application", confers wide powers on ministers. Although some of its provisions are mirrored in the 1992 act, the one in section 6(1)(c) does not seem to have any equivalent, so we should ask the Executive how it intends to use it.

Section 7, "Model provisions", makes no provision for guidance to be issued in any particular form or for it to be subject to any parliamentary procedure. There are similar powers in the 1992 act, which must be exercisable in the form of a statutory instrument that is not subject to parliamentary procedure. The incorporation of model provisions in an SI at least ensures their publication. Should section 7 provide for the incorporation of model provisions in a statutory instrument? Do members agree to ask the Executive to consider doing that?

Members indicated agreement.

We will also ask the Executive to clarify its intentions regarding the status of the proposed guidance to ensure that everything will be published properly.

Subsection (1) of section 8, "Objections", will provide ministers with the power to make rules on objections to an application for an order. The rules that govern the issue will be subject to the affirmative procedure in the first instance and the negative procedure thereafter. Are members content with that?

Members indicated agreement.

We will ask the Executive about its intentions in relation to the exercise of powers under section 8.

Section 10, "Procedure at inquiries and hearings", will give ministers the power to make rules to regulate the proceedings of an inquiry or hearing. The rules will be subject to the affirmative procedure in the first instance and the negative procedure thereafter. Are members content with that?

Members indicated agreement.

The procedure that would apply to the rules is set out in section 210 of the Local Government (Scotland) Act 1973. As no procedure is prescribed in the bill, such regulations would not be laid before the Parliament, but would be scrutinised by the Subordinate Legislation Committee. I think that that is okay.

Before we move on to section 12, I draw attention to the observation in the legal brief that the Executive did not comment on the delegation of legislative power with which section 10 deals, either in the delegated powers memorandum or in the bill's accompanying documents. We are so used to such little gaps that we tend just to pass over them, but perhaps we should flag up the fact that we like to discuss such general matters with the Executive. The DPM and the documents that accompany bills should address all the issues that arise and should never leave us in the position in which we can identify one that has been ignored. By dealing with all such matters in the memorandum and a bill's accompanying documents, the Executive can ensure that its explanations are on the record so that everyone who might be affected by the bill, as well as the Subordinate Legislation Committee and the lead committee, understands it. In general, it is not acceptable for the Executive not to address issues that clearly exist.

Would you like us to fire a little shot?

I am not saying that we should raise the issue specifically in the context of our consideration of the Transport and Works (Scotland) Bill, although—

We should mention it.

If we are to ask the Executive to clarify a number of points, we could ask it to explain why it did not comment on the matter that I have identified. However, there is a bigger issue, which we should ask the Executive to address.

We will make that point in the context of our present inquiries.

The power in section 12, "Publicity for making or refusal of order", is subject to the affirmative procedure in the first instance and the negative procedure thereafter. That seems to be okay.

The bill provides for the power in section 14, "Consents etc under other enactments", to be subject to the affirmative procedure in the first instance and the negative procedure thereafter. I suggest that we ask the Executive to explain what it is proposed would be covered by section 14(5)(b) for which section 27(6)(b) would not provide sufficient vires.

Section 18 concerns access to land. As members of the relevant committees know, powers of entry and issues relating to appeals and compensation are sensitive matters. It is proposed that an order that is made under section 18(1)(a) should be subject to the affirmative procedure in the first instance and the negative procedure thereafter. Such provisions may be relevant when we come to discuss with officials the sweeping powers that section 27(6) contains, because under those powers all such provisions could be changed. Although we do not lack in contentment in this case, it might be one of the sections that we think about when it comes to our discussion in a fortnight.

Section 18(1)(b) raises the issue that we addressed in the previous section. There is an argument that it is less appropriate to leave matters such as rights of appeal and compensation to the discretion of ministers to prescribe than to incorporate them in the bill and that perhaps they should be specified in the bill. Are we content with the power being delegated, or when we discuss matters should we discuss this as something that might be better in the bill?

I was not not content, but since you raise the matter as an issue that we might discuss, why do we not do so?

I do not want to bring officials to the committee to discuss every detail, but on the other hand when they are here we might discuss matters with them that we would not bring them here to discuss.

Sections 23 and 24 deal with amendments to the Roads (Scotland) Act 1984 and the Harbours Act 1964 respectively.

I will start at the beginning this time. The first comment made in our legal brief is that the delegated powers memorandum offers no comments on those sections, but both of them are adjudged to make significant modifications to powers in the Roads (Scotland) Act 1984 and the Harbours Act 1964. It again raises the question as to why, if significant issues are raised by the legislation, the memorandum does not flag that up for the committee and for its other users. This is another case in point that we might raise in the specific but also add to the general concern about the quality and scope of the memorandum.

I take that point, but this is about provisions that are intended to align the procedures relating to all orders dealing with transport matters. Everything is to be the same across the board. It introduces, in relation to certain instruments, procedures similar to those prescribed in section 13. We will ask the Executive to clarify a couple of points that have been raised in relation to amendments made by section 23 to the Roads (Scotland) Act 1984.

Section 25 deals with amendment of the Pilotage Act 1987. Procedures relating to the holding of inquiries are left to be dealt with under the Tribunals and Inquiries Act 1992 and no special rule-making power for this purpose is included in the amendments to the 1987 act. Should we ask the Executive to clarify the matter further?

Yes. We should also note again in passing that the delegated powers memorandum does not address the matter. Although it seems to be more procedural than the more substantive earlier examples, it is still a case in point.

The point has been made about the DPM not mentioning one power after another. Rule 9.4A of standing orders seems to be fairly clear that the DPM should mention the powers and explain the various aspects of them. It looks on the face of it that those errors—if I can put it that way—are a breach of standing orders in addition to making it very difficult for us to look at the various powers. Perhaps when the officials come along they can explain why there is no mention in the DPM of those various powers, given what is stated in standing orders.

That is a fair point. We will put them on notice.

Section 26 deals with amendment of the Transport (Scotland) Act 2001. A slight drafting ambiguity arises, which we will clarify with the Executive.

Section 27 relates to further provision as regards rules, regulations and orders. We will talk about the matter with the Executive when the officials arrive. We have gone over the issue in some detail.

Section 29 is on the short title and commencement. The section provides for the bill to come into force by commencement order in the normal way. The order will not be subject to Parliamentary procedure.

Members will note that a commencement order under section 29 could include supplementary provisions that amend primary legislation but would not be subject to parliamentary scrutiny. We come back to the section 27 argument. We would need to keep this section in mind as part of the linkage into what we will discuss with officials when they come.

A further difficulty with section 29 is that not only will an order under the section not be subject to scrutiny but, as the section is currently drafted, the order will not be made as a statutory instrument and therefore will not be subject to scrutiny even by the committee. Should we ask the Executive about that? There is also a point about commencement on royal assent and whether it should be the day after royal assent. I feel like bursting into "What a Difference a Day Makes".

Do not let us stop you.

I will try not to do that.

Under standing orders it is expected that you give notice, but since you are convening the meeting you could waive that requirement.

I could do what I like.