Subordinate Legislation Committee, 05 Oct 2004

Meeting date: Tuesday, October 5, 2004

Official Report 106KB pdf

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Delegated Powers Scrutiny

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Fire (Scotland) Bill: Stage 1

Welcome to the 27th meeting this year of the Subordinate Legislation Committee. I have received one apology, from Adam Ingram.

Members will remember that we wrote to the Executive about two matters concerning sections 41 and 54 of the bill.

We turn first of all to section 41. Members will recall that there was a question about whether the affirmative procedure could provide the necessary flexibility. The Executive has written back to say that that would be difficult if there was an emergency situation in a parliamentary recess, so it suggests that the negative procedure would be better.

We accept that.

There is some merit in that argument.

Are members agreed?

Members indicated agreement.

Section 54 concerns the power to make regulations about fire safety, and members will remember that, although it contains a power to create criminal offences by regulation, no maximum penalty was identified. Members have all seen copies of the Executive's feedback on the issue. Are there any points that members want to make?

I hear what the Executive is saying, and it has mentioned a couple of examples of cases where it has done the same thing in the past, perhaps even before this Parliament was established. We see on an almost weekly basis examples of powers to limit penalties according to a standard scale. It is the normal practice for bills to set a maximum penalty on the standard scale—at level 3, level 5 or whatever it happens to be—but it seems to me that the Executive has not answered the question properly, so I have not changed the opinion I held last week. It seems to me entirely reasonable and appropriate that the Executive should set a maximum penalty in the bill, rather than leaving it to subordinate legislation.

I should add that I have the information from the Transport (Scotland) Act 2001 that the Executive response refers to. That is an example of an act in which the maximum fine is detailed, and Stewart Maxwell is quite right to say that we have usually seen that in legislation.

We have no time to send this matter back to the Executive, so do members agree that we should just point up the issue to the lead committee that is dealing with the bill?

Members indicated agreement.

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Water Services etc (Scotland) Bill: Stage 1

Members will remember that we had concerns about sections 4(7) and 5(7), which are almost identical. The wide powers are what is at issue here. I wonder what comments members have on the Executive's response.

For a start, the Executive has not dealt with our most serious concern, which is whether the powers give a future Executive scope to privatise Scottish Water. I accept the Executive's explanation in respect of minor matters that it might not have thought of at this stage, and that seems entirely reasonable, but on the specific point at issue I would like to press the Executive to answer that concern before I would be content to say either yes or no.

I accept what Christine May has said and I agree with her. The Executive has answered a number of points without saying what its intent is. There has never really been any argument about its intention, which I am sure is entirely honourable, and I understand why there may be difficulties in some of the cases that it highlights. However, it has just not answered the primary question that we asked, which was about whether the powers as they stand could enable a future Executive to privatise Scottish Water—by the back door, I think is the phrase. That question was not answered and it seems to me that the powers remain for the Executive to do that. Whether or not that is its intention is irrelevant. I think that we should stick to our guns on this point. Do we have time to ask the Executive again?

No. We would have to pass the matter on to the lead committee.

I think that we should convey our concerns to the lead committee in the strongest terms.

The lead committee also appears to be concerned about that power, and it will be asking the minister about that today.

Members will also note that the Executive replied on the issue of consultation, indicating that there is a consultation process, but our legal advisers have reminded us that the Executive would need to consult only with Scottish Water and with the proposed water industry commission for Scotland. The consultation would not be wider than that.

That is not consultation as I understand it.

I just wanted to point out that added issue.

Do members agree that we should pass that on to the lead committee?

Members indicated agreement.

Members will remember that there was an issue to do with the disconnections code, and we have had quite a lot of information from the Executive with regard to who would be affected and who would not. With regard to the code, the Executive insists that it will not follow any formal procedure such as laying it before the Parliament.

I am pleased to see that answer from the Executive. What concerned me last week was that there might be some change with regard to disconnections for domestic customers. I am reassured that that is not the case and that the Executive intends to codify the procedure in respect of other premises. I am content with the answer and I think that we should just accept what the Executive says.

Is that agreed?

Members indicated agreement.

Our next concern was about section 23 and the meaning of "dwelling" in relation to eligible premises. The Executive repeats that the power is intended to be used in a very narrow set of circumstances, and it refers to the type of situation in which it would be used. However, members will remember that we were concerned that, where there is a power to amend primary legislation, it should be subject to the affirmative procedure. Ought we to be consistent and stick to our guns on that point?

I think that that is a good idea. We should stick to our guns.

Is that agreed?

Members indicated agreement.

We shall pass that on to the lead committee.

Finally, paragraph 1(7) of schedule 2 concerns consideration of licence applications, and the Executive has said that it will look at that again following our comments. Are members content with that?

Members indicated agreement.