Subordinate Legislation Committee, 05 Nov 2002

Meeting date: Tuesday, November 5, 2002

Official Report 95KB pdf

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Delegated Powers Scrutiny

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Building (Scotland) Bill: Stage 1

The first item on the agenda is delegated powers scrutiny of the Building (Scotland) Bill at stage 1. The bill, which modernises the Building (Scotland) Act 1959, must comply with European Union directives. Although it retains the general framework of the 1959 act, it will hopefully introduce a degree of flexibility into the system by providing for the setting of only minimum functional standards, with other standards having the status of guidance. The changes are intended to free the construction sector from excessive prescription. Of course, we all say "Hooray" to that. However, on the other hand, we must examine the bill closely and seriously to find out whether protection is built into it. After all, it does concern the building industry.

Section 1(1) sets out the power to

"make regulations … with respect to the design, construction, demolition and conversion of buildings and the provision of services, fittings and equipment in or in connection with buildings".

As is appropriate for a building bill, this is the foundation provision.

Convener, can we decide now to cut out the building analogies? It would make life a lot easier at this time of the morning.

We will keep having to come back to section 1 as we go through the bill.

The power set out in this section also applies to ancillary powers made under sections 2(1), 2(4), 8(6), 46 and 51(1) and to paragraphs 2, 3 and 4 of schedule 1. I apologise for not following our usual procedure for considering legislation, but this is how sections have been grouped in the explanatory notes. Personally, I found this approach helpful in following the bill.

I should point out that paragraph 3 of schedule 1, which deals with limited life buildings, marks a change from previous legislation. The Building (Scotland) Act 1959 defines limited life as 10 years; however, the bill simply refers to the phrase "limited life". That said, the committee does not feel that it is worth while taking the matter up with the Executive. I should also add that the negative procedure that has been suggested for powers specified in paragraph 4 of schedule 1, which refers to exemptions from building regulations, also appears to be okay.

Sections 3 and 4 are not mentioned in what I have described as the Executive's very helpful policy memorandum. However, they confer quite extensive powers on the Scottish ministers. For example, section 3 provides for ministers, by direction, to relax building regulations for either a single building or a class of buildings. The Building (Scotland) Act 1959 contains the safeguard that direction cannot be given where building regulations are amended in such a way. As a result, it would be worth while asking the Executive why such a change has not been mentioned in the policy memorandum. Perhaps it could also outline the circumstances in which such a power would be used.

Murdo Fraser knows of a circumstance.

What is that?

Were you not banging on about some listed building?

Oh, you mean historic buildings.

If this is a policy change, we should ask the Executive whether it is intended and is not an oversight. Assuming that it is intended, I think that the Executive should provide an explanation for such a change.

To be quite honest, I think that it might be an oversight. The policy memorandum does not mention it at all.

Let us assume that there is such a thing as an evil Executive.

No. Until the Executive is shown and proven by this committee to be utterly evil, it shall remain blameless.

I was not suggesting this particular Executive. I would not do that, because that is not how I play the game. However, it is possible that there might be such an Executive sometime in the future.

Under an Alex Neil leadership, perhaps. [Laughter.] What a terrible thing to say. Disloyalty in the ranks!

Well, we are asking the Executive anyway; there is no way it is getting off the hook.

Section 4 provides for the issuing of guidance by the Scottish ministers. However, under section 5, such guidance has some evidential effect in criminal proceedings. We might set some sort of precedent if we simply said, "That provision's okay."

Is that not a saving provision? Whatever charges have been brought against someone under construction or working place regulations, he or she could say "I am just a wee chap—I complied with the guidance and followed best practice".

So it gets them off the hook. In that case—

It might not necessarily get them off the hook, but it might add weight to their claim that they took all reasonable practical steps.

However, if guidance can affect the course of a criminal trial, is that not the very reason why it should be laid before and considered by Parliament?

Yes, I suppose that it is.

We will ask the Executive about the matter.

We have no comment to make on the power to make "procedure regulations" in section 30(1) or on the use of statutory instruments that are subject to annulment in section 35, which deals with fees and charges.

Section 1(4) sets out the power to modify paragraph 5(2) of schedule 1. The procedure proposed for the exercise of the power, which can amend primary legislation, is annulment. In such circumstances, the committee always considers whether it is happy about the use of the negative procedure.

We should ask the Executive whether it has considered using the affirmative rather than the negative procedure in this respect, and see what its explanation is.

That is fair, because there is no provision for prior consultation. As the power allows ministers either to add to or to subtract from a list in the schedule, either a provision for prior consultation should be included or the affirmative procedure should be used. We cannot do without both. We will ask the Executive to explain its approach.

We have no problem with section 21(2), which deals with building standards registers. The provision in section 28(3), which sets up the building standards advisory committee, marks a slight difference from provisions in the Building (Scotland) Act 1959. The 1959 act specifies that the intervals for submitting reports by the committee are to be not more than five years apart. Presumably the provision in the bill is another means for getting rid of excessive red tape.

Do members have any comments on section 33(1), which deals with regulations as to the form and content of applications, warrants and certificates?

It seems fair enough.

We now move on to consequential, ancillary and commencement provisions. We will need to take a bit of time over section 1(5), which provides that any enactment may be modified by order

"if it appears … that the enactment is inconsistent with, or is unnecessary or requires alteration in consequence of, any provision of building regulations".

Although the Executive claims that that power is similar to the existing power in section 3(7) of the Building (Scotland) Act 1959, that might not be the case. That subsection was added by the Health and Safety at Work etc Act 1974, from which the 1959 act was specifically excepted.

So you think that someone has made a mistake.

I do not know whether it is a mistake.

There seems to be a suggestion that if future legislation wanted to provide for special standards for hospitals, for example, someone could use the provision to say, "Wait a minute—we're grounded on the building regulations and don't need to do anything more than that." Any attempt to get more protection or special regulations for particular buildings could be challenged and perhaps fall on the basis of the provision. The Executive should be made aware that that is possible and asked if that is what it wants.

I agree, although we may be straying into policy areas and trying to work out how it would work in practice. Personally, I think that because we have such imaginative means of building public works—

Do you mean technically?

I was thinking of both financial and technical means, and because of them, I can see why we would want to ensure that standards are watertight. The provision as it stands leaves a bit of leeway that I would not welcome if I thought that it could be exploited. I apologise if that appears too close to the mark on policy, but it is difficult to separate the policy from the mechanical means of applying the policy. The two are practically one and the same.

Brian Fitzpatrick, have you any thoughts on the matter? Is it okay if we ask the Executive about the provision?

Yes, I am absolutely content.

Good.

Section 49 provides for the general provisions of orders and regulations.

That section is about delegating powers, and the problem is that, as it stands, it would appear to allow the delegation of legislative functions. That does not sound like a good idea. It should be only ministers and the Parliament that have powers of legislation. We should ask whether that is what the Executive intended.

If they did intend that, it is not a particularly clever way of formulating subordinate legislation.

Section 52 is an order making ancillary provision for purposes or in consequence of the bill, which seems to mean that the Executive can say, "If things don't work out, we'll change them." We are not clear how it relates to section 1(5), which we have already discussed, but presumably we can include our query on how the two parts relate in our inquiry on section 1(5). Is that okay?

Members indicated agreement.

Fine, and everything is hunky-dory with the standard commencement provision in section 54(1).