Official Report 155KB pdf
Budget (Scotland) (No 4) Bill
I welcome members to the fifth meeting in 2007 of the Subordinate Legislation Committee. I have received apologies from Murray Tosh. I think that Adam Ingram is on his way, and we expect other members.
Adult Support and Protection (Scotland) Bill: as amended at Stage 2
Members will recall that, when we considered the bill at stage 1, we asked the Executive for further explanation of the delegated powers in sections 3, 55, 61 and 64. You will be pleased to note that the Executive has lodged amendments to deal with the four issues that we raised. I can go through them one by one if you prefer, but I will not do so if you have no points to make.
We are content that the Executive accepted the points that we raised and acted accordingly.
I concur.
Several new delegated powers were added to the bill at stage 2.
In part 2, "Adults with incapacity", section 53(7) inserts new section 22A into the Adults with Incapacity (Scotland) Act 2000. The power in new section 22A(2)(b) allows ministers to prescribe classes of person who may certify that the revocation of the power of attorney has been undertaken in accordance with the requirements of the act. Again, that is an administrative change. The power is subject to the negative procedure.
No.
The next new power is in section 54, "Accounts and funds", which replaces part 3 of the 2000 act and inserts new sections 24A to 33. Again, the new provisions are administrative. They apply powers to a wider range of circumstances and they amend the operation of the scheme rather than its substance. They are subject to the negative procedure.
No.
Section 61(2A) simplifies the process of the renewal of guardianship. Again, the provision is essentially administrative. Members will note that there will be consultation with stakeholders before subordinate legislation is made. The power is subject to the negative procedure.
No.
I welcome Janis Hughes and Euan Robson.
No.
Section 67C, "Cross-border visits: leave of absence", was introduced by an amendment at stage 2. It makes provision for short cross-border visits for funerals and so on. The power is subject to the affirmative procedure.
No.
Transport and Works (Scotland) Bill: <br />as amended at Stage 2
I welcome from the Scottish Executive Frazer Henderson, Andrew Brown and Catherine Wilson. Thank you for coming along.
Our legal brief points out that a similar point arose recently at Westminster. In that case, it was accepted that there were two possible interpretations of the power and that it would be possible for ministers to pass on to others the power to make subordinate legislation. The Government made it clear that that was not its intention and amended the power. Why has the Scottish Executive not done the same thing? Rather than leave any room for dubiety, why not make it explicit that ministers do not have the power to pass on to others the power to create subordinate legislation?
Our written response gives the answer to that. Our view is that the drafting is sufficient to show that there is no means of passing on the power to make subordinate legislation.
You have given us assurances about this Executive, but what about a future Executive?
I would have thought that that would be entirely for the courts to determine, but the legal opinions that we have received are clear and back the position set out in the letter.
Okay, I just wanted to double check.
Effectively, this is the same as the first point. Although the reference is not specifically to the act, it refers to "any enactment", so there is still some doubt about why the Executive does not make it explicit that the act cannot be amended. There would then be no dubiety—the provisions would be straightforward and clear.
We set out our position in the letter, but I also draw the committee's attention to the response that the Aquaculture and Fisheries (Scotland) Bill team provided on 21 November 2006, which touched on a similar point. Its response was more expansive than ours, but the two together give the Executive's view on why we have reached the position that we have.
I would like to follow that up. I have read both responses, but it seems that there is some doubt, although that is not the Executive's view. Do you accept that there would be no doubt if the position were made explicit in the bill?
I would ask one of my legal advisers to come in on that.
Our position is that it would be an unnecessary provision. We would be introducing unnecessary wording into the bill, and there will always be dangers in that.
Why is it unnecessary to make it explicit that there is not the power to amend the act?
We have put clearly on record our view of what the provision means, so the point is that, if any words are added, they are unnecessary.
Why might that create a difficulty? You seem to be saying that adding a provision might cause problems.
As an example, I refer to the Executive's response on the Aquaculture and Fisheries (Scotland) Bill, because that goes into it further.
Okay.
I am not clear about that. Rather than refer to correspondence from November, will you explain to us today why including words to provide that secondary legislation that is made under the act could not amend the act would cause some difficulty? Will you explain to us what that difficulty is?
I have the letter in front of me, and I will read the relevant part. It said that
So your argument is based on precedent. That is what you have done in the past, so you have to stick to it.
Yes, the argument as espoused in the letter on the Aquaculture and Fisheries (Scotland) Bill is as you have stated.
To be clear, you are saying that, if you made a change in the bill, it would set a precedent.
Yes, and it might cast doubt on what has been done in other legislation.
I just wanted to get that clarified.
Frankly, I am not sure that that is a good argument. If there is a doubt in a current bill, and if there are doubts about previous legislation, that is not a good argument for continuing down the same path.
My experience has been that introducing provisions for the avoidance of doubt into legislation and other legal documents sometimes creates other doubt unintentionally. The argument is that the point can easily be put beyond doubt by introducing some wording for the avoidance of doubt, but such provisions can create either uncertainty on the point in question or other uncertainty, depending on the wording used. Obviously, we have not seen any suggested amendment.
Can I clarify that you were firm on the Aquaculture and Fisheries (Scotland) Bill that you had done everything that you needed to do?
Yes, that is what the bill team stated in its response.
I just wanted to confirm that.
To be honest, it is not an issue that is worth pursuing. I understand what has been said, and I am not convinced by the arguments. However, I think that, given where we are in the process—we are almost at stage 3—any change would have to be by manuscript amendment.
Yes, it would.
The Executive's intention is clear. It would be up to the courts to question it, but the Executive is in no doubt. If the drafting fits with what it has done before and is common practice, I do not see any problem with it.
Janis, do you agree?
Yes.
Euan, do you agree?
Yes.
Okay. I thank the officials for coming along today to clarify the matter and to get those points on the record, which was important for us.
I am not absolutely sure that you are, to be honest. However, I read the notes and the fact that the Executive had identified the parts in question, but that is not what we received.
There was an error.
We can ensure that Stewart Maxwell gets the correct version. He saw a working version before it was finalised and put up on the web, and amendments are not highlighted in that version. However, we can respond to his point and ensure that members see the correct version.
That would make it easier.
I agree. It would be a helpful step forward.
I agree with Ken Macintosh in that I do not doubt the Executive's intentions, but I am concerned about the clarity of those two points. However, there does not seem to be support in the committee for a manuscript amendment on the point, so I will not pursue it.
We can reflect that concern and the fact that we asked the officials to appear to give their assurance on the record as well as in writing.
Next
Executive Responses