Delegated Powers Scrutiny
Health Board Elections (Scotland) Bill: Stage 1
I welcome members to the 19th meeting in 2006 of the Subordinate Legislation Committee. I have apologies from Gordon Jackson. I remind members to switch off their mobile phones and enter their cards into their consoles.
Item 1 on the agenda is delegated powers scrutiny of a member's bill introduced by Bill Butler. It does not require a delegated powers memorandum, which is a wee bit of an issue, as members will see as we go through the powers. There are only two order-making powers in the bill, which we can consider today. If we have any questions, we can send them to Bill Butler and then invite him to attend our meeting on 27 June to answer any further questions.
Both delegated powers are in section 13, "Orders and ancillary provision", and both are subject to the affirmative procedure. The first is in section 13(1) and is the power to modify schedule 1 to the bill. Members will have seen the legal brief; would you like to raise any points?
We should ask Bill Butler a general question about the width of the power in section 13(1). Schedule 1 makes detailed provision for the conduct of elections to health boards, so it is a fairly important part of the bill. It would be helpful if Bill Butler could set out his reasoning for putting the power to amend schedule 1 into subordinate legislation.
The power in section 13(2) will allow ministers to make "incidental, supplemental and consequential" provision and it is also subject to the affirmative procedure. Normally, such a provision would not be subject to the affirmative procedure; it would just be subject to annulment. We might want to draw that to Bill Butler's attention.
Although, given last week's discussion, we might want all such provisions to be subject to the affirmative procedure.
Yes. I will just go back to the first point on section 13(1), which says:
"The Scottish Ministers may by order modify schedule 1".
I am just giving more detail on what Stewart Maxwell was saying. Because we do not have a delegated powers memorandum, we are not very clear about exactly what that will mean. Further on, the same section says:
"for the purpose of making such further provision".
We might wonder whether the word "such" should be in there, but the main point is that we are unsure what that part of the provision might mean. Perhaps Bill Butler does not know either; he might be leaving it up to the Executive. It would be interesting to hear Bill Butler's thoughts.
Did anyone look at section 9, on the issuing of guidance by the Scottish ministers? Section 9(1) says:
"The Scottish Ministers may issue guidance with respect to the conduct of Health Board elections."
I am wondering about the relationship between section 9 and section 13(1). The guidance concerned might be for the list of administrative matters laid out in section 9(2) and the provision in 13(1) would cover additional modifications that might be made to schedule 1. It would be good to know how the two sections relate to one another and perhaps a bit more about the guidance described in section 9.
It might be useful to know what status such guidance would have, if I might use "such" in that context. Local authorities or returning officers might have to have regard to the guidance, or the provision could be looser than that. That could be fleshed out if Bill Butler was able to come to the committee and discuss it with us.
The other thing I wondered was whether the word "modify", as it is used in section 13(1), could mean that provisions could be taken out as well as added.
I was just going to make the same point. Does the use of the term "further provision" mean that the schedule can only be added to, or can provisions also be taken out? I am not absolutely clear about that.
Schedule 1 goes into incredible detail over several pages and is a large part of the bill. It seems to me to be the heart of the bill in many ways because it is about the election processes. The question is about the ability of ministers to change that and in what ways. How far does Bill Butler envisage that that power will go? The bill does not seem to contain any obvious way to curtail such a power; it seems to be pretty wide.
Bill Butler might be concerned if he was giving ministers the power to introduce an electoral system analogous to that which is used for local authorities, for example.
He might well be concerned about that.
We will inquire about that when we see him.
So, there is an issue about the scope of the powers and how they are envisaged. The only other thing to ask is why Bill Butler thinks that all the powers should be subject to the affirmative procedure and whether he has justification for that. As Murray Tosh said, it might be wise; I do not know, but we could ask Bill Butler a bit more about it.
Kenny Macintosh covered the point about section 13(2), so we have covered all the points raised.
I welcome Adam Ingram, who joined us during that item.