Subordinate Legislation Committee, 06 Oct 2009

Meeting date: Tuesday, October 6, 2009

Official Report 134KB pdf

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Public Services Reform (Scotland) Bill: Stage 1

Item 3 is on the Public Services Reform (Scotland) Bill. Members may have more to say about the bill than I have, given my recent absence from the committee.

As members know, we have received written responses to questions raised at our first consideration of the bill on 8 September. We heard from officials at a meeting on 22 September and received a supplementary written response following that meeting. Today we will conclude our consideration of the bill at stage 1 and will go through all the powers that we did not dispose of at our initial meeting.

Paragraph 2 of schedule 2 gives the Court of Session powers to regulate the conduct of officers of court in exercising their extrajudicial functions and to prescribe the procedure in relation to appeals under section 82 of the Debtors (Scotland) Act 1987. Are we content to report that the powers are acceptable? Are we further content that they are exercisable by act of sederunt?

Members indicated agreement.

There are a number of recommendations relating to part 2 of the bill, "Order-making powers". I draw members' attention to the summary of recommendations paper that is before us. Are members content to report that the delegated powers in part 2 are very broad and could be used to deliver significant restructuring and revision of public functions across the Scottish Administration and public sector?

Members indicated agreement.

We may also wish to report that whether such powers should be given to ministers is a matter of policy for determination by the Parliament as a whole and should not be prejudged by the committee. Given the nature of the powers, a range of opinions may be taken. Do we agree to express no view on whether the powers are acceptable in principle?

Members indicated agreement.

Is that just a procedural matter? We seem to be saying that it is not appropriate for the committee to express a view, rather than that we do not have one.

It might be wiser for us to express no view. However, we have indicated clearly that the Parliament has a role to play.

The committee may wish to report that it recommends that in their scrutiny of the bill the lead committee and the Parliament consider further a number of significant concerns about the manner in which the powers are framed. First, do the criteria that are set for the limits of the powers in sections 10 and 13 and the restrictions that are set out in section 12 provide sufficient protection, and are they sufficiently precise and clearly defined? Secondly, should certain bodies be exempted from the scope of the bill and protected from inclusion in schedule 3 through orders under section 11? If so, the Parliament should ensure that that is done in a clear and unambiguous way.

When reporting our concerns to the lead committee, we should give examples of bodies that could be considered, such as local government and bodies that have been set up specifically to scrutinise government.

The term "sufficient protection" may be slightly unfortunate. The key phrase in the bill is "necessary protection"; everything hinges on the interpretation of that phrase. The officials' comments on the independence of the judiciary or the Mental Welfare Commission for Scotland sounded quite reassuring. In their answers, they kept coming back to the phrase "necessary protection", which we should highlight. We should ask whether the term is sufficiently clear and precise and whether it will be open to different interpretations. The term "sufficient protection" may mean something slightly different.

I agree with the point that Ian McKee makes. He mentioned local government. We were not entirely reassured by the answers to our questions about whether local government is exempt from inclusion in schedule 3. Given that that point relates to the order-making power, we may want to flag it up. The Government's intention seems clear, but it may need to put it beyond doubt in the bill.

The points that I have highlighted are recommendations to the lead committee and the Parliament. The comments of Malcolm Chisholm and Dr McKee will appear in the Official Report of today's meeting, which will go to both the lead committee and the Parliament.

Section 10(1) of the bill states:

"The Scottish Ministers may by order make any provision which they consider would improve the exercise of public functions".

The bill team reassured us that that restricts ministers' ability to make such provisions. Could the word "may" be toughened up, as "may" also implies that one "may not"? Does that make sense?

Absolutely.

The point is on the record and will be noted by the lead committee and the Parliament. Our clerks have the role of ensuring, with the clerks to the lead committee, that such points are picked up.

We could report that we have concerns about whether the procedures that are proposed in relation to the powers in sections 10, 11 and 13 provide for full and adequate parliamentary scrutiny of the respective orders in all cases. First, we could recommend that orders under sections 10 and 13 be subject to super-affirmative procedure, which requires a proposed draft order, together with the relevant explanatory document, to be laid before Parliament for a prescribed period, to permit public consultation on the terms of the proposed order before ministers present a draft order in final form to the Parliament for approval; and that ministers be required to consider comments received and to provide Parliament with an explanation of the extent to which such comments have been addressed in the final order. Secondly, we could recommend that orders under section 11 be subject to affirmative procedure, given that listing for inclusion in schedule 3 in such an order engages the powers under part 2 of the bill; and that ministers be under an obligation to consult bodies prior to their inclusion in schedule 3 through a section 11 order. Is that agreed?

Members indicated agreement.

Section 46(4) contains a power to make further provision about the preparation, content and effect of reports. Do we agree to report that, although it is helpful to have had clarification that the Scottish Government does not intend the provision to provide a power with respect to the consequences of a report, we recommend that the Scottish Government consider redrafting the provision to make clear its intention in that respect?

Members indicated agreement.

Section 47 contains a power to make further provision for conducting inspections. The power enables significant provision to be made with respect to interviews and physical and mental examinations, including how examinations are to be conducted, and the disclosure of information that is obtained from those examinations and interviews. Are we content to draw that to the attention of the lead committee?

Members indicated agreement.

Section 53(1)(c) contains a power to prescribe grounds on which social care and social work improvement Scotland may propose to cancel the registration of a care service. We have had further explanation from the Scottish Government on the power. Do we agree to report that we find the proposed power acceptable in principle and are content that it is subject to negative procedure?

Members indicated agreement.

Section 62(1) contains a power to make regulations relating to the registration of care services. The Scottish Government has confirmed that it does not intend that the power be used to set out criteria for eligibility to provide services in the wider sense and that such provision would be made under section 63. Are we agreed to report that, having obtained further explanation from the Scottish Government, we find the proposed power acceptable in principle and are content that it is subject to negative procedure?

Members indicated agreement.

Section 63 contains a power to make regulations to impose requirements in relation to care services, as appropriate, for the purposes of part 4. Proposed new section 10Z2 of the National Health Service (Scotland) Act 1978 makes provision to make regulations relating to independent health care services. Are we agreed to report that, having obtained further justification and explanation from the Scottish Government by means of evidence to us, we find the proposed powers acceptable in principle and are content that they are subject to affirmative procedure?

Members indicated agreement.

Section 76(5)(c) contains a power to prescribe an act and thereby add the requirements or conditions that are contained in that act to the list of relevant requirements. Do we agree to report that, having obtained further explanation from the Scottish Government, we find the proposed power acceptable in principle and are content that it is subject to negative procedure?

Members indicated agreement.

Section 76(6) contains a power to prescribe matters in relation to a care service that is registered under chapter 4 of part 4 and on which SCSWIS must report and provide information to the Scottish ministers. Do we agree to report that, having obtained clarification from the Scottish Government, we find the proposed power acceptable in principle and are content that it is subject to negative procedure?

Members indicated agreement.

Proposed new section 10D(1) of the 1978 act contains a power to delegate functions. Do we agree to consider the proposed power acceptable in principle? Are members content that it is subject to negative procedure?

Members indicated agreement.

Well done, Elaine Smith, for hanging in there.

Do members agree to draw to the attention of the lead committee the fact that the power is wider than is necessary to transfer the functions of NHS Quality Improvement Scotland—or any other functions that would properly be within healthcare improvement Scotland's remit—to healthcare improvement Scotland?

Members indicated agreement.

Proposed new section 10M(4) of the 1978 act is the power to make regulations to make further provision concerning the preparation, content and effect of reports. Do we agree to report that, although it is helpful to have had clarification that the Scottish Government does not intend the provision to provide a power relating to the consequences of a report, the Scottish Government should consider redrafting the provision to make clear its intention in that respect?

Members indicated agreement.

Proposed new section 10N(1) of the 1978 act contains a power to make regulations to make further provision for conducting inspections. The power enables significant provision to be made with respect to interviews and physical and mental examinations, including how examinations are to be conducted, and the disclosure of information that is obtained from those examinations and interviews. Do we agree to draw that to the attention of the lead committee?

Members indicated agreement.

Proposed new section 10R(1)(c) of the 1978 act contains a power to prescribe grounds upon which HIS may cancel the registration of an independent health care service. Having obtained further explanation from the Scottish Government, do we agree that we find the proposed power acceptable in principle and are content that it is subject to negative procedure?

Members indicated agreement.

Proposed new section 10Z1 of the 1978 act contains a power to make regulations about registers and registration. The Scottish Government has confirmed that it does not intend that the power be used to set out criteria for eligibility to provide services in the wider sense and that such provision would be made under proposed new section 10Z2 of the 1978 act. Having obtained further explanation from the Government, do we agree that we find the proposed power acceptable in principle and are content that it is subject to negative procedure?

Members indicated agreement.

Section 96(1) contains a power to direct a person or body to participate in a joint inspection. We have obtained further explanation from the Scottish Government. Do we agree that we find the exercise of the power in the form of directions satisfactory?

Members indicated agreement.

Should we, however, express concern that there is no provision in the bill for the publication of directions whereby the public will be made aware which person or body has been directed to participate in a joint inspection and what powers they may exercise?

Members indicated agreement.

Section 97(1) contains a power to make regulations relating to joint inspections. The power enables significant provision to be made with respect to interviews and physical and mental examinations, including how examinations are to be conducted, and the disclosure of information that is obtained from those examinations and interviews. Do we agree that we should draw to the attention of the lead committee the fact that regulations made under the Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Act 2006, which the power in section 97(1) is said to reflect, do not provide for interviews and examinations?

Members indicated agreement.

We are almost there, colleagues.

Paragraph 2(2) of schedule 7 contains a power to vary the number of members of SCSWIS. Paragraph 2(2) of schedule 11 contains a power to vary the number of members of HIS. Having obtained further clarification from the Scottish Government, do we agree to report that we find the proposed powers acceptable in principle and are content that they are subject to affirmative procedure?

Members indicated agreement.

On part 7, "Miscellaneous and General", given the width of the proposed powers in sections 10 and 13, do we agree to recommend that affirmative rather than negative procedure should apply to all the ancillary powers as set out in section 101, as it relates to part 2?

Members indicated agreement.