Subordinate Legislation Committee, 06 Nov 2001

Meeting date: Tuesday, November 6, 2001

Official Report 124KB pdf

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Delegated Powers Scrutiny

We will start the 30th meeting of the Subordinate Legislation Committee in 2001. I have apologies from two members. Ian Jenkins is at an education conference in the Borders. Murdo Fraser has—mysteriously—not said where he is. [Interruption.] The clerk informs me that he is away to London, which is even worse.

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Water Industry (Scotland) Bill

Item 1 concerns scrutiny of the delegated powers in the Water Industry (Scotland) Bill at stage 1. As I went through the bill, I wondered at the number of instruments subject to the negative procedure that are involved, compared with the number of instruments subject to the affirmative procedure. That is a general point. If members do not want to raise anything else in general, we will consider the bill in more detail.

The bill is a considerable piece of legislation and the powers that it will confer on ministers are also considerable. It might be reasonable to ask the Executive for background information on how it envisages using those conferred powers, because that is a pointy-end bit of legislation that will affect consumers. Is Gordon Jackson not really fussed?

I was indicating by my expression that I have no particular objection to anybody asking the Executive that sort of question. I gave a shrug of, "That's okay by me."

That is all for part 1 of the bill. Part 2 of the bill is about the proposed drinking water quality regulator. I do not notice anything that we need to comment on. Do other members?

We must take note of something in section 24(1) of the bill. In principle, the power to specify the date on which the existing water and sewerage authorities will be dissolved seems acceptable. However, we question the procedure involved.

I am sorry. I have gone straight on to deal with section 24(1), but we need to deal with an earlier section first. I am sorry if I have confused members.

We must consider the water panels first, which is section 2 of the bill. New water panels must be established. The minister will be given the power to establish the panels, but the bill does not say how many there will be or what their boundaries will be. It is reasonable for us to ask for much more explanation about how the delegated powers will be used to select the water panels and to ask how many panels there will be. Do members agree?

Members indicated agreement.

It is appropriate to ask those questions. I am a member of the lead committee that is looking at the bill and I can advise that it will be exploring those sorts of questions with the Executive.

I would think so.

The lead committee wishes to find out how the Executive intends to establish the panels.

There is the question of how, but we also—presumably—must determine whether the method for establishing the panels should be by subordinate legislation. If so, should the instrument be subject to the affirmative or the negative procedure? The Subordinate Legislation Committee still has a locus in the matter. We are asking for more details.

Section 15(1) of the bill will confer the power to prescribe the form and content of the register of enforcement and emergency notices. Again, that goes directly to the consumer end of the bill, so perhaps there should be more detail in the bill about the information to be shown on the register of enforcement notices. Yes or no?

Members indicated agreement.

In part 3, section 24(1) confers a power to specify the date on which the existing water and sewerage authorities are to be dissolved. The Executive may have gone about this—although perhaps not—in a rather convoluted way. There might be an easier way of establishing the procedure. Gordon Jackson is looking at me in amazement.

Not at all.

He is astonished at your mastery of the detail, convener.

We do not understand why it is proposed to use the negative procedure, rather than no procedure at all.

It is fair enough to ask that question, although it is not a major issue—it is just about the dissolution of the existing companies to establish the new Scottish Water. It makes sense that there should be flexibility in dissolving each authority, to take into account when they have completed their duties and final accounts. We can easily say that the committee is relaxed about there being no procedure, but it is not a major issue for the committee one way or the other.

No, it is not.

Section 24(3) confers a power to make ancillary provisions in connection with the establishment of Scottish Water. Section 29(1) confers a power to fix maximum charges for services provided with the help of Scottish Water. Section 35(1) confers a power to determine whose water and sewerage charges local authorities shall collect. Section 37(1) confers a power to make regulations for reduced charges. Section 38(2) confers a power to set rates of return for Scottish Water. No points arise on those powers.

Section 38(5) confers a power to place Scottish Water under specific financial duties.

It is an existing power.

So there is no change. No points arise on that power.

Section 54(1) confers a power to require local authorities and assessors to supply information to Scottish Water. This power is different, and we may wish to seek further clarification from the Executive, given that it is possible that Scottish Water will obtain commercially sensitive information from local authorities.

So we want more detail on the regulations?

Yes.

What is the extent of commercially sensitive information that can be obtained from local authorities?

Some clue could be given to a company's performance if it was found that it had not paid its rates. Scottish Water will be able to ask for information, which inevitably will be financial information. We can seek further clarification from the Executive on the proposed content of the regulations. Is that agreed?

Members indicated agreement.

Section 55 proposes inserting new section 37C after section 37B of the Sewerage (Scotland) Act 1968. New section 37C(7) confers a power to alter the period for the determination of whether information should be excluded from the register of trade effluents as commercially confidential. I presume that that is important to business people. An instrument under that section would be subject to the negative procedure, despite amending a figure in primary legislation. Are we content that we should amend primary legislation by negative procedure?

Should we consider recommending the affirmative procedure?

We are worried about setting a precedent. We do not like amending primary legislation by the negative procedure, but in this instance, it is okay. Should we draw the Executive's attention to that in an informal way? Do we let the Executive know that we have noticed that, or do we not even bother? We will let the Executive know informally.

The section does not confer a huge power; it is just about the period within which Scottish Water must determine such requests.

So although the general principle is not one that we think is good, this power is specific, and does not really alter anything.

Section 59 confers a power to make ancillary provisions. Section 62(1) confers powers to commence the provisions of the bill. No points arise on those powers.

Paragraph 2(2) of schedule 4, which is introduced by section 35, confers a power in connection with certificates to accompany summary warrant applications. As that paragraph restates an existing power, no points arise.

Paragraph 2(6) of schedule 4, which also is introduced by section 35, confers a power to vary the surcharge percentage. Is the committee satisfied that the negative procedure is sufficient for the exercise of that power? I am assured that if anybody wanted to challenge that power, it could be done by judicial review, so there is a way to make sure that the surcharge does not become a hidden tax, rather than a surcharge to cover costs. Are we satisfied that the negative procedure is all right?

Members indicated agreement.

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Fur Farming (Prohibition) (Scotland) Bill

We move on to small furry animals.

What?

Small furry animals. Fur farming. There are a couple of points on the bill, which contains two subordinate legislation-making powers. Section 5(1) confers a power to establish a scheme to compensate affected businesses. Does anything jump out and bite members on that power?

That was very subtle.

The convener worked on that all night.

No, I was thinking about mink, which bite. No points arise on that power.

Section 6(1) confers a power to appoint a commencement date for the bill. This is one of those strange situations when we are allowed to be po-faced and say, "Why do you need delegated powers to have a commencement order when, after it gets royal assent, it should just be law?" It is nice and simple.

But the reality is that, historically, a vast amount of our legislation has commenced on an appointed date, rather than just when it receives royal assent.

Aye, I know that.

That does not make it a good thing. In my field, there are many acts where some bits have come into force one year and other bits the next year. There are parts of acts that have been lying about since 19-canteen that have never come into force.

The point is that this is easy-peasy—that is legal jargon. We are not making a big fuss—we are just asking why the Executive is bothering, why it is making work for itself.

There might be a reason.

Are you interested in finding out what it is?

I could live without finding out, but if you want to then I am up for it. I could get through life without knowing.

All the same, since you raised the matter we will find out. Will we just ask?

I do not remember raising it.

We will ask the Executive why it chose to opt for a commencement order.

Never volunteer for anything.

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Scottish Local Government (Elections) Bill

There are a few things that members might wish to pick up. As far as I can work out, everything is okay until section 4. The bill appears to make appropriate use of delegated powers in section 2(1).

Section 4 is on pilot schemes for local elections. The pilot schemes are fine. Sections 5(1) and 5(2)—which follow on from section 4—are on revision of procedures in the light of the pilot schemes. There might be a case for saying that ministers should not be empowered to change such a primary and fundamental piece of our democratic process through subordinate legislation. In other words, should primary legislation be required?

Think about it, Gordon.

I recognise what you say. However, the more I read the bill, the less worried I am. There is a pilot scheme, which is thought to have worked well—perhaps the voting figures have gone way up. When the order to make that scheme permanent is made, not just the intention to do that is laid before Parliament, but the report produced on the pilot scheme that suggests that the scheme is a good thing. All members of the Parliament will receive that. The draft order and the report have to be laid before Parliament.

If the Parliament identified something that it was not happy with, it could deal with that. Alternatively, the pilot scheme might prove to be a brilliant idea that everyone is up for. Its implementation might meet with universal acclaim.

I genuinely take your point, convener. As you know, I am not a huge fan of doing important things by subordinate legislation. If we were talking about a provision that allowed the Executive to change elections off the top of its head—simpliciter—I would not be happy. However, the proposed order would follow on from a pilot scheme that everybody would have a report of.

I will only be happy if we at least point the matter out to the lead committee.

That is absolutely fair.

That is fair enough.

I have looked through the delegated powers in the bill and, on balance, I probably agree with Gordon Jackson. The powers seem to be about the mechanics of an election—how to persuade people to participate in the democratic process and how to count the votes, for example—not whether to have an election or what type of electoral system to use.

Given that the bill will move local government elections to the same day as Scottish parliamentary elections and that we have no power to alter the way in which Scottish parliamentary elections work, there is a possible complication—which is probably more of an issue for the lead committee than for the Subordinate Legislation Committee. There might be one system of casting and counting votes for local government elections and a different system for the Scottish parliamentary elections taking place on the same day. For example, if the scheme introduced polling stations at supermarkets for local government elections, but not for Scottish parliamentary elections, that might be a complication that could damage turnout rather than improve it. That is the sort of issue that I hope the Local Government Committee considers.

We will draw the attention of the lead committee to the mini-debate that we have had on the efficacy of handling the matter in this way.

We must also make sure that the kind of idiosyncrasy that Bristow Muldoon suggested does not occur.