Subordinate Legislation Committee, 07 Feb 2006

Meeting date: Tuesday, February 7, 2006

Official Report 135KB pdf

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Delegated Powers Scrutiny

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Local Electoral Administration and Registration Services (Scotland) Bill:<br />Stage 1

I welcome members to the fifth meeting of the Subordinate Legislation Committee in 2006. I have received apologies from Stewart Maxwell. I remind members to switch off their mobile phones.

Members will recall that we raised a number of points with the Executive on part 1 of the Local Electoral Administration and Registration Services (Scotland) Bill. As you will have seen in the legal briefing, part 1 mirrors some of the changes that are set out in the United Kingdom Electoral Administration Bill. The overall policy intention is to retain as much consistency as possible between election procedures.

On section 1, "Setting of performance standards", we asked the Executive to explain why there is no provision for the performance standards to be subject to any parliamentary scrutiny. You will have noted the comments that the Executive made in its response. Do members think that we should be considering any further provision with some degree of formal parliamentary scrutiny?

I did not feel particularly strongly about the matter. We should draw the Executive's explanation to the attention of the lead committee, for its information. The Executive is trying to improve standards using a voluntary rather than a statutory approach. It would be worrying if the Parliament were totally out of the loop on the performance standards. The Executive has suggested that, as the code of practice or the best practice guidelines—or whatever it has called them—will be published, the Parliament will have an opportunity to comment on and discuss them. It is a matter of debate whether we should have a more formal procedure. I do not feel particularly strongly about it, but the lead committee might do.

You are correct to say that the guidance will be published and put before the Parliament.

Section 2 obliges returning officers, if so directed, to report to the Scottish ministers on the level of performance. That is a bit heavier than a voluntary arrangement. I agree that many of the proposals are administrative rather than legislative, but there is an element of compulsion and direction dressed up in them. It would be appropriate for the process to involve a degree of parliamentary scrutiny.

You think that it should involve more than is being suggested.

Yes.

What would you suggest, then?

I do not know—perhaps the negative procedure, with the option of a motion to annul.

Okay. The minister will be addressing the Local Government and Transport Committee on 21 February, so we do have some time.

It is only stage 1. There is plenty of time.

Yes.

It is normal for the committee to take a pretty robust line with bills at this stage, and to push the Executive. As Ken Macintosh says, where there is a debate, it is appropriate for us to take a fairly strong position on the issues and to invite the Executive to re-examine several of them.

Yes. The legal brief says:

"The standards are therefore ‘voluntary' only in so far as they are non-statutory and there appears to be no direct sanction for failing to attain those standards, though the ‘name and shame' provision could have serious implications for the individual."

Ken, are you happy that we write back to the Executive suggesting that, on balance, we think that there should be some formal procedure for those provisions?

Yes. As I said, I do not feel particularly strongly about the matter, but Murray Tosh's argument is quite right. It is certainly an important matter, and it would do no harm to recommend to the Executive that we adopt some parliamentary procedure.

Okay. That is agreed.

On section 4, "Access to election documents", we asked the Executive what kind of restrictions would apply to the use of information and under what sort of circumstances those restrictions would be used. The legal brief says that they are intended, for example, to prevent the use of information for "direct marketing purposes". The question is whether that should be stated in the bill.

I thought that the point about direct marketing was salient; it could be included in the bill. I would like to explore that further with the Executive. It strikes me that the Executive's answer to our question was the obvious one. It would be interesting to see whether it can think of any other restrictions that might be applied. That could form the basis of a bit of discussion about whether we want more detail in the bill, or simply some provision to allow specific restrictions to be introduced as appropriate and as time passes. It is a question of balance.

It is. It is indeed being suggested that there could be

"a power to add other restrictions so that flexibility was not lost."

That is what you are saying, Murray. Ken, do you agree that we should write back to the Executive, saying that the instance that it has cited should be covered in the bill and that there could be a power to add other restrictions as the need for them becomes apparent?

Yes; although having read the Executive's response, I get the impression that its motivation was to introduce a parallel regime to that which would be overseen by the Electoral Commission in other respects. The Electoral Commission does not have competence in local government elections in Scotland. That is the Executive's driver, as it were.

That adds to the sensitivity of all this. The Electoral Commission and the Scottish Executive are entirely different creatures. I am not saying anything adverse about the Scottish Executive and how it would handle the matter, but it is an elected political Administration, whereas the Electoral Commission is a politically neutral body. I do not know what the basis is for handling it differently, but, given that it is being directed politically, the Executive has to be as hands-off as possible and submit as much as is reasonable to scrutiny and it should allow Parliament the maximum input.

Let us face it; Parliament is not going to be involved in considering information in any detail unless, when instruments start to come in, we discover that there are issues of concern to us. It is really just a question of observing the form and ensuring that everybody knows what the rules are and how the process works and ensuring that the standards applied by this elected, political Administration are applied as rigorously and fairly as we would expect them to be applied by the Electoral Commission south of the border. It is about covering the Executive's back.

Yes. I know that the aim is to achieve consistency with the UK Electoral Administration Bill. Surely there should be a two-way process. We do things differently, so there might be examples of good practice here that the UK would want to consider.

We should pursue the matter of access to election documents as we have suggested. Is that agreed?

Members indicated agreement.

Give me two seconds while Ruth Cooper tells me something. Are you suggesting that we send a letter to the lead committee telling it what we are doing?

Yes. The committee can report formally to the lead committee. Obviously, however, members want a dialogue with the Executive, so one option is to report formally on what you discussed this morning and to write to the Executive in advance of stage 2. Another option is to hold back on producing a formal report—there is time to do so—and to highlight the main issues to the lead committee before it speaks to the minister. Members might feel that the committee is ready to report formally or they might want to leave it until the committee has had correspondence back from the Executive.

I suggest that we send an interim letter to the lead committee telling it what points we are taking up. We will then produce a fuller report when we have the answers. Is that agreed?

Members indicated agreement.

I welcome Adam Ingram to the committee. We are just moving on to section 6 of the Local Electoral Administration and Registration Services (Scotland) Bill, which is on access to election documents.

The meaning of various terms will be defined by an order made under section 3 of the Local Governance (Scotland) Act 2004. The Executive, in its original memorandum, was uncertain of the procedure to which that order would be subject, but it suggested that it is likely to be subject to the negative procedure.

This is quite a complicated issue, so I refer members to the legal brief, which points out:

"if the Executive intends section 6 to be an order-making power it should not feed into powers that appear to be defectively drafted but should provide free-standing procedural provisions. Alternatively, it could tidy up the procedural provision in the 2004 act … which is clearly defective."

Our advice suggests that section 6 is not an order-making power and that in that case the wording of section 6, particularly section 6(10), is misleading and would benefit from clarification. However, it would seem from the Executive's response that it is uncertain what it means in this regard. We have quite a few decisions to make.

The Executive, the legal advisers and the committee do not understand section 6. A moment ago you suggested that it might be appropriate to write an interim letter to the lead committee. Your sagacity in so doing is underlined by this episode. It is clear that a lot of dialogue is necessary to sort the matter out. The options that you outlined are predicated on the big "if" with which you introduced your explanation and which might not apply. That must be resolved before we are in a position to give the lead committee a substantive report. The Executive still has a lot of work to do on section 6.

Do members agree that we should write to ask the Executive its view? We will mention that in our letter to the lead committee.

Members indicated agreement.

On section 9, "Code of practice on attendance of observers at elections", we asked why the code could not be laid as a draft for approval by the Parliament or be the subject of an affirmative or negative order. The Executive considers, given the administrative nature of the content, that it is more appropriate for the arrangements to be in the form of a code of practice rather than legislation. The guidance and the code will be published and laid before the Parliament. One of the points in question is that codes could require further parliamentary control. We have to consider whether they should come under such control in this case.

This goes back to the point that Murray Tosh made earlier. If the matter was in the hands of the Electoral Commission, that would be one way of dealing with it. These issues are not necessarily controversial, but are potentially politically sensitive and there are different ways of handling them. Given that they are being handled by an Executive body rather than an independent one, an extra layer of parliamentary scrutiny might help. Then again, having that extra layer might make the matter more political. On the basis that we are trying to ensure even-handedness, Executive power should be balanced by parliamentary scrutiny. In this case, we should further discuss the matter with the Executive.

Yes. I did not suggest this earlier, but we could go a layer higher, so to speak, and have a statutory instrument rather than simply a code of practice.

What Ken Macintosh said was all fair comment. What struck me in the Executive's response was the comment that

"Codes of Practice are not, by their nature, subject to any form of parliamentary procedure."

The briefing makes the salient point that

"it is … not correct to say that Codes of Practice are not subject to procedure."

That indicates a lack of clarity in the Executive's thinking and its rationale. I am not saying that it is wrong, but it needs to have the points that are made in the legal brief put back to it for further comment and elaboration. That way we would be clear about what it means and we would be clear that what it is suggesting is the appropriate level of scrutiny. It is likely that we will feel that, in the long run, more intensive scrutiny is required than is proposed.

Yes. Are Adam Ingram and Gordon Jackson happy with that suggestion?

Yes. The subject matter of the code is observers at elections. One of the arguments put is that the Executive might wish to change the code, but I do not see that as an argument for not having statutory control of it. The Executive has not thought through the matter to its full extent, so I agree with Murray Tosh that it needs to reconsider.

Do you agree, Gordon?

Yes.

Okay. Ruth Cooper has enough information on that.

On section 17, "Return as to election expenses", we asked whether, given the nature of the subject, an order might be a more suitable form of legislation than regulations. The Executive's response was that clarifying whether to have one or the other is a drafting point. I gather from the legal brief that this is not a big issue and it need not delay us. However, another point about making regulations is that that would be more consistent with the Representation of the People Act 1983 and the UK bill. Are members happy to leave the section as it is?

I am quite sure that we are right and they are wrong, but in any meaningful negotiation, it is appropriate to concede something. Since this is a drafting point, it would be a suitable hit for the Executive. We should give way.

We will leave that one then.

On section 25, "Miscellaneous amendments", members will recall that although we recognised that the motive behind the provision was to combat fraud, we were concerned about the potential width of the power and how it might be used to disqualify votes. We asked if more detail could be included in the bill. The Executive has explained that the drafting of section 25 follows that of the parallel provision in the UK bill and that it would be more appropriate to leave it to secondary legislation in order to be more flexible about future needs. Again, the legal brief suggests that this is not a particularly big issue. Do members have any further thoughts?

If the order that defined the prescribed circumstances were subject to the affirmative procedure, that might be a reasonable position for the Executive to take. It is difficult to imagine how the prescribed circumstances could be defined to cover all possible circumstances, now and in the future, if they were included in the bill. I would be happy to give the Executive the flexibility that it seeks, as long as it is subject to the most rigorous procedure that we can apply.

We can check that out. If it is not clear, we will confirm it with the Executive. Is that agreed?

Members indicated agreement.

We now come to the schedule, which is on the meaning of election expenses. The committee asked for clarification of a couple of points. Members will note that on the first point, on the reference in the delegated powers memorandum to an order being subject to the negative procedure, the Executive has confirmed that that was a drafting error and that it will be subject to the affirmative procedure. That one seems to be cleared up.

That is everything on delegated powers in this bill. With the committee's agreement, we will write a letter to the lead committee to say where we are up to at the moment, and we will ask the Executive the additional questions. Is that agreed?

Members indicated agreement.

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Budget (Scotland) (No 3) Bill: Stage 2

As is customary, the bill contains one power to make delegated legislation that is subject to the affirmative procedure. Do members agree that we are content?

Members indicated agreement.