Subordinate Legislation Committee, 07 Feb 2006

Meeting date: Tuesday, February 7, 2006

Official Report 135KB pdf

---

Instruments Not Laid Before the Parliament

---

Instruments Not Laid Before <br />the Parliament

---

Gaelic Language (Scotland) Act 2005 Commencement Order 2006 (SSI 2006/31)

No points arise on the order.

---

National Health Service (Constitution of Health Boards) (Scotland) Amendment Order 2006 (SSI 2006/32)

There are quite a few points to discuss here. The amendment order will dissolve the Argyll and Clyde NHS Board on 1 April 2006. Questions have arisen about vires and about the procedure to which the order should be subject.

Should we ask the Executive to explain the vires for article 2(1) and seek its views on whether section 2(3) and section 2(4) of the enabling act—the National Health Service (Scotland) Act 1978—might have been more appropriate powers? I gather that the issue is do to with the lack of clarity about whether there are in fact vires for dissolving what already exists. Is that agreed?

Members indicated agreement.

This subject is fascinating. Many of the issues are policy matters for the Health Committee, but the order is a good example of the sort of issue that was highlighted by Sarah Boyack, I think it was, in relation to agricultural support. She questioned the use of the negative procedure for an instrument that she cited in the context of our inquiry into the legislative framework. She felt that the significance of the issue merited far greater scrutiny. The situation with this order is similar.

I should declare an interest as an MSP for the region in question. The reorganisation is significant for the health service in the area. Most of the points that I would wish to make are related to policy or to the work of the Health Committee, rather than to subordinate legislation, but the order highlights the occasional weakness of the procedures in so far as something so significant can be proposed to be dealt with essentially without procedure. I would have thought that, at the very least, an opportunity ought to have been provided to lodge a motion to annul, should anyone disagree with what are significant proposed changes. For the amendment order not to be laid before the Parliament is a bit worrying.

I am very much in favour of the proposed questions, first, on the powers under sections 2(3) and 2(4) of the 1978 act. The second proposed question is also significant: why, in view of the specific terms of section 105(4) of that act, has the Executive chosen not to lay the order before the Parliament? Instruments such as this should be laid before the Parliament. Even if everybody agrees in the end, it would be appropriate for the order to come before the Parliament.

My instinct is to agree with that. This is a biggie for an instrument that is not laid before the Parliament: it dissolves a health board. At a policy level, that is not our business, but nothing causes more fuss than changing health boards. With respect, I am not hugely interested in the other point. I cannot believe for a minute that it is ultra vires to dissolve a health board. There is a power to put boards in place and, as Margaret Macdonald has mentioned in the legal brief, it is envisaged for the functions of a board to terminate.

There might be a slight gap there, in that the parent legislation does not specifically mention the dissolution of boards. However, there is a principle that the obvious things that must be there, for commonsense reasons, will be read in by the courts. I cannot believe that the power to dissolve something would not be read in where it is envisaged that its functions may terminate. An argument could be made that sections 2(3) and 2(4) of the 1978 act could be used for an order, rather than section 2(2). The direct power to dissolve a board is not given anywhere, however, and has to be read in somewhere, so I suspect that it does not matter very much.

I am quite interested in the approach that has been taken in this instance. Even after all these years, the logic is not clear to me when certain things are not laid before Parliament although, on the surface, they seem to be more important than some of the rubbish that is laid before Parliament—not, of course, that there is any rubbish, I hasten to add, for those who are concerned about paralytic shellfish.

I echo the comments of my colleagues. It is interesting to note the gap between what I am sure the Executive would like to have done and the procedure, which has failed to mark the political and parliamentary significance of the order. It is worth commenting in passing that the Executive had at least one parliamentary statement on the subject of the order, as well as a full-blown consultation, which was far bigger than those that are undertaken for many bills. There have been several layers of Executive and parliamentary scrutiny, yet the measure lacks formality when it comes to the actual process of introducing it. The Executive is not trying to avoid parliamentary scrutiny—far from it—yet the procedures do not reflect that.

I wish to reinforce the procedural aspect, although this might be a slightly political point.

Never.

I try not to be political in this committee, and often not at all in public. The report on the public consultation that was given to the minister was savagely critical of the consultation's quality, particularly in relation to the level of evidence that was given to the public. The sense is compounded that, although what has been done was the right thing and was done for good reasons, the whole process has been poorly managed. As Ken Macintosh said, for the final, formal part of the process to evade parliamentary scrutiny, as the order does, almost justifies conspiracy theories. Why would the Executive handle the process in this way?

We have said a lot about the second point, which we can put forcibly to the Executive. In addition, there are a few minor points, which we can put informally by letter.

The order will not be discussed by the Health Committee, so our report will simply go to the Parliament. Is that okay?

Members indicated agreement.

---

Water Services etc (Scotland) Act 2005 (Commencement No 2) Order 2006 <br />(SSI 2006/40)

No points arise on the order.

Before closing the meeting, I will mention the fact that this is the last meeting with us for Catherine Fergusson, one of our clerks. We wish her well, wherever she goes next.

It is particularly tragic for her that she will miss the final stages of our inquiry report. An engraved manuscript of the final report should be forwarded to her.

I know that a lot of Catherine's work has been on the inquiry, supporting David McLaren. We thank her very much.

We wish her all the best for the future.

Hear, hear.

Absolutely.

The next meeting of the committee will be on Tuesday 21 February, when Gordon Jackson will be chairing the meeting, because I will be travelling back from Malawi.

Colleagues will need to be in early, or they will miss it. [Laughter.]

I thank members very much for their attendance.

Meeting closed at 11:07.