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Protection of Children and Prevention of Sexual Offences (Scotland) Bill: Stage 1
We come to agenda item 3. The committee raised one question with the Executive on the delegated powers in the Protection of Children and Prevention of Sexual Offences (Scotland) Bill. The Executive has undertaken to take full account of the committee's views on the matter when considering lodging amendments at stage 2. The Executive's intentions in that regard will be confirmed by the Deputy Minister for Justice in due course.
I think that we should stick to our guns and maintain our view that there should be an affirmative procedure.
The briefing paper suggested that, if the Executive could indulge in some skilful redrafting, it might be possible to separate out the policy areas in which a negative procedure could legitimately be used from the more complicated and challenging aspects of the bill for which the affirmative procedure would be required. It might be useful to have that flagged up to the Executive as being a suitable way of meeting our aspirations without having too much use of the affirmative procedure.
Is that the third way?
I would hesitate to be seen to be espousing that approach in any sense. You could call my suggestion a compromise, however.
We will suggest that as a possible way forward, but we will emphasise our concern that the affirmative procedure be used for certain issues. Is that agreed?
Members indicated agreement.
Charities and Trustee Investment (Scotland) Bill: Stage 1
Agenda item 4 is scrutiny of the delegated powers in the Charities and Trustee Investment (Scotland) Bill. On section 6(1), which provides for further procedure on applications, the Executive accepts that the drafting is what is described as "circular" and it will make appropriate amendment to the section at stage 2. Are we happy about that?
Members indicated agreement.
Section 19 deals with the protection of assets of a body that is removed from the Scottish charity register. We asked the Executive to comment on whether the power in section 19(8) could be seen to allow the minister by order to oust the jurisdiction of the court, but the Executive wishes to retain the power as currently drafted. The issue concerns the balance between primary and secondary legislation.
The legal adviser's briefing suggests, if I read the inference correctly, that the negative procedure might not meet the normal standard that the committee expects.
Do you suggest that we stick to our guns?
I seek amplification on the legal advice.
I gather that the briefing makes only a suggestion. I think that the legal adviser's opinion is that the balance is a fine one.
Given the initial concern over whether the proper balance between primary and subordinate legislation had been struck, the case inherent in that opinion would seem to argue that, if we are to accept the proposal to proceed through subordinate legislation, our preference should be for an affirmative rather than for a negative procedure.
The Executive highlighted the particular difficulty with certain cultural non-departmental public bodies.
The further information that the Executive has provided seems to make the issue clearer.
So the Executive has provided further information since the briefing note was written. The press coverage that I saw last week suggested that ministers would change their minds on the broader issue of the cultural NDPBs. We could perhaps reconsider the issue when we see the Executive's redrafted wording.
I think so. The Executive has supplied additional information as to why it saw a particular difficulty. We can leave the issue until we see what the redrafting looks like.
How will we clock what the Executive does? If we are able to consider the issue only when an amendment is lodged at stage 2, we might have no opportunity to reconsider it.
I was about to make that point. I think that we would be best to encourage the Executive to provide for an affirmative procedure for the regulations under sections 82(2)(h) and 82(3). That is probably the strongest thing that we can do at this point. Is that agreed?
Members indicated agreement.
Sections 85(5)(d) and 85(10) are on local authority consents. The committee suggested that the matters dealt with by section 85 could perhaps have been left to guidance or a circular. The Executive agrees, but feels that there is merit in developing a common standard for badges and certificates. If I remember correctly, Murray Tosh said that, although we did not feel too strongly about the matter, we should ask the question anyway, given that we were raising a number of questions.
The answer is not entirely convincing, but it is perhaps better on balance to have things done in the way that is suggested.
Okay. Shall we leave that as it is?
Members indicated agreement.
Section 97(2) is on transitional arrangements. We suggested that there might be a cut-off date. The Executive's response sets out further background information about the provision. The Executive believes that it is impractical to set a cut-off date at this stage. We wondered whether one way out might be to suggest that, as the Executive will not look at the issue at this stage, we could perhaps come back to it at a later stage.
It is difficult to know whether we can say much more than we have said already. We could highlight to the lead committee the fact that the power is open ended and that it could effectively end up being a permanent feature rather than a temporary one. We should definitely do that, but I do not think that we can do much more.
We can write to the lead committee.
Yes, to highlight that we are concerned about the open-ended nature of the power.
Shall we agree to do that?
Members indicated agreement.
Section 104(2) is on the short title and commencement. Committee members will remember that two sections refer to commencement and we said that they had to be the same; it had to be all or nothing. The Executive has said that it does not think that there is any need for section 97 to be commenced on royal assent, so it will remove the reference to section 97. Is that okay?
Members indicated agreement.
Budget (Scotland) (No 2) Bill: Stage 1
Item 5 is on the Budget (Scotland) (No 2) Bill. The provision under section 7 of the bill seems to be very similar to past provisions, in that any order made under the section will be subject to the affirmative procedure. Are we content with the power as drafted?
Members indicated agreement.
Fire (Scotland) Bill: as amended at stage 2
Item 6 is on the Fire (Scotland) Bill as amended at stage 2. Section 2(1) deals with schemes to constitute joint fire and rescue boards. During a stage 1 evidence session, the Deputy Minister for Justice gave assurances that the power would be amended so that it would be subject to the affirmative procedure in order to ensure a greater level of parliamentary scrutiny. Are we content with the situation now?
Members indicated agreement.
If we were not content, what could we do? There are no meetings of Parliament or committees next week and stage 3 is to be held on Wednesday afternoon of the following week—the bill goes to stage 3 almost right away.
The next opportunity to deal with the matter would be the stage 3 debate.
I have a reason for knowing when the stage 3 debate will be held—it will be held on the first afternoon that we are back and we are on holiday after tomorrow. What mechanism could we use to intimate that we do not like something? There would be no point in going back to the lead committee, because it will not meet again before stage 3.
There will be a report to the Parliament.
So if we have any issues we would need to raise them during the stage 3 debate.
Yes. We did that once before.
How would we do that? The stage 2 amendments would not be discussed at stage 3. I am trying to understand how, if we are not entirely happy with something after stage 2—and given that the amendments will not be lodged again at stage 3—we could get the issue into the domain of argument.
We would have to tap into the timetable for lodging amendments at stage 3.
We would need to lodge an amendment.
If, as a committee, we did not like something—I am not saying that that is the case on this occasion—the mechanism to address the issue would be to lodge an amendment at stage 3.
If we wanted to do something, we would either have to do it today or members could delegate the matter to me and we would put the proposal forward as an amendment. Alternatively, any member could lodge an amendment individually.
We did that once before.
Yes. That is what we did previously. I recall that there was a very tight timescale.
Members indicated agreement.
Section 53(2)(f), which provided a power for Scottish ministers to specify intervals at which reviews must be carried out, has been deleted.
Members indicated agreement.
Section 55, which is on
There is an issue about whether the affirmative procedure would be more appropriate.
It was considered that a regulation-making power would be helpful to enable the persons who are covered by the section to be added. Our legal advice is that it is possibly all right as a negative instrument, but is the procedure acceptable?
I am inclined to agree with Gordon Jackson about going for the affirmative procedure.
You think that annulment does not provide the right level of scrutiny.
That is what the committee would say if it was considering the matter at stage 1. I do not know whether the matter is worth dying in a ditch for at so late a stage. There is no doubt that our normal response would be to say to the Executive, "Hey guys, why don't you make this affirmative?" The question is whether it is worth an amendment at stage 3.
We could make one last—
Request.
If we make a request to the Executive, it might consider the matter.
We would normally ask for that.
Yes. We will ask the Executive again whether it will consider using the affirmative procedure.
Members indicated agreement.
Section 67 is on offences. A number of changes were made at stage 2 to modify and extend the delegated powers. The issue is either that the power needs to be redrafted because it is too wide, or that it ought to be subject to the affirmative procedure.
This is an example of the point that I raised. In such cases, we would normally ask for clarification and the matter would be sorted out between the committee and the Executive. The problem arises because it is so late.
Our response depends on how strongly the committee feels about the matter. We can write a letter to say that we are concerned about it, or we can go for some form of amendment.
We should do the former.
I am inclined to flag up the matter.
The report will state that we are concerned about the matter and that we raised the issue of a possible amendment. I do not know whether we can do much more than that.
Have we agreed that that we will write to the Executive about subsections (11) and (12)?
Yes.
I accept that we will not get a response in time, but it would still be worth while for us to write to the Executive. What is the deadline for the Executive to lodge an amendment?
The deadline is 10 February.
So we will fax that one, will we?
Perhaps we should say quickly to the Executive that we still have concerns not only about section 67, but about section 55, as we will not have our report ready. We will flag up those two sections. Obviously, there is more to do on section 67 and there is the possibility of an amendment.
Can we also say that the power ought to be subject to the affirmative procedure? We would probably agree that that is more appropriate, as a fairly wide Henry VIII power is involved. There are a number of wide powers in the bill, but that could be mentioned.
Yes. The provision is either too widely drafted and needs redrafting or, if it is to stay as it is, the affirmative procedure needs to be used. Are members agreed?
Members indicated agreement.
Is section 69(b) okay?
Members indicated agreement.
Sections 72(6) and 72(7) are on the meaning of "relevant premises". The Executive honoured its undertaking to lodge an appropriate amendment at stage 2, but I wonder whether subsection (7) also merits the affirmative procedure.
We can link that to the other two issues that will be raised with the Executive and ask the Executive to lodge the necessary amendments by 10 February.
In such situations, I suppose that there is nothing to stop us lodging our own amendments and asking the Executive to agree to them. Of course, we can always withdraw them. It sounds a bit cynical to say that we will withdraw our amendments if we are given a good answer, but the position will be covered by our lodging amendments. Is that too circular?
That is up to the committee.
The Executive could say, "Well, you're probably quite right, but we left it a bit late and we cannae get them in now." Amendments could be lodged for the Executive, as it were. It could be decided later whether to insist on them.
I assume that we could do that in relation to the affirmative rather than the negative procedure, but I do not think that we should try to disentangle subsections (11) and (12).
I do not mean that. If we think that there should be changes in respect of the affirmative procedure, there is nothing to stop us lodging an amendment. The Executive cannot then come back and say that it did not have time to lodge an amendment. We could say that we have an amendment that we prepared earlier. We could give the Executive a "Blue Peter" amendment. That is just a thought.
If the committee agrees, we are saying that we want to lodge an amendment to three different parts of the bill so that the affirmative procedure will be used.
By the time of our next meeting, which will be the day before stage 3, we could consider the Executive response and decide whether we will insist on the amendments.
Absolutely. In fact, we will make that point when we write to the Executive. We will also do so when we write our report.
We will visit the matter again the day before stage 3, but that covers it.
Absolutely. Are members agreed?
Members indicated agreement.