Official Report 224KB pdf
Antisocial Behaviour etc (Scotland) Bill: <br />as amended at Stage 2
I have now finished with everything that is on the agenda, but I would like to return to the points about which we asked the Executive. I had thought that we might leave the clerk to give us some pointers for us to go over next week, but we should quickly go through the main points that we need to consider with respect to the Antisocial Behaviour etc (Scotland) Bill. We are short of time, so we need to get a steer.
Although I pushed the Executive witnesses quite hard on the matter, I was, in the end, content with the explanation that they gave. I think that there is probably enough of a safeguard to ensure that those who really wish to be involved in antisocial behaviour strategies can be involved in them. I therefore think that the wording is appropriate. I still have some concern, however, that the affirmative procedure, rather than the annulment procedure, should be used.
I would agree with that. I seek other members' views. Murray Tosh seemed to think that the wording was okay.
I have no strong views on the matter. However, there are thousands of RSLs and there will be many more, so do we really want to include them all in regulations made by affirmative resolution? An alternative approach might be to amend the bill to specify that nobody is excluded from participation in antisocial behaviour strategies. The Executive would probably say that that would be a bit declaratory but, on the other hand, it came out of our discussion that the Executive could conceive of situations in which people or RSLs could participate fully without being included in regulations made under section 3A. That might be a preferable way of doing things, rather than cluttering up the system with a whole series of affirmative resolutions, which, on the basis of what the Executive witnesses said, might be unnecessary.
Could you elaborate on what you are suggesting?
The Executive's case was that any RSL could participate in drawing up an antisocial behaviour strategy. The purpose of section 3A is more to require the key players to become involved if, for whatever reason, they did not wish to become involved. If the objective is to include those who wish to be involved, an alternative might be to allow RSLs to volunteer to be involved by agreement locally. Use of the regulations could then be retained only in relation to those RSLs that the police and the local authority felt obliged to include within the scope of regulations. It might be appropriate for regulations to be made under the affirmative procedure in such cases, but do we really want to involve the thousands of RSLs and the 32 local authorities by making regulations under the affirmative procedure for each of them? That seems an oppressively bureaucratic approach.
Do you think that the spirit of the reassurance that was given should somehow be included in the bill?
The bill is silent on the issue, so perhaps we can accept that nothing will preclude, for example, Bield Housing Association from being involved in 32 local authority partnerships if it so wishes. The Executive might resist including in the bill a declaratory statement that would simply state something that would not have been prevented anyway and which was, in fact, implied by the bill. Perhaps the legal advisers could reflect on whether an amendment is necessary. If it is felt to be unnecessary, we need not proceed with the idea.
That sounds sensible.
I shared the concerns that Christine May outlined, but I accept the Executive's explanation about the unwieldy nature of trying to involve everybody in consultation and participation. That was an entirely reasonable point, so I am quite happy with the reassurance that was given.
Do you think that an amendment is needed?
It is perhaps unnecessary. I accept the Executive's explanation. An amendment might help, but I have no strong feelings on the issue.
My only concern is whether the assurances that we were given will be effective in reality.
Time constraints require us to report by the end of this week. Stage 3 is next Thursday.
We will ask our legal advisers to have a think about the issue and, before the end of the week, we will consider what they have drafted.
I will circulate any drafts to members.
As with other committees, a form of words could be circulated by e-mail.
We could then give our views on the suggestion that has been drafted.
It was quite revealing to hear that, in effect, ministers can issue guidance on anything. Therefore, the significant issue is not the guidance itself but the imposition of an obligation on people to have regard to that guidance. The Executive witness said that section 20(3) was unusual because its provision on guidance goes further than normal, but I would have thought that section 20(3) should be the minimum position that ought to apply to any piece of guidance. That should apply not just to all the guidance sections in the bill but to such sections in all legislation. Without wishing to make a political point, I simply observe that, given the political sensitivities around the issue, I would have thought that section 20 ought to contain some form of parliamentary procedure simply because of the concerns that have been highlighted by many parliamentarians and by others who were involved in the debate. It would be fine if all the other guidance sections were worded like section 20(3), but section 20 needs something stronger.
What about consultation?
You may want to make a more general point about consultation. However, given the sensitivities of the matter, I would have thought that consultation on guidance to be introduced under section 20 was necessary. I had jumped on to section 20 rather than section 14B.
That is fine.
With specific regard to section 20, I think that ministers should, in the first instance, have a duty to issue the guidance and a duty to consult on the preparation of that guidance, which should then be subject to parliamentary procedure. That section is the one about which there has been the greatest conjecture that there might be interference with the operational responsibilities of chief constables, for example. I know that section 21 has been deleted; nonetheless, section 20 is still contentious, so I think that guidance should be subject to the affirmative procedure.
Are members agreed on that point with regard to section 20?
On the point about guidance under the other sections, do members agree with what Murray Tosh has said about the need for that guidance to go through some sort of parliamentary procedure?
I do not think that Murray was saying more than that.
No, but what I was saying does not rule out the possibility that other members might feel that some other specific piece of guidance requires more scrutiny than it would get if it were simply laid before Parliament.
Section 20 is an obvious example, but I am asking whether, from the guidance that we went through, there are any other examples of guidance that should be scrutinised more closely than simply by the Executive reporting it to Parliament. Should all the guidance be subjected to parliamentary procedure?
All the guidance covers areas in which there is likely to be confusion over precisely what is included and what is excluded. In all those cases, there should be a duty on ministers to issue guidance. If Murray Tosh is suggesting that such guidance should be subject to the affirmative procedure, we should be content with that, although I do not think that we would want to go quite as far as we did with section 20. The other sections will not necessarily be so contentious.
The only issue that might be so contentious is parenting orders.
Was Murray Tosh suggesting that guidance should be subject to affirmative procedure?
No, I was suggesting that, at the very minimum, guidance should be subject to some form of procedure.
That is what I thought.
Much of the guidance that is issued at the moment is not subject to anything, so being subject to some form of procedure ought to be the baseline. Beyond that, we could start to consider whether the negative or the affirmative procedure would be more appropriate. I do not have any view as to whether guidance under the other sections should be subject to anything further than that, but some form of procedure must be the minimum that is required.
Do members want to go further, as Christine May was suggesting, or should we stay where we are? Is it generally agreed that we should do the latter?
We now move on to the fixed-penalty notices. This is where Gordon Jackson came in.
I do not feel particularly strongly about it, but I was picking up the point about having to reflect changes in the value of money. I feel that that is a slightly false point, because the value changes automatically; that is the whole point of having scales. I did not think that it was a valid point to make but, for the reasons that I gave during the debate, I do not think that it matters hugely.
Do members agree that there are no further points on that issue?
What about consultation on "relevant place" and "relevant property", which is covered in section 46B?
I have two opinions on that. I understand the wish to deal effectively with noise nuisance no matter where it comes from. From a personal point of view, I would welcome such a provision, but what is proposed is an extremely wide power. Effectively, it means that anywhere could be a relevant place or property, which seems exceptionally wide. At the very least, we should draw to members' attention the fact that the provision could apply anywhere, because people should be aware of how wide that power is.
Yes, I think that we should highlight how wide a power it is. That said, I quite like the idea of more effective noise control, but that is another matter.
We shall make the point about its being a wide power. That is fair enough.
They are everybody's trees.
Do members have any points to raise?
Again, I think that it might be worth drawing folk's attention to the fact that it is a wide power.
It is a wide power, but the odd thing about it is that the Executive does not want a wide power right now. Usually, such provisions are there in case we have missed something that arises in future and a surface that we have not thought about crops up. In this case, the situation is unusual, in that there are surfaces that we have thought about but, for a whole lot of reasons, we do not want to take the power right now, although we might take it in the future. It is a wide power, but this is an unusual and very tentative way of making it. It is as if we are saying, "We see lots of surfaces, but let's take a softly-softly approach at this stage and let's not cover too much." Apparently, the provision arose out of consultation with local authorities, which perhaps did not want to be overburdened. It is unusual to take in case you need it later a power for which you have identified a need now.
I certainly think that we should point out the fact that the power is wide, just as we will do with regard to the previous point that we discussed. However, I have slightly more concern about this point, because it would allow people to define any property at all, as our legal briefing tells us. The back of my garage is in my garden and nobody else but me—not even my neighbours—can see it. However, the idea that the Executive could say that it is a surface on which I cannot spray paint if I so wish—not that I would—seems a bit strange to me. I am not suggesting that the Executive would do that, but—
If nobody else can see it, how would anyone know?
Maybe the gardener would notice it.
Parliament would never agree to something so extreme.
I know that, but I am just illustrating the point that the power is extremely wide and that, effectively, any property or any surface could be defined as relevant. I have concerns about that power being agreed to, as it is very wide indeed.
Do members agree that we should point that out?
Part 8 concerns registration areas, and we have raised the issue of there being no fee until there is a regulation. There is nothing to say on that, other than to point it out. Is that agreed?
Part 11 concerns fixed penalties, and that was okay. The Executive is going to come back to us about part 13, on miscellaneous provisions. That is the point that we added on from the legal briefing.
Meeting closed at 12:27.