Delegated Powers Scrutiny
Title Conditions (Scotland) Bill: Stage 1
The first item is the scrutiny of delegated powers. The two points that we raised with the Executive on the Title Conditions (Scotland) Bill at stage 1 were of a minor technical nature, and concerned sections 37(3) and 37(6), which deal with conservation burdens. The Executive accepted that section 37(6) could be regarded as superfluous, but felt that it helped to make it clear that the Scottish ministers could remove conservation bodies from the prescribed list. Subject to members' views, I suggest that the committee does not press the point, despite the fact that a wee bit of doubt remains about the Executive's explanation.
We will not press the point.
The committee also wondered whether subordinate legislation in the form of an order, rather than regulations, might be more appropriate. It is interesting to consider that, as long ago as 1932, the use of the terms "regulation", "rule" and "order" was the subject of a recommendation in the Donoughmore committee report. That committee recommended that the terms should not be used indiscriminately in statutes to describe the instruments by which law-making power conferred on ministers should be exercised. "Regulation" is used to describe an instrument by which the power to make substantive law is exercised, "rule" is used for procedural matters and "order" is used where ministers exercise either executive power or the power to take judicial or quasi-judicial decisions.
That is valuable information.
Generally, that is the way that things are done. In any case, we welcome the Executive's undertaking to amend the relevant provisions in line with the recommendation that underpinned our question.
Protection of Children (Scotland) Bill: Stage 1
We move on to scrutiny of the delegated powers in the Protection of Children (Scotland) Bill at stage 1. The bill provides for the Scottish ministers to establish and maintain a list of persons unsuitable to work with children. Those on the list will be banned from working with children in either a paid or an unpaid capacity.
The bill contains 11 provisions that delegate powers to Scottish ministers to make subordinate legislation. Perhaps we should go through each of those provisions one by one, and agree whether it is suitable or not, although I should say that few of them contain any controversial elements. I should also point out that, in general, most of the provisions will allow the Executive some flexibility in dealing with slightly different circumstances with regard to people who might be excluded from the list or to organisations that might be able to refer people on to the list.
Section 4 of the bill is "Reference by certain other persons". Our legal adviser suggests that the use of delegated powers in the section is appropriate. Section 4 enables the Scottish Commission for the Regulation of Care and the Scottish Social Services Council to refer individuals to the list of persons unsuitable to work with children. The Executive's memorandum describes how that would work in practice.
It seems to be an appropriate use of delegated powers.
Yes. The power seems sensible.
Section 6 is "Individuals named in the findings of certain inquiries". The section allows for relevant inquiries to refer an individual to the Scottish ministers for inclusion on the list. There are some safeguards, in that the ministers must be satisfied that the inquiry has been properly conducted. Given that condition, it seems to me that the need for the power is self-evident, and its inclusion in the bill reasonable.
I agree.
Section 8 is "Determination under section 5 or 6: power to regulate procedure". Section 8(1) allows for regulations to set out the detailed procedure to be followed by the Scottish ministers to enable them to make a determination. The regulations would deal with such things as the time limits within which decisions would have to be made and the evidence that would need to be produced to allow the ministers to make such a determination. That seems to be a proper use of delegated powers.
However, in the light of our remarks on the previous bill, it may be worth asking whether the power would be better exercised in the form of rules, rather than regulations.
I agree, because the delegated legislation would deal with procedural matters.
We shall raise that question with the Executive.
Section 9 is "Individuals convicted of an offence against a child". The section provides for the court to refer to Scottish ministers for inclusion on the list any individuals who have been convicted of an offence against a child. That is an acceptable procedure for people who have been convicted of a crime of that sort.
It may be worth noting in passing that, as the provision seems to mandate the procedures to be followed in the court, there is a sense in which the court is being told what to do. However, in the circumstances, given the particular offences and the particular list that is involved, I do not want to make a fuss about that. The delegated powers are acceptable.
Section 11 is "Searches of lists: amendment of Police Act 1997". Our legal advice refers to various statutes, but the drift of it is that section 11(1) is taking a belt-and-braces approach for the avoidance of doubt. The provision is just dotting i's and crossing t's to ensure that nobody slips through the net. With the committee's permission, we will say that that is okay.
Members indicated agreement.
Section 11(4) makes detailed references to the 1997 act and to lists in England, Wales, Northern Ireland, the Channel islands and so on. The provision is a Henry VIII power to try to ensure that, if people are put on a list in one country, that knowledge is made available in other jurisdictions.
That is how it should be.
We recognise the logic of the provision and it seems a reasonable way of using delegated powers. Primary legislation would be cumbersome and difficult, so this is fair enough.
Indeed.
Section 15 is "Meaning of ‘disqualified from working with children'". Like section 11(4), section 15(2) attempts to make the definition work across the various jurisdictions. Such a provision is necessary and has been done in other legislation in the criminal justice field.
It seems to be a suitable use of delegated powers.
Yes. The power seems sensible.
Section 16 is "Interpretation". Section 16(1), under the definition of work, provides for a power to prescribe an enactment that creates an office. The definition of work is wide ranging. The power given in section 16(1) seems to be reasonable.
We might ask a question about the power in section 16(2), although the set-up is not hugely controversial. Section 2 places a duty on child care organisations to make referrals, as appropriate, to the list of persons unsuitable to work with children. The order-making power in section 16(2)(c) would allow for the conditions to which the definition of a child care organisation is subject to be amended or extended as future developments require. Any such order would be subject to annulment.
However, it is technically possible that such an order might have reverberations on the original purpose of the bill. Given the context of the bill, we may be willing to accept things as they stand. Will we ask the Executive for some justification of why it has chosen this method?
I see no harm in asking for some justification.
Okay. An order made under section 16(2) could influence the interpretation of other parts of the bill.
Section 20 is "Short title and commencement". There is nothing to report on that.
Schedule 2 deals with the definition of "child care position". Obviously, that is important, because people are not allowed to work in child care positions if they are on the list. The schedule lists a whole range of positions, some of which are described in wide-ranging and generic phrases. Reference is also made to other statutes.
It is important that we understand the Executive's wish for flexibility in responding to circumstances as they emerge in practice. Members might wonder whether it is appropriate to amend the definition by way of subordinate legislation. That is a matter for the committee. Do members have any views?
I assume that the affirmative procedure is essential.
Given that it is proposed that the affirmative procedure will be used, that would seem to be a sufficient safeguard.
Yes. That would seem to be a sufficient safeguard.
Thank you.