Subordinate Legislation Committee, 08 Nov 2005

Meeting date: Tuesday, November 8, 2005

Official Report 268KB pdf

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Delegated Powers Scrutiny

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Licensing (Scotland) Bill: as amended at Stage 2

Members will wish to note that the stage 3 debate on the bill will be held next week on Wednesday 16 November.

The committee raised some concerns in its stage 1 consideration. The Executive responded to our concerns with amendments at stage 2. Since then, there have been several other amendments that either modify delegated powers or introduce new powers.

We will look at the delegated powers first and deal with sections 136(4) and 136(5), on orders and regulations. The Executive amendment changes the procedure in three sections of the bill from negative to affirmative, which reflects the committee's views at stage 1. Are members content with that?

Members indicated agreement.

The Executive introduced seven new delegated powers at stage 2 that relate to matters of detail or that clarify existing powers in the bill. All of them will be subject to the negative procedure. There appears to be nothing in the provisions to give us any concern, unless members have seen anything different. Are members happy with the powers?

Members indicated agreement.

The bill also contains two powers to amend or modify primary legislation. Such powers are usually subject to the affirmative procedure but, in this case, they are to be subject to the negative procedure. The first, which is in section 118(10), deals with vessels, vehicles and moveable structures. The provision will confer powers on ministers to modify, as they consider necessary, the application of the bill to vessels and so on. As the other provisions in the bill apply to buildings, the Executive takes the view that having alternative provisions for vehicles and other structures would lead to overcomplication. The Executive considers that, because of the highly technical and delimited nature of such regulations, the negative procedure is appropriate.

Is that reasonable, or should we ask for the affirmative procedure to be used?

I agree with the Executive on the powers in section 118(10)—there is no problem with the negative procedure.

Do members agree?

Members indicated agreement.

Paragraph 2(1A) of schedule 2 relates to membership of the local licensing forums. The bill will allow ministers to change the number of members of local licensing forums if necessary, following experience of the forums in operation. The Executive applies the same argument as it applied on the previous matter: although the power allows subordinate legislation to be used to amend primary legislation, in the Executive's view, the modification is highly delimited and is not sufficiently important to merit a debate in Parliament. Do members agree that the negative procedure should be used?

Members indicated agreement.

Paragraph 8(4) of schedule 3 and paragraph 7(4) of schedule 4 relate to irresponsible drinks promotions. To clarify and enhance the regulation-making powers, subparagraphs have been added that will allow ministers to make additional provision regarding descriptions of drinks promotions. It is difficult to say firmly what drinks promotions might occur in the future, so we must be flexible. Are members happy with the provisions?

Members indicated agreement.

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Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill: Stage 1

Item 3 is delegated powers scrutiny in relation to the Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill at stage 1. We will have another chance to consider the bill, as we have a few concerns. The bill makes provision for a new multidisciplinary inspection team for child protection services, which will be led by Her Majesty's Inspectorate of Education.

In part 1 of the bill, which is on children's services, section 1(6)(g) will give ministers a power to specify a person or body as one to which section 1 applies. The effect is to allow ministers to specify a person or body to conduct an inspection that relates to the provision of children's services. The power will be subject to the negative procedure. There appears to be no need for a more onerous procedure, as the committee normally accepts the need for such powers for the reasons that are given in the policy memorandum. However, the power is wide, which may be an argument for a stricter degree of scrutiny. What are members' views on that?

I am relaxed about the use of the negative procedure.

Are members happy to leave it as negative?

Yes. However, I have just reread our legal brief, which points out the difference between a power to amend a list and a power to add to it, which appears to be the power in this case. The policy intention is for a power to amend the list, but the effect of the provision is to provide a power to add to the list. There is a clear difference between the intention as stated in the policy memorandum and the power that is provided for in the bill. Perhaps we should ask for clarification on that.

That is reasonable. As I said, we will return to the bill next week, so we will ask for clarification on that matter in the meantime.

Section 2 will confer powers on ministers to direct any person or body who is not on the list, or who is not specified in an order, to participate in an inspection. There appears to be no limit on the powers that can be exercised by such a person. Section 2 therefore seems to confer a wide power to modify the bill, albeit in relation to particular inspections. Do members have worries about that provision? The negative procedure is used. [Interruption.] I am told that just a direction is involved. The power to modify the bill's provisions is wide.

We have expressed concern about unlimited powers such as the ones that section 2 appears to provide. We should at least seek clarification.

We need clarification particularly about the apparent lack of a limit on the powers that can be exercised by a person who is directed.

Yes.

We will ask the Executive for its views on whether a limit exists.

We can ask what the intention is.

Do we agree to ask about that?

Members indicated agreement.

Section 3(1) provides the power to make regulations for the purpose of a joint inspection. Section 3 provides for regulations to be made that cover several sensitive matters, including the creation of offences for the purpose of enforcing any provision of the regulations.

The Executive argues that that power is necessary to allow ministers to provide those who conduct inspections with sufficient powers to carry them out and has provided a draft of the regulations, which members have received. The Executive considers that the powers should be set out in subordinate legislation, as they might have to be refined as inspections proceed. The Executive considers it appropriate for the regulations to be subject to the affirmative procedure. Do members feel that that is the correct level of scrutiny and that the balance between primary and secondary legislation is correct?

The penalty that the regulations can impose has no limit, although a limit is normally set. We should explore that with the Executive.

That relates to section 3(1)(f).

Yes.

We will ask for more information on why the penalties have no limits.

Another point is that we have not received all the regulations. I believe that they have just been printed, but we have had no chance to review them. Much will be left to regulations, which should therefore be in front of us. I assume that we will have a chance to consider the regulations next week.

My point follows on from that. Rather a lot will be left to regulations. Considering the balance between primary and secondary legislation is within the committee's remit. On the face of it, leaving so much to regulations does not seem reasonable. Perhaps that relates to our discussion about using the super-affirmative procedure and the lack of a power to amend. It would help if the Executive laid out some detail on its thinking about why so much should be in regulations.

In particular, section 3(1)(f) gives regulations the power to create offences. When possible, it is preferable to create offences in primary legislation and to deal with all the ramifications in secondary legislation. The balance does not seem to be right.

No—absolutely. We will take on board those concerns.

We will move on, because our letter to the Executive will have to deal with other provisions, too. In part 2, which is on social work services, section 5(3) provides the power to make regulations for the exercise of functions under section 5(1). Section 5(3) provides for the types of inspection and covers matters that could be sensitive. The Executive undertook to provide a draft of the regulations to members this week, which I gather the clerk received last night. As Ken Macintosh said, everything is coming at us quickly.

I ask members for comments. Given the limitations of subordinate legislation procedure, is the power in section 5(3) more acceptable than those that we just discussed?

The same points apply. All that we said about section 3 applies to section 5(3).

I agree.

I agree.

Part 3 is headed "General". The definition in section 7 of "social work services functions" provides the power to make regulations defining which local authority functions are to constitute social work services functions. The Executive justifies leaving the definition of what is to constitute a social work services function to be set out in regulations because that allows for flexibility to cover future developments. The power is subject to affirmative procedure. However, the definition of "social work services functions" is a key provision of the bill, and it is therefore open to debate whether it is acceptable to leave the matter entirely to subordinate legislation without any limitation.

The briefing paper gives the extreme example of transport matters being dragged in. However, many local authorities operate close working partnerships with health boards on social work and aspects of health services. Many local authorities operate housing services within community services departments. Therefore, it is not hard to see where the edges of what constitutes social work could be significantly blurred and where regulation could start to impinge beyond the principal purpose of the bill. There must be a sharper definition in the bill of "social work services functions", given that many people in the field may act across a wider remit than simply the narrow profession of social work.

Is it agreed that we will explore that with the Executive as well?

Members indicated agreement.

Finally, section 8 makes several consequential repeals of other pieces of primary legislation that will be superseded by the bill. However, there is no provision for any transitional arrangements or consequential amendments in relation to those repeals. We need to ask about that as well. Is that agreed?

Members indicated agreement.