Subordinate Legislation Committee, 09 Jan 2007

Meeting date: Tuesday, January 9, 2007

Official Report 151KB pdf

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Legislative Consent Memorandums

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Further Education and Training Bill

Agenda item 2 is consideration of two legislative consent memorandums, the first of which is on the Further Education and Training Bill. The Executive has lodged a legislative consent memorandum in terms of rule 9B.3.1 of standing orders. Most of the bill relates to reserved matters and applies only to England. The only provision that has been drawn to our attention is clause 10(4)(f), which relates to the provision by the Learning and Skills Council for England of services to those bodies that require them in connection with the discharge of their education and training functions. It provides that Scottish ministers may, by order subject to the negative procedure, add to the list of bodies. Do members have any points to raise?

No.

It might be best just to report to the lead committee on an informal basis. Is that okay?

Members indicated agreement.

Before we come to the second legislative consent motion, I welcome Adam Ingram and wish him a happy new year.

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Statistics and Registration Service Bill

The next item is consideration of the LCM for the Statistics and Registration Service Bill. Again, the Executive has lodged an LCM in terms of rule 9B.3.1 of standing orders, and the committee has a remit to consider powers delegated to Scottish ministers in that bill.

There are several clauses to consider. The first is clause 6, which defines "official statistics" for the purposes of the bill. An order under subsection (1)(b) is to be made by statutory instrument and is to be subject to the affirmative procedure. The power conferred by that clause is a power to extend the statistics referred to in subsection (1)(a) and it cannot be used to amend that subsection. However, there is no restriction on the type of statistics that can be specified under the power. Although ministers are required to consult with the statistics board before making an order, the power is otherwise unrestricted.

Do members have any comments on that power? Do you want to ask the Executive for clarification, or are you happy?

I do not think that there is a problem. Given that similar powers are to be conferred on ministers in other parts of the United Kingdom, it is probably important that Scottish ministers have similar powers here. Provision for the affirmative procedure is probably sufficient protection in the circumstances. There is more worrying stuff in the bill that we should concentrate on.

Absolutely. If that is agreed, we will move on to clause 10, "Code of Practice for National Statistics". Are members content that no issues arise here?

Members indicated agreement.

Subsection (2) of clause 11, "Pre-release access", provides that the "appropriate authority", defined in subsection (6), may for the purposes of the code, by an order subject to the affirmative procedure, provide for rules and principles relating to the granting of pre-release access. No legal problems have been highlighted.

Are members content with that clause?

Members indicated agreement.

Clause 45, "Power to authorise disclosure to the Board: Scotland", confers powers on Scottish ministers in relation to matters that are not reserved equivalent to those conferred on the Treasury by clause 44.

There seems to be a particular problem in relation to subsection (6)(b). Would anybody like to lead off on that?

Any instrument made under clause 45 may contain consequential and supplementary provision. We are dealing with potentially sensitive information. Although clause 45 has enough protection, subsection (6)(b) suggests that consequential and supplementary provision in an instrument could overrule the protections that exist. The legal brief points out that

"Subsection (6)(b) provides that the provision referred to in subsection (5) can include provision ‘authorising further disclosure by the Board of such information in circumstances where the disclosure would otherwise be prohibited by a rule of law, this Act or an Act passed before this Act.'"

In other words, the provisions and protections can be suspended, and that is obviously a slightly worrying power. I imagine that that is not the intent of ministers, but I think that, at the very least, we need to raise that query with ministers and find out if that was their intention, and ask them what they can do to reassure us that they will not be taking on such extraordinarily wide powers.

Do you want to add anything, Murray?

No. I agree that it is probably not intended that the power be used in the way that Ken Macintosh has described, but the fact that it is possible means that we need to ask whether there are ways in which it might be framed so as to give ministers the authority that they need to do that which is within their policy envelope without taking such wide powers as the current wording seems to give.

Is that enough information for the clerks?

Ruth Cooper (Clerk) indicated agreement.

The same point applies to the next clause as well. It is virtually the same.

Exactly. That is clause 49. I think that we should ask for justification of that power as well.

The only other thing that I want to say is that the legislation is being drafted in England, and I wonder whether that is the reason why it is not as clear as it could have been.

Perhaps, but there is precedent, for bills going through the Westminster Parliament, for amendments promoted from the Scottish Parliament—effectively by the Scottish Executive—being accepted and not causing any undue difficulty. That is unless an amendment to define the use of the powers had some impact on the wider United Kingdom use of the powers; that might have to be negotiated between the two Governments. That is the sort of debate that we should have with the Executive, and the sort of discussion that we should encourage ministers to have with their counterparts at Westminster.

Absolutely.

It is worth putting the matter in context. Although we are talking about a possible statutory instrument, rather than a bill, it is the reference to consequential and supplementary provision—which has come up quite often in relation to primary legislation—that has given rise to concern. If we were more reassured about how that would be interpreted, perhaps we would not be so alarmed.

We have only one shot at this, and I think that we have covered all the points. We shall see what answer we get next time.

I have no concerns to raise about clause 62, "Orders and regulations". Is that agreed?

Members indicated agreement.

No concerns have been highlighted about schedule 1, "Transfer of functions from Registrar General: amendments". Do members have any points to raise?

No.