Criminal Proceedings etc (Reform) (Scotland) Bill: Stage 1
I welcome members to the 15th meeting in 2006 of the Subordinate Legislation Committee. I have no apologies, so I expect other members to arrive later. I remind members to switch off their mobile phones and put their voting cards into their consoles.
We welcome Murray Tosh to the meeting.
We move to section 6(2), on the power to determine which police officers have the authority to liberate an accused on an undertaking, which inserts new section 22(1E) into the Criminal Procedure (Scotland) Act 1995. There appear to be no concerns about that. Are members content with the power and that it is subject to the negative procedure?
Section 7(1), on the power to modify the meaning of "electronic signature", inserts new section 305A(10) into the 1995 act. That will give ministers the power by order to modify the definition of electronic signature in so far as it relates to provisions of the 1995 act. Although the power may be used to amend primary legislation, it is suggested that, as the use of the power is tightly constrained, the negative procedure is appropriate. Are we content with that?
Section 7(2) provides that the Scottish ministers may make provision for the use of electronic documentation, storage, and communication. The Executive's reasons for taking the power are the same as those that we discussed for section 7(1). Again, although the power could be used to amend primary legislation, it does not seem necessary for it to be subject to the affirmative procedure. We may wish to raise a technical point with the Executive on the lack of definitions that will apply in the new act for the terms "electronic complaint" and "electronic communication".
I welcome Gordon Jackson to the meeting.
I am only a wee bit late.
We are on section 35(3) of the Criminal Proceedings etc (Reform) (Scotland) Bill. This section will allow ministers to make textual amendments by SSI to the relevant penalty provisions that are affected by section 35(1). Are members content with the power and that it is subject to the negative procedure?
We move on to section 35(4), on the power to increase the maximum term of imprisonment to 12 months. The use of delegated powers here is well precedented and seems appropriate, but there are two technical points. First, it is not entirely clear why the generic translation in section 35(2) cannot be applied to powers in acts as well as to actual penalties; secondly, it is not clear that the definition of "relevant power" in section 35(6) is sufficient. Are members content with the power and that it is subject to the negative procedure, and that we ask the Executive about the two technical points?
Section 36(1) is on the power to amend the maximum length of imprisonment, level of fine or amount of caution in a justice of the peace court in sections 7(6) or 7(7) of the 1995 act. As members will see from the legal brief, that is a significant power. However, the power to extend the jurisdiction of the JP courts is limited and it is subject to the affirmative procedure. Do members have comments on whether the power is appropriate? Are you happy that there are sufficient limits to the power and that it is subject to the affirmative rather than the negative procedure?
The power should not be subject to the negative procedure because there is a large policy issue here. At the very least, it should be subject to the affirmative procedure. Given the importance of the matter, however, I wonder whether it should be on the face of the bill. I do not know enough about the subject to be sure about this, but it seems to me that being able to expand the role of justices of the peace is a fairly central power. I wonder whether other members think that it would be better for such a provision to be on the face of the bill, given that it is so important.
If the provision were included in the bill, I presume that primary legislation would be needed every time that it required to be amended. The Executive might consider that to be a bit oppressive. It might be more appropriate, therefore, simply to ask the Executive to expand on its thinking, if the matter is not adequately covered in the memorandum.
Should we ask for a bit more explanation of why the power is delegated?
It is a serious power, but I take Murray Tosh's point that if its provisions were once included in primary legislation, they would have to continue to be included in primary legislation—it is a hard balance.
Yes, but my concern is what happens if we go down the Executive's proposed route. Serious issues such as this should be dealt with in primary legislation. Although it is troublesome to use that route, perhaps that is just the way that it must be sometimes and it is right and proper that we do that.
It is a hard one.
Okay, we will ask for more explanation, as agreed.
We move on to section 39(1)(f), on the power to make provision for fixed penalty discounts, which inserts new section 302(7A) into the 1995 act. There is a technical point in relation to the drafting of paragraph (a) of new section 302(7A) that concerns the use of the word "may" and whether that would preclude the order requiring discount to be applied in appropriate circumstances. Are members content with the power and that it is subject to the negative procedure, and that we ask the Executive about the technical point?
It is sensible for the Executive to introduce the power. Currently, other kinds of fixed penalties have discounts.
We move on to section 39(2), which inserts new section 302A(8) into the 1995 act, on the power to prescribe the maximum level of a compensation offer. The power involves fixing the maximum amount of compensation. Are members content with the use of delegated powers and that the negative procedure should be used rather than the affirmative procedure?
One's instinct is that powers that change amounts should be subject to the affirmative procedure.
I think that the legal brief suggests that as a possibility.
I always agree with Gordon Jackson's instincts in these matters.
But it is not one that you would die in a ditch over.
No, it is not.
I wonder whether we can seek further clarification of why the Executive has taken the approach it has, given that paragraph 55 of the legal brief states that
However, paragraph 56 of the legal brief states:
Perhaps we should take up Gordon Jackson's suggestion by asking why the proposed power will not be subject to the affirmative procedure. For a power that simply changes the monetary value, the negative procedure is probably okay, but we should ask anyway.
Okay, we will put that question to the Executive.
If I may, I will just fire away while members read the brief. I see no real problem with the proposed power. It will simply allow ministers to specify the kinds of work that can be included.
I understand the theoretical concern, but even I am not that suspicious.
I cannot see ministers allowing fiscals to say, "You will be a galley slave for 40 weeks"—
—"on the Renfrew ferry".
That seems a little fanciful. Theoretically, that is possible, but one would need to be a little cynical.
That would make the headlines. I see that members do not feel too strongly about the proposed power, so we will leave it at that.
The Executive has made the power subject to the affirmative procedure, which is fair enough. However, we should perhaps get a bit more detail. At the moment, the intention seems vague. We should perhaps even ask for draft regulations.
Okay, we will ask for more detail about the FEOs.
Section 43 also gives ministers the power to make detailed provision regulating execution of relevant diligences by a fines enforcement officer. Under new section 226F(6) of the 1995 act, when a court makes an enforcement order, one of the range of powers that will be available to the FEO will be to recover a fine by way of certain forms of civil diligence. The manner in which those are executed will be detailed in regulations. The power is wide and could modify or extend without restriction the types of diligence that could be used. Do members have any views?
As with other sections, we should ask the Executive for further detail on what the thinking is behind choosing the negative procedure. On the face of it, I think that it would be more appropriate if the power were subject to the affirmative procedure.
I think that we need to ask the question, given that the power is wide and could modify types of diligence.
Our legal brief contains the phrase:
We should push the Executive a little further on that.
We will ask what the certain forms of civil diligence might be.
It is as though the Executive has said, "This sounds like a good idea, but we do not have a clue what we would use it for."
We must get more details on what the power means.
We are at paragraph 85.
Sorry, we have moved on to paragraph 85.
I am reading that paragraph now.
Section 43 also inserts new section 226I(1) into the 1995 act, which contains various definitions of terms and will give ministers the power by order to include other penalties in the definition of "relevant penalty" and to specify which court should be the "relevant court" in respect of those other penalties. Are members content with the power and that it will be subject to the negative procedure?
I am content. The power will just allow ministers to add things to the list, so I see no big problem with it.
Are members content with that?
Section 46(2) will provide ministers with the power to establish justice of the peace courts. The power simply does what it says. Are members content with it and that it will be subject to the negative procedure?
The power is just about moving the deck chairs.
Is that on the slave galley?
Section 46(6) provides that ministers may by order provide for the relocation or the disestablishment of a JP court. Are we content with the power and that it is subject to the negative procedure?
This is just the other side of the coin of the previous power.
Section 50(2) provides ministers with the power to provide that a JP court is to be constituted by one JP only. There are two issues to consider. First, are we content that the power is delegated to subordinate legislation and that it is subject to the affirmative procedure? Secondly, should we ask the Executive for further clarification of its intentions in relation to section 50(5)?
It struck me that it is a bit peculiar that such a change should be made by subordinate legislation. Given that the clear policy intention is that the change will eventually be made in every area, should it not be set out on the face of the bill? When the Executive is ready and when everyone has adapted to the new ways of working, the change could then be commenced. That might be preferable to leaving it to be rolled out through subordinate legislation. I do not know whether that would be a valid approach, but it strikes me that it is quite a significant change to be left to statutory instruments.
What does Murray Tosh suggest that the primary legislation should provide?
If single JP courts were provided for in the bill, it would be clear that that was the position that the Executive wishes to be established. The provision would not need to be commenced immediately.
It would be worth asking why the Executive has not included a provision in the bill that could be commenced later.
Would that mean that the provision would need to be commenced in different areas at different times?
At the moment, in some districts one, two or three JPs sit on the bench. The Executive could state that by a certain date—let us say, for the sake of argument, by 2011—only one JP would sit on the bench. All the areas that currently have two-JP or three-JP panels would still have time to adapt their practices in exactly the way that is proposed, except that instead of the policy being carried out on a rolling basis the policy intention would be set out clearly on the face of the bill. That seems to me to be the correct way. At the moment, the bill has things back to front.
I see that, but I caught the point that Stewart Maxwell hinted at, which is that the Executive might not want to make the change everywhere at the same time. For example, there might be 10 three-JP benches. Although eight benches could be changed, there might be pressure, for local community reasons, to leave two as they are.
Yes. I was referring to that sort of situation.
The Executive might cite that sort of situation in its response, but it would be reasonable to suggest that the Executive should make a policy statement. The issue would therefore be the commencement. If it got to the point that there were two areas where, for local reasons, they could not commence the provision they would not do so, but by then everyone else would have introduced the change on a rolling basis. They would know the policy intention and they would know that it was likely that a commencement date would be set at some point. That would also set a target for the two areas where a little local difficulty, whatever it might be, had been identified.
I have been told by the legal adviser, who is always very good on this, that the registration of titles was done in exactly the way that Murray Tosh outlines.
I could be a draftsman.
We will ask the Executive why it has not gone down that route and whether there is another explanation for why it proposes to deal with the matter through statutory instruments. Is that agreed?
Should we ask the second question, which asks for clarification of section 50(5), or is that included in the previous question?
I do not think that it is. Section 50(5) prescribes that the clerk of a JP court will have certain prescribed functions, including
We will ask for clarification on section 50(5).
Section 51(1) provides that ministers may, by order, provide for any district court to be disestablished and may impose specific requirements on the local authority responsible for the court in relation to the disestablishment. The power also allows provision to be made in relation to staffing and the property of the district court. Are members content with the power and the fact that it is subject to the negative procedure?
I have a technical question arising from our inquiry, which has looked at local instruments. Would such orders be local instruments, or would they be general instruments because they eventually do the same in every locality?
They would probably be general instruments.
Thank you. I like the probably.
Section 51(4) confers on ministers a power to repeal provisions of the District Courts (Scotland) Act 1975. Different parts of the 1975 act will be repealed over time by orders subject to annulment. Although to some extent the need for the power is largely consequential on other provisions in the bill, it is thought that the policy might not be wholly covered by the ancillary powers conferred by section 69 and that an express provision in the bill is necessary. Members will see that the power is subject to the negative procedure. Are they happy with that or should it be the affirmative procedure?
The argument advanced in the legal brief is that the power could be subject to the negative procedure if the bill were amended to make clearer the purpose of the provision, which is described in the delegated powers memorandum. We should invite the Executive to do that and we should indicate that if it is not prepared to make the purpose clearer, use of the affirmative procedure would be the appropriate course to take.
So we should ask the question that comes out of paragraph 123 of the legal brief. Are we agreed?
Section 51(5) confers on ministers a power to apply enactments relating to JP courts to the remaining district courts. The issue is whether we want to ask the Executive about its choice of the negative procedure in the absence of any restrictions on the use of the powers in the bill and in light of the fact that the powers will be used to modify the application of primary legislation.
Again, we should ask the Executive whether it can restrict the powers in the bill and, if not, whether it would not be more appropriate to use the affirmative rather than the negative procedure.
Okay. We will ask that question.
Section 51(6) confers on ministers a power to modify enactments for the purpose of the continued operation of the remaining district courts. The power raises similar issues to that in section 51(5). I assume that we will ask the same question.
Yes. We should also ask the same question on the next one.
That is section 51(7). Are we agreed?
Section 54(5) is on the power to regulate procedure and consultation in certain appointment processes for JPs. It is not entirely clear from the delegated powers memorandum whether ministers intend to exercise the powers conferred by the section. There is no obligation on them so to do and it is suggested that some clarification of the Executive's intentions might be useful. What are members' views?
I have lost the place. Where are we in the legal brief?
We are on page 20 of the legal brief.
Sorry. I had jumped ahead.
The legal brief raises that point and also notes that the existing power is exercisable by affirmative rather than negative instrument. It suggests that the committee may wish to consider whether instruments under this section should be affirmative rather than negative. Those are the two points.
It would be worth asking the question that is implied in the comment in the legal brief. There appears
Are we agreed?
Section 54(7)(a) confers on ministers a power to specify the date on which the current appointment of JPs ceases to have effect. It seems from the delegated powers memorandum that the reason for taking delegated powers in this instance is that the Executive has not yet made up its mind on the appropriate date. Are we happy that the Executive has justified the delegated powers and that the negative procedure is appropriate?
We are all having difficulty this morning because the briefing paper that we had before the meeting had unnumbered paragraphs, whereas the briefing that we are working with now has numbered paragraphs.
That is why I am giving members a bit of time.
The point that I picked out this morning was the comment that is now in paragraph 143. It states:
Okay. We will ask the question and decide about the procedure at the next meeting, based on the explanation that we receive.
I think so. We are all much more alert now to how allowances and payments are set out. It seems odd that a scheme of this nature should be determined by ministers. It would be in everybody's interests for there to be an agreed procedure for introducing a scheme of allowances to JPs.
Under the District Courts (Scotland) Act 1975 allowances were set by statutory instrument, but now they will not be. We should ask the Executive why it has changed its mind.
That adds weight to the point. Are we agreed that we will ask that question?
Section 56(1) is on the power to make provision for the training and appraisal of justices of the peace. The section also confers functions upon the Lord President. Are members content with the power and the fact that it is subject to the negative procedure?
Section 58(6) will confer on the Scottish ministers the power to make provision for tribunals for the removal of justices of the peace. Contrary to what is said in the delegated powers memorandum, the power in the Justices of the Peace (Tribunal) (Scotland) Regulations 2001 (SSI 2001/217), which will be superseded by the power in section 58(6), is subject to the affirmative procedure by virtue of section 9A(9) of the District Courts (Scotland) Act 1975. Given the importance of the subject matter, would an order made under the new power merit the greater degree of scrutiny that the affirmative procedure would provide?
We are encountering a recurring theme, whereby a power proposed in the bill would be subject to the negative procedure but would replace a power that is subject to the affirmative procedure. There might be a good reason for that, but we should ascertain whether the Executive has a satisfactory explanation for its approach.
I feel more strongly about the matter. I would fight for the use of the affirmative procedure in the context of the procedure for the removal of judges. A JP is not the world's most senior judge, but complaints against judges are always serious because there can be all kinds of motive for making a complaint. I accept that the power relates to the detailed procedure and not to the appointment of the tribunal. However, every aspect of the procedure for dealing with an allegation that might lead to the removal of a JP should be subject to as much scrutiny as possible.
Your comment backs up Murray Tosh's point. Do Gordon Jackson's remarks reflect members' general views on the matter?
We could also ask the Executive whether it is proposed to list the tribunal in schedule 1 to the Tribunals and Inquiries Act 1992, so that any order made under the power would have the benefit of input from the Scottish committee of the Council on Tribunals.
It would be odd if the Executive did not propose to include the tribunal in the list. However, given that the situation is not clear, it would be well worth our asking the Executive about its intention.
Section 61(9) will confer on ministers a power to regulate the procedure and consultation process to be followed in relation to the appointment of stipendiary magistrates. The drafting of the provision seems a little odd, because although ministers would be bound to comply with an order that was made, nothing in the bill would require them to make an order in the first place. The power also appears to be sufficiently wide to allow for exemptions from an order's provisions. What are members' views? Would the affirmative procedure be more appropriate than the negative procedure?
Again, the equivalent power in the 1975 act is subject to the affirmative procedure. The bill would diminish the level of scrutiny afforded to the appointment of stipendiary magistrates. In the legal brief our legal adviser suggests that the matter might be of sufficient weight to merit the choice of the affirmative procedure. We should ask the Executive to clarify its thinking in that regard.
Are members content that we do that?
Section 61(12) will confer on ministers the power to specify the date on which the current appointment of stipendiary magistrates will cease to have effect. The power is technical and the Executive considers the negative procedure to be appropriate in that context. Are members content with the power and that it would be subject to the negative procedure?
I am content with the approach, but there is a question about the drafting of sections 61(12)(a) and 61(12)(b), which seems to give rise to confusion. I assume that we will ask the Executive about the matter.
Okay. Are members content to ask the Executive about the matter?
We move on to section 69, on ancillary provision. The committee normally accepts the need for such provisions, which appear to be of particular importance in the context of this bill. The power to amend provisions of the bill itself is not unprecedented, but it is unusual.
We never like such provisions. We are advised in the legal brief—as we usually are in such situations—that the extent to which the power could be used would be limited and there would be doubts about the vires of any instrument made under the power that attempted to make substantive policy changes to the bill after it had been enacted. Subject to that caveat, we must probably accept the approach, even if we instinctively feel little warmth towards it.
Are members content with the approach in section 69?
Section 71(1) is the standard commencement provision in the normal form. The drafter has obviously tried to address concerns about the lack of parliamentary scrutiny by limiting the type of additional provision that could be included in a commencement order. In the light of that, are members content with the power?
We move on to the schedule. Paragraph 23(4) will confer on ministers the power to substitute for any reference to the district court, the area of the district court or a justice of the peace, a reference to the JP court, the area of a JP court or a JP appointed under section 54(1). Although the power could be used to amend primary legislation, it is restricted in nature. Are members content with the power and that it would be subject to the negative procedure?
Crofting Reform etc Bill: Stage 1
We must report on the bill this week, because the Environment and Rural Development Committee will take evidence from the Minister for Environment and Rural Development next week—there will be no time to go back to the Executive.
I am happy with the Executive's response. The Executive said that it does not intend to use the power often, but highlighted a couple of examples of circumstances in which it might do so, which would probably relate to administrative duties. That suggests that some directions might be legislative rather than administrative in character, although they would not necessarily relate to substantive matters.
Should we report the Executive's response to the lead committee?
Yes.
I do not entirely disagree with Ken Macintosh, but the Executive's response does not clear up the question whether directions would be legislative or administrative in character.
The Executive addressed that point, in that it said it would not make an order—
Yes, but how do we ensure that the duties would be published, so that people could be aware of what was happening and there could be parliamentary scrutiny?
Paragraph 189 of the legal brief refers to the Executive's example of a use of the power that would relate to administrative matters. The Executive might apply a cross-cutting policy by giving all NDPBs a ministerial direction. I presume that the Executive would send a letter of instruction, but the approach might escape wider scrutiny if the details were not posted on a website or published in an order. The Executive should flag up its approach, perhaps through a departmental circular, but its response does not make clear how that would happen. Significant issues could be raised, which ought to be in the public domain.
Given that we must report on the bill and that no more time is left for us to consider matters, we could report that we are still concerned about the issue and ask the lead committee to take it up in order to try to clarify publication arrangements.
So our main issue is how we will know about the general duties.
Yes.
Is publication sufficient? Are you saying that there should be some other form of scrutiny?
When I talk about publications, I am talking about publications that are widely disseminated, rather than those that go on to a dusty shelf that no one knows about at the back of a library somewhere.
It is important to know about such publications.
If a circular on or a statement of a cross-cutting policy were published in some way, the committee would become aware of it and there would be scrutiny if the committee wished there to be scrutiny. As things stand, it appears that the committee would not be aware of a new general duty, or a change to the general duties, because there would be no trigger for drawing such things to the committee's attention.
Okay. Does Ken Macintosh want to say anything about any of the points that have been made?
No. The appropriate points have been made. The lead committee should simply be asked to make its assessment and to decide whether the general duties should be published. There will be written directions, which the Executive could bring to the Parliament's attention, but it might not do so. The question is whether the lead committee thinks that that approach is sufficient or whether the Executive should be obliged to bring the duties to the Parliament.
Basically, we are saying that there would be concern if they were not brought to the Parliament in some form so that it was made aware of them.
If the matters were substantive.
The issues are publication and the widespread dissemination of publications to those who would be affected by them, but it is up to the lead committee to take up those issues. We can only express our concerns. I wonder whether Jamie Stone, who represents an area that contains crofting communities, has any points to make.
Not at this stage. The concerns have been well aired by Alasdair Morrison, me and others and are not pertinent to what we are discussing.
Perhaps you agree that knowing about the general duties would be welcomed.
I would not take issue with that.
Okay. I think that we agree that we will tell the lead committee about our on-going concerns about the issue so that it can take them up.
We highlighted that there is perhaps a lack of clarity about the wording, as the word "and" suggests that there are two different tests. I suggest that we draw the matter to the lead committee's attention.
We should point out the difficulty that the drafting causes. Do members agree?
Section 5 will insert new section 58A, "Obtaining Commission approval or consent", into the 1993 act. We thought that because an important power that has implications for landlords, tenants and others is involved, the information should be in the bill. We also sought clarification of the decision to delegate the power to subordinate legislation. Do members wish to recommend that, although the power is to be exercisable by affirmative instrument, it should be restricted to adding to rather than removing the criteria?
Again, all that we can do is flag up the issue for the lead committee. We could say that this committee sought an explanation, but the Executive did not really provide one. The issue seems to be largely within the policy committee's remit, so it might wish to pursue it.
Okay. Is that agreed?
I refer to the final line in paragraph 203 of the legal brief. I wonder whether Murray Tosh thinks that we should recommend that the power should be restricted to adding to rather than removing the criteria. Should we at least point out that matter to the lead committee for it to take up? Does he feel strongly that we should push the matter?
I thought that that was what he was saying.
I am not entirely clear that I want to say that the committee would have pushed the matter, but we might have explored it further if we had the time to do so. The lead committee might wish to consider the matter.
Yes. The lead committee could consider it. We could emphasise that it could consider whether there should be a restriction to adding to rather than removing the criteria.
I would not say that I am happy with the response because the Executive has not clarified why there is a difference in approach between fees charged under new section 41B(1) and those charged under new section 41B(4). However, the bill contains restrictions on the amount of fees charged and the approval of ministers is required, so there is not a major point of constitutional significance. That said, it is a bit funny that the Executive has done two very similar things in two different ways.
We should flag up the fact that the Executive has done things differently in those two subsections.
I do not think that we can explain why the Executive has done things in different ways, because it has still not clarified that. However, we could point out that it has done things differently. The lead committee might think that the matter is important and might want to pursue it; alternatively, it might like to note it as a little quirk of how such things work and pass on.
Possibly. Is that agreed?
Section 10, "New crofts", will insert new section 3A into the 1993 act. Members will remember that we noted with concern that there is no statutory requirement for prior consultation before an order under the section is laid before the Parliament. Members have received the Executive's response.
It is funny that whenever we ask for a statutory consultation requirement, we are told that it is unnecessary because there will always be consultation. If the Executive will always consult, why should the consultation not be made statutory?
Absolutely.
In this case, the Executive's argument is that if it asks for consultation, the fact that it has not asked for consultation on other points means that such consultation is definitely not required, but that is false logic. The courts might not interpret things in that way, but it is still false logic.
The Executive has reiterated its policy on consultation. We were concerned about consultation in this area.
I had to read the legal brief a few times before I got the hang of what it says. Are you saying that the requirement for consultation must be included in the bill?
The Executive is not saying that.
Are we saying that?
We can say whatever we decide to say.
Tell me if I am straying from the point, but there is concern out there that the creation of new crofts will mean the subdivision of existing crofts or that there will be completely hopeless ideas about taking over Forestry Commission land, which the crofting communities do not see as realistic. Therefore, consultation, whether or not required under the bill, is absolutely vital. I am sorry if I am straying into the lead committee's area, but there is a credibility gap with respect to not only this issue but other parts of the bill.
I think that we flagged up previously that it is almost inconceivable that the Executive will create new crofts without consulting the landowners. Therefore, I do not understand why it does not include a requirement to consult in the bill. We should flag up the matter. The decision is really a policy decision for the lead committee.
I will not mince my words. There is a fear that a lot of guff is being spoken and a lot of talk going on about things that will never happen. It would be great if new crofts were created, but they must be real new crofts rather than imaginary or pretend ones.
Consultation falls within our remit. Paragraph 25 of the Executive's response says:
I said that that was false logic.
The Executive's response makes no sense. If that is the case, why does it not apply to other bills? I do not accept the argument, which is weak.
I just read out the Executive's reasoning.
It is weak. We have expressed our concern. Last week, we said that consultation on the issue was vital. As other members have said, given that the Executive has said that it will consult, the consultation should be statutory. I do not accept the Executive's argument that that would affect other secondary legislation requirements—that view is nonsense.
An interesting general point is raised. If that is the Executive's key argument, the question for us is whether there is any such precedent in any other legislation, because the point would apply to any legislation that specifies a requirement for statutory consultation. Given the weight that the Executive attaches to the argument, it ought to be a sound general principle, but I suspect—although I do not know—that plenty of precedents exist for such consultation.
I am told that there are such precedents.
I am not entirely surprised. In that case, the argument is bogus. The Executive cannot just deploy that argument here—it is not like an infantry battalion that is wheeled on because the sound of gunfire is heard. The argument involves a general principle, which is either applied, or not applied, everywhere. If it does not apply everywhere, it is not substantive.
Am I correct to say that we raised the issue because the Executive did not say in the background information that it would consult?
Yes. That was why we raised the matter. The Executive had not said whether consultation would take place.
Our question was why no statement was made anywhere that consultation would take place.
We also do not accept the Executive's argument for why consultation should not be required under the bill.
We will include that information.
That point is important, because the lead committee will face the same question as we have.
To supplement what is in the Official Report, we could say that plenty of bills treat consultation as a very important matter.
We could say that in the opinion of legal advisers, a requirement to consult would not invalidate the expectation of consultation on other measures. I am sure that the legal advisers could provide a good example that falls within the lead committee's competence, to assure it that the point is soundly based.
Yes. We will find an example to put in our report.
The answer is yes, given that the Executive does not intend to redraft the section.
I suggest that we report to the lead committee that although we thought that the delegated power should not be provided, a change was not possible for the reasons that the Executive has given.
I do not know whether a change is not possible.
The Executive says that it is not possible.
Yes, but that is slightly different from our saying that.
In the legal brief, our advisers ask
We should point that out to the lead committee.
Do we agree to suggest that in our report to the lead committee as an alternative way to proceed?
We asked the Executive two questions about section 36, which will insert into the 1993 act new section 46A, "Regulations concerning loans". The Executive has explained why the recovery provisions relate solely to the death of a crofter and confirmed that reference to any part of the loan is not intended to preclude recovery of the whole loan. Are we content with the response?
Not really. The tenure of a croft might end in circumstances other than the death of a crofter—for example, the crofter might assign the croft or pass it on in some way, perhaps to his son—and in which the repayment of a loan, or at least its renegotiation to apply to the person who succeeds to the croft, would be sought.
In the legal brief, legal advisers say that they recall seeing recently an amendment to legislation to clarify that point.
The whole is greater than the sum of the parts.
We will raise the issue of the meaning of "part".
We might suggest that the lead committee should pursue that. There may be a reason why my observation is not appropriate but, on the face of it, all that the bill says is that death is the only circumstance. The matter would repay further thought, so that the committee is clear that the Executive is right about that.
Does Jamie Stone think that that is reasonable?
That is very fair and sensible.
We wrote to the Executive about our concern over the drafting of subsection (4) of section 45, "Transitional provision etc", and the Executive has said that it is considering the matter further. Do we agree to pass that on to the lead committee to take up?
Legal Profession and Legal Aid (Scotland) Bill: Stage 1
I am aware that we have a big public agenda as well as our items in private on reports, so keep with us.
I think that we can accept that.
On section 16, "Investigation under section 15: final report and recommendations", the committee noted that the delegated powers memorandum says that
We should certainly welcome that and I hope that doing so does not undermine consultation on other elements of the bill.
It may well do.
You could not get in quickly enough with that response. The circumstances are close to those that we discussed on the Crofting Reform etc Bill, I must admit.
On section 23, "Duty of Commission to make rules as to practice and procedure", and schedule 3, the committee asked the Executive to clarify what matters are intended to be included in the rules and whether it is proposed that the Scottish legal complaints commission should be listed in schedule 1 to the Tribunals and Inquiries Act 1992.
Yes.
The lead committee and, I think, the Law Society of Scotland have raised some drafting errors in schedule 3. Perhaps Stewart Maxwell can tell us more about those.
The independence of the proposed Scottish legal complaints commission is an extremely important issue. It is crucial to the regulatory process. I do not want to say too much about it, because the Justice 2 Committee has only just started taking oral evidence on the bill, but there is no doubt that a number of those who have given oral evidence and many of those who have submitted written evidence to the Justice 2 Committee are concerned about that point. In particular, the Law Society and the Faculty of Advocates are concerned about whether the commission would be independent, given the possibility of political interference in a variety of ways. Therefore, I can understand the Executive's caution on the matter. It is crucial that we get it right, but it is a bit early to say where the Justice 2 Committee will come down on the issue.
Are you saying that for the commission's rules to be subject to the affirmative procedure would be to interfere too much and that the negative procedure would be more appropriate?
I am not saying that. I am saying that there is an issue with the fact that there is a political connection at all. That leaves us in a bit of a bind, but a lot of attention is being paid to the degree of separation between ministers and the commission. It is difficult either way and I am not sure that there is a way round it.
Is it a matter that we could simply keep an eye on and come back to at stage 2?
We might have to, because it is very early in the stage 1 proceedings at the moment.
Would a way forward be for us to pass on to the lead committee the response that we have received from the Executive, inform the lead committee that we are going to keep an eye on the matter and, possibly, mention that drafting issues have been pointed out in schedule 3? Actually, as far as I can gather, the lead committee knows about the drafting issues already, so perhaps we do not need to mention them. The Law Society has also been talking about them.
Yes. That was discussed fairly fully last week.
There is obviously an issue to do with how regularly the rules are amended and, therefore, the relationship between the Parliament and the new commission. The point whether the affirmative or negative procedure should be used is relatively subtle. We should take a view on whether Parliament approving changes to the rules is important enough that the affirmative procedure should always be used or whether the first set of rules should be subject to the affirmative procedure and any subsequent changes should be subject only to the negative procedure.
In the light of what Stewart Maxwell said, it seems that the negative procedure might be more appropriate than the affirmative procedure.
I suppose that what we decide has a bearing on the relationship between Parliament and the commission.
The issue is ministerial involvement.
No, it is parliamentary involvement.
Ministerial involvement would be the same in either case. The question is whether there should be further parliamentary scrutiny. We are talking about the difference between negative and affirmative procedure.
I would suggest that we leave the matter until stage 2, when the situation will be a bit clearer, although I take Ken Macintosh's point.
Given that it is suggested that there are likely to be stage 2 amendments, would it not be better to review the matter in the light of those amendments?
I think so. The matter is delicate.
The general point is that the matter is not settled yet. The comments of the convener and Murray Tosh are appropriate. It is difficult to make a decision when we are not sure when things will settle down. There might well be amendments at stage 2.
We should earmark the power for reconsideration at stage 2. Is that agreed?
Ken, are you happy?
The Executive confirms that there is no intention to list the commission as a tribunal.
Where does it say that?
Paragraph 12 of the Executive response.
Paragraph 244 of our legal brief clarifies that that is a policy matter for the lead committee to consider.
On section 33, "Giving of notices etc under part 1", we asked the Executive why, in section 33(2)(a)(v), it is considered that subordinate legislation is more appropriate for setting out detailed provisions. The Executive response has elaborated on its reasons for taking the delegated powers in question. Are members happy with the Executive's response and that the case has been made for taking the delegated powers?
On sections 36(4) and 37(1), we asked the Executive to provide further details of the intended content of the instruments under the powers. You will see that the Executive now intends to legislate by way of primary rather than secondary legislation in respect of those matters.
We can welcome that. As we consider the amendments, we will see whether we wish to abandon the suggestion that we use the super-affirmative procedure. If the amendments are acceptable, we might feel that that is enough.
On section 45, "Register of advisers: advice and assistance", we asked the Executive to provide further details of the intended content of instruments under the powers in section 45(6). We have seen the response. Are we content that the case has been made for taking the delegated powers?
On section 45(9), which inserts in the Legal Aid (Scotland) Act 1986 new schedule 1A, "Further provision in relation to the register of advisers", we asked the Executive to comment on the adviser code being subject to parliamentary procedure. Are we happy with the response from the Executive?
Yes.
It is suggested that the Executive has made a compelling case for the power as drafted, which is to be welcomed.
I do not think that we would ever agree with that. A "yes" was all that was necessary, convener.
We asked the Executive two questions about paragraph 2(7) of schedule 1, which relates to the new Scottish legal complaints commission. First, we asked the Executive to provide further clarification of its intended use of the power and to provide further explanation of the policy behind it, as well as asking why it considers subordinate legislation to be appropriate here.
I am pleased about that. There was a long debate on this area of the bill with the Executive officials. This is the first that I have heard about the Executive agreeing with some of the comments of this committee and the Justice 2 Committee. That is welcome.
That is good. Secondly, we asked the Executive to explain why there is to be no requirement for prior consultation before an order altering the number of members of the new commission is made. The question is whether we are happy with the Executive's response.
We should just draw the lead committee's attention to the matter. It seems a bit of a thin argument to say that, as altering the number of members has budgetary implications and there is consultation on budgetary issues, that constitutes consultation on the substantive issue. We should perhaps let the lead committee pursue that point.
Okay. Is that agreed?
Paragraph 17 of schedule 1 covers "Directions as to exercise of functions". We wanted further information on the power in subparagraph (1) to issue directions to the commission on how it should exercise its functions. The Executive is considering whether the power could be refined any further to put it beyond doubt that ministers will not intervene in operational matters or in individual decisions or complaints. As with the previous matter, we should perhaps just monitor developments at stage 2. We could simply send the Executive response to the lead committee and tell that committee that we are keeping an eye on the matter.
We should flag up our concerns about the matter. We are keeping an eye on it, but we should pass on to the lead committee some of our thinking on the issue.
We could reiterate our concerns about the matter and we will therefore monitor it at stage 2.
There are other examples. The Parliament retained the power to give directions to the Scottish parliamentary standards commissioner. The situation is not unprecedented.
Indeed, but this is one of the biggest problems that the Justice 2 Committee faces. There are two opinions. One, from the Executive, says that the power is compliant with the European convention on human rights; another says that it is not ECHR compliant. It is about the connection between ministers and the new commission. It is extremely important that we send what detail we have to the lead committee and that we pay attention to any changes that may or may not be forthcoming at stage 2.
The Executive is considering whether the power could be refined any further to put it beyond doubt that ministers will not intervene in operational matters or individual decisions or complaints. That is to the good, but could we invite the Executive to communicate with us further once it has clarified its thinking?
Yes. That would be a good idea. Is that agreed?
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Executive Responses