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Education (Additional Support for Learning) (Scotland) Bill: Stage 1
I welcome colleagues to the 16th meeting this session of the Subordinate Legislation Committee. I have received apologies from Stewart Maxwell and Murray Tosh.
In its response on section 12(5), the Executive says that it does not wish to burden the Scottish Parliament with primary legislation. Call me an old cynic if you like, but I suspect that that was the least of the Executive's considerations when it drew up the bill. The Executive goes on to mention further legislation on what might be minor, additional provisions. That leaves the door open, in that such future provisions might not be minor or additional; they might be of some substance. Nevertheless, the Executive proposes to give itself the power to go ahead in that way. I do not think that that is satisfactory.
The Executive does not know what provisions might be covered through the power to make regulations—it effectively says in its letter, "We don't know. If we did, we would have told you." In that case, the bill should be amended to make it perfectly clear that the power will be used only for minor matters—and subordinate or consequential matters, I think, although I cannot remember which two other terms were used. Any changes that are made ought to be open to scrutiny by the Parliament in the most appropriate form. If that is to be done by an open procedure, that is what we should do, but we should use the appropriate terminology to say so.
Shall we recommend to the lead committee that we would like there to be something in the bill that provided some safety in this regard and which would indicate that changes made through regulations would have to be minor.
"Trivial, incidental or consequential" are the words that are used.
Are we agreed? Mike?
Yes.
Is that all that we need to do? Do we need also to add a proviso along the lines of "subject to open affirmative or negative procedures"?
I think that we should do both those things.
Alasdair Morgan is looking quizzical.
If the Executive gave way on the first matter—if it restricted what it intended to do through regulations to trivial matters—then the second point would not necessarily apply. I do not think that we would need to get into any other elaborate procedure.
I am just worried about interpretation and what would be considered "minor".
The Executive says that it does not wish to burden us with legislation, but our primary function as a Parliament is to legislate. I want to say to the Executive, "Burden us, please. That is what we are supposed to do." I do not like to disagree with Alasdair Morgan, but I think that we probably should pursue both matters. Perhaps I am even more cynical than Alasdair, but I have seen the havoc that can be caused by changes to legislation that have not been properly scrutinised.
If negative procedure is to be used, the scrutiny of that is not as great as it might be. Are we agreed that we will send those two suggestions to the lead committee?
Section 17(1) contains the power to make provision by regulations for dispute resolution. We asked for examples of matters that might be included in such regulations. We have a wee bit of a problem in that we have not really been given any examples. One option would be for us to suggest that the first exercise of the power be subject to affirmative procedure, so that we can set the scene, so to speak. Subsequent exercises could be subject to negative procedure. How does the committee feel about that?
How practical is that? Has such an approach been adopted before?
Yes.
What is to stop the first exercise of the power being on a relatively trivial matter? The second exercise might be more substantial, yet it would be subject only to negative procedure.
It is considered difficult to have a trivial matter as the first regulation. However, I take Alasdair Morgan's point. There does not appear to be another procedure. It would not be any better to go for a more open procedure. All we could do is say that all the regulations should be made under the affirmative procedure. However, if they were trivial regulations, that would seem a bit—
I have a technical question. How difficult would it be to change from affirmative procedure to negative procedure at a later date? That would be a relatively minor amendment to a piece of legislation, I would have thought. Surely, if Parliament—or the Executive—was able to demonstrate that any regulations made were trivial, we could come back and amend the procedure to make it negative rather than affirmative. I see shaking heads. Would that be very difficult?
It would require primary legislation.
So we cannot do it that way.
No.
For me, the same concerns apply to section 17(1) as apply to section 12(5), which we discussed earlier. The Executive is saying that it has written two lines into the bill and now it can go away and do what it wants. We will come on to the precedent that has been set in respect of people ignoring the regulations. I am afraid that regulations are ignored if the door is left open for that to happen.
The Executive is effectively saying that it does not know what it wants to do. It has no definitive model in mind and it wishes to develop its thinking. However, it cannot develop its thinking if it legislates using the negative procedure first, rather than thinking first and then legislating. That is the point of all the consultation procedures that precede primary legislation in the Parliament. We do our consultation first, and then we legislate. The Executive seems to want to do it the other way round.
That is a very strange way of going about things. Paragraph 8 of the legal brief says that the Executive
The only alternative is to express our strong reservations to the lead committee.
We should do that.
I cannot think of any other measures that we could take. We have been through all the options that we could use and none of them seems satisfactory.
Can we ask the lead committee to consider our reservations and then tell us what it is thinking? Can the lead committee come back to us like that?
No.
We should therefore say that the policy thinking should have been done beforehand and not after the bill was drafted.
Yes.
We should recommend that the first regulations should be subject to the affirmative procedure. I share Alasdair Morgan's concern that the first operation might not give a broad enough flavour of the type of regulations that might be necessary. We cannot set a time limit because we do not know when the regulations will come up.
I am trying to avoid appearing as if we are settling for the use of the affirmative procedure on the first occasion. I do not think that that is sufficient, as Christine May seems to be saying. It is therefore important that we stress that we have grave reservations about section 17(1). However, it might help if at least the first exercise of the power is subject to the affirmative procedure.
Yes.
We should include the words "at least".
Can we say that the committee would have preferred that more than one exercise of that power was subject to the affirmative procedure?
We can put "at least", apparently.
That sounds better.
It does not seem as if the consultation has highlighted examples of the type of regulation that might be needed.
That is probably partly down to when the consultation took place. If I recall correctly, it took place during the summer.
It could be argued that the section is dealing with a new area and that it is therefore difficult to know what regulations might be required. Equally, I would have thought that consultation would have raised those issues.
It is going to be a difficult area for education authorities and other providers to deal with financially, if nothing else. Therefore, we should ensure that the bill is drafted as well as it possibly can be. Other members have pointed out that the thinking should have been done first. There is plenty expertise in the field and advice could and should have been sought.
We could suggest that procedure should be affirmative apart from where the regulations could be seen as trivial. We would like the emphasis to be on affirmative procedures. Affirmative procedures should be the norm. Shall we use those words?
We are going to say to the lead committee that we have grave concerns about section 17(1) because we wonder whether the right consultation has taken place if the Executive cannot come up with examples of the regulations that might be needed. As a result of that, we think that affirmative procedures should be the norm when dealing with those regulations. Are we agreed?
Section 19(4) of the bill deals with the power to set time limits by regulations for the meeting of requests by appropriate agencies, subject to exceptions. We have a response from the Executive, in light of which it is suggested that the negative procedure might be appropriate. Is that agreed?
Section 20(1), which deals with the power to prescribe standards and requirements relating to the conduct of special schools, is more problematic. The issue is to do with the use of non-statutory guidance where the Parliament has no power to scrutinise. Members will recall that, last week, we talked about the case law, which shows that there should be concern about how the section has been drafted.
The legal advice is quite clear about cases in which guidance, rather than statutory provision, is used. If that approach is written into the bill and there is a legal challenge, those schools will be found to have been acting unlawfully. In light of that, the fact that the Executive has found that the current system operates satisfactorily seems to indicate that there has never been a legal challenge. The Executive has ignored what the committee said and is effectively saying that it has got away with it so far and it is just going to carry on. I suspect that that is not good enough.
I think we should draw the lead committee's attention to the House of Lords decision on the use of non-statutory guidance and indicate that the committee was mindful of that when considering the section.
We are recommending that the lead committee discontinues the use of non-statutory guidance. Is that okay? Mike?
Yes, I am happy with that.
Section 23 is on codes of practice and directions. We are fairly agreed that codes of practice are good. However, where—as here—they are a substitute for legislation, we have the same problem as we had with section 20(1). We gave the Executive various options, which have not been taken up. How would members like us to proceed?
The Executive has argued that the method of proceeding that it suggests gives the advantages of speed and flexibility. If we take that to its logical conclusion, totally ignoring Parliament in all circumstances would give the Executive total speed and flexibility, but that would not make it a good thing. We deal regularly with health-related statutory instruments—for example, in respect of amnesic shellfish poisoning—on which the need for speed and flexibility is far greater than it is on this kind of code of practice. We manage to deal with the health-related legislation satisfactorily, so it beggars belief that the Executive thought that we could not do that in this case.
Our previous comments on the need for effective scrutiny of ministerial actions by Parliament apply in this case also.
We will point out to the lead committee that, although codes of practice are normally good, in this case, as they are a substitute for legislation, they are not. We have suggested options to the Executive that have not been taken up, and we expect the lead committee to consider those. We also think that we do not have the necessary safeguards for parliamentary scrutiny using the approach that the Executive has suggested. That, again, is a grave concern. Is that an adequate summary?
Primary Medical Services (Scotland) Bill: as amended at Stage 2
Item 2 is delegated powers scrutiny of the Primary Medical Services (Scotland) Bill as amended at stage 2. A couple of wee points were picked up in the Executive's memorandum, which will be dealt with. Apart from that, our legal advice is that there do not seem to be any particular issues with the amendments. Are we all agreed?
We will state in our report to the Parliament that the committee is content with the provisions of the bill as they stand.
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Executive Responses