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Antisocial Behaviour etc (Scotland) Bill: Stage 1
The first item concerns delegated powers scrutiny. The committee will remember that we raised various points on the Antisocial Behaviour etc (Scotland) Bill, and we now have comments back from the Executive, which we will take in turn. We have had fairly full responses to the questions that we raised, but I am sure that we will want to get back to the Executive on a number of issues.
I have one overriding comment. The Executive's response says:
which raises the question: what is the point of a provision to which no sanction for lack of compliance is attached? I would be interested to hear the committee's views on that.
My only problem is that, if the Executive wrote to us to say that it would introduce sanctions for people who did not obey directions, we would presumably write back and complain that there was no parliamentary procedure to allow us to approve directions, the breach of which would lead to sanctions. We must be a bit more careful; if we write and say that there should be sanctions, we should also say that the Executive would need to lay the detail of directions before us.
Absolutely. There is no difficulty with raising both those points, because they are both valid, but we must realise that one has an implication for the other.
The Executive response says:
My point is to do with the phrase “likely to be localised”: it seems to me that there is no limit on the direction-making power in section 1(10)—although the Executive says that it is "likely to be localised", the power is not limited in any way—and the same point applies to section 2(2). It seems that the powers could be localised, but they could also be general in nature—they could apply to an individual or to any group—and we need more clarity on that. Also, I am not sure what "localised" means in the context; the Executive needs to define what that means because it is too general.
I was broadly satisfied by the Executive's response, because it cleared up why the Executive picked out registered social landlords in section 2. As we heard in last week's housing statement, the Executive expects that most local authorities will dispose of their housing stock through stock transfer; it is therefore attempting, through section 2, to ensure that the stock transfer housing associations—the landlords—will exercise the strategic functions that would otherwise have fallen on the local authority.
Section 1 imposes a fairly wide duty on everybody to provide information: police, councils, RSLs, voluntary-sector landlords, private-sector landlords and even, I presume, a social landlord who is not registered, if such a thing is possible. However, the enforcement section, section 106, requires only the relevant authorities—which means only the local authority, the chief constable and the registered social landlord—to have regard to the guidance. Why, in section 1, compel everybody to give the information without compulsory powers and then restrict section 106 to the relevant authorities? That point is made in our legal briefing paper.
In a way, that exemplifies the point that Christine May was making. It is the main example of the problems that we have noted with regard to this part of the bill.
Is there still time to ask the Executive about that point?
Yes.
In that case, I would like to ask the Executive about it. In general, the responses that we have received have been helpful and informative.
Do we agree to write to the Executive to ask about that point and the others that have been identified in the legal advice?
Thank you. That point might be a good one to include in our forthcoming inquiry into localised and general powers.
It would be helpful if the Executive could give us a further indication of its intentions on this point. We could then consider what we might do, depending on what answer we got.
The Executive gives no firm undertaking to amend the bill. Should we ask about that as well?
It is important that we get another bite at the cherry. I understand that, if the bill is amended, we will get a chance to consider the amendments, but it is equally if not more important that we get a chance to comment on the areas of the bill that have not been amended. It is difficult to proceed on the basis that amendments that meet our concerns might be brought forward because, at the end of the day, we might find that that has not happened.
The clerk tells me that we will get another bite at the cherry.
Again, the points that have just been raised should form part of our inquiry.
I think that that is very helpful.
I hope that that comment is included in the Official Report.
Somebody in the Executive will be embarrassed.
Never.
With regard to the limits, the Executive's position is helpful, providing the amendment is lodged.
Do you want us to write to the Executive to get a firmer commitment in that regard?
Given what we said earlier about having another bite at the cherry, I do not know if that is necessary. However, there is no harm in asking, even though the Executive might say that it has been as firm as it is prepared to be at this stage.
The response says that the Executive will consider whether to amend the provisions. The rest of its argument seems to accept the logic that that amendment should be made. Given that it sounds a bit grudging of the Executive to say only that it is considering amending the section, I think that we should ask it to clarify that that is indeed what it intends to do.
Do we agree to write to the Executive in those terms?
Section 51 relates to directions in respect of a duty under section 89 of the Environmental Protection Act 1990 and raised the question of the difference between direction and the code of practice and the issue of parliamentary scrutiny. Again, the Executive's response does not give a firm commitment to amend the section. Do we agree to write to the Executive asking it to clarify its intentions?
Section 62(3) relates to failure to comply with a notice and action by an authority at the landlord's expense. Our legal advice suggests that the Executive's response is sufficient. Do we agree?
Section 69(8) relates to the designation of relevant houses within a designated area. The Executive's response supplies some further information. Do we agree that the choice of wording relating to the power is clearer than we thought it was?
Section 85 is on guidance. We asked the Executive for further justification of the use of guidance in this instance, rather than the use of a legislative instrument. We received further explanation, which seems sufficient. Is that agreed?
Section 95(2) and section 95(3) cover fixed-penalty offences. We thought that the additional powers that are conferred under section 95(3) were very wide. The legal advisers think that the Executive's interpretation of section 95(3) could be correct, and it is certainly reassuring. Do we accept that, or do members have any further comments, bearing in mind the fact that the power is subject to the affirmative procedure?
I am not sure. That is my position on this matter—I have a firm position of being not sure. I acknowledge what the Executive says, but I still have reservations and concerns, which we expressed previously. We still have the problem that, although the Executive has stated that it has no intention of doing any of the things that we are concerned about, it remains open for them to be done at some point. We cannot guarantee that they will not be done in the future. Although I accept the Executive's reassurances, I consider that we should draw our concerns about what is a wide-ranging power to the attention of the lead committee.
The power will be subject to the affirmative procedure, so it will go before the Parliament.
That is why I am not sure about our need to raise those concerns.
I support Stewart Maxwell's comments. Although the powers will be subject to the affirmative procedure, and therefore to scrutiny, it is still worth drawing to the attention of the lead committee the fact that we had concerns and that, although we are partly reassured by what the Executive says, we would still like the lead committee to be aware of those concerns.
After our first meeting following the recess, we will be doing our final report to the lead committee on the bill. We will insert our concerns then. Is that agreed?
Section 106(5) is on the disclosure and sharing of information, and section 106(3) is on guidance. We received clarification from the Executive on the powers covered by those two subsections. Do we think that it was sufficient?
Yes—although Murray Tosh was concerned about the equivalent provisions in respect of a point that he made earlier.
I do not have any further comments to make, other than the fact that these subsections relate to the issues that I raised earlier. We have already agreed to seek clarification on the matter, and I do not think that we need to say anything else about it.
The clerk can make a note of that.
Section 112(2) is the commencement, which is always an issue for the committee. In this case, we were worried that the powers are potentially very wide and, if exercised through a commencement order, would not be subject to any parliamentary scrutiny. We could raise with the Executive the continuing concern that we have already raised on a number of occasions—in relation to different matters that arose in two other bills, as I recall.
There is the saving grace that a commencement power such as this can be exercised only once. The extent to which the Executive may run riot over legislation in general is somewhat limited.
Yes. The points that have always been raised in such contexts are about some other Executive in the future, and about what it might do.
Indeed. This is not a complete protection, but at least once the Executive has brought into force any particular part of the eventual act, it cannot, by definition, bring it into force again. Therefore, the commencement order problem does not arise again.
We are certainly getting into the intricacies of this.
We have a lot to debate for a section that is only two sentences long.
We could raise the wider issue at our next meeting with the Scottish Executive. We are still not satisfied about it. Is that agreed?
We have some comments about paragraph 3(3) of schedule 3, which is introduced by section 58. According to our legal advice, if the Executive intends that expenditure that is meant simply to enhance the capital value of a property is not to be considered appropriate, that limitation should perhaps be included in the bill, if only in the interests of transparency. Do we want to ask again about the provision? Do we wish to pursue the matter further, or are we content with the answer that we have been given? The Executive has supplied quite a lot of information on the matter.
Might putting that in the bill restrict in practice what an authority might do about a specific property in some obscure circumstance that might arise—although I cannot imagine one at the moment? Is it not sufficient for the intention to be clear that the expenditure that local authorities might incur is not designed to support capital works to make improvements? Does that need to appear in the bill?
If there is a worry about that, we should leave things as they are.
I thank Murray Tosh for those comments.
This is very like, if not exactly the same as, the points that we raised with respect to section 1(10) and section 2(2). The powers in question are supposedly to be exercised on a localised basis, but there is no guarantee from the Executive that it will not use them in a much more general way. The Executive does not confirm that the power will not be used to modify, amend or add to the statutory provisions. We should ask about that in a similar vein to our questions on section 1(10) and section 2(2)
We can make all those points together.
Please excuse me at this point, convener. I have stayed longer than I intended.
Thank you for your comments, Murray; they were very useful.
I agree with all the other recommendations.
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Executive Responses