Subordinate Legislation Committee, 10 Sep 2002

Meeting date: Tuesday, September 10, 2002

Official Report 120KB pdf

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Delegated Powers Scrutiny

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Local Government in Scotland Bill: <br />Stage 1

The Executive's response to our questions was pretty full and we feel that we do not need witnesses. Members will remember that we said last week that our determination of whether we would need witnesses would depend on the Executive's answers. Our determination is that the explanation was full and that we do not need witnesses. Is that okay?

Members indicated agreement.

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Public Appointments and Public Bodies etc (Scotland) Bill: Stage 1

Members have a separate legal brief for the bill. We know this bill as the bonfire of the quangos, or at least gas at a peep or something. The bill has two main purposes. Part 1 will establish a commissioner for public appointments in Scotland and confer functions on the commissioner in relation to the monitoring of the procedures for Scottish ministers' appointments to those public bodies specified in the bill. Part 2 will abolish six non-departmental public bodies, with provision for the consequential effects of such abolition, and create one new body, the national survey of archaeology and buildings in Scotland. Part 2 will also grant limited notarial powers to conveyancing and executry practitioners.

We have questions about the use of Henry VIII powers that are similar to questions that we have previously put to the Executive. Does anyone want to speak to section 3(2)(a)? It allows the amendment of schedule 2, which lists the specified authorities. The Scottish ministers will be able to amend schedule 2 by order, allowing further bodies to be added to or existing bodies to be removed from the list. Members will see that that will obviously give ministers a considerable power to affect the way in which the commissioner can act in relation to monitoring the whole procedure. Is anyone concerned about that?

This is a Henry VIII power and we are always slightly worried when ministers can amend the parent act by subsequent regulation. In this case we recognise that there probably will need to be adjustments to the list, but we wonder why the Executive has not used the affirmative procedure instead of the negative procedure, so that the Parliament could acknowledge that amending the list is reasonable. A similar sort of thing comes up with section 3(2)(b), which is the amendment of the commissioner's functions in relation to specified authorities, but in this case that power will be subject to the affirmative procedure. Therefore, it is reasonable to ask the Executive why it has not used the affirmative procedure in both cases.

Yes, the committee would welcome a bit of consistency—or certainly an explanation as to why there is no consistency. It may have been an oversight. We will seek explanations from the Executive on that.

In part 2 of the bill, section 5(2) deals with the transfer of trust property to health boards and will allow for all sorts of consultation with the health authorities—which is very good—and for the minister to keep his eye on the disposal of public assets. Certainly, in the light of the experience in Edinburgh, where the disposal of hospital assets caused a bit of upset, it seems to me that this provision is good.

Yes, the power would seem appropriate.

Section 5(4) deals with further transfer of property and that seems a perfectly suitable use of delegated powers.

Section 7(8) deals with the terms and conditions of loans and borrowing.

You would need to have that kind of thing in subordinate legislation. You could have that in the bill, but you would not.

Yes, it is a perfectly proper use of subordinate legislation. It is proposed that the regulations under that power be subject to annulment. Is that okay?

Members indicated agreement.

Section 8(1) deals with endowment schemes.

We do not need to take any points on that.

Right, because again there will be prior consultation.

Section 14 provides that independent conveyancing practitioners may exercise certain specified functions of a notary public. I do not know whether we are just getting at lawyers. Do any of the lawyers on the committee feel ill done by the section, or is it an advance in legal and social justice terms? Perhaps the consumer will be advantaged by it. I do not know.

If we are going to have independent conveyancing practitioners—I do not think that there are many—it is hard to see why we would disadvantage them by not allowing them to perform the functions of a notary public. That seems petty. I have no difficulty with the section.

The order-making power in section 14(5) is technically a Henry VIII power, but it is subject to the affirmative procedure. It is therefore acceptable to the committee.

It will not be used every week anyway, will it? The Executive could not do wicked things and subvert the bill by using the power.

Laying down what notarising powers independent conveyancing practitioners can have is hardly likely to be the end of civilisation as we know it.

The committee is content. Good. We have only to be consistent. We must note that section 14(5) contains a Henry VIII power, but that, in this instance, there is a narrow field for potential action and we are prepared to agree to the provision because the Executive has gone for the affirmative procedure.

Section 15 of the Bill establishes the national survey of archaeology and buildings of Scotland and section 16 specifies its functions. Section 17(1) enables the Scottish ministers by order to

"confer on the National Survey such additional function as they consider appropriate."

Any order is subject to the affirmative procedure. The provision is therefore satisfactory.

Section 17(1) allows the Executive to change the national survey's functions after the bill has been passed. Because the power is subject to the affirmative procedure, it is probably okay.

Once again, it does not appear to threaten civilisation. The Scottish ministers would be able to change the functions to

"such additional function as they consider appropriate."

What does that mean? We could ask them what additional functions they might want to give the national survey.

We could ask the Executive by letter.

Och, aye—there is no problem with that. We will ask, "What do you have in mind?"

Section 22 is the power to make ancillary provisions. It is a catch-all clause, such as we have commented on in the past. We know that situations change and that ministers must have some flexibility to deal with that. We have conceded the point in the past that legislation should contain such a provision. The power is subject to the affirmative procedure, so are we willing to put it through on the nod, as we have done in the past?

It seems well precedented.

That is the issue. We have created a rod for our own backs in some ways. Perhaps the committee's job is to decide when we cannot allow such a provision through on the nod.

I am easy.

There are no comments on the commencement provisions in section 24.

Section 2 provides that one of the commissioner's functions is to prepare and publish a code of practice in respect of the making of public appointments. We have a slight quibble, simply because of the way in which it is set out. Section 2(4) provides that the commissioner, in preparing the code of practice, must consult the Parliament. What does that mean? Who will the commissioner consult and how will they consult? The bill does not tell us the rules to which we must stick.

I have just looked at that provision in the section. It says:

"In preparing the code of practice, … the Commissioner must consult the Parliament".

That is an odd statement. That the Parliament should be consulted sounds a good idea, but when we try to analyse what it means, we find it is odd.

That is why it is worth while asking the Executive what it means by "consult the Parliament".

It is hard to know what it means. It is an odd provision. How does the commissioner consult the Parliament?

The provision is important. There are many hands-off organisations now. Those organisations must operate by predetermined codes of practice, regulations or rules. If they are allowed to change those, what democratic scrutiny is there of those changes? Section 2(4) is obviously an attempt to provide some democratic scrutiny by saying that the commissioner must consult the Parliament. However, we do not know who will be consulted.

The chances are that the changes would go to the appropriate committee for discussion.

We do not know that.

I agree. It is not specified.

The commissioner could perhaps consult the Parliament by sending out consultation details to the members so that every member has a chance to comment. The section also says:

"the Commissioner must consult … the Scottish ministers".

I can see how they will consult the Scottish ministers: they will just write to the Scottish ministers to ask what their view is.

The section refers to the Parliament. It does not refer to a committee of the Parliament; it says that the commissioner must consult the Parliament.

It also does not refer to the members of the Parliament. "Consult the Parliament" is an odd phrase. I do not know what it means. I cannot put flesh on it at all. I cannot envisage how it works.

It is worthy of a letter asking for an explanation. I suspect that the issue will come up again.

Members indicated agreement.

Nit-pickers are us.

Have we come across such a provision before? Can the legal adviser think of any United Kingdom legislation that uses the phrase "shall consult the Parliament"? I have never seen that phrase, but that does not mean that it does not exist.

The legal adviser has not seen it. That does not mean to say that it does not exist, but it is certainly not common and not clear. We will write for clarification.