Subordinate Legislation Committee, 11 Jan 2005

Meeting date: Tuesday, January 11, 2005

Official Report 112KB pdf

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Delegated Powers Scrutiny

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Transport (Scotland) Bill: Stage 1

Welcome to the first meeting in 2005 of the Subordinate Legislation Committee. I should wish people a happy new year, but there it is.

The main item on our agenda is stage 1 of the Transport (Scotland) Bill. This is a big bill and I suspect that it will give rise to considerable argument about policy. I remind members that that is not our business. There is a lot of subordinate legislation associated with the bill and a number of issues require clarification.

Section 1 concerns the establishment of regional transport partnerships. The basic question that we must ask is whether we are happy for subordinate legislation to be used to do that or whether we think that there should be more on the face of the bill.

In my experience, the approach that is taken in the bill is a tried and tested way of dealing with such matters. For example, the original area tourist board structure was established in this way in 1994-95. As I recall, individual area tourist boards were set up through subordinate legislation. That approach seems to make sense in this case. Although the regional transport partnerships will not be identical, much of the work to establish them will be very similar.

I have no problem with what is proposed. However, I am grateful to our legal adviser for pointing out that it is unclear how sections 1 and 2 will work together. Margaret Macdonald has identified a list of problems with sections 1 and 2. I propose that we take up those points with the Executive, as they are real issues. We should ask the Executive how the two sections will relate to each other. Is that agreed?

Members indicated agreement.

No issues arise in relation to section 3, on funding and borrowing.

Section 5 is entitled "Formulation and content of regional transport strategies". Guidance will be issued on section 5(3), but the bill makes no provision for it to be laid before Parliament in any shape or form. I am wondering whether the bill should make such provision. I appreciate that ministers can lay the guidance before Parliament, even if that is not specified in the bill. I am not even suggesting that it should be included in a statutory instrument, but the bill should make provision for it to be laid before Parliament.

We made the same recommendation in respect of the National Parks (Scotland) Act 2000 and subsequent pieces of legislation which were likely to place a statutory duty on bodies to have regard to guidance.

On sections 5 and 6, we should at least say to the Executive that there ought to be some method of laying the guidance before Parliament, either as a statutory instrument or in another way. We should ask the Executive to comment on what it considers to be the best method of doing that. Is that agreed?

Members indicated agreement.

We have identified no issues in section 7.

It is suggested that we ask the Executive for clarification of which public bodies might be included in an order under section 8. There are also other questions that we could ask. Do we agree to ask the Executive to provide the clarification that we seek?

Members indicated agreement.

Section 10 confers one of our favourite Henry VIII powers. Do we think that some form of super-affirmative procedure might be more appropriate? There is also a question about whether functions can be transferred in more than one direction. It is not clear whether the provision for functions to be transferred only one way is merely a drafting issue or deliberate Executive policy.

I am always in favour of pursuing super-affirmative procedure.

On this occasion, we can at least suggest that. We will also ask the other question that Margaret Macdonald has raised—whether it is policy for functions to be transferred in only one direction.

It has been asked whether the requirements of section 11 need to be set out in a more formal legislative context, rather than just as guidance.

This is the same point that was made earlier. The general directions constitute legislation and should be subject to a more elaborate procedure. We are again dealing with the super-affirmative principle.

Do we agree to raise that issue with the Executive?

Members indicated agreement.

We have no problems with sections 12, 13 and 16.

One issue has been raised in relation to section 17(1). The New Roads and Street Works Act 1991 enabled regulations to provide for the charging of a fee for registration. Clearly, there is no provision for that in the bill. We are asking whether that is a deliberate policy or something that the Executive has missed. Normally, we object to people being charged fees. However, we should point out that the provision is missing and ensure that that was intended, rather than inadvertent. There are no other issues in section 17.

No issues arise in section 18.

Paragraph 113 of the legal brief notes the absence in section 115 of the 1991 act of any provision equivalent to section 115A(5). Should we check that with the Executive?

We should do so. The same point arises in section 19. We should check with the Executive whether a provision has been missed out deliberately or inadvertently.

Section 23 relates to enforcement. The committee must consider whether the right balance between subordinate and primary legislation has been struck. Even if penalties were specified on the face of the bill, some subordinate legislation would be needed to change them, as penalties are altered from time to time. For that reason, I am not necessarily concerned about the issue.

In the view of our legal adviser, is this an oversight or does the Executive intend to rely on some aspect of Henry VIII powers?

We did not consider it to be an oversight. We have asked the Executive about possible oversights, but we did not think that this was one.

How do we think that the Executive expects the provision to work?

Do you want us to put that question to the Executive?

The legal brief raises a fairly significant question.

Indeed.

Normally, the power to introduce a penalty appears on the face of the bill and the detail is left to subordinate legislation. It seems odd that that is not the case here. We should ask the Executive about that.

We will go back to the Executive on the issue and ask how it expects the provision to operate in practice, if there has not been an oversight.

No issues have been identified in section 24.

Section 28 is entitled "Power of road works authority to require undertaker to resurface road". Only the first regulations would be subject to the affirmative procedure; subsequent regulations would be subject to the negative procedure.

It is not clear to me what is meant by "the first regulations". Does it mean the first regulation in each category, or a number of regulations, until the issue has been sorted out?

The first set of regulations in each category would be subject to the affirmative procedure. Those regulations might all be included in one instrument. Afterwards, the regulations would be subject to the negative procedure.

We are talking about new regulations, rather than amendments to existing regulations. Are members content with the section?

Members indicated agreement.

A similar issue arises in section 29. There will be a new subsection that will allow criminal offences to be created in regulations, rather than by the act. We have always had subtle reservations about that.

Is that normal?

I think that it is becoming increasingly normal. Do we want to take up anything on the matter?

For consistency, should we not at least ask about it?

The legal advisers have raised certain things on which we have reservations. In particular, do ministers have the powers that they think they have? We should ask the Executive about the proposed powers to clarify the points that the legal advisers have raised.

Section 29 adds new section 132E to the New Roads and Street Works Act 1991. It says:

"road works authorities and undertakers shall have regard to the code of practice"

when carrying out their functions. It has been pointed out that breaches of the regulations made under the new sections of the 1991 act may attract criminal sanctions, so the code of practice could have some legislative effect. Should there be some more formal procedure for that?

As there is a potential legislative effect, a formal procedure ought to be in place.

We are agreed on that. We will raise the matter with the Executive for its comment.

Points that we have raised on earlier sections are relevant to section 30. A fairly large section of the legal brief is on section 32, which concerns fixed-penalty offences. The new section that is inserted into the 1991 act by section 32 contains yet another Henry VIII power. Leaving aside the question whether we like that whole idea—it is not as draconian as it might seem, in fact—there seems to be a drafting problem. That may or may not be an oversight, but it could cause problems, as it would mean that the commencement orders do not cover what they are meant to. Have I got that right?

The point is that orders under that power have not been declared to be statutory instruments.

We should raise the matter with the Executive. It might just be a matter of someone clarifying it for us.

There is the old question of whether to apply the negative or the affirmative procedure with respect to the powers under section 33. It concerns civil penalties—not criminal penalties—for certain offences. The powers allow ministers effectively to decriminalise offences by subordinate legislation. Should affirmative, rather than negative, procedure be used?

I must say that I would be more worried about making things criminal, rather than decriminalising them. Perhaps that is the old criminal lawyer in me. If the committee is of the view that we should apply the affirmative procedure in this instance, as it involves taking quite an important step, I am willing to suggest that.

Members indicated agreement.

To be fair, the Executive tends to be fairly reasonable in making things subject to the affirmative procedure when we ask it to do so.

There are no issues around section 34.

Should the powers under section 35 be subject to the affirmative procedure, rather than the negative procedure? The issue is similar to that which we raised with respect to section 32.

I think that we require to make that suggestion, to be consistent with the line that we are taking on previous sections.

Section 36 is headed "Civil penalties for certain offences under the Roads (Scotland) Act 1984."

The same applies here.

It is the same issue again.

Section 37 is on national travel concession schemes. No substantial issues have been raised, although it is suggested that we ask the Executive for some clarification, and I think that we will do so.

Members indicated agreement.

There are no issues with respect to sections 43, 46 and the schedules.

What is the timescale for this? Would we expect to get answers back from the Executive next week?

Yes.

So we will be dealing with the Executive's responses on the bill at our next meeting.