Subordinate Legislation Committee, 11 Mar 2003

Meeting date: Tuesday, March 11, 2003

Official Report 99KB pdf

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Delegated Powers Scrutiny

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Mental Health (Care and Treatment) (Scotland) Bill: as amended at Stage 2

The first item on the agenda, under delegated powers scrutiny, is the Mental Health (Care and Treatment) (Scotland) Bill. Last week, we considered many amendments made at stage 2. We drew a number of points to the Executive's attention and asked for further information.

The first of those points concerned section 81(2), about the ancillary powers of the tribunal. We asked for clarification on why it was necessary for such matters to be prescribed in regulations made by the Scottish ministers rather than by order of the tribunal. The Executive has given us an explanation. If members are happy with that, I think that we should accept that the amplification of the reasons clarifies the position very well. Is that agreed?

Members indicated agreement.

That seems to be justified.

Section 171A concerns the ministers' power to make provision in relation to treatment for certain informal patients, mostly children. Again, the Executive responded to our question by explaining that it felt that further extensive consultation was required, which it did not want to pre-empt by putting information into the bill that might need amendment rather quickly. We were worried about an important human rights matter being left to subordinate legislation, although the exercise of the power would be subject to the affirmative procedure. However, it is clear that no consensus has yet been reached on the specific treatments that should be covered. Partly because of the time pressure on the bill, it is probably better that some provision is made rather than none. I wonder whether the committee accepts the situation as it is, having made that point to the Executive.

The issue is serious, but the Executive has made a reasonable reply to our observations. We should just accept that.

Sections 202B(6) and 202D(5) are about removal to a place of safety. Again, we have received further information. Does anyone wish to comment, or do we accept that the provision is reasonable, given the explanation. Do you accept it, Brian?

Yes.

Section 46(5) is on medical examination requirements. We asked about the definitions and about how conflicts of interest would be resolved. The Executive intends to lodge amendments at stage 3 providing for the regulations to make further provisions about conflicts of interest in relation to the granting of emergency and short-term detention certificates. Although there are still arguments to be had about the detail, we felt that there was a risk of over-regulation, which might undermine the purpose of the provision. That is almost straying into policy matters and the committee might not need to make further points. Is that fair enough?

Members indicated agreement.

Section 168 is on treatments given over a period of time. In this case, our legal advisers have scored a couple of palpable hits. The Executive thanks the committee for pointing out the incorrect reference in section 225 and accepts the suggestion that the exercise of the power under section 168(5) ought to be subject to affirmative procedure, as we indicated. We have received a positive response and I do not doubt that members welcome it.

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Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill: as amended at Stage 2

The next item is delegated powers scrutiny of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill, as amended at stage 2. Given that Murdo Fraser convened the committee that scrutinised the bill, perhaps he would like to tell us about the situation as it stands.

Thank you, convener. The committee was excellent and was well served by all its members.

Hear, hear.

I am pleased to say that the committee took on board the Subordinate Legislation Committee's various comments and that the recommended changes to sections 38, 39 and 72(2) were all addressed. I believe that the bill, as amended at stage 2, takes account of the comments that were made.

Thank you, Murdo. I see that Mr Jackson is endorsing your comments about the excellent committee.

It is fair to say that the committee's business was co-operative. When we asked the Executive to do this or that, such as to use the affirmative procedure rather than the negative procedure, it sometimes argued its corner but never really went to the barricades over anything. The Subordinate Legislation Committee's suggestions were taken on board quite amicably.

That is excellent. I know that the bill was difficult and technical, but the scrutiny committee seems to have come up with the goods in the end.

We were well advised by our very good legal advisers.

I am sure. We know the style and we know the kind of advice that we get.