Official Report 224KB pdf
Public Health etc (Scotland) Bill: Stage 1
Without further ado, we move to item 3. As I do every week, I draw members' attention to the summary of recommendations.
I would like to reserve our position and, indeed, feel it appropriate that we press the Government for additional justification with regard to the matters that have been highlighted. After we have received that information, we can consider whether the affirmative procedure should be used.
Is that an appropriate point to make to the lead committee?
Can we not press the Government on this matter?
I seek advice from the clerk on whether we can do that within the timescale.
Yes. I believe that there will still be time if we ask the Government to respond before our next meeting.
That would be satisfactory.
Are members agreed?
On the Scottish Government's response on the meaning of
The issue is important. We should strongly draw the lead committee's attention to the provision, which I think is flawed. It gives the clinician the responsibility for deciding what something means, as opposed to the legislator.
We are grateful for your professional knowledge.
Our legal advice suggests that it is important that we press for the provision's scope to be narrowed.
Do members agree?
On section 25, on supplementary investigative powers, are members satisfied with the Scottish Government's response or should we press for exercise of the power that has the effect of amending primary legislation—including the bill—to be subject to the affirmative procedure? Can I take it that we feel the same way as we did about the power in section 19?
Yes. Exercise of the power should be subject to the affirmative procedure.
Do members agree?
On section 56, "Compensation for voluntary compliance with request", and section 57, "Compensation for persons subject to certain orders", are members satisfied with the Scottish Government's response? Do members agree to let the matter rest, on the basis that any use of the power for matters of substance would not be within vires?
On section 89, "International Health Regulations", are members content to draw the lead committee's attention to the broadly framed power, which is subject to the affirmative procedure? The committee might also want to draw the committee's attention to the Scottish Government's concession that it will lodge amendments at stage 2.
Are we content to put the Scottish Government on notice that if it does not lodge such amendments it should give further consideration to limiting the scope of the power as drafted, given that the affirmative procedure offers no opportunity to consider amendments? The procedure offers only the opportunity to approve or reject draft regulations.
We come to my favourite section: section 91, "Insect nuisance". Do members accept in principle that it is for ministers to determine whether the scope of the nuisance may be narrowed through exception of premises? If so, do members agree that it would be appropriate for the power to be subject to the negative procedure?
On section 94, "Power to make further provision regarding statutory nuisances", do members agree that the delegation of the power is acceptable in principle, subject to the addition of a requirement to consult local authorities prior to bringing forward draft legislation for approval by the Parliament? We read the legal brief.
We should encourage the Scottish Government to amend the provision. Consultation with local authorities on such issues is important.
Do members agree?
On section 95, "Enforcement of statutory nuisances: fixed penalty notice", are members content to recommend to the lead committee that the exercise of the power in proposed new section 80ZA(11)(e) of the Environmental Protection Act 1990 be subject to the affirmative procedure, following the model in the Clean Neighbourhoods and Environment Act 2005?
On section 98, "Disclosure of information", are we content with the power, given that there appear to be adequate safeguards in the bill? That was an important point for us.
My concern is that, as our legal advisers commented, remedies would be restricted to a motion to annul or judicial review. Would that be sufficient? What protection or reassurance would such an approach give to individuals? Should we ask further questions on that basis?
Unless the clerk can advise us otherwise, I think that it would be appropriate to add that small point to our list of questions for next week.
What further question do we want to ask?
I want to know whether the option of lodging a motion to annul or seeking a judicial review would give sufficient protection or reassurance if the minister modified the definitions that are mentioned in our legal brief.
We could perhaps ask the Executive whether it might lodge further amendments to ensure that those concerns are addressed on the face of the bill. That might be the way forward.
Yes, that would be helpful.
All right. We are agreed on that.
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