Official Report 146KB pdf
Water Industry (Scotland) Bill (as amended at Stage 2)
I welcome everyone to the sixth meeting in 2002 of the Subordinate Legislation Committee.
The provision covers circumstances in which a supply of water is provided for domestic and non-domestic purposes. For example, a household with a swimming pool is entitled to an unmetered water supply for domestic purposes, but it would be unreasonable for water for a swimming pool to be provided by the same means. Another example is premises that are used as a home and as a place of work, such as dental surgeries that are attached to private residences. The intention is that such premises are entitled to an unmetered supply for domestic purposes, but for the purposes of the business, which is a consumer of water, the supply will be metered in the same way as is a free-standing dentist's surgery.
I was thinking about hairdressers who do a bit of moonlighting.
The provision might apply to them. It applies to any premises that are used for domestic and non-domestic purposes.
How will the system operate? I realise that it is not intended to impose metering on domestic premises. Is it proposed that there will be separate domestic and non-domestic water supplies or will the whole premises be metered?
In most cases, a bit of extra pipework will be required. The supply into the premises will have two branches—an unmetered and a metered one. The water that is used for non-domestic purposes will have separate pipework and a meter so that that water is distinct from the domestic supply.
Can the water authority insist on that?
As a matter of policy, the water authority will be required not to impose meters on domestic supplies, although domestic customers can request a meter if they wish. Ministers think that it is unreasonable for someone who runs a business to use the water for that purpose, but not to pay for it separately.
I think that your problem will lie with swimming pools.
It is worth saying for the record that it is unlikely that the authority will impose a meter on people who work from home but who use no more water than ordinary people, for example, computer consultants. Metering is appropriate for cases in which a substantial amount of water is used over and above the amount that is used for normal domestic purposes.
That is why I mentioned hairdressers.
The Executive took on board many of the points that we brought to its attention at stage 1, which is good.
It is a very good Executive.
I concur. I am delighted to hear the convener say that.
I am sure that she did not really say that.
I am sure that I did.
Protection of Wild Mammals (Scotland) Bill (as amended at Stage 2)
I welcome our guest, David Mundell; it is lovely to have him back among us. The next item is the Protection of Wild Mammals (Scotland) Bill. I am not suggesting that David needs protection.
Will Murray Tosh be joining us?
No. We will come to that matter in due course. We have had no written indication, but I have heard on the grapevine that Murray Tosh agrees with one of the amendments to section 9(2), which was introduced by one of his stage 2 amendments.
I was not aware of that.
I was not aware of it either.
Nobody is aware of it. We have just heard about the matter.
I saw from the Official Report of last week's meeting that Mr Butler wants me to elucidate.
That is super.
I have a couple of questions. If the Executive is to have this power, it is welcome that it will be subject to the affirmative procedure, which means that the Parliament would have to vote in favour of subsequent amendments to the bill. One of the concerns about section 1C, which David Mundell's amendment 69 at stage 2 introduced, is that it could potentially empower the Executive to rewrite, or contravene, some of the general principles of the bill. Do you envisage any way in which the section might be used to go against the will of the Parliament by contravening the primary legislation that may be passed tomorrow?
The section enables new excepted activities to be added. If Parliament wanted to change substantially the bill as passed, it would want to do so using primary legislation. The Executive would be unwise to try to use this provision to change the act substantially. It is very unlikely that that would happen. If there was a majority in favour of passing such a resolution, I presume that there would be a majority in favour of repealing or amending the act.
There would have to be a majority, because the order would be subject to the affirmative procedure.
Yes.
Your contention is that if the intention were to either subvert the act or take it from the statute book, primary legislation would be used because a majority would be in support of that.
Yes. Any change under section 1C would have to be passed by a majority of members of the Parliament following a full and extensive consultation. If such a majority existed, I suggest that it would be used to repeal or amend the primary legislation. It would be unwise to use section 1C to try to change the principles of the act by subordinate legislation.
I note that Ross Finnie has lodged three amendments to section 1C, which seem relatively minor and technical. Does David Mundell think that those amendments would improve the section?
I am happy to accept all Mr Finnie's amendments to section 1C. I am sure that he will explain to the Parliament tomorrow why he feels that moving it from one position in the bill to another is better. It is where it is because of the order of the marshalled list of amendments at stage 2 and it would be better at the end of the exemptions than where it is. I do not have a problem with Mr Finnie's amendments.
We will be commenting on the position in which the committee has been put. We are going straight from here to the chamber, which means that I might need to say something. The horrendous thought of that.
I have lodged an amendment to Mrs Gillon's amendment 84. My amendment 84K seeks to bring the subordinate legislation in that amendment in line with the rest of the bill, as a tidying up exercise.
Can you explain that to the committee?
Karen Gillon's amendment 84 suggests a form of compensation, shall we say. It finishes with the sentence:
We will make a suggestion on that. I will stop you there, so that we do not prejudice anything. The committee would not look kindly on that sort of thing—we prefer to see regulations tied up. In this case, the negative procedure would be required.
That is what I have sought to introduce into the process.
David Mundell mentioned the amendments that are still flowing in. There will probably be a need, once the bill has passed, for us to reconsider the practice of manuscript amendments. I understand that 21 manuscript amendments were lodged yesterday and a substantial number could be lodged today. It becomes very difficult for a committee such as the Subordinate Legislation Committee to perform its role when large numbers of amendments are submitted after the deadline for amendments has passed. Parliament may wish to consider that once we have got through this week.
I intend to pursue the matter with the relevant bodies in Parliament and to say that this is no way to run a Parliament.
It is difficult when members lodge amendments at the very last moment. A large number of amendments lodged within the legitimate period were lodged at the very last moment. While some of those amendments might have been anticipated, Mrs Gillon's amendment—which I am sure was lodged with the best of intentions—has not previously been the subject of wider discussion. Members would have been faced with a take it or leave it option for that amendment, which is probably why the Presiding Officer has allowed manuscript amendments. We must move to a situation in which people lodge amendments within reasonable time scales and it is not seen as a game in which everybody must take it down to the wire so as to get one over on other people. Otherwise, it ends farcically.
I am sure that that would not have been the motivation of members.
What does a deadline mean if it is not a deadline? If an unlimited number of manuscript amendments can be lodged, it seems pointless to publish a deadline. If members lodge amendments within the time scale that is published, that appears to be within the rules of Parliament. I suspect that the procedure is being used deliberately by some members to muddy the waters.
The Executive said last week that it did not intend that procedure to be one to which it would regularly resort. However, we are now in a situation where we are really up against it.
We will bring the matter to the attention of the Executive.
The danger of such a plethora of amendments is that one does not know what the knock-on effects of a late amendment will be.
That is why I invited David Mundell to stay while we champ through this discussion. He might be able to help us. As members have no other questions for him, I thank him for the clear explanation of his amendment.
They are on page 9 of the marshalled list. Amendment 1 is followed by amendments 33 and 84, in that order.
Are you up on this matter?
No.
Amendments 1, 33 and 84 are stage 3 amendments, but we can comment on them.
That is what amendment 84K would do; it states:
Amendment 84K would make provision for an instrument to be subject to the negative procedure, and it would have to be considered by Parliament. Therefore, the committee is minded to suggest to Ms Gillon that she should accept amendment 84K. Is that agreed?
We will now consider amendment 87 in the name of Ross Finnie, which is a tidying-up amendment. Fergus Ewing's amendment at stage 2, members will remember, mentioned every animal under the sun that one could shoot. Amendment 87 states:
The phrase "and weasels" would end that grammatical clause in section 7(1), thus replacing the open-ended provision of the current phrasing.
That amendment would mean that it would not be allowable to change the list of pest species.
Yes, but there is a consequential amendment.
Yes, amendment 89 is consequential on amendment 87. Amendment 89 states:
That means that ministers would be able to add to the list of pest species, as well as being able to remove species from it.
Yes. The ministers would be able to add and remove.
Amendment 87 is sensible.
Yes. In this case, the committee recommends to Parliament—which means that I might need to say something in tomorrow's plenary debate—that the provisions of amendment 87 make sense. Is that agreed?
Members will remember that Murray Tosh's amendment 122 at stage 2 ensured that there would be no sunsetting provision in the bill. However, amendment 91 now sets a date for the commencement of the bill:
Are you confident that we will all be here to apply that 3002 date?
Och, yes. Some of us will live forever.
Some of the manuscript amendments propose such changes to the bill.
Amendment 91 makes sense to me. Does it make sense to the committee?
We commented last week that it makes sense to have a commencement date specified in a member's bill.
Yes, but amendment 91 would still give some flexibility.
Do we have clarification on whether Murray Tosh accepts amendment 91?
Yes. I told you that.
Alternatively, does he accept amendment 92?
Ah—amendment 92. The truth is that we do not know that.
I understood that Murray Tosh accepted the principle of a commencement date.
That is all that we know.
Murray Tosh's stage 2 amendment said that the bill did not need to commence straight away, but it did not provide a date by which the bill should commence. I understand that he now accepts that setting a commencement date should be a principle of a bill.
The matter was debated extensively by the Rural Development Committee and various options were suggested. The committee was swayed by the fact that the Deputy Minister for Environment and Rural Development, Allan Wilson, indicated that the Executive prefers the current wording of section 9(2). Ross Finnie's amendment 92 appears to be consistent with that view. If the bill is given a commencement date, it cannot then have different dates. The Rural Development Committee's debate demonstrated the bill's special circumstances and the need to bring up to speed on the bill everybody under the sun who needs to be so briefed, such as procurators fiscal.
The Subordinate Legislation Committee can decide which of amendments 91 and 92 it prefers.
The view that we took last week was that because the bill is a member's bill and not an Executive bill, control of the commencement date should be in the hands of the Parliament. If Parliament were to pass a member's bill that did not have a commencement date, the Executive could shelve that bill forever if it did not want to commence it. I would not expect that to be the case with the bill if Parliament passes it tomorrow. The principle of specifying a commencement date is important.
I must advise committee members that, to be consistent with our recommendations on other legislation, we should suggest that a commencement date is specified in the bill. On the other hand, we are unlikely to take issue with the Executive if it argues that it is willing to specify a commencement date, as long as it can also specify different dates to enact various parts of the bill.
I think that we will all be there.
Just for clarification, is the committee suggesting that the commencement date should be 1 August 2002? Are not we suggesting only that the bill should specify such a date?
That is right.
I think that we would want to highlight such a principle.
Okay. I do not think that the bill contains any more implications for subordinate legislation. Happy hunting tomorrow. I thank David Mundell for coming to the committee; it has been a pleasure.
It has been a pleasure to be here again, convener.
Memories, memories.
David, Murdo Fraser is prepared to swap places with you any time you want. [Laughter.]
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Executive Responses