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Smoking, Health and Social Care (Scotland) Bill: Stage 1
Agenda item 1 concerns delegated powers scrutiny for the Smoking, Health and Social Care (Scotland) Bill at stage 1. On 22 March, the committee raised a number of issues on the delegated powers in the bill with the Executive. The first of those, which is perhaps also the most important, concerned the meaning of "no-smoking premises" under sections 4(2) and 4(7). The committee asked whether it would be appropriate to use a super-affirmative procedure in those sections so that the Parliament could debate proposals for the definition of no-smoking premises before a draft instrument was laid.
I agree with what you have just said. I imagine that, like me, most members are happy with the level of consultation and the fact that the first draft instrument has been issued for consultation. My concerns relate to whether the Executive has got the balance right in respect of possible future amendments to the bill. Although it has said that it will consult persons as it considers appropriate, the consultation will not be on a draft instrument. It may be appropriate to publish a draft instrument for consultation on this particularly contentious issue not just initially, but when changes are proposed in the future.
Obviously, we need to distinguish between fairly technical changes that we would not want to be subject to an elaborate procedure and more radical changes. If the committee is agreeable, we could suggest to the minister a change to section 34(4) of the bill, which deals with the consultation process. It would be fairly simple to include in the bill a requirement for consultation on a draft instrument, which is what we are seeking. Would that be a better way forward than use of the super-affirmative procedure?
If we are writing to the minister, it would be sensible to draw his attention to the concerns that members expressed at the committee's previous meeting, in particular, and to invite the Executive to consider the wording of an amendment to section 34(4) that might meet our objectives without enmeshing the Executive in the requirement to undertake elaborate procedures every time that it wanted to make a minor technical change.
If such a provision were included on the face of the bill, would a draft instrument need to go out to consultation even if it made only a technical change? That is the difficulty that I have with the proposal. You are saying that we do not want the super-affirmative procedure to be used for a technical change, but once we say on the face of the bill that the Executive must consult on a draft instrument, there will need to be consultations on extremely trivial changes. We have consultation overload. I do not know how to solve the problem.
Ruth Cooper has pointed out that the provisions on the face of the bill require there to be a consultation. The only change that we are proposing is that the draft instrument should be part of the consultation, instead of emerging from it.
Are you saying that the provisions on the face of the bill require every change to be consulted on?
Section 34(4) states:
You are saying that they should draft the instrument and then consult on it, as they have done in this case.
Yes—they should use the instrument as the basis for the consultation.
That is okay.
When we write to the minister, it is important that we keep in the back of our mind the fact that we do not want the committee to be responsible for a procedural sledgehammer to crack a nut. If there are aspects of the descriptions of premises, for example, that have proved to be unenforceable or that it has been possible to circumvent, it is entirely reasonable that changes should be made quickly, without the Executive's having to consult everyone and their granny. I am also slightly worried about how the Executive will know what it wants to put in a draft instrument until it has carried out consultation or received feedback. I am content that we ask the minister the question, but we should keep it in the back of our minds that we might be asking for the impossible.
What is the timescale? We are not in a hurry, are we?
Yes, we are—that is the problem. I think that the lead committee is meeting on Thursday. [Interruption.] Sorry, the clerk tells me that we have to issue our report by Thursday.
Yes, but I meant that the issue could continue right through stage 2.
Yes.
As we are not in a desperate hurry, we can flag up the issue to the Executive now without reaching a final conclusion. We can tell the Executive what our questions and worries are and ask how it intends to handle the matter. If the issue is not resolved by the end of stage 1, that will not be the end of the world; the issue can run through stage 2.
Exactly. Christine May raised a slightly different issue. The bill states:
Section 18 is on the functions of health boards in relation to the provision and planning of pharmaceutical care services. Again, the Executive has given a useful response on what is a technical issue. Are members happy with it?
Section 24 is on payments to certain persons who were infected with hepatitis C as a result of NHS treatment. The issue is particularly sensitive, but the Executive has not really changed its view.
The scheme should be subject to some form of parliamentary scrutiny and the committee should say that.
Yes. The scheme should be laid before Parliament.
Another point—which may be a slight aside but which is probably relevant—is that the Executive's response refers to the payments as non-statutory and ex gratia, although the bill will clearly put the scheme on a statutory footing. If the Executive is going to tidy things up, it should tidy that up.
Yes. Are there any other points on that?
No.
Section 28 is on the registration of child care agencies and housing support services. We were concerned about the issue because our legal advice was that the power in section 28(4)(e) was a Henry VIII power. We therefore thought that there should be more scrutiny of it. The Executive points out that it does not anticipate that the power will ever be used and that it is very limited. Is that a reasonable case for keeping the power as it is?
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Executive Response