Subordinate Legislation Committee,

Meeting date: Tuesday, May 12, 2009

Official Report 84KB pdf

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Schools (Consultation) (Scotland) Bill: Stage 1

I welcome members to the 16th meeting in 2009 of the Subordinate Legislation Committee. We have received apologies from Jamie Stone, which is why I am convening the meeting. I ask members and others present to turn off any mobile phones, BlackBerrys, et cetera.

Under agenda item 1, we are considering the delegated powers memorandum for the Schools (Consultation) (Scotland) Bill. I extend the committee's welcome to James Newman of the Government's bill team and to Laurence Sullivan, the senior principal legal officer. Thank you very much for coming, gentlemen.

The committee agreed to hold an evidence session to examine the delegated power, a commencement power, as set out in section 22(4) of the bill. In particular, the committee wished to explore whether the power could be used to amend other enactments and, if so, whether it is appropriate that the instrument is not subject to any procedure.

I invite members to put their questions.

We have received your response regarding section 22(4), but there is perhaps a need for some further clarification. You seem to think that the power will not be used to amend enactments, but the committee must consider how it could be used. Are you of the view that the power could be used to amend other enactments?

Yes, in theory, a commencement power of this nature could be used to amend other enactments. That is well precedented for commencement powers. However, we have no intention of using the power for that purpose—there is nothing in contemplation. It is a commencement power, so any transitional and saving provisions made in connection with it would be solely for the purpose of commencement of the bill. As the committee will have noticed—and quite unusually—we have included substantial transitional and saving provisions in schedule 3 to the bill. Such provision is frequently made under an order-making power but, because the policy was well advanced, it has appeared in the bill itself, so Parliament will be able to engage fully with the transitional provisions.

None of the transitional or saving provisions in schedule 3 amends any enactments. If we had had any intention or need to amend any enactments under a commencement power, we would have put that in schedule 3.

Is there a case for clarifying that in the bill to give people the reassurance that they might need?

That is not something that we would put in the bill, because that would be saying that we are not going to do something, whereas a bill usually sets out the rights and duties that are to be adhered to. We would be happy to put it in a policy statement that we have no intention of using—and see no need to use—the commencement power for the purpose of amending any enactments.

The reason for still including such a transitional and saving power, even though we think that we have already scoped out all the transitionals that are required, is just in case anything crops up when the bill, if passed, is commenced. For example, one of the current proposals under the Education (Publication and Consultation etc) (Scotland) Regulations 1981 (SI 1981/1558) as amended, which the bill builds on and replaces, is on school commencement dates. As of now, councils have the power to change school commencement, if they so wish, from August to another time in the year. No council has ever done that or consulted on it, but the transitional power exists to cover a situation in which a council decides to do or consult on that.

The provisions in the bill will cover us just in case we need some transitional power if, say, the eventual act comes into force in December and a council has decided by that point to change its school commencement dates with effect from next January. It is a future-proofing power. All the transitional powers that we think we need to move from the old system to the new system are in schedule 3.

At face value, it sounds as if that provides reassurance. However, the committee receives its own legal advice, and I am sure that Government representatives would be quite happy to discuss the form of any reassurance with our legal representatives to ensure that it fits with the bill. You have spoken about a policy statement, but we would need to know that it could be founded on should someone decide, at some future date, to take a different course of action with the power.

Although we have no intention of doing this, the power could be used to amend primary legislation. As regards saving and transitional provisions, it is usually not necessary directly to amend primary legislation. If anything, the effect of it might just be modified. Transitional or saving provisions are inherently temporary, so they would not be needed—it would not be usual or common directly to amend primary legislation under a transitional or saving power. The direct amendment of legislation suggests permanence; a saving or transitional provision moves from the old law to the new law and is inherently temporary in nature.

Regarding the generality of commencement powers, the power in section 22(4) could, in theory, be used to amend primary legislation—that is well precedented in normal commencement provisions—but in the context of the bill we see no need at all to do that.

If that is the case, should we not have some process around that to ensure that, if the power were used in that way at some point, there was a facility for parliamentary scrutiny?

I think that you are suggesting an amendment to limit the power of section 22(4). Any amendments to the bill are a matter for stage 2 consideration and for ministers. I cannot comment further on that.

The power is not subject to any procedure, yet you have stated the possibility that it could be used to amend enactments. Do you not think that there might be some sort of procedure, negative or affirmative, to allow Parliament to be involved if an enactment was to be amended at some later date—even though you do not foresee it at the moment?

It is normal for commencement orders not to have any parliamentary procedure attached to them. Section 22 reflects the normal commencement power that appears in most bills. I am not sure whether the committee has a wider issue about the nature of commencement powers.

Normally, a commencement power is just what it says it is: something fairly simply and straightforward. If it is possible to amend primary legislation through a provision, do you not think that that calls for a certain degree of parliamentary scrutiny?

It does not amend primary legislation in the same way as, for example, the power in section 20. The power in section 22 would amend or, more likely, modify the effect of primary legislation. If that was necessary, it would be purely in the context of commencement and would not be for any wider purpose. Section 22(4) could not be used to amend any other bit of education legislation; any amendment, even if it was just in contemplation, would have to be sharply focused on the commencement of this bill and on the provision that is necessary for its commencement. The power goes no wider than that: it is not a wider ancillary power. As is normal, commencement orders frequently require saving, transitional or incidental provision. Even when they have that provision attached to them, it is normal and precedented for no parliamentary procedure to apply to such orders.

I thank Mr Sullivan and Mr Newman for giving evidence. I can inform the witnesses and members that we will have one final consideration of the issue at a future meeting, and we will report prior to the lead committee's evidence session with the Cabinet Secretary for Education and Lifelong Learning on 3 June.