Subordinate Legislation Committee, 12 Nov 2002

Meeting date: Tuesday, November 12, 2002

Official Report 97KB pdf

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Delegated Powers Scrutiny

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Mental Health (Scotland) Bill: Stage 1

I welcome everyone to the 31st meeting in 2002 of the Subordinate Legislation Committee. We have no apologies this morning and all members are present.

We expected that today's meeting might be a mammoth one because we had informed the Executive that we wanted to hear from witnesses on the Mental Health (Scotland) Bill. Mr Brown from the Executive has joined us. Good morning, Mr Brown.

Good morning.

I must apologise for dragging you all this way. We believe that considerable changes to the bill are expected. Also, in its initial response on the issue, the Executive agreed with some of our points. To cut a long story short, it might be better to agree or disagree at a more suitable time on the points that are likely to arise from the changes to the bill. We will defer further consideration of the bill until then. I am sorry that we kept you waiting.

Not at all. Thank you, convener.

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Debt Arrangement and Attachment (Scotland) Bill (as amended at Stage 2)

That was item 3 on the agenda. We now come to item 1, which is the Debt Arrangement and Attachment (Scotland) Bill, as amended at stage 2. This is where we turn into quite a fierce committee—no more Mrs and Mr Nice Guy. The Executive's second memorandum on the bill was not delivered to the committee until last night, which was too late for it to be practical for the committee to consider the response and to produce a report, which would have gone to the lead committee, before the bill is discussed at stage 3 in Parliament tomorrow. [Interruption.] I am informed that the report would have gone straight to the Parliament, but that does not negate anything else that I have said. We were not given enough time.

We have raised similar issues before. If we are to do our job properly and if the Parliament is to be properly informed before it takes final decisions on bills, sufficient time for scrutiny must be allowed. As that has not happened in this case, there is little that we can say in our report.

Have we been given an explanation or an attempt at explanation or mitigation for the delay?

The timetable for the bill dictates everything. We are not responsible for that but, as far as I can work out, the changes to the bill have not come out of the ether.

Our remit covers the proposals for what is to be done by dint of subordinate legislation. Regardless of the arguments about what should be capable of being poinded or not poinded, or what should be capable of being seized or not seized, the Executive should have a pretty clear notion of what it intends to deal with through subordinate legislation.

The problem is that there have been substantial amendments to the bill since we considered it previously. We had to consider the bill further.

Sorry, perhaps I am not explaining myself very well. I am not saying that we should not consider the bill or that the bill should not be amended. My complaint is that the bill team must get through those aspects of the bill that relate to the committee's remit. What has caused the delay on those aspects?

I do not know. Perhaps that is one of the points about which we can inquire. I think that it is just assumed that we are the tail-end Charlies in the process, although I sincerely hope that that is not true. I think that I express the committee's view when I say that I am feeling a bit raw over the matter. In our strong letter to the Executive, we should ask why we appear to have been given so little consideration. Is that agreed?

Members indicated agreement.

Are there any other points?

In paragraphs 14, 18 and 30 of the Executive's memorandum, our recommendations are dismissed without much explanation. The Executive says that it considered the matters but decided not to proceed in the way that we suggested. It would have been good if we had had a chance to think about those points and to comment on them before the stage 3 debate.

Apart from no reason being given for the dismissal of our comments, it is also possible that paragraph 23 of the memorandum contains an inaccuracy because it claims that something that is yet to be done has already been done. We could have drawn that to the Executive's attention before the stage 3 debate. The whole business is unsatisfactory and we will write to the Executive in those terms.

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Building (Scotland) Bill: Stage 1

Item 2 on the agenda is the Building (Scotland) Bill at stage 1. We raised four questions with the Executive on the delegated powers in the bill. The first question concerned the relaxation of building regulations. The Executive has apologised for the way in which it dealt with the issue in the original memorandum. Is the committee content with that?

The Executive says that if we recommend a provision similar to section 4(3) of the Building (Scotland) Act 1959, it will be happy to lodge an amendment to that effect.

Is that satisfactory?

We should welcome that. As the Executive has made the offer, we should take it up.

Our second question concerned guidance documents for the purposes of building regulation. We asked for the Executive's comments on whether the guidance that is provided for in section 4 of the bill should be subject to some form of parliamentary procedure.

In earlier discussions on the matter, we felt that we had a point, but that we did not wish to push it because of the technical nature of possible amendments to the guidance. Parliamentary scrutiny of such amendments might be a superficial exercise because we might not understand the technicalities. Perhaps we should not push the point.

It is worth while to note that we are not shuffling off Parliament's responsibility for the quality of legislation and for the effect of subordinate legislation on rules, regulations, guidance and codes of practice, which are at the pointy end. We are being honest by saying that there is no sense in a procedure that cannot properly benefit the consumer or the industry because it requires more expert scrutiny than a parliamentary committee can provide.

Our third question to the Executive was on section 1(4), which gives ministers the power to modify paragraph 5(2) of schedule 1. We asked the Executive whether it had considered using the affirmative procedure for the power in section 1(4) and why there is no provision for prior consultation for orders that are made under that power.

The Executive says that it has a long history of consultation in the building standards environment and that that will continue. Well, that is comforting, but I did not expect the Executive to say that it would no longer consult. Does anyone have strong feelings on this matter? I have strong feelings about it. I feel that there should be consultation. Are members willing to press that point with the Executive?

I do not see why not. We might as well.

Thank you.

Section 1(5) gives ministers the power to modify any enactment by order if they feel, for example, that the enactment is inconsistent with building regulations. Last week, we expressed concern about whether section 1(5) was acceptable as drafted. We asked the Executive to comment and to explain how the provision relates to the general provision in section 52.

The Executive accepts our view that the power in section 1(5) is wider than the existing power in section 3(7) of the Building (Scotland) Act 1959. However, the Executive probably does not agree with us on how wide a Henry VIII power the provision is in section 1(5). Would anyone like to comment?

The provision seems to allow the Executive to amend by subordinate legislation any provision in any act or any piece of subordinate legislation whenever those are passed or made. That would include the enactment of the Building (Scotland) Bill. That power seems a bit over the top.

So you are happy that we should simply report to the lead committee that we are unhappy with the provision and think that its powers are too wide.

The provision is an exorbitant use of power.

What did he say?

A lot.

Okay. Section 49 is "Orders and regulations". The issue here is the delegation powers in section 49(2)(c). Do we want to press the Executive on the issue?

I think that the power in paragraph (c) is unlikely to be used in practice and is just a theoretical possibility. I would let paragraph (c) rest as drafted.

Is the committee content with that?

Members indicated agreement.

We asked the Executive why section 52, on "Ancillary provision", was needed, given the provisions of section 49. However, the Executive has given us no reason for both sections being in the bill. Therefore, our report to the lead committee will simply say that we do not think that both sections are needed.

We suspect that one of the sections is redundant.

Yes. That would be section 52.