Delegated Powers Scrutiny
Public Health etc (Scotland) Bill
We considered the bill at last week's meeting and wrote to the Government on some issues. We have seen the response.
Section 25 is on supplementary investigatory powers. As members will recall, I lodged on behalf of the committee an amendment to section 25(3), which confers a power on ministers, by regulations, to confer on investigators
"such powers as Ministers consider necessary for the purposes of public health investigations."
I moved the amendment at the Health and Sport Committee meeting on 7 May but subsequently withdrew it on the basis that the minister, Shona Robison, agreed to consider further how to achieve the limitation of the power conferred by section 25(3). I hope that that was all right with the committee, although it is a bit late now. I thought that the minister's move was conciliatory and I said so on the record.
I also spoke to an amendment to section 102 that would provide that, where regulations made under the power conferred by section 102 modify an act of Parliament or the Scottish Parliament, they would be subject to affirmative procedure. The amendment was not moved on the day, as that opportunity will arise on the Health and Sport Committee's third day of consideration of amendments, on 21 May. Ross Finnie was under the impression that I should have moved the amendment, but we corrected him.
So, we have a few things to clear up. On the basis that the Scottish Government is considering the limitation of the power in section 25(3), as Shona Robison offered, it would appear that it will no longer be necessary for me to move the related amendment to section 102 when the time comes. Are members content for the committee to ask the Government for its view on whether adopting affirmative procedure but permitting class 3 procedure in cases of emergency would address both the committee's and the Government's concerns about the recess and the responsibilities of Parliament? Following the outcome of the Government's consideration, the committee might want to consider in advance of stage 3 whether it wishes to lodge any necessary amendments.
Is the committee therefore content that I do not move the amendment to section 102 when the time comes?
Members indicated agreement.
Thank you. That will save me from going to the Health and Sport Committee meeting.
Is the committee content to write to the Government to acknowledge the minister's undertaking to give further consideration to limiting the power in section 25(3) and to request that the Government confirms to the committee the outcome of its considerations in good time prior to stage 3?
Members indicated agreement.
So, we will follow up the minister's offer by writing to the Government to accept it.
Are we also content to write to the Government to acknowledge the minister's concern about potential delays, particularly during the summer recess, being caused by affirmative procedure being attached to this power, and to ask the Government whether adopting affirmative procedure but permitting class 3 procedure in cases of urgency would address both the committee's and the Government's concerns? That means that an instrument could be made and come into force immediately, which is what the Government would like, but could not continue in force unless it was approved by Parliament within a set period provided in the bill. That follows the model proposed by the Government for section 89, "International Health Regulations", and would allow the Government to act quickly in the event of urgency to make and bring into force an instrument during summer recess. There is a precedent for that model and we believe that it could work. Is that all right?
Members indicated agreement.
Section 89 is on the international health regulations, as I have just mentioned. At stage 1, the committee sought information from the Government about any proposals that it might have to amend this very broad power at stage 2 in order to clarify the extent of the power or the proposed method of implementing the IHR. The Government has indicated its desire to ensure consistent implementation of the IHR in relation to its application at points of entry throughout the United Kingdom and it has lodged amendments at stage 2 to ensure consistency with the legislative approach being taken in England and Wales. That appears to meet our concerns. Are we content with the power as amended? The power will be subject to affirmative procedure unless the Scottish ministers consider that regulations need to be made urgently, in which case the class 3 affirmative procedure would apply. Are we content with the procedures that will apply?
Members indicated agreement.
Further to concerns expressed by the committee at stage 1 on section 94, "Power to make further provision regarding statutory nuisances", the Government agreed to consider lodging an amendment at stage 2 to make consultation with local authorities a formal requirement before draft regulations are introduced. Last week, we wrote again to the Government about that and I am sure that members will be pleased to note that the Government is proposing to lodge an amendment. Are we therefore content to monitor the amendments lodged by the Government at stage 2 and to revisit the issue in advance of stage 3 if that proves to be necessary? The Government has taken a constructive approach and we should recognise that.
Members indicated agreement.
The committee expressed concerns at stage 1 on section 95, "Enforcement of statutory nuisances: fixed penalty notice", which will insert new section 80ZA(11)(e) into the Environmental Protection Act 1990. We had further correspondence with the Government last week and it has committed to lodging two amendments at stage 2 that will provide that each of the powers relating to statutory nuisance under new section 80ZA(11) of the EPA will be subject to affirmative procedure, and that there will be an obligation to consult with bodies or persons
"representative of the interests of local government"
before exercising any of those powers.
Are we content to monitor the amendments lodged by the Government at stage 2 and to revisit the issue in advance of stage 3 if necessary?
Members indicated agreement.
On section 98, "Disclosure of information", the Government has lodged an amendment to insert a new subsection that provides that
"Regulations under subsection (8) may modify any enactment (including this Act)."
However, the Government has not amended the procedure applicable to the exercise of the power, which remains subject to negative procedure. In this case however, the power is restricted to adding or taking away bodies included in the definition of relevant authorities that are permitted to share information for the purposes of the protection of public health. On that basis, are we content with the amendment of the power and that it is subject to negative procedure?
Members indicated agreement.
Scottish Register of Tartans Bill: Stage 1
We took a look at the bill at our meeting two weeks ago and wrote to the member in charge. We have seen his responses.
Are we content with the powers available under section 14, "Fees"?
Members indicated agreement.
On section 16, "Ancillary provision", does the committee consider that the response from the member in charge, Jamie McGrigor, provides acceptable justification to depart from the preference that we have previously expressed for the draft affirmative procedure to apply where power is taken to amend primary legislation?
Members indicated agreement.
That concludes our consideration of the bill at stage 1.