Executive Response
Management of Offenders etc (Scotland) Act 2005 (Supplementary Provisions) Order 2006 (draft)
I open the 20th meeting in 2006 of the Subordinate Legislation Committee. Sylvia Jackson has sent her apologies, as has Mr Stone; I think that Mr Tosh might join us in due course.
I welcome the Executive officials who have been good enough to come and help us. We were expecting Patrick Layden, who, for all I know, might still be coming, but we do have Gordon McNicoll and Sheila Tait with us. We asked the witnesses to come because we have many real concerns about the statutory instrument, to such an unusual extent that we want some specific Executive help. If it is okay, I would like to ask Gordon McNicoll to say something about the order, but first I will remind members where we are at.
Our concerns are threefold. We are worried, first of all, about what we called a sweeper clause—the supplementary provision—and about whether or not what is in the SSI could genuinely, on any view, be called supplementary.
Good morning, Patrick.
Patrick Layden (Scottish Executive Legal and Parliamentary Services):
Good morning. I am sorry to be late.
That is all right. I was just welcoming you and your colleagues and, before hearing the Executive's position, outlining some of the committee's concerns.
First, we are concerned that the order contains powers that are more than is reasonable for a supplemental provision. Secondly, and more particularly, we are concerned that some of its articles, on one view, seem to contradict the express terms of section 4 of the Management of Offenders etc (Scotland) Act 2005—the parent act—in respect of the powers given to others under that section. Thirdly, we have a more technical concern about the final article, as we had reservations as to whether or not it was in a Scottish competence at all. I would like one of the officials to outline the Executive's position on those matters, and then I will allow members to ask questions as they see fit.
The essential question in relation to the use of the power in the Management of Offenders etc (Scotland) Act 2005 is whether the provision that is being made in the order is supplementary to that in the 2005 act. The 2005 act sets up provisions for employing a chief officer for a community justice authority; the provision in the draft order supplements that with various general factors that apply to that chief officer. Article 2 states:
"The post of chief officer … is a politically restricted post".
Article 3 states that a person may not be appointed as chief officer if he
"holds a paid office or employment with … any local authority in Scotland".
Under article 4, any person who is going to be a chief officer must have a criminal conviction certificate. Finally, article 5 states that the chief officer is ineligible for jury service.
We take the view that those provisions do not conflict with the provisions relating to community justice authorities in the act, setting out terms and conditions of employment for chief officers, because the kind of provisions that are in the order are, first of all, provisions that it would be outside the power of the community justice authority to put into a contract of terms and conditions.
Secondly, they are not matters that could be left to individual community justice authorities to impose. We could not have a situation in which one chief officer was, for example, politically restricted, but another chief officer who was doing the same job in another area was not. The provisions ought to apply to all chief officers and are the sort of provisions that the Government ought to make. It would not be possible for a community justice authority to say that its chief officer would be ineligible for jury service. That is not a decision for community justice authorities; it must be a decision for ministers with the Parliament's approval.
That is my first point. The provisions can only properly be made by the Government and must be made in relation to all chief officers. They could not be made in particular or in general by a community justice authority. Therefore, we take the view that there is no conflict between the draft order's contents and the 2005 act's provisions.
The other point that the committee raised was about the extent of the provision. It is an important thing to say that somebody is in a politically restricted post or that they are ineligible for jury service. However, for the sort of job about which we are talking—chief officer of an authority—those are quite common provisions; they are standard form. Indeed, the committee pointed out in its letter that the policy—accepting that that is not a matter for the committee—is not surprising but ordinary. The sort of provision that we are making in the draft order is precisely the sort of provision that one would expect to find in relation to the chief officers of community justice authorities. That is what one might expect supplemental provision to be in relation to those posts.
I had better stop talking now and allow members to ask questions about that if they wish to.
There is one other point, about the last article, but we will come to that as a separate issue.
I thought that your initial point was good—that community justice authorities could not have included such provisions in their chief officers' conditions of service. However, I have difficulty with the idea of supplemental provisions. When I listen to you, you almost seem to define "supplemental" in a circular, tautologous way: anything that is extra to what is in the act is supplemental. Of course, that is literally true, but as I understand it in this context, the word "supplementary" is used in the sense of that which is required to implement the act, not just supplemental in the sense of anything that can be added to the act. I am not sure why the draft order is supplemental in the sense of being necessary to implement the 2005 act.
I hope that I am not doing you a disservice, but the impression that I get is that you accept that the order's provisions are quite sweeping—it is quite a big thing to say that somebody is ineligible for jury service—and that, if the policy matters were contentious, you would not get away with it; but because they are not, it makes good common sense to allow the provisions to be made. However, the committee's concern is not with that because, technically, it has no interest in policy. Therefore, we have to leave aside the policy requirements and determine whether the provisions are really something incidental that is necessary to make the act work, rather than a pretty big decision, such as eligibility for jury service.
First, I am not making any points about the provisions not mattering because they are not contentious policy matters. Instead, I am observing that, in the context of this exercise of the power, I understand from what the committee wrote that the policy is not contentious. I have suggested—you can agree or disagree—that in the context of chief officers of authorities, this sort of provision is to be expected. However, I am not saying that it is legitimate because it is not contentious. I accept your point on that entirely, convener.
It follows that, if a provision is properly supplemental—in addition to, supplementary to or in supplement of something—it could be politically contentious or policy contentious. In that case, it would be for the Parliament to decide whether to approve the policy and pass the instrument.
Are you suggesting that "supplemental" just means "in addition to"? Surely it does not mean that. Anything could be considered to be "in addition to". "Supplemental" must have a more restricted legal meaning.
There are one or two things that it has to mean and one or two things that it could mean. Something being "supplemental" does not mean that it is required for the purposes of giving effect to the legislation: "supplementary" does not carry the same meaning as "necessary". It is possible to conceive of chief officers who would not be subject to the order. I am aware that in the case of Daymond v Plymouth City Council, Viscount Dilhorne said, in the context of the provision that he was considering, that he took supplemental to cover provision that was required for the purposes of the act.
That is why I used the word "required".
I thought so. In that case, old legislation on water and sewerage charges was being replaced with new legislation. Under the old legislation, someone could be made to pay sewerage rates even if their house was not connected to the sewerage system. In the new legislation, that link was not made specifically, so all the council had the power to do was impose water charges. The secretary of state said in his order that people had to pay sewerage charges, including those who did not have sewerage services. The House of Lords decided—only by a majority—that in the absence of clear words in the parent act, subordinate legislation could not be used to make people pay sewerage charges if they were not getting sewerage services.
That does not sound like an unreasonable decision. It was made in the context of the imposition of a charge for which no return was being given by the authority. That is a different situation from that which we have here, where we are in a true sense supplementing the provision in relation to the appointment of a chief officer with general provisions of an entirely ordinary and expected kind, which simply round out the sort of general conditions that go to the appointment of chief officers. We are in quite a different situation from that of Viscount Dilhorne in the case of Daymond v Plymouth City Council.
We have no objections to the policy. It seems entirely sensible to me that the terms and conditions of chief officers should be the same. I refer to the point about jury service. Our advice is that provision in relation to exemptions from jury service has invariably been made by primary legislation. Given the importance of a rule that someone is not allowed to sit on a jury, why would we allow provision in this case to be made in subordinate legislation?
As I am sure I have said to the committee before, someone who is looking to provide a particular legal package looks to a range of ways in which it could be done. I concede that one of the ways in which it could have been done would have been to include a provision in the primary legislation. However, it does not follow that it is not competent to put the provision into an order of this sort—an affirmative resolution order—where all the provisions in relation to chief officers are gathered together in one convenient place.
Has it been done in this way previously?
I do not know. [Interruption.] I am told that it was done in this way in an order under the Scotland Act 1998. A change to jury service was made by subordinate legislation.
On any view, this is the kind of subordinate legislation that can amend any enactment, including primary legislation. The power was deliberately framed widely so as to enable it to do this sort of thing. It is not surprising that it should be used for these purposes.
You make the reasonable point about all the terms and conditions being the same throughout Scotland, but it does not necessarily follow that provision should therefore be made by subordinate legislation. It could be done in primary legislation.
It could.
So it is not the case that this is necessarily the way that it should be done.
I have not suggested that that is the case. It could certainly be done in primary legislation.
I will move on to section 4(3) of the 2005 act, which provides that the terms and conditions of the chief officer and any staff or other persons appointed by the community justice authority are to be
"such as the community justice authority may determine".
Although it says that in the act, it appears that the Executive is now bringing in regulations to deal with appointments. Is that not a contradiction?
No. You would expect me to say that and I do so. As I tried to explain, the kind of provision that we are making here is not the kind of provision that you would expect to find in the terms and conditions of employment between an employer and an employee. Some of the provisions that we are making could not be inserted into terms and conditions of employment by an employer. The sort of thing that we suggest is covered by section 4(3) are matters such as salary, pension entitlement, hours of service, working patterns and location of employment. Those are the ordinary things that you would expect to find in a contract of employment. It would be an odd contract of employment between two private bodies—a person and a private employer—that said that the post was politically restricted. That is possible, but unlikely. The same applies to the other provisions in the order. It would not be within the competence of a private employer to declare that his employee would be ineligible for jury service.
I will go back to the discussion about the term "supplementary". I am not sure that I fully understand the point that you are making about the use of the word "required". A measure is being introduced that will require political officers not to be eligible for jury service and require them not to participate in political activities. Although that is not the same as charging for a service that someone is not receiving, you are using a statutory instrument to place a requirement that is not in the original legislation.
Yes, I am supplementing the provision in the original legislation.
We were using the term "required" not in relation to a requirement placed on the chief officer, but in the sense of whether the provision is required in order to implement the 2005 act. When we discussed the term "required", we were using it in a different context.
In other words, the 2005 act will work, whether or not the order is passed.
Yes.
As you said, although the requirement is quite common and fairly ordinary, it is nonetheless quite important. If you start using subordinate legislation to introduce supplementary duties or requirements, where do you draw the line?
That is the question.
Indeed. It is important to consider the political contentiousness of such a provision. No one will object to its content, but the committee is worried about the principle behind it. After all, the term "supplementary" is used in a lot of legislation and, instead of simply accepting that it will be applied in a narrow and limited way, the committee will have to examine exactly how it is being used. I would have thought that the two fairly important matters under discussion would not have been left to subordinate legislation. In that light, will you expand on your comment that ineligibility for jury service has already been dealt with in subordinate legislation?
Secondly, given that restriction on political activity has always been and will continue to be contentious, I would have thought that you would have wanted to address it in primary legislation and to allow Parliament to take a view on it. I feel that we are going a step further than we have ever gone before, so I would like you to give us evidence that this line has been crossed before with regard to ineligibility for jury service and to assure us that, if the line is being moved, this is as far as it goes.
I will deal with the general question and Gordon McNicoll will highlight the previous instruments that have taken a similar line.
I entirely agree that the term "supplementary" will take us only so far. The courts have given us some guidance on the matter. I have already mentioned the case of Daymond v Plymouth City Council, on water and sewerage charges, but I should also highlight the case of Regina v Commissioners of Customs and Excise. The customs and excise acts gave the secretary of state power to make regulations on the provision of dutiable goods—in other words, goods on which customs and excise duty is payable. In an order that was made under the incidental and supplementary provisions of the legislation, the Commissioners of Customs and Excise required accounts to be provided of all goods passing through a warehouse. In this particular case, although the company concerned had a certain amount of dutiable goods, it had quite a lot of non-dutiable goods that were the result of purely internal United Kingdom transactions and therefore not subject to customs and excise duty. As a result, the company argued that the Government could not, in an order made under an act relating to dutiable goods, impose a requirement in relation to goods generally, and say that that was supplementary to the provision in the act. The court agreed, because the nature of the goods on which the commissioners sought information was completely different to that of the goods covered by the act. The information might well have been useful or necessary to the commissioners in obtaining a proper picture of the business; however, the primary legislation did not cover that issue. That is an excellent example of the sort of area into which you could not go. There are limits on the power.
However, that case is very different from the one that we are discussing. Although the provision is significant, in that it imposes restrictions on the community justice authorities who employ people and on those who are employed, in this field it is fairly ordinary and, indeed, the sort of provision that you might expect. It is not surprising to find such a provision being used to supplement the provisions on the appointment of chief officers of community justice authorities. We have to consider the facts and circumstances of each case and make a value judgment about whether what we are doing can reasonably be called supplementary.
Mr McNicoll has the details of the previous order.
Gordon McNicoll (Scottish Executive Legal and Parliamentary Services):
Sadly, this is the one question that I did not fully anticipate, so I cannot produce the details of the previous instrument at the moment.
As you will see from the footnote reference on the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, all the amendments that have been made to group B in part I of schedule I to the 1980 act were made by primary legislation. The previous instrument amended a different part of the schedule. It was not to do with group B, which is what we are concerned with. That is why it is not mentioned in the footnote.
I had a quick flick through the documents yesterday and I identified one occasion on which an amendment was made to schedule I to the 1980 act by subordinate legislation. If the committee wants further details of that, I can provide them. I do not think that we would make a big issue of it and say that there is a precedent for amending the schedule in that way. It is clear from the footnote that most of the amendments are made by primary legislation, but we would come back to the point that the schedule can be amended by subordinate legislation and, as I said, has been so amended on one occasion.
I will bring the discussion to a halt fairly soon, but I will let Adam Ingram in, as he has not commented yet, and then Stewart Maxwell.
To summarise, you are saying that the provision in the draft order is not required to implement the 2005 act, but it will alter the provisions of the enabling statute because it defines eligibility for jury service and so on. Is that not a prima facie case that the order is not intra vires? At a previous meeting, the deputy convener described the notion of supplemental provision as something of a blank cheque—I think that that was the phrase that he used. You could argue that anything that you propose would be supplemental, but the committee has to draw a line somewhere. You have not convinced me that we should take the approach that you suggest.
I do not concede that the provision in the draft order alters the provision in the enabling act. What we are doing is supplementing, adding to or expanding on the provision in the enabling act. The enabling act provides for the appointment of chief officers. We are supplementing that provision by making additional provision, or supplementary provision, on chief officers. We are saying that they are politically restricted, that they are ineligible for jury service and so on. To my mind, those things add to but do not alter the existing provision in the act. They do precisely what they say they are going to do, or what it says on the tin. They supplement the general provision in the act in a way that is no more than one might expect. The provision does not introduce a new concept into the act. It simply adds a bit of detail to the references to chief officers.
On the question of whether what we are doing is intra vires or ultra vires, I am reminded of something that Francis Bennion states in his book, which is an excellent authority. At the end of the day, someone's opinion on the vires of an order is interesting but academic, because only the courts can actually say whether it is intra vires or ultra vires. For the reasons that I set out, we believe that the courts would consider the order to be within the powers conferred on ministers by the 2005 act.
I kind of agree with that.
You could not reasonably say that you would expect that, just because the chief officers of the community justice authorities are mentioned in the 2005 act, you can effectively do whatever you like about their terms and conditions in a piece of subordinate legislation. That seems to me to be hitting the point that we were concerned about, which is that you can effectively push the envelope of this power almost to the nth degree if you so wish. That is what we are concerned about. In a sense, you are pushing the scope of the power beyond what was expected. You set up a chief officer, but you do not say anything about the post. The bill is passed by Parliament, and then you introduce subordinate legislation that says, "By the way, we'll politically restrict the post and we'll ban them from jury service" and whatever else. Many parliamentarians would find it surprising that you were doing that in subordinate legislation rather than in the act.
I would like clarification on the jury service example that we were discussing earlier. Was the example that you gave the same as that under the draft order, in the sense that it was caught up in the sweeper clause, or was there an express power?
It was a power in the Scotland Act 1998 to make consequential amendments. I can provide the committee with further details if it wishes.
Clearly there is a difference between the two; the example that you gave may or may not be relevant to what we are discussing.
Indeed.
I will draw this part of the discussion together before we move on.
I do not think that we can take this any further. My view, for what it is worth, is that I am quite impressed by the answer in terms of contradicting the 2005 act. If the power under the draft order is genuinely supplemental, then I have no problems with how it contradicts the act. The real question is whether it is genuinely supplemental—that is not a word I like much. Back on 28 October 2003 in this committee—that shows how sad I am—I called supplemental provisions a blank cheque. Listening to Patrick Layden, I am persuaded of that more than ever. There might be a little bit of a blank cheque.
No. It is the type of cheque one sometimes signs that says, "Not more than £50."
Or, "Not more than £1 million." Of course it is not a blank cheque, but I have always felt that there was that danger. Patrick Layden is right. What we think and what the Executive thinks does not matter; at the end of the day, it would be for the courts to test, which is why I made the somewhat cynical comment earlier that, as the draft order is not politically contentious and in some ways is a matter of common sense, I suspect that it is unlikely that the courts will ever be asked to test it.
It may well be that the draft order is towards the outer edge of supplemental. Patrick Layden uses the words "add-on" and "additional"; the committee tends to look at it in terms of the Bennion definition of requirement. At the end of the day, whether the draft order is supplemental is moot. All that the committee can do is draw to the lead committee's attention our reservations about the vires of the order in terms of it being what is meant to be supplemental. I do not know whether there is anything else that we can technically do with it, because at the end of the day it is for the Executive to continue or not.
My reason for saying that is that it is difficult to see why the provisions in the draft order could not just have been included in sections 3 or 4 of the Management of Offenders etc (Scotland) Bill. I can see why certain issues need subordinate legislation, for example when you are going to give a local authority lots of detailed regulations on how to implement care for the elderly—to be topical for a moment—but I find it difficult to accept this order as supplemental. However, I accept that it is a matter of judgment. There is not much that the committee can do, other than send the order to the lead committee.
The other point that interests me is the vires of the data protection/intellectual property article, which, for the avoidance of doubt, is article 6 of the draft order. What is the answer to that?
Patrick Layden has asked me to deal with that point. Our position is that the subject matter of the Re-use of Public Sector Information Regulations 2005 (SI 2005/1515) and the directive that they implement is concerned with the use and sharing of information rather than with data protection or intellectual property. Consequently, we do not consider that the reservations in the Scotland Act 1998 would apply to what is proposed in the order.
We consider that it would be competent to amend the 2005 regulations. It should be noted that all that we seek to do is to add community justice authorities to the list of public bodies that are covered by the regulations. Even if the data protection or intellectual property reservations were relevant, it is questionable whether we would be amending the law on either of those topics and thereby straying into reserved territory.
Principally, our view is that the 2005 regulations are not about data protection or intellectual property. Indeed, it is perhaps worth noting that the provisions of the regulations expressly do not apply to documents in which
"a third party owns relevant intellectual property rights in the document",
so the operation of the regulations would not affect the intellectual property rights of third parties. That provision is contained in regulation 5(1) of the 2005 regulations.
I just want to check that I am not misunderstanding you. The parent regulations that you seek to amend are United Kingdom regulations.
They are UK regulations that implement a European Commission directive.
I suppose that some of us thought that the fact that the title of the regulations uses the word "reuse" suggests that they have a copyright or an intellectual property dimension.
All that I can say is that the regulations permit public sector bodies to reuse information that they hold—they do not require them to do so. I suppose that it is implicit that such bodies cannot reuse the information for any unlawful purposes. The regulations specifically do not apply to a document in which
"a third party owns relevant intellectual property rights in the document",
which are defined to include copyright rights.
That information could be material the copyright of which is held by public sector bodies.
Indeed.
Their copyrighted material would be being reused.
But such reuse by public sector bodies is permitted—although is not required—under the regulations. By adding community justice authorities to the list of public sector bodies that are covered by the regulations, all that we are saying is that they, like other public sector bodies, may reuse information that they hold.
It is also worth noting that there is probably quite a strong argument that community justice authorities would already be caught under regulation 3(1), which defines what a public sector body is. The definition includes a corporation—in other words, a body corporate such as a community justice authority—
"financed wholly or mainly by another public sector body".
As the committee will be aware, community justice authorities will be financed largely by the Scottish ministers, who are themselves public sector bodies under regulation 3. We are merely making it explicit in the order that the 2005 regulations will apply and that community justice authorities will be public sector bodies. Given the structure of the regulation that defines what a public sector body is, it seems entirely appropriate to refer to the class of public sector body, rather than simply to rely on the operation of the catch-all provision.
Do any of the members who are still awake want to ask a question? That comment sounded rude—I did not mean it to sound that way. I was not suggesting that what Gordon McNicoll said might have sent members to sleep; I was alluding to the topic, which is quite technical and difficult.
I think that the matter is open to interpretation, but the Executive has advanced its argument.
I have to say, I have no view. I am so far out of my legal depth that I have no view whatever. It is a subject of which I know nothing. I think that, again, we could simply thank the Executive for giving us its interpretation of the matter and say that we have some reservations. We can send the draft order to the lead committee just for its information. I suspect that we could not reach a view on this matter even as much as we could reach a view on the other matter. Do members agree?
Members indicated agreement.
In other words, we are all out of our depth on this one. We will send the draft order to the lead committee.
We are grateful to the Executive officials for their help on the subject.
I understand the arguments about—[Interruption.] I am reminded that I am chatting away and that we are still in a public meeting. I apologise.
Every comment is noted, convener.