Subordinate Legislation Committee, 13 Dec 2005

Meeting date: Tuesday, December 13, 2005

Official Report 160KB pdf

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Delegated Powers Scrutiny

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Scottish Schools (Parental Involvement) Bill: Stage 1

I welcome members to the 35th meeting in 2005 of the Subordinate Legislation Committee. We have received apologies from Adam Ingram. I remind members to switch off all mobile phones.

Under agenda item 1, we will first consider the Scottish Schools (Parental Involvement) Bill, which is at stage 1. As members will recall from last week's meeting—which, I am afraid, I did not attend—the committee asked for further clarification of the policy intention behind the width of the power in section 8(7), which relates to functions of a parent council. The committee also asked whether the Executive had plans to include on the face of the bill a formal requirement to consult parent councils before making an order that would amend their statutory functions.

The Executive has explained that the power to alter the functions may be exercised in light of the experience of the new parent councils as they are established and develop. It has also confirmed that the power will allow ministers to add to those functions in response to future policy changes and that it would consult stakeholders. However, members will note that no formal consultation requirement will be put on the face of the bill.

I think that we are also a bit unsure about the meaning of "alter". We do not know whether that would allow any of the functions to be deleted, but we assume from the Executive response that the functions could be added to but not deleted. However, we should remember that any such amendment of the functions of parent councils will be subject to the affirmative procedure.

I open up the discussion to members. Do we think that the Executive's clarification is sufficient?

As the bill stands, any such order would be subject to the affirmative procedure, so the Parliament would have an opportunity to question any proposed changes. Also, the Executive has clearly stated that it intends, as a matter of course, to consult all stakeholders. It is always a difficult task to list which stakeholders should be consulted. I am happy with the Executive's response.

Are members generally happy that we report to the lead committee the clarification that we sought and the answer that we received? We can always reconsider the matter at stage 2, if we think it necessary to do so.

Members indicated agreement.

The second issue to consider is the general power to issue guidance under section 19. I gather that some concern was expressed about the power at last week's meeting, as the guidance could also be addressed to parents on parent councils. There is a need for clarity.

The Executive confirmed in its response that it would be its intention to include "key stakeholders", including parent councils, in drawing up the guidance. I understand, however, that that will not be specified in the text of the bill. Obviously, the nature of the guidance will become clearer as we proceed to the next stage. What are members' feelings on the matter? It was quite a concern last week. You were here last week, Gordon.

Yes. It is okay, I think.

I think that we should refer the matter to the lead committee. I am not sure about the question of what guidance is issued and whether it should be subject to parliamentary scrutiny. It will be, in the sense of subordinate legislation, but at what level? It is a moot point whether the guidance should be referred to in the bill.

The question relates to the form that parent councils will take. That will vary across Scotland. The Executive will want to provide flexibility, but perhaps without too much variation, and the guidance that it draws up will effectively be good practice, I think. It is a question for the lead committee whether or not that should be referred to in the bill. I do not think that that is obligatory, but we should draw the question to the lead committee's attention.

There was an argument that there should be something on the guidance in the bill but, when it comes to such questions, I am never quite sure where our job stops and the lead committee's job starts. This matter appears to be on the borderline. We are entitled to say that our gut feeling is that such measures should properly be referred to in the bill under powers for subordinate legislation. Whether it comes to that or not is almost a policy matter for the lead committee, however.

We are still at stage 1, so we can flag the matter up to the lead committee and await its deliberations. We can reconsider the matter at stage 2 if needs be.

It does almost seem to be our job to flag the matter up. Of course, the lead committee might not feel it to be a matter of policy and might conclude that the measures do not need to be included in the text of the bill.

Is that agreed?

Members indicated agreement.

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Family Law (Scotland) Bill: as amended at Stage 2

The Family Law (Scotland) Bill makes amendments to Scots family law, including the law on marriage and divorce. It has been referred to the committee again following a number of substantial changes to the delegated powers at stage 2.

The first of those is under section 13A, which is entitled "Postponement of decree of divorce where religious impediment to remarry exists". Section 13A inserts new section 3A into the Divorce (Scotland) Act 1976. It was inserted by a non-Executive amendment from Ken Macintosh, with a further amendment by Stewart Stevenson. Ken Macintosh is of course a member of the committee, so we have a bit of expertise here.

As I understand it, the issue was discussed at length by the lead committee. As we can see, the regulations will be subject to annulment.

The amendment in my name at stage 2 was subject to quite extensive scrutiny. The matter does not concern religious laws, but the civil law where it applies to religious groups. Rather than naming one specific religious group in the bill, it was decided that it would be better practice to copy the format adopted by the Matrimonial Homes (Family Protection) (Scotland) Act 1981, under which the various bodies concerned are listed in regulations. It was decided to copy that format exactly. That was the reason for the amendments that were agreed by the committee, as a better course of action and as a matter of policy.

Are there any views about whether that should be added to in any way? Are we quite happy with the provisions?

It would be overly burdensome to apply the affirmative procedure. I think that the arrangements should remain as they are.

Is that agreed?

Members indicated agreement.

We come now to section 14A, which is headed "Financial provision on divorce and dissolution of civil partnership: Pension Protection Fund". It amends section 10 of the Family Law (Scotland) Act 1985 so that, where compensation is payable to persons who have lost their pension as a result of the scheme having been wound up, it will form part of matrimonial property.

Section 14A(3)(d) provides for ministers to make regulations prescribing a method for the verification and apportionment of compensation payable by the board of the pension protection fund, which forms part of the matrimonial property. The regulations will be subject to the negative procedure. Do members have any issues about that, or are we agreed?

Members indicated agreement.

Turning now to section 14A(4), if the board of the pension protection fund assumes responsibility for a pension scheme, section 14A(4)(a) makes provision for ministers to prescribe by regulations subject to the negative procedure any modifications necessary for orders to be implemented by the board. It is argued that the power is needed because there might be cases where an order has not been implemented by the time the board assumes responsibility for a pension scheme.

That is a very unusual provision, which allows ministers to amend an order of the court. There is an issue around proposed new section 12A(7C)(b) of the 1985 act, as introduced by section 14A(4)(a) of the bill, on page 9. It says:

"subject to such other modifications as may be prescribed by regulations by the Scottish Ministers."

That seems very wide, and it is suggested that those provisions should be more restricted than they are. We are at the 11th hour with the bill, and we are going to have to act quite quickly if we want to suggest any changes.

The committee will wish to flag up its concern over that wording. The paragraph in question is in a very specific part of the bill, and it will affect very specific circumstances. The actual effect of the power will be to give ministers the authority to intervene in relation to specific court orders, and that is not something that the committee would wish to happen. The explanation that the Executive has offered in its supplementary memorandum is straightforward, and I do not think that we have a problem with that. The Executive wishes to enable the board of the pension protection fund to implement the orders of the court, and it says that the power would make that possible. However, the use of the word "modifications" is perhaps overly wide.

We should perhaps draw the minister's attention to the matter, although we have only two days in which to do so, because we will be debating the bill at stage 3 on Thursday. We could draw the matter to the minister's attention as a matter of urgency, saying that the committee is expressing its concern at the breadth of the powers that are provided for.

I suggest that we ask the convener to circulate the relevant information to members before stage 3. Perhaps we should delegate to the convener our decision on whether or not we wish to raise the issue during stage 3.

Are you suggesting that we use the form of words—almost—that is set out in the Executive's supplementary memorandum, on why the regulation-making power is necessary, to replace proposed new section 12A(7C)(b)? We want reassurance that paragraph (b) will be subject to any other measures that might be necessary. Are those the lines along which you are thinking?

Yes. I am not keen that the committee should lodge an amendment at stage 3 when we have not had a chance to discuss it properly or to hear the Executive's response. I am anxious that we and the Parliament should take the opportuntity to discuss the matter on Thursday. We have not yet heard from the minister on the matter, but the Executive might look favourably on moving its own amendment, even at this late stage—although it would have to be a manuscript amendment.

I suggest that we write to the Executive as a matter of urgency, highlighting the matter and asking for its response. I think that we should then leave the matter in your hands, convener, when it comes to the question whether we can ask the Executive to lodge a late amendment or whether we could do so ourselves.

I am sure that Murray Tosh could tell us all about manuscript amendments, having become an expert of late. I just wonder whether we should not be a bit firmer with the Executive. The use of the term "modifications" would allow ministers to alter anything that they wanted to. The proposed power is very wide. We should get an explanation very quickly—this afternoon, I hope—about why the Executive thinks that such a wide power is necessary. It may well be that the use of the word "modifications" is entirely legitimate and that the Executive can give a full explanation that answers our concerns. However, there are grounds for us to agree that if we do not get a full explanation, we should consider lodging a manuscript amendment to the bill, even at this late stage. We have no choice. That would be the only way in which we could get the minister to explain the Executive's position on Thursday. The minister would have to say whether the Executive agreed or disagreed with the amendment and, if it disagreed with it, it would have to explain to the whole Parliament why that was the case. Any member could move such an amendment.

I am not persuaded that there is a problem. I totally understand that "modifications" is a vague word and that a power that allows ministers to amend an order of the court is highly unusual. Normally, I would be as zealous as anyone else to stop the Executive taking such a power, but I just cannot see what evil it could do with the power. When the Executive takes a power that is too wide, we usually say, "There are wonderful, lovely people in this Executive, so it will not do anything bad with the power, but another Executive could use the power to abolish an organisation or do something else bad." However, in this case, the explanation of why the Executive wants to take the power is fine and I cannot think what another Executive down the line could do with it that would be bad. Stewart Maxwell, who is looking at me, might have an answer to that, which might make it worth while to lodge a manuscript amendment to the bill, but at the moment I cannot see what damage the power could do, so I am not persuaded that I need to worry about it.

I want to make two points. First, I was looking at Gordon Jackson not because I had thought of what an evil Executive could do with the power, but because I was thinking that we should get an explanation back from the Executive before we make a decision. That said, we probably need to decide now what we will do if the Executive fails to answer our questions.

My second point is more important. Even if the use of the phrase

"such other modifications as may be prescribed"

would not give the Executive the power to do evil things on this occasion, surely there is a principle involved. Once we start to allow provisions that use such phrases, other bills will come along and the Executive will say, "We have used such a provision before and there was no problem." If we think that the proposed power is so unusual that we object to it in principle, that might be enough to make us want to lodge an amendment to the bill.

That is a reasonable argument.

I find what Stewart Maxwell said quite persuasive and I would be happy to go along with Ken Macintosh's suggestion that the convener be delegated to act on our behalf after we have heard back from the Executive. I am sure that we will get a response, but if the convener is not happy with it, she would have the opportunity to lodge a manuscript amendment.

I cannot in any way prejudge what the Presiding Officer would do with such an amendment, but there might be something to be said for acquainting his office with the fact that a problem has been identified beyond the point at which an amendment might have been lodged under the normal procedure. The convener could explain that although she was trying to clear up the matter with the Executive and thus avoid the need for a manuscript amendment, the issue might be of such significance that she would wish to lodge such an amendment. As Ken Macintosh said, it is possible that once the Executive has received the suggestion that something is wrong with the provision in question, it might want to make its own change. I am just suggesting that it might be better if the Presiding Officer's office knew that a manuscript amendment might be lodged and understood the thinking behind it, rather than being confronted with the task of making a decision on it at 5 o'clock tomorrow, when it would have to decide what effect throwing the amendment into the pot at that stage would have.

That is a sensible suggestion.

Are we agreed that we should alert the Presiding Officer's office to what might happen and write to the Executive to outline our concerns about the provision in section 14A(4) and to ask for an explanation of why it has gone down the route of using the phrase

"such other modifications as may be prescribed"?

I will circulate the correspondence that we send and the responses that we receive and, as far as is humanly possible, will try to contact members if I think that we need to lodge a manuscript amendment. Is that agreed?

Members indicated agreement.

We move on to consider section 32A, which deals with ancillary provision. It provides for ministers to make, by order, such consequential, transitional or saving provision as they consider to be appropriate in consequence of, or to give full effect to, the Family Law (Scotland) Bill as enacted. Do members agree simply to note that power?

Members indicated agreement.

Section 17(3) of the bill as introduced was on parental responsibilities and rights of unmarried fathers. It would have conferred on ministers the power to make regulations affecting unmarried fathers and their parental responsibilities and rights in relation to their children. That power has been removed from the bill because the Executive was of the view that, for the reasons that are given in paragraph 18 of the supplementary memorandum, it would never be used. Are members content just to note that?

Members indicated agreement.