Subordinate Legislation Committee, 15 Jan 2002

Meeting date: Tuesday, January 15, 2002

Official Report 126KB pdf

---

Delegated Powers Scrutiny

---

Education (Disability Strategies and Pupils' Records) (Scotland) Bill

Good morning and welcome to the second meeting in this year of our Lord 2002 of the Subordinate Legislation Committee.

The first item on the agenda is delegated powers scrutiny. We have discussed aspects of the bill, formally and informally. Does anyone have anything to say on the regulations for accessibility strategies? Questions were raised about whether the regulations are prescriptive enough or whether they are drafted in the interest of greater flexibility. As a committee, we see the sense of the latter, but the regulations have not been spelled out enough.

The bill is concerned with strategies for dealing with disabled pupils. The Executive might want to keep the regulation-making powers and their definitions reasonably wide, to allow it to consider individual cases and to respond to them in regulations. A balance must be struck between being prescriptive by defining tightly terms such as "education" and "an associated service" and restricting good practice on the ground. Therefore, I am inclined to think that it is reasonable for the definitions to be fairly wide and then to have regulations that are more specific.

People being what they are, and with the variety of situations that come up in these matters, one would not want the definitions stuck forever in primary legislation. That would mean that particular circumstances could not be dealt with because the primary legislation had too tight a definition. The issue is about achieving a balance. I would be inclined to allow the Executive the flexibility not to define terms too fully in the bill.

I agree, but a right is involved as well.

I accept that.

. As a committee, we must be careful about the rights of vulnerable groups. The Executive said that we will see the draft regulations. There will also be guidance for local authorities.

I have a question for Bristow Muldoon. We talked a lot about this matter before he got here this morning. Has the Executive struck the right balance in not defining this area more closely in the bill and leaving it as flexible as possible? The Executive has done that because the accessibility strategy is to be introduced in a rolling way as and when—I presume—local authorities change their provision of service and facilities to facilitate mainstream education for children with disabilities.

To be honest, I have not gone through the bill in detail, so I do not know that I am in a position to give you strong guidance about whether I feel that that balance is appropriate. Perhaps we should draw the issue to the attention of the Education, Culture and Sport Committee, which will consider the bill in detail. That committee will be able to assess whether it feels that the particular types of provision should be dealt with under delegated authority as opposed to being in the bill.

One cannot help agreeing with what Ian Jenkins said. The European convention on human rights also comes into this, so the belt and braces might be already there. It might not be necessary to have the core definition included in the bill—which is what we want. However, I think that it is worth while mentioning to the Executive that we think that, as a general point of principle, it is not a good idea to leave core definitions out of bills.

Mr Jackson is looking troubled. Are you not bothered?

No, not at all.

The clerk advises me that we could write to the Executive and ask it why it has chosen this method. I think that the Executive will tell us that it did so to allow for maximum flexibility. We understand that. However, I think that we can write to the Executive and ask that question. Do members agree?

Members indicated agreement.

Fine. That takes us on to the regulations concerning pupils' records. Does any member want to raise anything on this matter? The Executive has said that there will be a public consultation on the draft regulations, but I do not know where, when, how, why or with whom.

I worry a little about the suggestion that there will be a charge for supplying pupil records to parents who request them. Whether that is to cover necessary costs, whether those costs will be consistent throughout the country, or whether parents should be charged at all is probably not for us to decide.

No. That is one of the matters that we can mention to the lead committee.

As Colin Campbell hinted, that is the substantive principle of the bill, rather than one of the technicalities.

Do members want to mention the cost of receiving records? According to the regulations, the cost to the parent or whoever should not exceed the cost of producing that record—which will vary from authority to authority. The regulations do not say whether that is an individual charge. It would only really make sense if it were that. Do members want to mention the money?

We must be careful that we do not deal with policy, but we can point out to the lead committee, of which I am a member, that the bill is not clear about the principle of charging. We are entitled to say that the bill is not clear and that the lead committee should consider that issue further. We can present that sort of argument.

That is fine. The other question that we could put in writing to the Executive is whether it has a charging regime. We do not take issue with the regulations, which are flexible. However, we are asking how the Executive thinks that they will work.

Yes.

The other issue is the business that I raised about consultation. Should there be a formal requirement to consult? If so, should that appear in the bill?

Does not it say in the legal brief that a consultation is taking place anyway?

No one seems to be particularly interested.

My personal view is that, as a general rule, where consultation is a good thing and where a Government says, "We intend to consult", I tend to want that intention to be specified in the legislation. As I have said before, Governments come and go, but bills sometimes go on forever. If consultation is the right thing to do, I can never understand what harm it would do to specify in a bill that the Government of the day shall consult before it does something. That would cover the situation when, 20 years down the road, someone says, "Ach—Ah'm no bothered." I have never understood why, if everyone thinks that a requirement to consult is a good thing, that requirement should not be specified in the statute.

That means a letter to the Executive and to the lead committee.