Subordinate Legislation Committee, 15 Nov 2005

Meeting date: Tuesday, November 15, 2005

Official Report 139KB pdf

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Delegated Powers Scrutiny

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Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill: Stage 1

We raised a number of points on the bill with the Executive, to which it has now responded. Members should have a copy of the letter that the committee issued last Tuesday.

The first point relates to section 1(6)(g), on the power to specify a person or body as one to which section 1 applies. We sought clarification of the policy intention of the power, which would allow the list to be added to but not amended. The Executive has replied that all the bodies that are currently listed are statutory bodies; therefore, any amendment or alteration of the list could arise only in the context of new primary legislation. The Executive does not envisage any other circumstances in which removal from the list would be necessary. Are we happy with that clarification?

Members indicated agreement.

The second issue concerns section 2, on the power to specify a person or body as one to which section 1 applies. The committee noted that section 2 confers a power on ministers to direct any person or body that is not listed in or specified in an order that is made under section 1 to participate in an inspection. The committee was concerned about the width of the power and sought clarification from the Executive. I could go through the Executive's response, but I wonder whether committee members have any views on it.

I have not changed my opinion on this. The power is still too wide—it is unlimited. However, I assume that the timescale means that we have to send the bill to the lead committee and that there is not much that we can do about it. It may be that we are straying into policy. It is obviously the Executive's intention to take this power, and policy is not our concern. Nevertheless, given the fact that the power is effectively unlimited, I think that we should report to the lead committee that we have concerns about the width of the power.

The Executive appears to be saying that it needs that flexibility, but it has not explained why it wants that flexibility. It might be a policy issue, of course.

It probably is. The lead committee can question the minister on that point if we make it clear that we have questions about the width of the power which, as far as we are concerned, have not yet been fully answered by the Executive.

Yes. Is that agreed?

Members indicated agreement.

For us, the issue is one of process and powers. We have concerns, and the lead committee should satisfy itself that there are policy reasons for what would, effectively, be a departure from normal practice.

Absolutely.

The next two points are on section 3(1), on the power to make regulations for the purpose of a joint inspection, and section 5(3), on the power to make regulations for the exercise of functions under section 5(1). We were concerned at the extent to which the substance of the legislation has been left to subordinate legislation and asked the Executive to explain why that is.

In its explanation, the Executive said that there will be an evolving programme, which is why it needs that flexibility. However, the committee was also concerned about the power in section 3(1)(f) that permits regulations to create criminal offences but, unusually, places no limitation on the exercise of that power. We were concerned that that is a departure from the normal procedure. There is also a second issue to do with confidentiality; I do not know what members think about that.

I am particularly concerned about the power to create criminal offences not being limited. It may be perfectly acceptable for the Executive to say that the process is evolving—that may well be; however, it is surely reasonable for the bill to state the limit of any penalty, so that it would be no greater than point 3 on the standard scale, or whatever it happens to be. The detail of the penalties can be left to subordinate legislation, but the bill should place limits on the power. The Executive is incorrect, and this is quite a departure from the normal procedure, as you said, convener. We should report that to the lead committee.

On the issue of confidentiality, the Executive has published a protocol that describes the protections that currently exist, under both the Data Protection Act 1998 and other legislation. It might be worth while for the Executive to insert a statement or obligation to that effect in the bill. That would reassure members that the duty to respect confidentiality exists.

Yes. If I remember correctly, we raised a similar issue with respect to the Human Tissue (Scotland) Bill, but we have not yet received an answer to our question.

We are talking about the guts of the bill in its dealing with the confidentiality versus disclosure argument. The bill's purpose is to overcome the current restrictions that are imposed, particularly on health authorities. We should point out what has been suggested to the lead committee. I am sure that the matter will be gone into in considerable depth during the evidence taking for the bill, but we should flag up the matter from the Subordinate Legislation Committee's perspective.

The legal brief states:

"It may be that existing regimes under the Data Protection legislation would provide the necessary protection",

but we do not know whether they will.

We do not.

I am interested in what Ken Macintosh said about the protocol. I do not think that having only a reference to a protocol would provide the protection that I seek. A protocol would be pointed to, but that protocol could be changed at any time. Protection might be provided, but that does not mean that protection will be provided in the future, and I am concerned about that. I do not think that that would lead to the level of protection that we seek. We are talking about the confidentiality of sensitive material. Perhaps it would be better if protection were included in the bill rather than the bill pointing to a protocol that could be changed. I accept what Ken Macintosh says about the protocol, but such things can be changed. I wonder how much defence there would be if the bill simply pointed to a protocol.

I wanted to point out that the protocol has been published. There is no reference to it in the bill, but it exists, although I have not seen it.

I did not suggest that all that the Executive should do in the bill was refer to the protocol, although that is one possibility. The Executive could also allude to the fact that there are still duties of confidentiality. Whether there is an allusion to a report or a protocol or the bill spells things out in more detail—although it might be difficult to do that—there should be a statement that the bill will not give inspectors unfettered powers to access information. There are duties.

We have concerns but, as Adam Ingram said, we should point out the matter to the lead committee so that it can go into detail on it.

I agree. We are bordering on policy issues, but we are alarmed that things are not explained.

The second point was on penalties. Stewart Maxwell is right. A precedent would be set.

There would be no limitation.

Yes. Given that the Executive has amended previous provisions when we have pointed out problems, the same ought to be done with this bill, for the sake of consistency.

Yes. The Executive withdrew a Fire (Scotland) Bill provision.

On penalties, the argument about the legislation still evolving is deeply unconvincing. Does not legislation in every field evolve when further regulations are to come forward? Is not all legislation amendable? I agree that a worrying precedent would be set and that it would be helpful to point out that the Executive withdrew a similar provision of the Fire (Scotland) Bill. There may be little time for us to do anything more at this stage, but the fact that the Executive lodged a stage 2 amendment to that bill—and could have lodged a stage 3 amendment if it had come to that—points to the value of having a continuing discussion with the committee about basic principles.

We should ask the Executive to explain further what it is that is evolving unusually in this context that requires a different approach from the normal one. We should also ask the Executive why it withdrew similar provisions in the Fire (Scotland) Bill and suggest that there may be a good argument for it to act at stage 2 or stage 3 to limit the scope of the bill in this respect. We should not just pass the matter to the lead committee as a policy issue; it clearly is a policy issue, but the matter also raises a general point in respect of which the Subordinate Legislation Committee could usefully do further work with the Executive.

I have checked with the clerk and that is perfectly acceptable. I also suggest that in our report to the lead committee we state that we are continuing the dialogue with the Scottish Executive because we are concerned about the issue.

That is a courtesy and it also focuses the lead committee to consider the matter in its own scrutiny.

Absolutely.

I have a question rather than a point. Is it not the case that the bill will go through a rather truncated process and that stages 2 and 3 may well effectively happen at the same time? It is very important that such information and concerns get to the lead committee and to the Executive because if there is, as has been suggested, a truncated process and stages 2 and 3 take place at the same time there will not be the usual room for manoeuvre at stage 2. It is important that we deal with the matter.

We should flag up that point in our report to the lead committee and when we write back to the Executive to make them aware that we are aware of the issue.

The issue in section 7 is about the definition of social work services functions. The question is whether members are happy with the Executive's response—the Executive states that it thinks that it is entirely okay to leave the definition to subordinate legislation without any limitation—or whether you think that there should be a limitation above and beyond the terms of the long title? We are again straying a little into the policy area, but the exact limits of the definition are not clear.

I want to draw the power to the attention of the lead committee and to emphasise that it is unusual and a source of concern that social work services are to be defined in subordinate legislation, rather than stipulated in the bill. A number of functions, which are currently laid out in different acts, will be captured under any proposed regulations. We are going from one extreme to another—from precise detail to a very general, all-encapsulating bill. It is, however, a question more for the lead committee to consider, as to whether or not this is the best way, or the only way, for the Executive to achieve its objective.

I am aware that there could be—and obviously is—a significant policy issue about overlap. Did Murray Tosh mention the overlap with health and other sectors last week?

There are not necessarily overlaps within this aspect of social work; those are perhaps more in care services for elderly people and so on.

It is not unusual in legislation, when reference is made to a definition, to be able to cite where something is defined. There are often examples when we argue about something being defined in subordinate legislation and say, "It is already defined—just cite the main act."

If there is no watertight definition of "social work services functions", does that mean that any function that is added by a local authority to its social services comes within the scope of inspections? I think that a better definition is required, but I do not know what to suggest that we do about the matter, other than refer it to the lead committee. The lead committee might have a suggestion to pursue, but the Executive does not appear to be minded to change its position.

I gather that the functions could be prescribed on the face of the bill, with a power to amend them. That might be one way round the problem.

Do you mean amended by subordinate legislation?

I suppose so.

So we would suggest to the Executive that it uses a Henry VIII power. There is a nice irony in that, is there not? Let us raise that with the Executive and, again, let us tell the lead committee what we are doing, since the matter is for us rather than for it. Let us add that point to the on-going letter and impress the Executive with the scope, breadth and depth of our probing.

Yes. I suppose, in fairness to the Executive, I should say that it said in its response:

"The regulations do not extend the powers of Social Work services in any way and there is no intention to extend the powers beyond those set out in regulations. The power relates to local authority functions and is therefore not unlimited".

However, I think there is a concern that there is no definition.

Perhaps there should be a power to amend the definitions, because the scope of social work services has evolved considerably since the parent act in 1968. The flexibility that the clerk's suggestion gives might be appreciated.

We could put that suggestion. We have two matters, one of which is the report that we are sending to the lead committee; the other is including our points in the on-going letter to the Executive.

I think that section 8 is okay. We noted that this section makes a number of consequential repeals of other primary legislation that the bill will supersede. However, there is no provision for transitional arrangements or further consequential amendments. The Executive has confirmed that it is satisfied that there is no requirement for transitional provision and that consideration is being given to a possible amendment in respect of further consequential amendments. Our legal advice is that that is acceptable. What do members think?

I agree that that is acceptable.

Okay. We will put together all the matters about which we are concerned, send a report to the lead committee and send a letter to the Executive. Is that agreed?

Members indicated agreement.