Justice 2 Committee,

Meeting date: Tuesday, May 16, 2006

Official Report 319KB pdf

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Subordinate Legislation

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Public Appointments and<br />Public Bodies etc (Scotland) Act 2003 (Treatment of Office or Body as Specified Authority) Order 2006 (Draft)

Good afternoon. I open the 14th meeting of the Justice 2 Committee in 2006. I ask all people present, including those in the public gallery, to ensure that their telephones, pagers and BlackBerrys are switched off.

I welcome the Deputy Minister for Justice, Hugh Henry, and his colleagues. We have an affirmative Scottish statutory instrument for consideration today.

Schedule 5 to the Police, Public Order and Criminal Justice (Scotland) Bill makes provision for the Scottish police services authority, which the bill will establish, to be subject to the jurisdiction of the commissioner for public appointments. Obviously, however, the provision will have no effect until the bill is brought into force and the new body comes into being. Therefore, as things stand, the commissioner could not take part in the process of appointing the SPSA's first convener and board members.

However, section 3(3) of the Public Appointments and Public Bodies etc (Scotland) Act 2003 contains an order-making power that caters for exactly such circumstances. The effect of a section 3(3) order is to provide for a body that is in the process of being established to be treated for the purposes of appointment to that body as if it had already been added to the list of public bodies that fall under the commissioner's jurisdiction. That in turn would allow the commissioner to supervise appointments to the body in question before it comes into being, which is the intention in relation to the SPSA. That would ensure that the proper governance arrangements were in place from the moment that the new authority came into being on 1 April 2007 and would allow the SPSA's convener to work with its chief executive in the run-up to April 2007.

I am aware that the Subordinate Legislation Committee raised a question about the vires of the order if it is made before the Police, Public Order and Criminal Justice (Scotland) Bill has been passed by the Parliament. In the Scottish Executive's view, the requirement in the 2003 act that a body is to be established does not require the bill that establishes it to have completed its parliamentary passage before a section 3(3) order can be made. However, even if there is disagreement, we need not dwell overly on that point because, as you are aware, stage 3 of the Police, Public Order and Criminal Justice (Scotland) Bill takes place on 25 May, and I am happy to assure the committee that we do not intend to make the order—assuming that it receives parliamentary approval—until after stage 3.

We have had a note from the Subordinate Legislation Committee. Stewart Maxwell is a member of that committee, so perhaps he would like to comment on what it found.

The minister is well aware of the Subordinate Legislation Committee's concerns regarding the vires of the order if it is made prior to the end of the bill's parliamentary process. That is covered by the Executive's response and the minister's comments today.

However, I will ask about the idea of a body being established. The Subordinate Legislation Committee was concerned that there is no clearly defined point in the process at which it is considered that a body is established. The Subordinate Legislation Committee's legal adviser pointed out that, at Westminster, at a certain point in a bill's passage, it is accepted that a body is established for the purpose of laying orders prior to the bill fulfilling its parliamentary process. Does the minister consider that there is a need for such a point to be identified in the passage of bills in the Scottish Parliament, or does he accept that orders should be made only after a bill has finally passed stage 3?

That point is wider than the order and it would not be proper for me to address the wider policy issue on behalf of all ministers and in connection with all proposed legislation. However, Stewart Maxwell makes an interesting point. As he said, I have outlined our arguments. We do not agree with the Subordinate Legislation Committee's interpretation, but perhaps we could consider the broader issue. I am not necessarily sure that we would have to adopt the Westminster model entirely, as the fact that we have bills in process and can determine an end point to that process may be sufficient. However, if a gap or weakness has been identified, we could no doubt consider it.

Given that the question of what is proper process goes much wider than this order, I wonder whether, rather than our dealing with the issue in connection with the order, the Subordinate Legislation Committee should address it to the Executive. I will certainly feed the point back, but it is a slightly different debate from the one on the order.

Do you have any plans to change the order if any amendments to the bill at stage 3 cause problems with it? That point was behind some of the Subordinate Legislation Committee's issues with the laying of the order prior to the bill completing its passage, as any changes that took place during the parliamentary process could affect the order.

If the Parliament decided at stage 3 not to proceed with the establishment of the SPSA, we would need to respond to that, because it would be ludicrous to appoint a convener and take other matters forward if there was no body for which that convener would be responsible. We have not detected any significant problems or disagreements on the SPSA's creation, so the point is hypothetical. If something unforeseen were to happen, we would need to revisit the order or consider where the decision on the bill fitted with the decision on the order. It would not be acceptable if we had two conflicting decisions—one as a result of the order and one as a result of a determination by the Parliament.

You have answered, in part, the question raised by the Subordinate Legislation Committee. You say that you will raise a point with the Executive and I presume that you will then write to the Subordinate Legislation Committee. Will you copy the Justice 2 Committee into that reply, so that we understand anything that is decided between the Executive and the Subordinate Legislation Committee? You have assured us that you do not want to jump the gun on appointments, but does any other member of the committee wish to express views on this?

I should first clarify that the response to the Subordinate Legislation Committee may come from another minister, because Stewart Maxwell's point goes beyond the justice portfolio. However, I will feed the point back to my colleagues.

I wanted to ask a further question. Why did the Executive decide to publish the draft order before the end of the bill's parliamentary process? I am sure you would accept that that is relatively unusual. Was there a particular reason why it was necessary to publish the draft order before the end of stage 3—for example, speed? If not, why did you not just wait until after next Thursday?

We did not expect any significant problems. We wanted to press ahead with what will be a very influential appointment and we did not want to waste any time. It is a matter of judgment. You may see it one way, but we saw it another way. We did not envisage any great difficulties.

Motion moved,

That the Justice 2 Committee recommends that the draft Public Appointments and Public Bodies etc. (Scotland) Act 2003 (Treatment of Office or Body as Specified Authority) Order 2006 be approved.—[Hugh Henry.]

Motion agreed to.

I thank the minister and his colleagues for their attendance this afternoon.