Adoption and Children (Scotland) Bill: Stage 1
I welcome members to the 16th meeting in 2006 of the Subordinate Legislation Committee, and remind members to switch off their mobile phones and put their cards into their consoles.
On section 23, "Scottish Ministers' power to amend period of time in sections 21 and 22", we asked the Executive to justify the delegation of the power and to clarify in what circumstances it anticipated that it would be exercised. The committee received a helpful response from the Executive that section 23 simply restates the provision in the Adoption (Scotland) Act 1978, which provision has not been exercised in the intervening 28-year period. The Executive has, however, agreed to consider the matter further at stage 2.
I understand the Executive's argument and I do not have any big problems with it. However, if the provision has never been used in what is effectively three decades, do we need it?
So we will report our concerns about section 23 to the lead committee and give it the Executive's response, and we will monitor the matter at stage 2.
Yes.
On section 40, "Disclosure of information kept under section 39", we asked the Executive to clarify the scope of the regulations and say why the power will be subject only to the negative procedure, given that the issue is potentially sensitive. We also asked about plans for consultation.
I share both those concerns. I am less concerned about the first point because of the European convention on human rights, which contains restrictions for confidentiality and the protection of private life, but I think that the bill is still slightly unclear.
The Executive makes it clear that the information that it wants to be able to disclose is that which is already covered by existing regulations; that is quite helpful. We should draw the lead committee's attention to the points that the Executive and Stewart Maxwell have made.
Do you think that we should go a step further and ask whether the negative procedure should be changed to the affirmative?
No.
I do not know. I am not absolutely sure. It would depend upon the nature of the information. I hear what Kenny Macintosh is saying about the existing regulations, but section 40 is still slightly open-ended on the first point about the people to whom the information can be given, and slightly vague on the second point about the nature of that information. We probably do not need to ask for the negative procedure to be changed to the affirmative, but it is difficult to say either way from the information that we have. As Kenny Macintosh has already said, we should just pass on our concerns to the lead committee. It will be up to that committee whether to take up those points and question the minister.
Jamie, are you in agreement?
I am, yes.
We will highlight paragraphs 14 and 15 of the legal brief—particularly paragraph 15—to the lead committee. We will leave the question of whether the procedure should be affirmative, but say that we have concerns and would like the lead committee to find out more information about those points.
Perhaps we should go back to the issue at stage 2 if we get further information. The minister's evidence to the lead committee might help us.
Yes.
We asked the Executive to clarify the meaning of section 60, "Searches and extracts". It said that the section simply applies current regulations to the new adopted children register. Paragraph 23 of the legal brief says:
I am satisfied with that.
It is an administrative matter. Perhaps we should report just that we asked the Executive for clarification.
We should also report the Executive's response.
Yes. That is fair enough.
On section 64, "Restriction on bringing children into the United Kingdom", we asked why the power given in section 64(8) will be subject to the affirmative procedure only the first time that it is exercised. Stewart Maxwell will remember that he raised that particular issue.
I remember the debate that we had on this issue. At that time, it did not seem clear why the first set of regulations should be made under the affirmative procedure and subsequent ones under the negative procedure. The explanation from the Executive is reasonable and has made matters clearer. I still have slight concerns about the issue because, at the end of the day, it means that the Executive could make major and substantive changes in future regulations that would be subject only to the negative procedure. However, given the explanation, I am content with the Executive's proposal.
Jamie, do you have any further thoughts?
I accept the view of Mr Maxwell, our leader on this particular issue. If he is content, so am I. I am the new boy on the beat, you see.
We should tell the lead committee that we had concerns about this issue and that, although the response from the Executive has given us some clarification, we have some reservations on the ground that we do not know the magnitude of any issues that may be dealt with by this means on subsequent occasions.
It is important that we point that out.
The explanation from the Executive is sensible. I thought that we were keen on the idea of using the affirmative procedure in the first instance and using the negative procedure thereafter, as that seemed to get the balance right between scrutiny and Executive action. In this case, the Executive says that the first use of the measure will be not to criminalise parents and it does not intend to make any policy changes after that point, only minor administrative changes. That is a good explanation and a sensible use of the power.
It is a sensible procedure, but we are unclear about what any subsequent changes might be, which means that we do not know whether the negative procedure would be adequate. That is the problem.
Yes. Effectively, we are just talking about asking a question. I was much more concerned about the issue last week, before I read the explanation. I was in favour of the affirmative procedure being used until I read the Executive's response. Now I accept that its proposal is sensible. However, a question remains about the use of the power. It is not restricted, which means that the Executive could make further substantive changes. I accept that it probably will not do so, but it is worth pointing out to the lead committee that that is the case.
That sums it up quite well. Do we agree to follow the course of action that I outlined?
On section 65, "Preliminary order where child to be adopted abroad", the committee asked the Executive to clarify the intended use of the power. The Executive has explained that the power will specify administrative preconditions on the granting of the order by the court. Are we content with the power and that it is subject to the negative procedure?
The provision in section 66 raises the same question about the level of scrutiny as was raised by section 64(8), which we discussed earlier. In this case, the child is being taken out of the United Kingdom for adoption.
On section 67, "Regulations under section 64: offences", we asked the Executive about the scope of the power and how it envisages using it. The Executive has said that the power is intended to extend the time for compliance with the conditions and requirements set out in section 64.
The provision is practical and sensible. As the legal brief points out, however, if the issue had been explained in the delegated powers memorandum in the first place, we would not have needed to enter into this discussion.
Are we content with the power and that it is subject to the negative procedure?
On section 72, "Power to charge", we asked the Executive to explain why the determination of fees was not to be provided in a statutory instrument. The Executive has argued in its response that its approach is consistent with that taken in England and Wales and that its intention is to take a unified approach to fees charged in the UK. The legal brief suggests that it would be possible to have an SSI and maintain a unified approach. What are members' views on this issue?
I think that we should pass it to the lead committee. The Executive could have taken either route. It chose to take this route and that is fine by me.
Is this something that we feel strongly about or should we simply report what the Executive has told us?
I suggest that we just report it. I agree with the points that were made in the legal brief about the irrelevance of the Executive's argument. We have had other examples of things being done differently but with the same end in sight. It does not seem to be a reasonable argument that we must have exactly the same process as England and Wales in order to reach the same end. I accept what the legal brief says, but agree with Ken Macintosh that we should just pass on our comments to the lead committee.
The other thing that our legal advisers have told me is that, in plant health regulations, the Executive has gone down the different route of using an SSI.
Ken pointed out that the Executive could have chosen either route. There is not a lot to say beyond that, whether or not you agree with the choice. Perhaps we could inform the lead committee of the point that you have just made.
I will ask our legal advisers for fuller advice on that.
Is it just me or do we always use plant health regulations as an example? They seem to come up rather a lot.
Are members content to follow the suggested action?
On section 75, "Section 74: supplementary provision", we asked why this procedural matter was to be determined by ministers in regulations and not by the court itself. In its response, the Executive has indicated that the detail of the annulment application should be amalgamated into the regulations that ministers plan to make.
On section 78, "Disclosure of medical information about parents of child", the concerns that we raised were similar to those that we raised on section 40, which we discussed earlier. We asked the Executive to provide clarification of its decision to delegate the power and why it will be subject only to the negative procedure. It has undertaken to consider the matter further at stage 2.
With regard to the Registrar General, we asked the Executive to confirm whether it intends regulations made by the Registrar General to be exercisable by statutory instrument. The Executive has confirmed that that is its intention and that it intends to bring forward an amendment at stage 2.
Police, Public Order and Criminal Justice (Scotland) Bill: as amended at Stage 2
We will consider the bill today and next week. The stage 3 debate will be held on Thursday 25 May.
The Executive makes a good case. Again, this is a situation in which it could have followed various routes and there would have been precedents for doing so. There are acts that deal with police powers and police bodies and leave matters to ministerial direction, while the Standards in Scotland's Schools etc Act 2000 says that the ministers' decisions about national priorities must come before the Parliament. Do we have time to draw that to the attention of the lead committee?
We will have.
We should do that, because the sort of control that is exercised over such bodies really makes which route the Executive goes a matter of policy. The Executive certainly makes a case that what ministers must direct are Executive actions that are mostly administrative.
According to the clerk, if we pass any points to the lead committee this week it will be unable to consider them. We should report straight to the Parliament.
I was not entirely convinced by the argument in the Executive's letter that the example from the 2000 act is about national priorities and that the bill is not. My understanding is that both the bodies referred to—the Scottish crime and drug enforcement agency and the Scottish police services authority—will be national bodies and not localised in any way. They will stand apart from the various police forces. If national priorities in education can be put forward, I do not see why national priorities for those two national bodies cannot be put forward in the same way. The Executive's argument is weak. That said, I do not have any particular problem with the issue; it is just that the Executive's explanation does not really stand up.
I have some sympathy with that, but the Executive makes it clear that it will determine strategic priorities by means that it says will be "consultative and transparent". That takes care of any practical concerns that we might have.
You are right. The Executive makes a big thing about being consultative and transparent. I propose that we report to the Parliament that we have got our clarification.
We move to further and amended delegated powers. On section 21, "Regulations relating to the Agency", we had no observations at stage 1 on the powers contained in section 21(1). The additional powers simply correct omissions from the original list. Are members content with the powers and that they are subject to the negative procedure?
On section 37, "Power of Commissioner to discontinue reconsideration" section 37(3)(c) has been amended in relation to the commissioner giving directions to the reconsidering authority to consider a complaint. The change widens the category of people to whom such directions may be given. The committee was content with the power in its original form. Are we content with the power and that it is subject to the negative procedure?
New section 72B, "Sex offender notification requirements", amends section 83 of the Sexual Offences Act 2003. The amendment provides a general regulation-making power for ministers to extend the range of information relevant to sex offenders that they must notify to the police. This is an important power, which has serious implications for offenders, including under the ECHR. There is quite a bit in paragraph 65 of the legal brief about what information could be notified to the police. I am looking for members' views on that.
I do not have any problem with this. There was a wide-ranging discussion in the Justice 2 Committee on the power and a great deal of concern about some of the other areas that it could be used for, but the Executive gave clear policy reasons for including passport and bank details, which were accepted by the lead committee, and reasons why some of the other areas would not be included. There was also a debate about other possibilities in future. It seemed entirely reasonable to the Justice 2 Committee that, on a policy basis, those should be subject to regulation rather than being in the bill.
Are we agreed that the power should be subject to the affirmative procedure?
New section 72B(5) amends section 84 of the 2003 act. This power is consequential on the power in section 83(5)(i) of the 2003 act, which we have just discussed. Are members okay with this section?
New section 72C, "Information about release: power to require giving of specified information", amends section 96 of the 2003 act, "Information about release or transfer". The effect of the amendments is that ministers will have the power to include in the regulations a provision requiring a person to provide notice of any information about a sex offender that is listed in the regulations when giving notice. The question is whether members are content that the power be delegated and, if so, whether affirmative rather than negative procedure is more appropriate. Paragraph 72 of the legal brief outlines some of the issues about how that might work in practice.
I had not previously noticed the last sentence of paragraph 72, which says that the power may require
Yes.
I will say no more on that.
Is the negative procedure sufficient, or should it be affirmative?
Negative is fine.
The negative procedure is used because it is mostly information such as a person's address and date of birth. I do not have any problem with it.
Should we ask for more clarification on how the powers might operate in practice?
There is scope to ask why the negative procedure is proposed. We have just agreed that quite significant powers with ECHR implications should properly be addressed through the affirmative procedure, given the way in which the power can be extended. While I would not go as far as paragraph 70 of the legal brief and say that a conclusion on one part shall be determined by a conclusion on another part, it strikes me that there is at least an analogy here, which is that the powers are being extended in ways that we cannot imagine at the moment. It would be interesting to know why the Executive does not consider the affirmative procedure appropriate.
We can ask for clarification on that.
The legal advisers look deeply concerned.
They were concerned about the timing, but there is time.
Surely there is not time. Stage 3 of the bill is next week.
It is a week on Thursday, so we could get a response back by next week. Is it agreed that we will ask for a bit more clarification?
Section 76(1)(b), in section 76, "Assessment following positive test under section 20A of the 1995 Act", has been removed from the bill as the power was regarded as superfluous. Are members content simply to note that?
Section 86(1) is on the power to make provision in relation to the procedure to be followed in proceedings for sentence review under section 84. Following a query from the committee during stage 1, the power's procedure has been changed from affirmative to negative. I take it that we are content to note that.
Section 86(3) is on the power to make provision for taking account of time spent in custody, on release on licence or on unconditional release when a sentence is reviewed under section 84. The provisions to be contained in an order will be of a detailed and technical nature. Are we content with the power and that it is subject to the negative procedure?
Paragraph 11(5) of schedule 1 will give ministers the power to apply the provisions of the Police (Scotland) Act 1967 to constables who are seconded to the Scottish police services authority to serve as members of its staff. The fact that the new power is not subject to the affirmative procedure is an oversight. The Executive intends to lodge amendments to correct that at stage 3. Do members accept the Executive's undertaking and that the affirmative procedure is appropriate?
Paragraph 8 of schedule 2 will give ministers the power to apply the provisions of the 1967 act to police members of the Scottish crime and drug enforcement agency. The modification provision has been extended to include the director and deputy director of the agency and to allow subordinate legislation that has been made under the 1967 act to be applied to the director and deputy director and to police members of the agency. The Executive has agreed to lodge amendments at stage 3 to make the necessary consequential adjustments to section 93 so that the affirmative procedure is applied. Are members content?
Paragraph 2(1) of schedule 3 will give ministers the power to make a staff transfer order. The changes that were made at stage 2 do not affect the substance of the power and were, in essence, tidying-up amendments. The committee approved the power in its original form at stage 1. Can I assume that we are content with the power, which is subject to the negative procedure?
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Executive Responses