Official Report 193KB pdf
Vulnerable Witnesses (Scotland) Bill: Stage 1
Agenda item 2 is delegated powers scrutiny. Members will remember that we sent several questions to the Scottish Executive about the Vulnerable Witnesses (Scotland) Bill at stage 1. We will go through the answers point by point and discuss how we want to proceed.
Given the Executive's response, we have reached the end of the committee's remit and powers in querying how the Executive wants to proceed with the matter. Perhaps we ought to refer the matter—and particularly the proposal to phase in implementation—to the lead committee and the Parliament to consider whether the method that the Executive has proposed is the most appropriate method and what alternative methods might be available. We should draw the matters that we queried to their attention.
I agree. I am a member of the Justice 2 Committee, which is dealing with the Vulnerable Witnesses (Scotland) Bill. District courts have already been discussed in that committee and it is right that the Subordinate Legislation Committee should also discuss the matter.
I agree with what has been said and with Christine May's point about whether a commencement order is the right way to proceed—it is up to the committee to discuss that. I also agree with what Mike Pringle said about phased implementation.
I do not have a problem with the matter. I understand what has been said about justice in Dundee and Argyll, but district courts are sometimes literally a back room above a shop. There can be huge physical problems in certain places. On the other hand, would one want places to wait where provisions could apply now?
In our note to the lead committee, do you agree that we should make it clear what the minister's powers will be?
We should. I am sure that the Executive knows anyway, but we have a duty to highlight the matter.
We should make things clear. What things mean is not always clear when one is on a lead committee and outwith the legal process. We could highlight points that have been made about the commencement order. Do members want to include further points on the commencement order?
What we have said should cover it.
Primary Medical Services (Scotland) Bill: Stage 1
We move on to delegated powers scrutiny of the Primary Medical Services (Scotland) Bill at stage 1. We received the briefing papers only recently, so we might have additional questions that we might want to bring up at next week's meeting. It has been suggested that, with respect to our going through the bill and our legal adviser's questions on it, we might want to invite witnesses to next week's meeting to get a full answer to some of the questions. Does the committee agree that the clerk should invite bill team officials to next week's meeting to answer questions?
I would welcome that arrangement for next week because I have had little time to study the legal brief. The suggested arrangement would give us the time to have a first pass at the bill this morning and let the Executive know what questions we might want to raise. Presumably, depending on what the answers are, we will have supplementary questions. Therefore, it would be welcome to have the proposed witnesses next week
Is it agreed that we do that?
We will highlight the legal brief's key points. I remind the committee that the bill is part of a package of measures that will implement changes to the organisation of the national health service in Scotland. The bill's purpose is to introduce the new general medical services contract and the consequential restructuring of the provision of personal and general medical services by health boards. That is the overview.
We agree.
So the negative resolution procedure is acceptable for the bulk of the provisions.
I hope that we get the sample regulations earlier in the process rather than later; that would be helpful. It is good that the Executive will do that exercise as the bill progresses, because that will allow for the possibility of making amendments before the regulations have been tried out on patients.
Exactly.
I was about to say what Christine said. I think that what the Executive proposes is a good idea and that it will be helpful. We should commend the Executive for that.
Okay.
No.
Okay.
No. I suspect that I am like everyone else in that I have not considered the issue as much as I would have liked.
Exactly. That is why we want to have witnesses next week and look at the issue in much more depth.
On what constitutes primary medical services, it might have been helpful if the bill had provided an illustrative list. The difficulty with lists is that they can tend to box one in, but some sort of a list would have been helpful. Like everybody else, I have not had much time to read the legal brief, so perhaps we can ask next week's witnesses detailed questions about that point.
I agree with that. The problem with having a list of primary medical services is that if something is left out of the list, somebody will claim later that what was left out is not a primary medical service. Therefore, such a list should be an illustrative one rather than a definitive one.
Exactly.
Proposed new section 2C(5) of the 1978 act will allow health boards to prescribe what primary medical services are. I would like to hear from the Executive that this is intended to be a facilitating mechanism to allow services to be provided where, for example, the nine-to-five service providers do not want to offer out-of-hours services, rather than restricting patients' access to services even further. I think of NHS dental services, which are under huge pressure at the moment. Perhaps we can press the Executive on how the regulations will be drafted to ensure that their primary effect is to expand patients' access to services.
Okay.
Paragraph 47 of the legal brief states:
That is a good point because we are being told that one of the issues that the committee should consider is the balance between what is in the bill and what is in regulations.
I note that, under the proposed directions, retrospective payments could be made. Has anything been specified in relation to the retrospective recovery of any payments made erroneously?
That is not clear, so we could ask the Executive about that.
I would like us to follow up what our legal briefing says about proposed new section 17L(4), which enables regulations to be made on the effect of a change in the membership of a partnership. I hope that this is a case where we will see the regulations concerned fairly quickly. I think that, under the new legislation, there will be cases where those who have previously held contracts may be deemed to be unsuitable. It would be good to see the regulations sooner rather than later.
The clerk indicates that we could ask for a timetable, if there is one.
That would be good.
Still on proposed new section 17L(4), it could be questioned whether, given that the circumstances do not seem likely to change and thus to require the flexibility of subordinate legislation, this provision could not have been made in the bill itself. It is the same argument about what is on the face of the bill and what comes under subordinate legislation.
It is probably worth testing the point with the Executive. There may be a good reason for its decision. If so, can we be told what it is?
That is basically what we are asking. We want to know why provisions are in subordinate legislation rather than in the many sections of the bill. The same applies to proposed new section 17L(6). If those points are put together, that would be helpful to us next week.
I return to the point that I made about getting money back if it is subsequently discovered that that money should not have been received in the first place.
Exactly.
With previous bills, particularly when there has been a lot of subordinate legislation and delegated powers, we have discussed the possibility, at least, of regulations being subject to the affirmative procedure at first. Subsequently, the regulations could be subject to less strict procedure. In the first instance, there might be a case here for considering matters in a more detailed fashion, perhaps under the affirmative procedure. When we are sure about things, we can move on to less detailed scrutiny. For all the provisions to go through as subject to annulment does not necessarily seem to be the best way to proceed. We have discussed the matter before and it may not be inappropriate to proceed in such a fashion.
Alasdair Rankin might want to highlight for next week's meeting what delegated powers are suggested as being subject to the negative procedure. That would be helpful.
We can do that.
We will proceed to proposed new sections 17O(1) and 17O(2). The Executive's memorandum describes the detail of the delegated powers conferred by proposed new section 17O(1), which makes provision for the establishment, by regulations, of national procedures for the resolution of disputes as to the terms of the proposed GMS contracts. On the surface, things seem to be okay. Our legal advice is that it is not thought that any procedure more onerous than annulment is necessary.
The legal briefing again raises the question whether something of potentially considerable importance should be in the bill or left to regulations. I would like to hear reasons, as I suspect that either way of doing things is equally valid.
We can add that one to the list.
I would hate to think that the question of an individual GP's eligibility might be debated in the Parliament. That would obviously be inappropriate.
That is suggested in our legal advice.
There is quite a big comment in our legal advice on section 7(1), on ancillary provisions.
There must be transitional arrangements. Is it valid for the affirmative procedure to be used merely because an instrument amends primary legislation? From the committee's point of view, is it right that all the matters in the catch-all provisions are there? Should any of them be anywhere else? Should they be the subject of a separate paragraph on their own? I would want to test that.
I am not sure that I understand. What do you mean by "should be on their own"?
I refer to what are described as ancillary provisions. I suppose that it might be regarded as a matter of opinion whether something is of sufficiently low importance to be an ancillary provision or whether it could be more important than the Executive is saying. Ancillary provisions are ones in which amendments can be made that have quite significant effects sometimes but that, because they are brushed in at the end, do not receive the detailed scrutiny that they might.
I was just not sure how that could be done. A provision is defined as incidental, supplemental or consequential. Either those words could be taken out—which would be difficult—or they could be left in, in which case it would be a matter of opinion later on whether the provision was consequential or serious. Unless it could be known in advance what the issue was going to be, it would be hard to know which word to take out. I do not, therefore, know how the wording could be amended.
Are you bringing the issue of vires into this?
No, not at all.
I am happy to raise the matter and have Gordon Jackson express an opposing point of view.
It is not an opposing point of view. I just do not know how a word could be taken out in advance, as it could not be known in advance whether the provision was consequential or serious.
Let us have that debate. We will put that on the list.