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Criminal Procedure (Amendment) (Scotland) Bill: Stage 1
I welcome colleagues to the 17th meeting this session of the Subordinate Legislation Committee: the last meeting before Christmas. I have received no apologies this morning; we have a full house.
No.
We will move on to the substantive points, the first of which relates to section 12 on reluctant witnesses. Although there would seem not to be a general issue about the powers under the section, there appears to be an error that we may wish to discuss. It is highlighted in paragraphs 15 and 16 of our brief. Paragraph 16, which deals with regulations to be made under the Criminal Procedure (Scotland) Act 1995, is the substantive one. It reads:
I think that that was clearly a mistake and I do not think that we will take up your invitation to discuss the matter. It is incredibly complex, and how anyone can make head or tail of it is beyond me.
It is agreed that we will write to the Executive about the sections in question.
Absolutely.
There is a similar error in relation to section 14. As I understand it, if we make the necessary changes to section 14, they will apply to section 12. We will therefore make the same points in relation to section 14.
I think that we have made our points on the matter before, and we do not need to discuss them further today.
We pass on to section 22, on commencement and short title.
The Executive is taking powers under section 22(2) to include further provision along with the commencement order, which would not be subject to any parliamentary scrutiny. Section 21 already gives the Executive wide-ranging powers, which I have complained about on previous occasions, so we might think that it has all the powers that it needs under that section. There is at least the saving grace that the Executive has to come before the Parliament in relation to section 21 provisions, albeit under the negative procedure. Given the powers that will exist under section 21, one wonders why, under section 22, the Executive wants further powers that would avoid parliamentary scrutiny. That does not seem logical or reasonable.
Are we agreed that we will write to ask about that point? Shall we include the matter in our forthcoming informal discussion, as it is a general one?
Primary Medical Services (Scotland) Bill: as amended at Stage 2
Item 2 is delegated powers scrutiny of the Primary Medical Services (Scotland) Bill prior to stage 3 consideration. We have just received a second supplementary memorandum on the bill from the Executive. I am aware that members have not had much time to look at it, but I see that all members have a copy. Although having received this material does not mean that we have a formal role in feeding into the stage 3 debate this Thursday, it is useful for us to have the memorandum. There is no reason why we cannot act individually on the matter on Thursday. I was not terribly happy about the lack of background on why the Executive has lodged the two stage 3 amendments that are described in the memorandum. Background would have been useful.
In paragraphs 5 and 6 of its memorandum, the Executive does offer some explanation as to why the amendment has been lodged. It does not seem to be unreasonable, apart from the fact that it is difficult to receive something on the day that we are supposed to scrutinise it, especially when it refers to complex legislation. All that one can say is that it seems okay—but who knows?
The provisions relate to dispute resolution and cannot go any wider than that. Having said that, it is only the negative procedure that has been applied to the provision.
To make a general point, it seems strange that, while the Executive can introduce new delegated powers at stage 3, the Subordinate Legislation Committee has no formal role in scrutinising them. All that we are doing is having a look at the powers and having a bit of a chat about them. It seems strange that the committee has no formal role.
Is there any indication that the amendments might have come about as the result of discussion at the Health Committee? If so, it would have been useful to know what the substance of that discussion was. I wonder if we might get an opportunity to find that out in advance of the all-day stage 3 debate on Thursday. That would help the committee if one of us wished to speak about the matter in the chamber.
Yes, that would be helpful. As I said, we need background information if we get anything like this memorandum. We will be able to obtain the relevant information through the clerk.
Is any member of this committee a member of the Health Committee?
I do not think so. The information that we will obtain from the clerks will be useful for Thursday's debate.
It is difficult to know what we are supposed to do about the matter. It is all very well to say that we could raise it on Thursday. That is true, but to what purpose would that be? We have not had time to get any briefing on the provisions from our own advisers, who presumably got the memorandum only shortly before we did. Will we be in a position to say on Thursday—shock, horror—that the amendments should not be approved if there is anything in them with which we do not agree, or that is flawed or inconsistent with other provisions in the bill? Our adviser regularly finds such inconsistencies in other legislation, and there is no possibility at this point that anyone armed with the Executive's amendments 9 and 10 will be in a position to lodge amendments to those amendments, as the deadline for accepting them will have passed.
We also need to get the information that Christine May was talking about before we can lodge a manuscript amendment.
I do not disagree with what Murray Tosh says, but I am assuming that we can get a legal briefing sometime during the next day or so. Can we?
Yes.
If we have that, we can at least make a noise if there is something really horrible in the amendments. Most members could not do such things without the help of the legal briefing anyway. I know that I could not.
I could not.
We need the legal briefing to tell us what is the point or problem.
However, it would put additional pressure on our legal support to ask them to come up with the information, circulate it, and then explain it to us in a short time.
Absolutely.
Murray Tosh has made a valid point and perhaps the committee could take it up on a separate occasion. However, there is an issue in front of the committee. There is a debate on Thursday and I imagine that it will be impossible to present a committee view on the amendments, so we are going to have to represent our individual views in as consensual a way as we can manage. That is unfortunate because even if those individual views agree they do not necessarily carry the same weight as a committee view articulated by the convener.
I suggest that, if we can get the background to the amendments from the Health Committee through our clerk, and if we can get the legal brief from our legal adviser by tomorrow, we could have an informal meeting if it looks as if there is anything significant to discuss. Would that be useful?
There is a similar point to be made about the second amendment that is mentioned on page 2 of the Executive's memorandum because we do not know the background to it. The amendment is concerned with the sale of goodwill and making that unlawful. We wonder whether human rights issues might be involved.
I have some considerable concern about the amendment. Goodwill cannot be defined and it is up to the two parties involved to decide on its value. It is a strange concept for the bill to seek to take away the right to sell goodwill at all. We should consider that because anyone who is selling a business has a right to decide whether their business has a goodwill element, and they have the right to sell it if it does. To take away that right from doctors seems very strange.
To move away from the policy point that Mike Pringle might just have been making, the explanation for amendment 12 is totally unsatisfactory. At least the Executive made a stab at an explanation for amendments 9 and 10; that was made easier by the fact that the amendments deal with an entire subsection that will be inserted into the 1978 act. However, amendment 12 is proposing to make changes to various bits of that act, so unless we have the 1978 act and the bill in front of us, it is impossible to understand what is going on.
Yes.
On amendment 12, which seeks to amend section 35 of the 1978 act, I agree with many of the points that have already been made. However, the power that would be conferred if amendment 12 is accepted seems to be quite wide-ranging. Although the explanation says that the power would
It is very difficult to get into it at all; I agree.
It also raises the issue for the committee whether, in the wider use of the power, the negative procedure would be a fair way for the Parliament to allow the regulations to be applied.
Yes; it is negative procedure.
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Executive Response