Justice 2 Committee, 17 Jan 2006

Meeting date: Tuesday, January 17, 2006

Official Report 159KB pdf

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Subordinate Legislation

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Police Act 1997 Amendment (Scotland) Order 2006 (draft)

We move on to agenda item 2, which is consideration of an affirmative instrument. I welcome the Deputy Minister for Justice, Hugh Henry, and I invite him to speak to the draft order.

Part V of the Police Act 1997 allows Scottish ministers to carry out criminal record checks for employment and other purposes. The draft Police Act 1997 Amendment (Scotland) Order 2006 makes supplemental provision in part V of the 1997 act in consequence of amendments that were made to the 1997 act by the Serious Organised Crime and Police Act 2005.

The draft order adjusts delegated powers in three sections of the 1997 act, corrects some typographical errors in sections 113C(3)(e) and 125(6) and clarifies the meaning of "police force" in section 120A(6). Articles 2(1), 2(3) and 2(4) of the draft order affect section 112(1) on the basic disclosure, section 114(1) on the standard disclosure for Crown employment and section 116(1) on the enhanced disclosure for judicial appointments or Crown employment.

The amendments will mean, first, that Scottish ministers will be able to prescribe the manner in which applications are made. It is intended that that power will be exercised such that both paper-based and electronic applications are acceptable. Secondly, Scottish ministers will be able to prescribe the ways in which payments can be made for those applications.

Similar changes are being made for the usual standard and enhanced applications by the 2005 act. The amendment that the draft order makes will ensure that these other types of applications are treated in the same way. We plan to lay the relevant regulations, which are subject to the negative procedure, before the Parliament in late February. The changes in articles 2(1), 2(3) and 2(4) are therefore closely linked to the amendments that the 2005 act makes to the 1997 act.

The Subordinate Legislation Committee reported the draft order to the lead committee and to the Parliament in relation to those amendments. In that committee's view, it is unusual to use a power to make supplemental provision in primary legislation to grant the Scottish ministers further powers to make subordinate legislation.

The Scottish Executive disagrees with that view. The powers that Scottish ministers have under section 173 of the 2005 act are sufficiently broad to allow the amendments to be made. The legislation permits the power to make supplemental provision to be used to amend primary legislation. The manner in which the power is being exercised results in amendments that mirror amendments made by the 2005 act. Further, the amendments affect sections of the 1997 act in which powers are already delegated to Scottish ministers. The amendments are very closely related to the existing powers that we have. We therefore take the view that such a use of those enabling powers was within the contemplation of the legislature when it approved them.

I will also explain briefly the remaining three amendments in the draft order. Articles 2(2) and 2(5) each correct an error made by the 2005 act's amendments to the 1997 act as it applies in Scotland. Article 2(2) inserts the words "the law of" into section 113C(3)(e) of the 1997 act, as amended by section 163 of the 2005 act. That will make clear the intention of the legislature—namely, that regard must be had to the laws of countries outwith the United Kingdom if we decide to consider any list of persons unsuitable to work with children held in such a country during an assessment of a person's suitability to work with children in Scotland. A similar amendment was made to the vulnerable adult provisions by the 2005 act. Article 2(2) brings a consistent approach to assessing information about the suitability of people to work with children or adults. Article 2(5) corrects a minor typographical error in section 125(6) of the 1997 act as it will apply in Scotland. The original amendment was inserted into the 1997 act by the 2005 act, and the correction changes "(3)" to "(4)" in section 125(6). The UK Parliament has made changes to the 1997 act as it applies in England and Wales that are similar to those made in articles 2(2) and 2(5).

Article 2(6) amends section 120A(6) of the 1997 act to make it clear that the Scottish ministers may request information from a number of further bodies that are covered by the 2005 act in the same way as information can be requested from chief officers of police forces in England and Wales. Therefore, the amendment clarifies the meaning of section 120A(6) of the 1997 act.

I hope that that rather convoluted explanation covers all the justifications for why I recommend that the draft Police Act 1997 Amendment (Scotland) Order 2006 be approved.

Thank you for those comments. Reference has been made to the comments that the Subordinate Legislation Committee made when it considered the draft order. Indeed, our papers include an explanation of those comments. Stewart Maxwell is a member of that committee, so I ask him whether he would like to make any further comment.

I ask the minister to expand on what he has said, because there is obviously a disagreement between the Executive and the Subordinate Legislation Committee. I have been on that committee since I was elected in 2003, and it certainly seemed to me—as it did to the other members of that committee—to be unusual to use one piece of subordinate legislation to create another. That just seemed odd, and I had certainly not come across the procedure before. Will the minister expand on the reasons why that power has been used? Is it due to an error? Should there have been another power in the first place and is the draft order simply rectifying that error? Alternatively, is there some other reason? The matter certainly seemed very unusual to the Subordinate Legislation Committee.

Before the minister responds, I should make members aware of the fact that the draft order will amend a piece of Westminster, rather than Scottish Parliament, primary legislation.

I will allow the minister to address Stewart Maxwell's question in a moment, but let me first ask a general question that the minister's advisers might be able to answer. Given that the use of the procedure seems slightly unusual, does the Executive consider that such a mechanism is likely to be used again or, as Mr Maxwell suggested, is the procedure being used simply to cure a few difficulties that have emanated from Westminster legislation?

Given that the draft order will correct changes to legislation that were made at Westminster, I cannot say whether such a procedure will be used again. It is hoped that any such changes that were made here or elsewhere would be consistent, so I would always hope that we could avoid using such a procedure. However, it would be foolish of me to give a guarantee on that.

In response to Stewart Maxwell's question, I suggest that the proposed amendments are exactly the sort of thing for which the power exists. As the convener said, the amendments have been necessitated by changes that were made at Westminster. We are simply mirroring those provisions so that we ensure consistency and do not create any loopholes. I am not sure that it would be best if such inconsistencies were addressed or excised by primary legislation. The mechanism that is being used enables us to make the changes quickly to the provisions concerned, which I believe are important enough to justify speedy action.

Do members have any other factual questions for the minister?

I accept what the minister has said, but as I was a member of the Subordinate Legislation Committee some years ago, I have a further question. Having said that the power was not unusual, the minister explained why the power in section 173(1)(a) of the 2005 act exists and why it is appropriate to use it in this circumstance. However, how unusual is the use of such a power? Is this a one-off, or have similar circumstances arisen a few times? I know that the minister cannot predict the future, but how does the use of the power in the draft order relate to past experience?

I can certainly write to the committee on whether such a provision has been used before. It would be wrong of me to say that the use of the power is not unusual, as it is clear that it is unusual. We do not use such powers frequently, but the use of the power in the draft order is competent. This is exactly the type of situation that such provisions were created to address. The proposed power is also closely linked to powers that ministers already have. However, I will certainly check whether and how frequently such provisions have been used on previous occasions. As I said, and as Bill Butler confirmed, I cannot anticipate the future. I would hope to avoid such use of ministerial powers if at all possible, but such things are sometimes unavoidable.

I would be grateful to the minister for that information.

I have a final factual question. If the draft order was not approved under the affirmative procedure, would there continue to be deficiencies and legislative gaps in the Scottish legislative framework?

The draft order seeks to address inaccuracies and errors that are largely typographical. As I said earlier, the draft order will also allow people to make electronic applications and will address the way in which payments can be made for such applications. While the errors may be relatively small in the larger scheme of things, it is best that they are dealt with. As far as making electronic as well as paper applications is concerned, it is a sensible provision, given the way in which we now operate.

Technically, I must now ask you to move the motion, so that we can debate it.

Motion moved,

That the Justice 2 Committee recommends that the draft Police Act 1997 Amendment (Scotland) Order 2006 be approved.—[Hugh Henry.]

I accept everything that the minister has said about policy—it is right to tidy up the matter and to do so quickly, and I am sure that we all welcome that. However, there was some unease among members of the Subordinate Legislation Committee about the way in which the power has been used, although the committee did not go so far as to say that it felt that it was totally inappropriate. Research by the Subordinate Legislation Committee did not unearth similar examples, although there may well be some. However, given that the circumstances are unusual or almost unique, I have some concerns about the use of the power in this way. The concern that I share with the rest of the Subordinate Legislation Committee was that the Executive might push at the boundaries of such powers because they are a kind of vague catch-all that appears at the end of bills. There is a reasonable concern that the Executive might pursue a line of using those powers to add bits in when the drafting of the legislation was not tight enough in the first place.

Having heard the minister's detailed explanation of section 173 of the 2005 act, I am content. I will be interested to hear what comes back from him when a search for similar occurrences is carried out. However, the power is there to deal with exceptional—or "unusual", as the Subordinate Legislation Committee said—occurrences such as this and I am content.

I do not want to draw this out. Does anyone else have anything to add?

I was just going to remark that we are too young a Parliament to be relying on precedent. Even if such a use of ministerial powers has not happened before, that does not make it a worry. As long as it is competent, as the minister assures us it is, I am perfectly happy.

There is a feeling on the part of the committee that we are not here to obstruct the legitimate desire of the Executive to make complete the Scottish version of legislation that has been enacted at Westminster. The report from the Subordinate Legislation Committee signals that this is an interesting use of the procedure.

The Justice 2 Committee, while having no desire to obstruct the legitimate use of delegated legislation in the Parliament, is expressing the concern that we do not think that this is necessarily an ideal model. We would not want it to be regarded by the Executive as an acceptable modus operandi for the future. We appreciate that it may arise in exceptional circumstances but it is perhaps not a model of good delegated legislative practice.

The Executive would not see this as a model that it would want to use frequently. However, we believe that there can be circumstances that would justify its use, particularly when we are seeking to rectify very quickly something that has happened elsewhere and over which we do not have total control. It is not about correcting errors that have been made in the Parliament per se, but about considering something that has happened elsewhere and which impacts on us. In the circumstances, therefore, using the procedure is entirely appropriate. It is not necessary to consider primary legislation or to delay unduly. I can assure the committee that the Executive's use of the procedure will not become a weekly or a monthly occurrence. Equally, however, it would be wrong of me to rule out our having to use it at some point in future.

The question is, that motion S2M-3803 be agreed to.

Motion agreed to.

That the Justice 2 Committee recommends that the draft Police Act 1997 Amendment (Scotland) Order 2006 be approved.

I thank the minister and his advisers for attending this afternoon.

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Adults with Incapacity (Supervision of Welfare Guardians etc by Local Authorities) (Scotland) Amendment Regulations 2005 (SSI 2005/630)

The next two instruments are subject to the negative procedure. As there are no questions about the first set of regulations, is the committee content to make no recommendation to the Parliament?

Members indicated agreement.

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Adults with Incapacity (Countersignatories of Applications for Authority to Intromit) (Scotland) Amendment Regulations 2005 (SSI 2005/631)

As there are no questions about the second set of regulations, is the committee content is the committee content to make no recommendation to the Parliament?

Members indicated agreement.

We will now consider in private the committee's stage 1 report on the Police, Public Order and Criminal Justice (Scotland) Bill.

Meeting continued in private until 16:52.