Subordinate Legislation Committee,

Meeting date: Monday, May 17, 2004

Official Report 77KB pdf

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Delegated Powers Scrutiny

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School Education (Ministerial Powers and Independent Schools) (Scotland) Bill: Stage 1

I welcome colleagues to the 17th meeting of the Subordinate Legislation Committee this year. Apologies have been received from Murray Tosh, who is on business connected with his role as Deputy Presiding Officer, and from Gordon Jackson, who is away with the European and External Relations Committee.

Members will note from the legal brief that the bill has three parts, although only parts 2 and 3 really concern us in relation to subordinate legislation issues.

The first power under part 2 of the bill relates to section 98(3)(a) of the Education (Scotland) Act 1980, which is the power to prescribe by regulation what information registered schools must provide to the registrar of independent schools, and in what form. The legal advisers do not think that there are any issues to do with that power. Do members have any points to make?

No.

The second power comes under section 4(2) of the bill: the power to prescribe by regulations the form that an application for the registration of an independent school will take and the information that it must contain. The legal advisers think that the provisions are perfectly in order. Is that agreed?

Members indicated agreement.

The third point also comes under section 4(2). It concerns the power to prescribe by regulations the class of person that will be defined as a "prescribed person". Section 4(2) inserts new section 98A into the 1980 act, and has caused the legal advisers some problems. It is suggested that, although the European convention on human rights will have to be taken on board, the annulment procedure is not sufficient for this power, and that the affirmative procedure should be used instead. I should add that there is no statutory requirement for consultation. I need members' views.

It is a bit of a broad provision if one is able to proscribe a whole section of society from undertaking a particular activity, particularly through a negative instrument. Despite the failsafe requirement for that to be done in accordance with the ECHR, it is a broad power and, at the minimum, it should be subject to the affirmative procedure rather than the negative.

I agree with that. The power seems extraordinarily wide. Huge swathes of the population could be classified as being prescribed persons. That could be controversial. At the very least the affirmative procedure ought to be used. The idea that there need not be prior consultation is extraordinary. There must be consultation on this sort of matter, and it would be unacceptable for the provisions to remain in their present form.

Do we agree that consultation should be part of the process, and that we think that the affirmative procedure would be more suitable than the negative procedure?

Yes.

Section 9, in part 3, is the power to make an order appointing the day or days on which the provisions will come into force, as well as any transitional provisions or savings. No particular objection has been made as to how the section has been drafted. Is it agreed that it is okay?

Members indicated agreement.

Section 4(1) relates to directions, rather than subordinate legislation. There is therefore no scrutiny attached to the provision. It concerns directions given by Scottish ministers to the registrar of independent schools regarding the information that must be recorded in the register of independent schools.

A lot of information has been provided by the legal advisers, who comment that they are not convinced by the Executive's justification for relying on a direction-making power, rather than on subordinate legislation. That justification is cited in paragraph 29 of the legal brief. The Executive mentions the need for flexibility, yet we are also told that flexibility can be effectively provided in orders and other subordinate legislation. Paragraph 29 of the legal brief says:

"However, the existing power in section 98 of the 1980 Act is a power to give directions and that is considered to provide an appropriate degree of flexibility over time, to enable account to be taken of developments in the practical administration of the system."

If we keep with things as they are, then the status quo will apply.

I think that we would want a reiteration of the status quo. Problems have not been caused in the past, so I do not think that we should be raising any queries at this stage.

Is that agreed?

Members indicated agreement.