Official Report 89KB pdf
The Legal Services (Scotland) Bill was introduced on 30 September. This is our first consideration of the delegated powers provisions in the bill, of which there are a number. I suggest that we deal only with the powers on which our legal advisers have proposed that we might wish to raise questions with the Scottish Government. We will consider the responses to the questions when we discuss a draft report on the bill at our meeting on 1 December. Are members content that we proceed in that way?
Members indicated agreement.
I will deal with the powers in turn. On section 6, "Approval of regulators", given that the exercise of the power in section 6(7) is not restricted to matters of detail or administration but may extend to substantive matters, as reflected by the express inclusion of further criteria for approval and the specification of categories of bodies that may or may not be an approved regulator, we might want the Scottish Government to explain in more detail why affirmative procedure is not more appropriate than negative procedure. Are members content to put that question to the Scottish Government?
Members indicated agreement.
On section 7, "Authorisation to act", the question on section 7(10) is similar to the one that we have just asked. Given that the exercise of the power is not restricted to matters of detail or administration but may extend to substantive matters, as reflected by the express inclusion of further criteria for authorisation, can the Scottish Government explain in more detail why affirmative procedure is not more appropriate than negative procedure? Are members content to put that question to the Scottish Government?
Members indicated agreement.
On section 27, "Guidance on functions", given that the guidance mentioned in section 27(1) may be directed at a particular approved regulator, is it intended that every approved regulator will be consulted in respect of guidance to be issued to a particular regulator, or that only that particular regulator will be consulted, and how is that reflected in section 27(2)? Are members content to put that question to the Scottish Government?
Members indicated agreement.
On section 35, "Step-in by Ministers", the committee might want to ask the Scottish Government, in relation to section 35(2), whether it considered whether the use of class 3 procedure rather than negative procedure would not address the Scottish ministers' concerns about the need to take action at short notice and at the same time give the Scottish Parliament an opportunity to consider the action and, if the Parliament considered it appropriate, approve it. Are members content to put that question to the Scottish Government?
Members indicated agreement.
On section 37, "Eligibility criteria", given that the exercise of the first element power in section 37(6)(a) is not restricted to matters of clarification or technical addition but may extend to substantive matters that could have a material and significant impact on potential licensed providers, on their prospects for meeting the eligibility criteria or on the costs involved in meeting those criteria, the committee might want to ask the Scottish Government to explain in more detail why affirmative procedure is not more appropriate than negative procedure. Are members content to put that question to the Scottish Government?
Members indicated agreement.
The issue in section 52, "More about investors", is the same as before—that is, affirmative versus negative. Given that the exercise of the power in section 52(2) is not restricted to matters that are administrative or of technical detail but may extend to substantive matters, as reflected by the express inclusion of requirements on licensed providers and the modification of definitions in section 52(4), can the Scottish Government explain in more detail why affirmative procedure is not more appropriate than negative procedure? Are members content to put that question to the Scottish Government?
Members indicated agreement.
On section 74, "Certification of bodies", we might wish to ask whether affirmative procedure is more appropriate. Given that the exercise of the power in section 74(7) is not restricted to matters of detail or administration but may extend to substantive matters, as reflected by the express inclusion of further criteria for certification and the specification of categories of bodies that may or may not be an approving body, can the Scottish Government explain in more detail why affirmative procedure is not more appropriate than negative procedure? Are members content to put that question to the Scottish Government?
Members indicated agreement.
On section 81, "Ministerial intervention", we might wish to ask the Scottish Government to comment on its reasons for taking the power in section 81(4) and for the choice of procedure. The power is not mentioned in the delegated powers memorandum. The information is required so that the committee is fully informed before reaching a view on the power. Are members content to put that question to the Scottish Government?
Members indicated agreement.
With regard to the very wide scope of the power in section 81(5), the committee may wish to ask the Scottish Government to explain more fully the need for this reserve power to create further regulatory safeguards. In particular, the committee may wish to ask whether powers such as those in sections 74(7), 75(2)(f), 81(4) and 83 are not sufficient, and for the Government to provide examples of circumstances in which the power might be used. Are members content to put those questions to the Scottish Government?
Members indicated agreement.
Should we seek further clarification from the Scottish Government as to the circumstances in which the power in section 92, "Council membership", might be used? In particular, we might want to seek information as to what provision is currently made in relation to determining numbers or criteria for non-solicitor members, and how it might therefore be determined that the Law Society of Scotland's actions are to be deemed inadequate, so as to necessitate the use of this regulation-making power. Are members content to put that question to the Scottish Government?
Members indicated agreement.
On paragraphs 2(2) and 11(2) in schedule 4, "Financial Penalties", can the Scottish Government provide further explanation why it is not considered appropriate to have a ceiling on the maximum penalty specified in the bill? Are members content to put that question to the Scottish Government?
Members indicated agreement.
Can the Scottish Government explain in more detail why the maximum penalty and the rate of interest are not matters that should be considered and determined by Parliament under affirmative procedure? Are members content to put that question to the Scottish Government?
Members indicated agreement.
No issues have been raised on the other powers in the bill. As members have no other questions that they wish to raise with the Government, we will await the Government's response and dispose of all the powers at our meeting on 1 December.