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Proportional Representation (Local Government Elections) (Scotland) Bill: Stage 1
I welcome everyone to the 32nd meeting in 2002 of the Subordinate Legislation Committee. We have received no apologies. It seems that Gordon Jackson has travel difficulties, but I hope that he will be able to join us later.
I will kick off. We have had a look at the bill and it is fair to say that the committee is generally satisfied with most of its subordinate legislation provisions. I have a technical question. In the explanatory notes to the bill, you refer to paragraph 1(1) of schedule 6 to the Local Government (Scotland) Act 1973, under which the Scottish ministers are required to observe the same rules as the Local Government Boundary Commission for Scotland. However, you do not attempt to amend section 28(2) of the 1973 act to include a reference to section 2 of the bill. Did you consider doing that, or would you consider doing so as the bill proceeds?
The simple answer is that we considered it but thought that it would not be necessary. If the opinion of the Subordinate Legislation Committee is that including that reference would improve the bill, we will happily take that view on board. Our view was that paragraph 1(1) of schedule 6 to the 1973 act was sufficient. There is an argument that that is relevant only to the 1973 act. Our view is that, for the purposes of the bill, we did not need to amend section 28(2) of that act. However, if the committee wants us to include that reference, that would be straightforward.
We felt that the belt-and-braces approach would be to include it, but we are not expressing a strong opinion on the matter.
We are happy to consider any suggestions that the committee makes. We will be extremely flexible on the question of stage 2 amendments if the committee considers that omitting that reference is a weakness.
It is not necessarily a weakness, but the provision would be strengthened if the bill were clearer. The provision has no carry-over effect on any other part of the bill. As per usual, we are not being nit-pickers. Does Brian Fitzpatrick have a question?
No. I am all right.
I am concerned that the promoters of the bill might not have considered whether there should be a sunset provision. It is normal for members' bills to have such a provision.
We considered that, but we decided to build in maximum flexibility to give the bill as much chance as possible. We did not put in a date because, when we introduced the bill, we were hopeful that it would be enacted in time for the 2003 elections, bearing in mind that when the single transferable vote was introduced in Northern Ireland, it took a bare three months between enactment and the elections. It is quite clear that the timetable has slipped and that it is unlikely that we can get the bill through in time for the 2003 elections. We have tried to build in as much flexibility as possible. We might consider inserting a date at stage 3, but we have not done so yet.
When we introduced the bill, we were aiming for maximum flexibility and thought that we could get the bill through before the 2003 elections, but that is looking less and less likely. I know that member's bills are time limited and I can see why the committee would not want to give the Executive—
We think that the Executive is made up of cuddly, nice people and it is not for us to decide the matter but for you to make a judgment. We simply asked whether you had considered the reasons behind your decision not to include a sunset provision.
Our judgment was to leave out such a provision in order to allow for maximum flexibility. By the time we get to stage 3, we might well suggest a date.
That answers the only questions that we had. I thank you for your attendance. [Interruption.] Brian Fitzpatrick wants you to know that he had lots of questions to ask but none of them had anything to do with subordinate legislation. [Laughter.] Do not worry, Brian, the chair will protect you.
Dog Fouling (Scotland) Bill: Stage 1
We move to the delegated powers provisions in the Dog Fouling (Scotland) Bill. There are a lot of delegated provisions in the bill, as you would expect.
Is the bill not different because removing the exception will assist its primary purpose? If the exception were removed, all dogs will be caught within the ambit of the bill. The exception would not offend against the bill.
So you think that this is an exceptional case because of the particular offence.
HM Customs and Excise officials might be expected to be slightly more well-mannered about their dogs, but an emergency rescue team would have better things to do than run around after their alsatian with a shovel.
Okay. So, in this instance—
There is an explicable exception.
Section 6(2) deals with the prescription of the form of fixed-penalty notices. Section 6(1) requires that fixed-penalty notices issued under the bill give particulars of the circumstances alleged to constitute the offence. The list in the bill is based on the information that is required in other fixed-penalty notices. Although the bill lists the minimum information that is required in fixed-penalty notices, it does not prescribe a standard form; the order-making power of section 6(2) allows the Scottish ministers to do that. It is anticipated that that power would be used if it were thought desirable for the form of fixed-penalty notices to be the same throughout Scotland. What do members think? According to Keith Harding, the use of negative procedure would be okay because that power would not affect the bill substantially.
I am inclined to agree.
I think that we could go along with that.
Could we? It is a wee bit different from what we say about other legislation.
What can we do, given that Keith Harding is not here? Can we write to him?
We can write to him and to the non-Executive bills unit, to ask about the power and the use of the negative procedure. Is that agreed?
Section 9(2) deals with amendment to the percentage of the level 1 fine. Under section 9(2), ministers would be able to vary the level of the fixed penalty. The promoter considers the negative resolution procedure appropriate for that provision.
The power to vary the percentage could have a drastic impact on how seriously the offences are treated.
Yes. I have written lots of question marks in my papers about that. The negative procedure seems entirely reasonable, but its use could mean that the seriousness of the offence—therefore the purpose of the bill—could be affected by the use of that power. At the very least, we must question the use of the power and ask for Keith Harding's response to our concerns. Is that agreed?
There is also the point about the saving provision that any order should not be retrospective. Can we take that up with the member as well?
Yes.
I should probably know this, although I may have missed something, but who pays the fine—the dog exerciser or the dog owner?
I hope that you have not found a deliberate mistake.
The person who is in charge of the dog would pay the fine.
Do you mean the person who is in charge of the dog at the time of the offence?
I believe so, yes.
There is also a list of exceptions, which includes people who use dogs in the course of their work.
I am not trying to be difficult, but what would happen if an eight-year-old were out with the dog?
We must ask about that. The point that Brian Fitzpatrick raised might also have implications, so we will ask the member concerned for answers to our queries.
The same point applies as applied to section 9. We should make that point again.
Section 15(2), which relates to the period of paying, seems okay.
It is an administrative provision.
Yes. Have we disposed of the doggy do-dos? Good gracious, that was quick.
I think that the child about whom Colin Campbell was concerned would be covered in part by section 1(3), which states:
Not necessarily. Someone might exercise the dog on behalf of mum or dad, perhaps if mum or dad were disabled.
I do not mean that that would always be the case.
Even a young person might have habitual possession.
I see what you mean. Mum or dad cannot be held responsible for someone who exercises a dog while they are confined to bed for a few months.
What if someone were to buy their 12-year-old son a puppy for his birthday? In that situation, the dog would belong to the son, who would be fined every time somebody had to scoop up after his dog.
We could send him up a chimney to really punish him.
Colin Campbell's point is well made. We must get that issue sorted out.
Yes. What would happen if a child were given a puppy for Christmas?
We know not to give puppies for Christmas.
I said birthday; that is an important distinction.
A dog is for life, not just for Christmas.
Have we had enough puppy dog stories?
Yes—more than enough.
We will raise the questions in all seriousness with the member concerned. I am informed that the lead committee took evidence on the point that Colin Campbell raised, so perhaps we should draw the lead committee's attention to the fact that we are querying the matter with the non-Executive bill's unit. I am making a policy judgment, but I think that the bill will be popular with the public. We are nit-picking a bit, but we should get the bill right.
As my wife is a member of the provisional wing of mothers against dog mess, I agree.
I have great sympathy with your wife because I have 10 grandchildren. I never used to bother about such matters, but I do now.
Agricultural Holdings (Scotland) Bill: <br />Stage 1
The next item is the Agricultural Holdings (Scotland) Bill. Fortunately, we have an expert on the bill with us. Perhaps Murdo Fraser would like to lead on the issue.
I would be delighted.
Section 17(3)(b) relates to the irritancy of a lease—I have never heard of that—and good husbandry. The section ensures that, under a new limited duration tenancy or short limited duration tenancy, a landlord cannot treat the undertaking of certain conservation activities by the tenant as being in breach of a requirement for good husbandry, which otherwise would enable the landlord to irritate the lease. Irritating means terminating the lease because of a breach of contract by the tenant. Does that refer to growing things that we would not expect people to grow in a given area?
Typically, under an agricultural holding, the tenant is obliged to maintain good husbandry of the land. In other words, he must use it for agricultural purposes. With the growing trend towards conservation and set-aside rules and so on, a tenant might now decide to leave field margins unploughed. Technically, under the current law, that could have been viewed as a breach of the husbandry rules, which would give rise to a right of irritancy on the part of the landlord. Section 17(3) seeks to amend that provision to say that that will no longer be in breach of the rules, which seems a perfectly sensible updating of the law.
It is just as well. There could be legislation to require uncultivated areas to be left around the outside edge of fields to encourage wildlife.
Is that right?
It was one of the first things I came across when I read all the stuff on the train when I first came to the committee.
Well, you knew that the information would come in useful some day. It has impressed all of us.
That is okay as well.
Section 25(2) concerns notice of a proposal to transfer land. Although the procedure laid out there departs from that used in previous sections, it seems okay.
I think that we should just accept that there is a precedent for that sort of thing.
Section 26(6) deals with transfers that do not require notice.
The provision raises the question of amendments to a list. Ministers will have the power to vary what is included in a list of exemptions. We should ask the Executive whether the use of subordinate legislation is justified, although, given the technical nature of the matter, it might be all right as it is.
We do not need to take evidence on the matter. Instead, we should simply write to the Executive, asking for further justification of the thinking behind the provision and an example of how it might work in practice.
It is a Henry VIII power, because ministers have the power to vary the substantive provisions in the primary legislation.
We should inquire about the matter because, on principle, we do not want to let such issues go by on the nod. Nevertheless, you seem to be saying, with your depth of expert knowledge, that the provision might be acceptable.
No, I am not. The right to buy is an entirely new provision that does not affect any previous agricultural holdings legislation. That means that we can consider the matter afresh.
I will be guided by you, because you know a lot more about the matter than I do.
The provision gives ministers the power to make regulations to amend the way in which land is valued. Such a potentially serious power could have human rights implications, as it raises protection of property issues. The bill sets out in some detail how the value of land is to be calculated, which is followed by a catch-all provision that allows ministers to vary valuation powers. We need to consider carefully whether it is appropriate that ministers should have such powers.
It has been suggested that ministers could have powers to deal with individual cases, which is a quite unusual departure.
It is enough of a departure that we should find out what the Executive intends by it and why it has chosen to take such an approach.
We could just ask the Executive about it.
Section 55(2)(b), which concerns notices to quit, inserts section 24(5) into the Agricultural Holdings (Scotland) Act 1991. The proposal is that the procedure should be negative rather than affirmative. However, we believe that the provision might be serious enough to require the use of the affirmative procedure. After all, it involves the Executive's ability to change provisions through orders and its interaction with the Scottish Land Court and the decisions that it might make.
The proposal is that the committee should suggest the use of the affirmative rather than the negative procedure. If we are raising questions with the Executive, we should perhaps ask it to justify the use of negative procedure.
We will do that.
That seems acceptable.
I am glad, because that is legal stuff.
Subsection (9) contains a power to modify the list of "relevant interests" in subsection (7) and the definition of "associate" in subsection (8).
The power is subject to affirmative procedure. Is that enough?
There is no difficulty with giving ministers the power to add to or vary lists, but the power to remove items from lists is more controversial.
That is especially the case when somebody's livelihood could be affected. We will query the power.
Section 76 is an ancillary provision, which allows the Scottish ministers to make further provision by order for purposes of or in consequence of the bill. That power is all right. Are we agreed?
Section 77 concerns the meaning of "family". Subsection (4) provides that the Scottish ministers may by order subject to affirmative resolution adjust the definition. We are advised that the definition in section 77 is all embracing and would probably cover communes, for example.
The question is why ministers want the right to vary the definition of "family". Can we foresee circumstances in which the definition would extend beyond the categories that are listed or would be restricted?
It will be interesting to hear the Executive's answer on that.
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Executive Responses