Subordinate Legislation Committee, 21 Feb 2006

Meeting date: Tuesday, February 21, 2006

Official Report 158KB pdf

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Delegated Powers Scrutiny

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Local Electoral Administration and Registration Services (Scotland) Bill: <br />Stage 1

This is the sixth meeting in 2006 of the Subordinate Legislation Committee. Our convener, Sylvia Jackson, has sent apologies. She is on a foreign trip, so I take it that her apology is not entirely sincere. Never mind—no doubt she is enjoying herself.

It would be helpful if members would switch off their mobile phones.

I am told that we have already agreed to take in private the final item on the agenda, which is on our draft report for our regulatory framework inquiry.

The Committee has raised further questions with the Executive about the Local Electoral Administration and Registration Services (Scotland) Bill. This is the third time that we have considered the bill, so we will have to agree the terms of our report. The Local Government and Transport Committee is to meet the minister next week, and we would normally report in advance of such a meeting.

Section 1 deals with "Setting of performance standards". We considered that there should be a degree of parliamentary scrutiny of the performance standards for returning officers that will be produced, given that there is to be an element of compulsion and direction in them. The Executive takes the view that the performance standards to be set are akin to those set by Audit Scotland and the Accounts Commission under the Local Government Act 1992, which attract no parliamentary scrutiny. Are we content with that response, or should we have the opportunity to undertake more detailed scrutiny of the standards?

Do not all rush to speak at once.

I welcome the fact that the Executive has given us a comparison. That gives us a bit of context so that we can understand the Executive's intention in setting the performance standards. Perhaps because of our involvement in election proceedings, I suspect that we are sensitive to such matters and so we take a great interest in them. I suggest that we forward the Executive's comments to the lead committee. The Executive has explained why it is setting the standards, so it is now a matter of discussing whether we think that there should be another layer of parliamentary scrutiny. The Executive has given an example of something similar where there is no parliamentary scrutiny, and at least I am happy with its explanation.

I do not feel strongly about the matter. I am content to forward our comments and the Executive's answer to the lead committee and leave members of that committee to make of them what they will. Do members want to do more than that?

An interesting philosophical concept is involved. If the Executive throws up a parallel situation in which there is no scrutiny, the logical consequence is that there should be no scrutiny in this situation either. However, there is an equally plausible argument that perhaps there should be scrutiny of the area that the Executive has thrown up as an example, if it is such a close parallel.

The level of scrutiny does not need to be particularly intensive. It would be reasonable for there to be some form of scrutiny and it might be adequate simply for the necessary instrument to be laid so that it could be picked up by a parliamentary committee that wished to do so. That is probably unlikely to happen in practice, because I am sure that the standards will work as scrupulously as the Executive has said they will. It is just a question of what is appropriate, and it would be appropriate if something that involves such a degree of compulsion and pressure were to be laid before Parliament.

It will be laid, so Margaret Macdonald tells me.

It will not be subject to the negative procedure, and I am happy that it will be laid before Parliament.

Is Stewart Maxwell content?

This is one of those situations where I could go either way. I can see the reasons for having some parliamentary scrutiny, and we have been advised that the published performance standards will be laid before Parliament.

Ken Macintosh made a good point about the examples of similar standards. Perhaps it is just our closeness to the subject that makes us slightly uneasy.

So we will report along the lines that Ken Macintosh suggested. We will show the lead committee what we asked the Executive and what the answer was.

Adam Ingram has just joined us, and I advise him that we are still dealing with the first item on the agenda.

Section 4 deals with "Access to election documents". We asked for further details about the restrictions that would apply to the use of information and the circumstances under which they would be applied. We took the view that certain conditions, such as the use of information for commercial purposes, perhaps ought to be included in the bill. The Executive has repeated that the intention behind the use of restrictions is to limit the use of information to electoral or related purposes and that it is not therefore possible to provide a comprehensive list of circumstances, as those might evolve over time.

Are we content with that response, or do we consider that certain conditions, such as the use of information for commercial purposes, ought to be included in the bill?

We reached a view on this issue at our previous meeting. We thought that this would be the particular issue that would arise, and it is interesting that the Executive has not suggested any other grounds. The argument made in our legal brief about developments since 1983 is a sound one, and it would be perfectly possible for the restriction to be in the bill, accompanied by some other provision that allows further restrictions to be introduced on a case-by-case basis, given that ministers proposed that the power should be extended to cover other restrictions. The suggestion is not unreasonable and would not go against the Executive's purposes. I am not really clear about why it is not prepared to do that.

You are right. Just because we cannot think of all possible circumstances, there is no reason why we cannot put the ones that we think of into the bill. Shall we recommend that that should happen?

Members indicated agreement.

Section 6 is headed "Access to election documents: supplementary". We asked the Executive for further clarification of the purpose and effect of section 6(10) and the lists mentioned in other subsections. The Executive has acknowledged the committee's concern and has agreed to look at the provisions again and to bring forward any amendments that might be required to clarify matters. As the bill is still at stage 1, we should leave it at that and give the Executive the chance to do what it has said it will do.

Section 9 is on the "Code of practice on attendance of observers at elections etc". We were and remained unconvinced by the Executive's argument that the administrative nature of the content and the need for flexibility in the light of experience indicated that a code of practice for observers would be more appropriate than legislation. The Executive is still of that view and has reiterated its intention to ensure consistency of practice across all elections by means of United Kingdom-wide standards and guidance. Should we accept that or press for some more formal means of parliamentary scrutiny of the code of practice?

I can accept some of the Executive's arguments about a UK-wide code of practice; there does not seem to be much point in having different rules for a UK election. However, when it comes to elections that are not UK-wide, such as local government elections, could there be differences of opinion, or different ways of acting that would not be UK-wide? For example, from next year we will be using a different electoral system. Might it be the case that the code of practice should be open to scrutiny? Although an argument has been made about UK-wide elections, not all elections are UK-wide and some local government electoral systems are devolved to the Scottish Parliament. I am not sure that I agree completely with the Executive's arguments.

What type of scrutiny would you have?

I was not here last week, so I was not involved in the discussion on the issue.

One possibility is that the code should somehow be laid before Parliament.

Is it proposed to lay the code?

As with most codes, that is up to the Executive. Codes fall into a grey area. An example is codes of practice in education matters.

I am informed that the code will be laid before Parliament.

Although the matter is a sensitive one for anybody who is involved in elections, I do not feel strongly about it because, ultimately, the code will probably not be controversial. As the code will be laid before Parliament, if it was controversial, parliamentarians would be able to raise issues if they chose to do so.

As the code is not likely to be hugely controversial and is to be laid before Parliament, does that give Stewart Maxwell comfort?

As I said, I was not involved in the discussion last week but, in my experience of elections over many years, I have seen different practices in different areas in relation to who is allowed to observe and what they are allowed to record or ask. Therefore, we may well want a parliamentary procedure to allow consideration of the code if such anomalies arise. The subject is extra sensitive, although that is perhaps because we are so close to it. Given the variations that may arise, it would not be unreasonable to have a procedure under which a committee could examine the code of practice if it so wished.

The existence of variations is an argument for having a code rather than for any procedure by which the code might be introduced. I agree with Ken Macintosh that, if the code is laid before Parliament, members will be able to consider it if they feel that that is necessary. Stewart Maxwell made the valid point that we will have two electoral systems for this country that do not exist for United Kingdom elections: the additional member system for the Scottish Parliament and the local government system. As that may be a policy matter, we should alert the lead committee to it to ensure that, in whatever consultation procedures are built into the bill or recommended to the Executive, due regard is paid to the distinct electoral systems that operate in Scotland so that the code covers any variations in practice.

Are members content to pass that suggestion on?

Members indicated agreement.

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Bankruptcy and Diligence etc (Scotland) Bill: Stage 1

Agenda item 2 is delegated powers scrutiny of the Bankruptcy and Diligence etc (Scotland) Bill at stage 1. My next few words will please members: the bill contains 90 powers to make subordinate legislation. [Laughter.] I knew that that would cheer members up—I can always tell. Many of the powers should present no concerns for the committee, as they are to be given to the Court of Session to make provisions by way of acts of sederunt. However, given the number of powers, we will deal with the bill in bits and will cover only part 1 today. I do not know how many parts there are. [Interruption.] I am told that there are sixteen, so members will grow old with the bill.

Section 1, on "Discharge of debtor", contains a Henry VIII power to prescribe the minimum discharge period following sequestration. The period is to be one year instead of the existing period of three years. In the past, the relevant period has been prescribed by primary legislation, with no provision to amend it through subordinate legislation. The Executive considers that Parliament should have a high degree of scrutiny over any instrument that changes the period and that the affirmative procedure would be appropriate. The committee should note that the period could be lengthened or shortened without restriction.

We must consider whether the matter is an appropriate one for subordinate legislation. I say right away that, at the least, the use of the power should be subject to the affirmative procedure, as the Executive says. Any change in the period would be an important issue that relates to the public interest. The length of time for which people have to wait for discharge—or that they can get, depending on from whose side we consider the issue—is a big issue. Any decision to change it would not be just technical tweaking. I put down a marker that the power to make such a change through subordinate legislation would be a serious one.

I agree. I was surprised to hear that such a power is to be given, because the policy of reducing the period of discharge to one year is at the heart of the bill. The period should therefore simply be stated in the bill. If the period needs to be changed, that should be done by primary legislation. I do not suggest that ministers ever make changes on a whim, but the measure is not something that ministers should tweak after a couple of years. The change to the period is one reason why we are introducing the bill, so we should simply agree whether one year is the right period. We will deal with a couple of similar powers, but this is the one about which I feel most strongly. I do not see why the matter should be covered in subordinate legislation at all.

You will have gathered that that is my view, too. I am just trying to work out whether that is our business, although I suppose that it is. We can say that the power is not suitable for subordinate legislation, although I suppose that that is a policy decision. However, I believe that the power is not appropriate for subordinate legislation.

The deputy convener and Ken Macintosh have stated my opinion fairly clearly. The discharge period is central to many concerns about bankruptcy—people on both sides of the argument argue about it—so it is entirely appropriate to set the period in the bill. Any future changes should not be done through subordinate legislation, even if that was done using the affirmative or super-affirmative procedure. If the Executive wanted to change the period, that should be done through primary legislation. If the policy decision is that the period should be one year, that is fine, but from then on, any policy decision to change it should be introduced through primary legislation.

The provision perhaps shows that the Executive lacks confidence in its policy. If the suggestion is that changing circumstances are likely to require the Executive to change its mind, that raises the question of how sound the Executive's thinking is in introducing a shorter period. The provision is odd. I agree totally with the deputy convener and other members that we should say to the Executive that the power to alter the period should not be in the bill.

We will say to the Executive that the committee is of the strong view that the issue is so important to bankruptcy legislation that it should not be the subject of subordinate legislation. Do members agree?

Members indicated agreement.

Section 5 inserts proposed new section 71B into the Bankruptcy (Scotland) Act 1985, which will give a power to make orders in relation to disqualification provisions. The proposed new section contains another Henry VIII power that will allow ministers to make an order in relation to any disqualification provision, as defined in proposed new subsection 71B(2). The Executive considers that the Parliament should carry out a high degree of scrutiny of any instrument that makes or varies a disqualification provision and that it should be subject to the affirmative procedure. The question is whether that is acceptable.

I will kick off again. I would allow that to happen by order under the affirmative procedure. The issue is not quite as crucial as the previous one, which should be dealt with in primary legislation. There is always a line to draw, because eventually we could say that everything should be done through primary legislation. I believe that the proposal is just within what can be done under the affirmative procedure.

Taking my lead from you, convener, I feel less strongly about this issue than I feel about the period for discharge of debtors. However, I still question whether the matter should be one for subordinate legislation.

Fine.

I certainly think that we should ask the same question that we agreed to ask in relation to the discharge of debtors.

We have a doubt about this one.

Yes. Again, it is fairly central to the way in which we treat bankrupts. In some ways, we are trying to put through a piece of primary legislation that makes it absolutely clear what our view is about bankruptcy and what it is that we are trying to achieve. Therefore, we should come to an informed and decisive view on the matter. However, by dealing with this matter in subordinate legislation, we are saying, "We are going to make this change but we are not 100 per cent sure, and we might change it again." I do not think that that is a good message to send. I think that we should make up our minds about what the disqualification provisions are going to be. However, as I said, I do not feel as strongly about this proposed power as I do about the proposed power that we discussed previously.

I agree. I do not feel as strongly about this matter because the change from three years to one year, which we discussed earlier, is a more fundamental change. We hear about that issue quite a lot more than we hear about the subject that section 5 deals with. However, I think that the nature of the issues is the same. The issue that we are talking about at the moment is fairly central to the bill. The Executive's policy should be clear on it and should therefore be included in the bill. I do not think that it is reasonable to say, "We think that this is the policy but we might change our minds and use subordinate legislation to sort it out later." I am not saying that that is exactly what the Executive is saying. However, I am uncomfortable with the matter being dealt with through subordinate legislation.

I agree with Ken Macintosh and Stewart Maxwell.

Shall we indicate that we are uncomfortable and say to the lead committee that we have doubts about the matter? In that way we would make a distinction between the previous issue, which we feel strongly about, and this one, which we have reservations about.

Members indicated agreement.

Do you want us to write to the Executive about it?

Whatever you think.

Section 14 relates to "Debtor applications". Regulations under this section will be subject to the negative procedure. Debtor applications are administrative and are not covered by court rules that prescribe procedure, forms and costs when debtors petition sheriff courts for sequestration.

It is not clear, however, that the powers conferred by proposed new subsection 8A(3) of the 1985 act can be regarded as a matter of administration or procedure. The Executive has provided no explanation for the difference in treatment and it is not clear why delegated powers have been thought to be appropriate in this instance.

It strikes me that we should just raise this issue with the Executive, say that we are not clear about it and ask it to explain the situation. Is that agreed?

Members indicated agreement.

Section 17 inserts into the 1985 act proposed new section 39A, which relates to the issue of the debtor's home ceasing to form part of the sequestrated estate. Again, the powers here are Henry VIII powers and are subject to the negative procedure.

Proposed new subsection 39A(4) allows ministers, by regulation, to add, remove or vary any of the matters referred to in proposed new subsection 39A(3). In theory, that would allow ministers, by regulation, to delete all the conditions, therefore depriving a trustee of any power to dispose of a family home. Are delegated powers okay for that? If so, might the affirmative procedure be more appropriate?

I think that that would be appropriate, at the very least. I am not quite sure why the negative procedure has been chosen in this case. Again, however, I must say that I am uncomfortable with the fact that the power is quite sweeping.

There are some questions that we could ask the Executive. For example, which, if any, of the conditions might it wish to remove, given the possible effect on the powers of a trustee? Why are delegated powers necessary at all in some instances, given the discretion that is conferred on the court by paragraph (7)(b) of the proposed new subsection? Other questions are raised in the briefing, and it might be appropriate to ask them in the context of saying that, at the very least, the affirmative procedure should be used because we have reservations about the matter. We could ask those questions and come to our final decision in the light of the answers that we are given.

As long as our letter to the Executive is weighted towards asking the fundamental question whether the delegated powers are appropriate, I am happy with your suggestion.

Absolutely.

That would be better than getting caught up in the issue of whether the affirmative or the negative procedure should be used. That is a fallback argument that we can use when we have received the response.

We can intimate that we have reservations about the issue of the delegated powers and ask for answers to our questions before coming to a conclusion. Is that agreed?

Members indicated agreement.

Section 18 relates to "Modification of provisions relating to protected trust deeds". The power here is partly a Henry VIII power. Are we content with that?

Perhaps it is a Henry VI power.

I am afraid that this is getting a bit esoteric for me, given that it is a Tuesday morning.

I believe that, in relation to this issue—unlike the other issues relating to the bill—we will see a copy of the regulations before the bill is passed. We should perhaps reserve our comments until we see them.

However, it would be fair to note that there is a concern about whether the affirmative procedure would be more appropriate than the negative procedure. In reserving judgment, we should make the point that we might want to return to that issue.

That is fair.

Section 19 relates to "Modification of composition procedure". Regulations under schedule 4 to the 1985 act will be subject to the negative procedure. Are we content with that?

This is another wide-ranging Henry VIII power. I am not sure whether we want the procedure to be negative. As we have said, the bill contains a lot of powers to make subordinate legislation and a lot of the Henry VIII powers are extremely wide. I think that the same concerns exist in relation to almost every issue that has been raised so far.

Again, we have to question the Executive a little further on its motivation for dealing with this issue through subordinate legislation and for wishing to use the negative procedure. It has to come up with some strong arguments in support of those decisions if it wants us to agree with it.

What is the specific question that you want to ask? Tell us and we will ask it.

I would like further detail on the Executive's motivation for wanting to deal with this issue through subordinate legislation and for using the negative procedure rather than the affirmative procedure. If it comes up with a solid argument, that might be fair enough. However, I am not sure that it will be able to.

When I read this part of our briefing, I noted that, although the powers are wide ranging, they are to do with changing the nature of the forms, how things are published and so on. For example, at the moment, an offer of compensation must be published in the Edinburgh Gazette and the powers would allow ministers to change that, if necessary. I think that such matters are for subordinate legislation. However, I am not sure whether policy can be fundamentally changed through the use of Henry VIII powers. For example, could section 19 be used to change the rate of 25p in the pound? That would be a fundamental policy change.

In effect, that is the point that I was making. The ability to vary or delete is wide ranging.

So the answer to my question is that section 19 could be used to change the rate of 25p in the pound.

We will have to check that.

Do you have enough information to know what to ask?

Yes.

If the matter is simply one of how the procedures are administered, I am relaxed about subordinate legislation being used. However, if policy could be affected, perhaps subordinate legislation should not be used.

Section 22 relates to the modification of offences under section 67 of the 1985 act. Again, this is a Henry VIII power for which the negative procedure is proposed. Normally, the committee is fairly relaxed about the use of subordinate legislation for the purpose of reflecting changes in the value of money and considers that the negative procedure is normally appropriate in that instance.

The only slight problem might be that there is nothing in the bill that would restrict the use of the power to reflecting a change in the value of money. We should say that, before we are content that the negative procedure can be used in this regard, we would like to be sure that that purpose is what the power is required for. Do we agree to ask the Executive to confirm that?

Members indicated agreement.

Section 23 is entitled "Creditor to provide debt advice and information package". Regulations made under section 5 of the 1985 act will be subject to the negative procedure. I take it that members have no comments to make on this section.

The briefing suggests that we could ask why the bill does not specify the period in question. Perhaps members were able to resolve that in the briefing session before the meeting, but I think that we have to ask whether the period is likely to be subject to change. There was a suggestion that the matter had been left for the moment as the Executive had not yet determined what the position was to be. Is there more information on that? Have members reached a different decision in the light of information that is not in the briefing paper?

No.

Would it be reasonable, then, for us to ask whether the period could be specified in the bill?

Okay.

Section 26 of the bill inserts into the 1985 act proposed new section 43A, which is entitled "Debtor's requirement to give account of state of affairs". Regulations made under proposed new section 43A will be subject to the negative procedure. Do members have any comments to make or do we believe that that provision in is appropriate?

I accept that the Executive got that provision right.