Official Report 179KB pdf
Smoking, Health and Social Care (Scotland) Bill: as amended at Stage 2
Members will note that the stage 3 debate on the Smoking, Health and Social Care (Scotland) Bill will take place on Thursday 30 June. The committee will report to Parliament in advance of the debate.
The issue that arises with section 4 is a little bit more complicated. Section 4 defines what is meant by "smoke" and "no-smoking premises". The term "no-smoking premises" is to be defined in regulations made by ministers under the section. In line with the concerns that the committee expressed to the Minister for Health and Community Care, the bill has been amended to require that any changes to regulations that are made under section 4(2) or section 4(7) will be subject to consultation in draft form. That is what we asked for. As amended, section 4 will allow the Parliament to scrutinise draft regulations. Are we content with the amendments that have been made to section 4?
I should think that we are more than content given that we have had quite a debate about this contentious subject. I welcome the Executive's agreement to publish draft regulations for consultation when there are changes in future. That will help all those who were involved with the bill or those who might be affected by any future regulations.
Absolutely. However, it is not clear whether regulations made under section 4(8), which relate to section 3(1)(b), will be covered by the prohibitions under section 1. I suggest that we ask the Executive about that before the stage 3 debate. Obviously that is a very tight timescale.
Are we talking about the possible technical problem with vehicles, vessels, and aircraft and the interrelationship between sections 1, 3(1)(b) and 4?
Yes.
As I understand it, that is all fairly technical and there might be a problem with whether such vehicles will be caught by these offences. I am not sure that I fully understand the technical legal point, but if there is any doubt as to whether those vehicles—obviously we cannot call them premises—would be caught by the provisions in the bill, it is imperative that we flag that up to the Executive. We should publish the concern in our report because we are running out of time and we might require to lodge an amendment if we do not get a clear indication from the Executive that it is convinced that the provision is okay. As we are running out of time, any amendment might even have to be a manuscript amendment. It is extremely important that that is in our report.
There is not usually a big problem with technical amendments. However, according to our legal briefing, there could be quite an important problem with this amendment. I therefore suggest that we do as Stewart Maxwell proposes and that we raise our concerns about the issue in our report to the lead committee and to the Executive, and I hope that the Executive will be able to take our concerns on board. Is that agreed?
Section 7A concerns the sale of tobacco to underage persons and the variation of age limits. It enables ministers to modify section 18 of the Children and Young Persons (Scotland) Act 1937 to change the minimum legal age at which people may smoke. Although an order that is made under this section is currently subject to the negative procedure, the Executive has undertaken to change that to the affirmative procedure at stage 3. Are members content with that now?
I do not think that I would have been content if we had not had an undertaking from the minister that the Executive will introduce an amendment at stage 3 to make the procedure affirmative. This is a completely new power that has been added to the bill and there is obviously wide interest in this area. It is a policy matter, but personally I welcome the inclusion of the power. However, it would have been a fairly wide power if the Executive had not agreed to make it subject to the affirmative procedure, so that the Parliament can consider the matter properly. As we discussed in relation to other sections, section 7A is tightened by the fact that regulations made under it will be introduced first in draft form for consultation. I have already lodged a stage 3 amendment to tighten section 7A further, so that the variation in age could be only up, not up or down. I hope that that amendment will be accepted at stage 3.
Is that agreed?
Amendments to section 15, which concerns the list of persons undertaking to provide, or approved to assist in the provision of, general dental services, and to section 17, which concerns the provision of ophthalmic services, have been made to subdivide further the list of relevant health care professionals. Are members content with those changes?
Section 19A concerns the drug tariff. The section gives ministers power to prescribe the information relating to pharmaceutical care services that must be included in the drug tariff. Are members content with the section?
Section 26A concerns the frequency of inspection of care services under the Regulation of Care (Scotland) Act 2001. It inserts new subsections into that act. The proposed power would allow Scottish ministers to amend the minimum frequency at which care services must be inspected by the Scottish Commission for the Regulation of Care. That would be done by order following consultation with the care commission. That seems okay, but it has been suggested that there might be a slight difficulty and that we should consider asking the Executive for further enlightenment on the purpose and effect of the words "and thereafter", as detailed in paragraph 34 of the briefing paper. Do members agree that we should ask for further information and that we should put it in our report?
Section 30 amends the Adults with Incapacity (Scotland) Act 2000 and concerns the authorisation of medical treatment. As amended at stage 2, section 30(2)(b) enables Scottish ministers to prescribe, by regulations, the requirements that health professionals must meet to be entitled to certify for incapacity. Are members content with the section as amended?
Paragraphs 40 and 41 of the briefing paper concern the short title and commencement. Section 37(3) was amended to enable an order appointing a day for the commencement of sections 1 to 8, or schedule 1, to specify the time in the day for their commencement, so that they do not need to come into force at the beginning of that day. It has been suggested that we might want to ask about that.
I do not think that there is a problem with it. I accept that it is rather unusual to specify a time, but there are important policy reasons for not wanting the standard situation, where an order would come into force at the first minute of a day, at midnight. A lot of premises, such as pubs and clubs, would be open at that time, and trying to enforce a regulation that came into effect at midnight would be rather onerous and could cause problems, so it seems perfectly reasonable that a specific time should be chosen. Although that is unusual, I think that it is perfectly reasonable.
Thank you for that clarification. Are members happy with the amendment to the commencement power?
Transport (Scotland) Bill: as amended at Stage 2
Members will note that there is a stage 3 debate on the Transport (Scotland) Bill next week, on Wednesday 29 June. I therefore recommend that we do as we did with the Smoking, Health and Social Care (Scotland) Bill and put the points that we raise into a report. Is that agreed?
Section 1 provides for the establishment of regional transport partnerships. Are members content with the largely technical amendments that have been made to section 1?
Section 2 deals with the dissolution of the RTPs. It provides ministers with the power to dissolve partnerships, places a duty on them to consult prior to making an order, and provides for the order to modify any enactment. New subsection (2A) includes a provision that empowers ministers, on the dissolution of an RTP, to transfer functions back to the original person who carried out the functions before they were transferred to the RTP. That reflects a comment made by the committee at stage 1. Are members happy with that change?
Section 10 concerns other transport functions of RTPs and allows ministers to transfer statutory functions to an RTP by order. The committee raised concerns at stage 1 about the width of the power and the lack of detail in the bill as to how it would be exercised. As a result of our concerns and those of the lead committee, section 10 has been subject to considerable amendment. The Executive intends to remove subsection (7) at stage 3, following amendment to section 12(2). It does not intend to transfer any of the relevant functions to an RTP by order under section 10.
A new subsection has also been added to section 10. Subsection (1A) obliges ministers, when making an order, to have regard to the transport strategy of an RTP, if that strategy has been published before the making of the order. That amendment was also welcomed by the lead committee. Are we content with that amendment?
Section 10A concerns alteration of an RTP's functions. The new section reflects a point that the Subordinate Legislation Committee made at stage 1, which was that section 10, as originally drafted, provided only for a one-way transfer to an RTP. Section 10A now allows for the making of an order to transfer the functions back to the original holder, or for those functions to be exercised jointly with that person. A similar amendment was made to section 2, as discussed earlier.
No.
Okay. I just saw you chattering there and thought that you must have a point to make.
Section 12 concerns the transport functions of Scottish ministers. Section 12(1) provides ministers with powers to make an order to enable them to carry out the rail transport function of the Strathclyde Passenger Transport Authority and the Strathclyde Passenger Transport Executive. At stage 1, the Executive indicated that the drafting of the section was provisional and subject to the making of an order under section 30(2) of the Scotland Act 1998 to transfer the necessary legislative powers to the Scottish Parliament. The order has been approved and section 12(1) refined accordingly. Are members content to note that amendment?
Section 13 concerns the transfer of staff, property and liabilities. Section 13(4) provides for the transfer of property and other matters from one body to another. A small technical amendment has been made to include the word "rights" as well as "property" and "liabilities". Are members content with the section as amended?
Section 17 inserts new section 112A into the New Roads and Street Works Act 1991 and provides for the setting up of the Scottish road works register. New section 112A(3A), which provides ministers with a power to make regulations regarding the payment of fees as a condition of access to the register, reflects an observation made by the committee at stage 1. The regulations will be made by statutory instrument and subject to the negative procedure. Are members happy with that amendment?
Section 18 concerns directions on the timing of road works. Section 18(3A), which inserts section 115(2A) into the 1991 act, again reflects a comment made by the committee at stage 1 and provides ministers with the power to make provision for appeals against the direction of road works authorities regarding the timing of works. Members will note that ministers are not placed under a duty to make regulations; they have been given only a power to allow them to do that. A regulation-making power is only rarely expressed as a mandatory duty.
Section 19(1), which inserts new section 115A(4) into the 1991 act, provides ministers with the power to prescribe the procedure for the giving of directions by the road works authority to the undertaker on the placing of apparatus. However, new section 115A(5), which confers powers on ministers by regulations to make provision for appeals against such directions and is similar to the new power in section 18 that we have just discussed, has been amended to alter the power to oblige ministers to make the appropriate regulations. Are members content with the amendment?
Given that this amendment and the previous amendment relate to each other, both provisions should be consistently worded to ensure that the policy is consistently applied.
Are members agreed?
Section 23 concerns enforcement of section 119 of the 1991 act. Section 23(2) extends section 119 to ensure that penalties are applied both to road works authorities and to undertakers. That was a big issue for the Local Government and Transport Committee. Are members content to note that amendment?
Section 29, which concerns regulations and guidance on resurfacing, inserts new section 132D into the 1991 act and provides ministers with a power to make regulations in relation to obligations on an undertaker to resurface roads. The provisions were amended at stage 2 to include new section 132D(3A), under which ministers, before they make regulations, will be obliged to consult any relevant association of undertakers and other such bodies as they consider appropriate. Do members agree with that amendment?
Bearing in mind that we always want the Executive to consult on everything, we should perhaps say in our report that we are rather pleased to find that, on this occasion, it is doing so.
Absolutely. We can put that in.
We are delighted with it.
I would not go that far.
I am trying to follow Margaret Curran's example and find different ways of saying the same thing.
Section 33, which concerns civil penalties for certain offences under the 1991 act, inserts new section 154B into the 1991 act to enable ministers to make regulations in relation to the imposition and payment of charges for certain offences that will be subject to civil penalties. In response to the committee's suggestion, the procedure for regulations under this section has been changed from negative to affirmative. I am sure that members are happy with that.
It is a significant victory.
Section 35, which concerns fixed-penalty offences under the Roads (Scotland) Act 1984, has been amended to remove the requirement for such offences in effect to be selected from the list in schedule 8A by regulations and now provides for all offences that are listed to be fixed-penalty offences. However, the section confers a power on ministers by order to modify the schedule to provide that an offence will cease to be a fixed-penalty offence. That is more restrictive as no power is conferred on ministers to add to the list or to restore removed offences.
It seems slightly odd that although we can remove offences from the list, we cannot add any. Perhaps that is the Executive's policy intention but, on the face of it, it seems more logical to have the power to remove, to add and to put back offences that have already been removed. Otherwise, the provision seems slightly strange.
Yes.
I wonder whether it is worth making the point that we do not know why this provision has been drafted in this way. It might be helpful if the Executive made it clear before the stage 3 debate whether that was the policy intention or whether it was just a small error.
The suggestion is that we should ask the Executive to make it clear whether it has purposely drafted the provision in this way or whether it has made an error. Are members agreed?
Presumably, if the Executive decides that it wants the power to subtract but not the power to add, that is a policy decision. We are interested only in how—[Interruption.]
Sorry for sneezing, Gordon.
I am very rarely thrown, Mike, but you managed that on this occasion.
That might well be, but I simply seek clarification as to whether that is the Executive's policy intention. If that is the case, I am fine with it.
Sure.
We will say that we are a little bit concerned about whether that is the Executive's policy intention.
I am sorry that I am late.
We are now discussing amendments to section 36 of the Transport (Scotland) Bill, which concerns civil penalties for certain offences under the Roads (Scotland) Act 1984. The section, which inserts section 130B(1) into the 1984 act, confers powers on ministers to make regulations in relation to the imposition and payment of charges for offences that will be subject to civil penalties. Are we content to note the amendment?
Section 43 concerns minor amendments to the Transport (Scotland) Act 2001. Section 43(4) amends section 64 of the 2001 Act to provide ministers with regulation-making powers for the appointment of persons to determine disputes and appeals against determinations under charging schemes. New subsection (1C) has been added to section 64 to allow ministers to confer such determining powers on those who currently carry out a similar function. Are members content with the amendment?
Schedule 5 inserts new schedule 6B into the New Roads and Street Works Act 1991. Paragraph 11(2) of the schedule provides ministers with the power to make regulations to specify the amount of receipts from fixed penalties that road works authorities may retain to meet the administrative costs associated with managing fixed-penalty notices. That will prevent authorities from using the receipts as a revenue stream. Such regulations will be subject to the negative procedure. Are members content to note the amendment?
I wish that there was another way of doing this.
I tried.
As schedule 7, which inserts new schedule 8B into the Roads (Scotland) Act 1984, makes similar provision to schedule 5, the issues that arise are the same as those that have been set out for schedule 5. Are members content to note the amendment?
That brings us to the end of item 3.
I should point out that an alternative way of proceeding would be to publish the legal briefing paper. If you could refer to it, you could substantially truncate the proceedings.
Perhaps only marginally.
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