Subordinate Legislation Committee, 21 Nov 2006

Meeting date: Tuesday, November 21, 2006

Official Report 310KB pdf

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Delegated Powers Scrutiny

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Bankruptcy and Diligence etc (Scotland) Bill: as amended at Stage 2

I bring colleagues to order. Item 2 is delegated powers scrutiny of the Bankruptcy and Diligence etc (Scotland) Bill as amended at stage 2. I welcome the Scottish Executive officials who have joined us for this item. As we go through each of the new powers that were added at stage 2, I hope that the officials will be happy to provide any clarification that is needed.

On section 1, "Discharge of debtor", the committee was concerned at stage 1 that the automatic discharge of a debtor one year after sequestration could be amended by statutory instrument. We felt strongly that the power should not be left to delegated legislation. The Executive has responded to that concern and will address a related omission at stage 3. Members will find the relevant comments in paragraphs 6 and 9 of the legal brief.

Do members have any comments? Are we happy with the Executive's response?

I had wanted to ask a general question of the witnesses before we went into the details. Some 17 new powers to make orders or regulations were added to the bill at stage 2. Why was such an extraordinary number of additional subordinate legislation-making powers introduced at stage 2?

Essentially, the explanation is the size and nature of the bill. Naturally enough, much of the bill relates to court enforcement, which needs to fit into the existing structure. For example, we had to provide powers for the Court of Session to make appropriate procedural arrangements. Ultimately, the answer is that it is to do with the nature and size of the bill. We do not think that any of the powers is particularly unusual or objectionable, but we are happy to answer questions about any of them.

My point was not that the powers are objectionable but that 17 of them were introduced at stage 2. Surely most of them could have been foreseen and should have been included in the bill as introduced instead of being inserted at stage 2. Did we miss something major at stage 1 that caused the Executive to add another 17 powers that had not been foreseen before the bill was introduced?

I do not accept the premise of the question. Our view is that the number of changes that were made at stage 2 is linked to the size of the bill. It is a large bill. It deals with, for example, many court-related issues. A larger than usual number of subordinate legislation-making powers was introduced at stage 2, but we do not think that those changes are unusual. However, I accept that you may take a different view.

I think that Stewart Maxwell is happy with that, so we will move on.

Section 12 will insert new section 28A into the Bankruptcy (Scotland) Act 1985. I think that no problems with the amended power have been highlighted, but I am open to colleagues' views. Do members have any comments?

No.

The issues seem to be straightforward.

Section 14A, "Debtor applications by low income, low asset debtors", which was inserted into the bill at stage 2, will insert new section 5A into the 1985 act. In paragraphs 22 to 27 of the legal brief, members will see some of the issues that have been raised. In particular, we might want to consider whether the affirmative procedure provides a sufficient degree of parliamentary scrutiny. We need to decide on that and whether the super-affirmative procedure is a possible alternative.

I have a question for the officials. In the legal brief, the figures of £100 for the debtor's weekly income and £1,000 for the value of the debtor's assets are described as "arbitrary"—in other words, they are not tied to any other point of reference. That implies that new figures could be brought in by Executive amendment or subsequent legislation that departed radically from the first set of figures. If that were going to happen, I would certainly be more in favour of using the affirmative procedure, but if I could be sure that the original figures were tied in the bill to a certain level of social security benefit or some other point of reference and we could therefore expect subsequent legislation to use figures that are at least in the same ball park, there would be more of an argument for using the negative procedure.

I will address the procedural point first. We accept that the power is significant and that it will bear directly on the lives of some quite vulnerable people. There is no question but that the affirmative procedure should be used, which would be the effect of what is in the bill.

In relation to the general policy concerns—

I am sorry to interrupt you. You are right that the procedure in the bill is affirmative, but we are discussing whether it should be affirmative or super-affirmative. I apologise for my misleading question.

In that case, the answer is the reverse. Although the issue is important, it is not important enough to justify the use of the super-affirmative procedure, which has been used only once in the Scottish Parliament, as members know. It is not at all common at Westminster either.

There will be full engagement with interests outside and inside the Parliament when the power is to be exercised. Obviously, I cannot give any commitment about how ministers will use the power if Parliament agrees it because that will be a matter for them. We do not envisage that regulations will significantly change the threshold figures of £100 or £1,000; they will clarify how those figures are to be calculated, in particular what is left out of account when reaching the £100 weekly income figure. Because that is how we envisage the regulations working, we think that the proposed balance of scrutiny is correct. If there were any suggestion that we would be seeking to make significant changes to those figures in future, the proposed balance of scrutiny might have to be different. However, we can base such a judgment only on how we envisage the powers being used.

I hope that that gives some background to our reasons for proposing the affirmative procedure on that particular power.

Is that clarification sufficient for the committee?

Members indicated agreement.

Section 17 will insert a new section 39A into the 1985 act. The power was originally to be subject to the negative procedure but it has now been amended to be subject to affirmative procedure, which is welcome. Is that agreed?

Members indicated agreement.

The Executive has reconsidered section 18, "Modification of provisions relating to protected trust deeds", following the committee's concerns as expressed at stage 1. Is that okay?

Members indicated agreement.

The power in section 28A, "Power to provide for lay representation in sequestration proceedings", looks like an appropriate one, but perhaps we should check with the officials that the court has been consulted on the power and the powers contained at sections 15K, 15L and 73MA of the Debtors (Scotland) Act 1987, and sections 9GA, 9K, 9L and 9M of the Debt Arrangement and Attachment (Scotland) Act 2002. Will the officials confirm that for us?

I am happy to do that. We have had a number of meetings with representatives from the Court of Session and the Scottish Court Service. We have agreed that from January of next year a joint implementation group will consider what needs to be done in relation to all the relevant powers in the bill, with a view to taking a joined-up approach to issues such as how the court reviews and assesses people's suitability to be lay representatives. Our view is that, ultimately, that is a matter for the courts rather than the Executive. We can certainly make representations to the courts about how we think that the power might be used, but we will not be in court listening to the people who act as lay representatives. We envisage that the power will be used, but we need to make representations to the Scottish Court Service just as the committee makes representations to us about how such powers are scrutinised.

Thank you very much. Are members satisfied with that?

Members indicated agreement.

We move on to section 43, "Scottish Civil Enforcement Commission". Section 201(4) was amended at stage 2 so that regulations that are made under section 43(4) are subject to the affirmative procedure. That change was made in response to recommendations by us and the lead committee. Are members content with that?

Members indicated agreement.

In response to the committee's concerns about the code of practice, which is dealt with in section 48, the code will now be laid before Parliament. Is that welcomed?

Members indicated agreement.

Section 62, "Disciplinary committee's powers", sets out the commission's powers to deal with misconduct or criminal behaviour by a messenger of court. Section 62(4)(c) of the bill as introduced provided that one such power was the ability to make

"an order imposing a fine … not exceeding level 4 on the standard scale or any other sum prescribed by … regulations".

The power to prescribe any other sum has been removed. Do members welcome that?

Members indicated agreement.

Do members agree that there are no concerns on section 64, "Appeals from decisions under sections 52, 59 and 62"?

Members indicated agreement.

New powers in subsections (1A) and (1B) of section 72, "Notice of land attachment", have the effect that it will not be competent to register a notice of land attachment unless the debtor has been charged to pay a debt of at least £3,000 or

"such other sum as may be prescribed by … regulations".

Those regulations will be subject to the affirmative procedure. Should consideration be given to including in the bill some limitation on the power to prescribe an alternative sum?

I am happy with the use of the affirmative procedure.

Do members have any other points? The proposal has been made that the power could be limited such that its use would be linked to changes in the value of money. I invite Andrew Crawley to provide some more explanation.

Are you referring to the value of money in the context of money attachment?

I am sorry—I was referring to land attachment, which is dealt with in section 72.

The legal adviser has just reminded me that there is such a link, as the minister made explicit when he gave evidence to the Enterprise and Culture Committee.

Our position is that because the lower debt limit in land attachment, which is now £3,000, is closely linked to the qualifying debt limit in sequestration, any review of the figure should be conducted in the round. When we make a judgment about the lower debt limit in land attachment, we will need to consider other issues—in particular, how easy or otherwise it is for people to apply to bankrupt a debtor when they might choose to attach land or buildings belonging to them. The retail price index or a similar measure of the value of money is perhaps not the most relevant consideration as far as we are concerned, but it could certainly be taken into account when all such matters are judged together.

Are members happy with that explanation?

Members indicated agreement.

We move on to section 81, "Application for warrant to sell attached land". Section 81(2) deals with the prescribed sum. The issue is similar to the one that we dealt with in section 72. Is the answer the same?

Yes. The answer is the same, for the same reason. The limit here is essentially the same as the limit in section 72. In our view, both limits are linked to the debt limit for sequestration.

We move on to section 81(5A), which deals with further provision about reports on searches, and section 85, "Creditor's duties prior to full hearing on application for warrant for sale". No concerns have been expressed. Are members content with the provisions as drafted?

Yes.

Have we dealt with section 81(5A)?

I took section 81(5A) and section 85 together. We can go back, if you like.

No, it is fine.

We move to section 86, "Full hearing on application for warrant for sale". The power has been amended to increase the relevant minimum amount in the bill and to make the regulations subject to the affirmative procedure. Are members content with the provision?

Members indicated agreement.

I will now take a number of sections together: section 116, "Interpretation"; section 117, "Residual attachment"; and section 133, "Interpretation", which is similar to section 116. At stage 1, we recommended that the powers should be subject to the affirmative rather than the negative procedure. The Executive has not redrafted the provisions in the light of the committee's recommendations. We will ask the obvious question—why not?

In our view, the negative procedure provides the appropriate level of scrutiny for the exercise of the powers. There seems not to be a meeting of minds about the importance of the powers. We think that they are important enough to be included in the bill, but we view them as essentially housekeeping powers. If there are developments in court procedures and other forms of enforcing debt, we want to be able to pick up on those and to make the necessary consequential changes to the definitions in the bill of "decree" and "document of debt". We do not envisage that the powers will be used to make policy changes, which is why I described them as housekeeping powers. Because that is the nature of the powers as we see them, we think that the negative procedure is appropriate. If the powers were used to deliver a policy objective of the Executive, the position would be different and one might ask whether the affirmative procedure would be more appropriate. That is the position that we took when the committee first raised the issue. We have considered the representations that have been made since then, but our view remains that the negative procedure provides the appropriate level of scrutiny.

I suggest that it might be appropriate at stage 3 to get on the record a statement from the minister confirming that the powers are of a housekeeping nature. The minister need not use precisely that phraseology.

We will communicate with the officials about that.

We should have a ministerial statement to that effect on the record.

I would be happy to raise the issue with the minister. He has been very accommodating in the past, so I am sure that he will consider it carefully.

Let us move on to new section 15H of the Debtors (Scotland) Act 1987, "Sum attached by arrestment on dependence". At stage 1, we were concerned that the power that is conferred by this section was not subject to affirmative procedure. The Executive has not redrafted the provision. Could you comment on that?

I am not sure that I can add a great deal to what was said previously on this issue. It would be fair to say that this is not quite such a consequential power as the previous one and that, therefore, there are issues of substantive policy. Clearly, a judgment needs to be made about whether the procedure should be affirmative or negative. Certainly, we view this power as being used to ensure that the debtor protection keeps pace with developments outside the narrow area of diligence. Essentially, this comes back to a value-for-money issue that would involve considering changes in price indices and so on to ensure that the level of protection that Parliament agrees in the bill can be adjusted appropriately so that the real value of the debtor protection is maintained. As that is how we envisage the power being used, we think that the negative procedure provides that appropriate level of scrutiny. Essentially, we view the power as being relatively narrow, although we accept that the committee has taken a different view in the past and might take a different view in the future.

In a similar vein, we thought that the power in section 162 of the bill, "Meaning of ‘money' and related expressions", should be subject to the affirmative procedure. However, again, it has not been redrafted. Is that for similar reasons?

The point is essentially the same as the one to do with the definitions of "decree" and "document of debt". We do not propose using this power to embark on the creation of new categories of money. We hope that the power will enable Scottish ministers, from time to time, to ensure that the diligence of money attachment effectively attaches money as it is. "Housekeeping" is maybe not the right word but, again, the power is consequential to changes in other areas.

Okay. At stage 1, we recommended—I think with a view to obtaining further explanation from the Executive—that the power in section 172, "Release of money where attachment unduly harsh", should be subject to the affirmative procedure. The Executive has not redrafted this one either.

My answer would be the same as the one that I gave in relation to other income thresholds. The purpose of this power is the same as the one that relates to those.

Is the committee content with sections 15H, 162 and 172?

Members indicated agreement.

Are members content with the power in new section 73A of the 1987 act, "Arrestment and action of furthcoming to proceed only on decree or document of debt"?

Members indicated agreement.

In section 195A of the bill, "Debt payment programmes with debt relief", there is a significant power as regulations may provide for the cancellation of debt, the freezing or cancellation of interest on debt or cancellation of charges in relation to debt. We have quite a few questions on this matter. Has the right balance been struck between primary and secondary legislation? The procedure is affirmative at the moment but, obviously, the question is whether it should perhaps be super-affirmative.

I direct you to my earlier answer about the relative importance of the issues being raised. We accept that there are some important decisions that require to be made if regulations pass under this power. However, our view is that they are not so important that they would justify the high—if not exceptional—level of scrutiny that the super-affirmative procedure would bring.

In general, I can offer reassurance about the level of engagement that the Executive contemplates as being necessary for the exercise of this power. The debt arrangement scheme is very much a collaborative project with internal and external stakeholders. A great deal of consultation and engagement has gone into getting as far as placing the power in the bill, and we envisage working with those stakeholders on adjusting drafts before we bring back a draft to the Parliament for approval.

That is the big issue to do with engagement. The scrutiny issue is that the final regulations will be quite technical—tweaky, even—when they appear before the committee. We are discussing difficult regulations that require to do some quite complex legal things. The key policy decision about enabling debt relief is a big issue that Parliament can sign off on that basis. When we bring the regulations to Parliament, the affirmative procedure will be appropriate because, although some big issues are generated around the exercise of the power, the exercise of the power will be relatively technical—important but technical. If it were not important, we would have thought that the power was better suited to the negative procedure, given its relatively technical nature at that stage.

Are there any further points?

No.

Section 196 is on amendments of the Debt Arrangement and Attachment (Scotland) Act 2002. There are concerns relating to whether the provision in section 196(2A) of the bill is necessary given section 7(4) of the 2000 act. I wonder whether you could clarify that for us.

It would be rash of me to make any promises on behalf of the draftsmen. We will be happy to consider any such issues that are raised by the committee after the meeting. However, if you will forgive me, discretion might be the better part of valour on such issues.

Okay. So you are happy to take that question away and get back to us with an answer.

We certainly are.

Fine. The other issue is why the procedure is negative rather than affirmative.

I think that that follows from the fact that Parliament agreed that only the first set of regulations under this power will be subject to the affirmative procedure. Therefore, every subsequent exercise of the power will be subject to the negative procedure. A different judgment might have been made if we had been in a different situation, but it would be awkward to say that this particular gloss on the power requires to be subject to the affirmative procedure when every other exercise of the power will be subject to the negative procedure.

Are there any further questions on that point?

I have one comment to add, convener. John St Clair, who is the legal adviser on the issue, points out that it is the nature of this particular power that it will tend to be exercised quite often, as a scheme of this kind requires quite a lot of fine tuning. We have made two sets of regulations already, and we may well make a further two sets over the coming year. We feel that the lead committee will see quite a lot of this power and may therefore feel that the negative procedure is appropriate. That is a judgment for the Subordinate Legislation Committee, as well.

Yes, that is right.

I accept entirely what the witness has said about having to come back to us on your first question, convener. However, we face the problem that stage 3 will take place a week on Thursday. If the answer comes back to us next Tuesday and we disagree with it or do not like it and want to lodge amendments to the bill, we will be back in the manuscript amendment situation that we were in with the Planning etc (Scotland) Bill. I am not asking a question, but making the point that we are back in the same situation on some of these points. There is no room for any further debate. By the time the answer comes back to us, we must either accept everything or try to lodge manuscript amendments, which is not really a suitable situation.

No. We tried to do the best that we could by inviting the officials to attend our meeting today, in order to pre-empt some of the issues. However, given the timescale, which you have mentioned, that is perhaps the best that we can do.

Yes. I am just making a general point.

I know, and I agree with you.

I accept that what Mr Maxwell raises is an issue. I am sure that I speak for all bill teams when I say that, given the time constraints, we very much welcome the opportunity to come to the committee in the hope of resolving as many concerns as can be resolved within the time that is available.

As we seem to be agreed on that, I shall move on.

On section 197A, "Expressions used in this Part", the Executive has stated that it intends to use the new power as required to ensure that the definitions in the bill keep pace with changes in court procedure and enforcement practice. As the process is largely technical, the Executive considers that the negative procedure provides the right level of scrutiny. Do we agree?

Members indicated agreement.

No concerns have been highlighted on sections 197B and 197C.

In section 198, "Information disclosure", the Executive has allowed the first exercise of the power in section 198(1) to require a higher level of scrutiny. However, at stage 1, the committee felt that every subsequent exercise of the power should also be subject to the affirmative procedure. Would the Executive officials like to tell us why it should not be?

It might be helpful to consider this power in the context of similar powers in this bill and in other legislation. The power is similar to that which we propose to take in relation to protected trust deed regulations and the power that the Executive already has under section 7 of the Debt Arrangement and Attachment (Scotland) Act 2002. These are technical and difficult areas of law and we expect that regular adjustments will be required to ensure that the scheme continues to be effective. I have already said something about how often we have amended the debt arrangement scheme regulations and about how we envisage amending them again in the relatively near future.

When we create the framework in subordinate legislation, it is appropriate for us to come to Parliament and ask for explicit approval of our general approach. At that point, the affirmative procedure is appropriate. However, when we come back—as we expect that we will—to make periodic changes and refinements to the scheme, it would not be an appropriate use of parliamentary time if each of those exercises of the power required the affirmative procedure. In many cases, the changes will be minor tweaks, perhaps of only one line.

Of course, we cannot guarantee that every exercise of the power will be for a minor change. However, because a balance is required, it is appropriate to say that subsequent exercises of the power can safely be left to the negative procedure. That remains our view. The proof of the pudding will be in the eating. We think that that is how things have worked with the debt arrangement scheme and how it will work with this power.

From what you have said about balance, if the alternatives were only the negative or the affirmative procedure, you would argue for the negative. However, you were careful to say that, in some areas, the use of the power could raise significant matters. Is there not therefore a case for using open procedure? That would allow ministers to use the affirmative procedure when they considered—and the lead committee considered—that the power was major and merited the affirmative procedure. Should you not keep that option open for such circumstances?

First, I should be clear that I can answer that question only in relation to the position of the bill team. As the committee will know, wider issues arise to do with the use of open procedure. You will be better informed about that than I am.

Our view on this issue is the same as our view on the use of the super-affirmative procedure. In the past, open procedure has been used only in regulations of great significance and of constitutional importance. That is not the kind of issue that this particular power raises, however important it is. We do not consider open procedure to be suitable for anything in this bill. Clearly, we think that the bill is important; but, in the great scheme of things, we do not think that it is that important. We have therefore not considered open procedure for this particular power or for any other power in the bill.

We need to decide whether to stick with what we thought originally and state that the affirmative procedure should be used, whether we should recommend use of the open procedure, as Murray Tosh suggests, or whether we should leave things as they are.

We should leave things as they are.

I agree with our original comments. It has been accepted that significant changes might be made in the future. I would have thought that the open procedure was designed to accommodate that very situation. Earlier, we heard from the Minister for Parliamentary Business and her officials about the need for flexibility. I do not accept that we should be bound by the assumption that the open procedure should be used only for constitutional matters. We are trying to move forward on such matters, and the powers that we are discussing are good examples of where the open procedure would fit.

Euan, do you have a view either way?

In a word, no.

Okay. We always tend to err on the side of caution, so I think we would prefer the powers to be subject to the open procedure. Perhaps unfortunately for the officials, they have come to the committee just after the Minister for Parliamentary Business and her officials, who talked about the open procedure.

Murray, do you want to say anything else?

Mr Crawley said that there are other interests and that his response was very much from the bill team's perspective. There might be broader interests and issues, so it would be appropriate for us to put the matter to the Executive by letter and allow time for a response to come in when those other interests and issues have been included in the discussion. If we were able to see that response next week, we could discuss whether we wished to press the matter further and lodge an amendment to the bill. We may or may not decide to do that, in the light of the answer that we get.

Stewart, are you happy to go along with what Murray suggests?

It is a perfectly acceptable suggestion. My only doubt is that that would take us back to the timescale problem. If we decided to lodge an amendment, it would have to be a manuscript amendment.

That would be unfortunate, but the approach worked well last week—in relation to the Planning etc (Scotland) Bill—in that the Presiding Officer accepted the reason for the manuscript amendment. The same timetabling considerations apply in the case of the Bankruptcy and Diligence etc (Scotland) Bill, so I hope that the Presiding Officer would view an amendment in a similar light. It may even be that, given an additional week to think about it, the minister in charge of the bill might be persuaded that we had a point.

There is an alternative. We could lodge an amendment and then withdraw it, but we will discuss that later and communicate our decision to the Executive.

Section 198(2) gives examples of the power in section 198(1). No concerns arise.

Section 198(6A) is on the definitions of "decree" and "document of debt". The same point arises here. We wonder why the power is not subject to the affirmative procedure.

The same point applies here, in relation to reasons for changing the definitions.

Are members happy with that?

Members indicated agreement.

Thank you for your attendance today and for the explanation and clarification that you have given.

Before we move on, can we decide on section 198? Do we want to lodge an amendment and withdraw it if necessary, or should we take the approach that Murray Tosh suggested and return to the matter next week?

Now that you have reminded me that there is time, I think that it would be better to lodge an amendment now and decide, in the light of the information that is given, whether we wish to press it. Last week, in relation to the Planning etc (Scotland) Bill, we had no alternative but to lodge a manuscript amendment. If we lodged a manuscript amendment next week, it is possible that those who advise the Presiding Officer would say that we had had time to lodge an amendment this week, in which case the Presiding Officer might not look at the amendment so favourably. We should lodge an amendment this week.

That is the best way to proceed. We will consider the officials' response next week.

Although that is a sensible approach for the reasons that Murray Tosh has just stated, I am far from supportive of the suggestion that we simply put through this amendment. I would certainly want to see the Executive response first.

Yes. It is just that, given the timescale, this might be a better way of addressing the matter. I do like to be inclusive on this committee.

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Custodial Sentences and Weapons (Scotland) Bill: Stage 1

The next item on the agenda is delegated powers scrutiny of the Custodial Sentences and Weapons (Scotland) Bill at stage 1. We considered the bill three weeks ago, and have received a response from the Executive to our points.

On section 2, "Parole Board rules", we asked the Executive why it had opted to provide that rules may apply provisions of the Local Government (Scotland) Act 1973 instead of inserting a tailor-made power into the bill. It has indicated that there is merit in retaining substantially the same drafting approach that has been taken in existing legislation; however, it does not tell us what that merit might be.

Are we content with the Executive's response to this point?

Given that our legal advisers do not seem to be concerned about what the Executive has proposed, and in the absence of any other advice, I think that we should just accept its response.

Then let us pass on.

On section 4(2), which relates to the power to amend the definitions of certain sentences, the committee expressed concern about the provision's potentially profound effect on the operation of the bill. Are members happy with the Executive's response to our concerns, or do you want to return to the matter at stage 2?

The Executive has said that it is looking at the matter, so perhaps we should just wait and see what happens.

We might wish to monitor this closely to ensure that, at the end of stage 2, we do not find ourselves in the position in which we have found ourselves recently with other bills. I am not clear whether the Executive could be prevailed on to give us a clear note of the changes that have or have not been made and the reasons for making such changes, or whether we would have to do that ourselves. In any case, we should try to protect ourselves against finding that we do not have time to lodge a stage 3 amendment.

That would be useful.

I agree. Perhaps the clerks on the Justice 2 Committee could liaise with our clerks and keep them up to date about what amendments might be forthcoming.

Ruth Cooper will do that.

On section 6(1), we asked the Executive why the bill refers to

"a sentence … of 15 days or more"

instead of to a "custody and community sentence". In its response, the Executive has said that it intends to look again at the section with a view to clarifying it. Do members agree to return to that matter at stage 2?

Members indicated agreement.

We also raised concerns about section 6(10), which sets out the power to alter the custody part of a sentence. I believe that Gordon Jackson was interested in this issue.

Yes, I did get rather excited about this one.

What do you think of the Executive's response?

It is probably okay. Although I still think that it is a pretty big issue to be left to subordinate legislation, there might well be occasions when, as the Executive points out, such changes are needed to target resources. Perhaps it is asking too much to demand that the primary legislation be taken back to the drawing board, but I think that this issue is at the boundary of what should be covered by subordinate legislation.

Of course, it could just be that I am speaking from a particular background. Am I right in thinking that Executive has changed the power to make it subject to the affirmative procedure?

Yes.

I am astonished that it had first proposed to make it subject to the negative procedure. Earlier in the meeting, Murray Sinclair, whose evidence was extremely helpful, said that there are very clear guidelines for dealing with important matters. How the Executive decided that this matter should be dealt with under the negative procedure is quite beyond me.

Moreover, I do not disagree with our legal adviser's point about the court's probable interpretation of the provision. It could not be used to increase the custody part to more than 75 per cent of the sentence.

That said, the legal brief points out that

"A respectable argument for an alternative interpretation can be advanced".

In my time, I have advanced a few arguments that could not even be described as "respectable". Surely legislation containing any ambiguity that gives lawyers a chance to argue about interpretation is not good legislation.

In a sense, though, it does not really matter, because if the Executive states on the record that the custody part will never be increased to more than three quarters of the sentence, that itself would be extremely important. No one else is ever going to get into court to argue that it should be higher. People do not argue for greater sentences as a general rule.

It seems to me that if we were to consider the ambiguity, a policy amendment might be needed, so perhaps we should highlight the ambiguity to the lead committee.

I would be happy either way. I do not think that it is quite a policy amendment. The Executive has said what the policy is and I agree with it. That is fine. What is not a policy matter, however, is the ambiguity. A future Executive could use the power for a purpose different to that of the policy. The legal advice is that there is

"A respectable argument for an alternative interpretation",

but the only alternative interpretation would come from a future Executive that wanted to use the power to increase the time in custody to more than three quarters of the sentence. That is not a policy problem. The Executive has said, "This is all that we can do," which would be binding on it in the real world. However, there is an argument that the power could be used for something more draconian. That is an ambiguity and, even if only a semi-respectable argument can be made for an alternative interpretation, that ambiguity should not be in the bill. We should say that to someone.

Shall we put that in our report?

Members indicated agreement.

On section 30(5), the committee asked the Executive for an explanation of how it intends to use the Henry VIII power to amend, add or remove licence conditions during detention in prison. The Executive has responded by offering a hypothetical example. Although the power will enable textual amendment of the bill, it relates to a largely administrative area. Do we think that that is all right?

Members indicated agreement.

Members will see from paragraph 269 of the legal brief that the response to our concerns about section 36(1)(b) and (9)(a) and (b) on curfew licences is okay, but there might be aspects with which the legal team does not agree. The powers are subject to the affirmative procedure. Are we agreed about this one?

Members indicated agreement.

Section 43 will insert new section 27A into the Civic Government (Scotland) Act 1982, conferring the power to modify the description of articles requiring a "knife dealer's licence". We asked the Executive whether any alternative approaches had been considered and if so why they had been disregarded. Are we happy with the Executive's response?

Members indicated agreement.

Section 43 also inserts new section 27K into the 1982 act conferring the power to prescribe by act of adjournal the manner of application for a recovery order. Are we content with the power? The Executive has apologised for omitting the power from the delegated powers memorandum, and having consulted with the Lord President, it confirms that he is content. Are we agreed?

Members indicated agreement.

I have one question, convener, on a matter of textual criticism. Is "constrained" less happy or more reluctant than "inclined"?

I do not know, to be honest. We will have to leave that up to the legal team. You were jesting were you not?

It is a curiosity. When I see the word "constrained" I always think that a degree of reluctance is implied, but no one is jumping up and down to say so.

I do not think that it is a big issue.

We asked the Executive how it intends to use the power conferred in new section 27Q of the 1982 act, to provide exceptions to certain offences under the 1982 act and why it is necessary for the power to be cast as wide as it is. The Executive quotes the example of test purchasing as being the only exercise of the power anticipated.

It is thought that a power to make exemptions is reasonable and precedented. However, in the absence of further explanation by the Executive, it is not possible to be sure whether the power is wider than necessary. The use of the power will be subject to the negative procedure. Do we agree to pursue the issue and ask the lead committee to press for further clarification?

Members indicated agreement.

Section 45 contains the power to create exemptions in section 141 of the Criminal Justice Act 1988. We asked the Executive to justify its reasons for taking that power and it said that the power is intended to make exceptions for the purposes of film, theatre and television and for further activities that may emerge following practical operation of the scheme. Do members have comments?

No.

On section 47, we asked the Executive to explain why it was necessary that the power to make incidental and supplementary provision should extend to enabling amendment of the bill when it is an act. The Executive responded that, occasionally, the best way to make ancillary provision may be to insert text into the act, as that makes the law clearer for readers of the act. Are we content with that? The use of the power will be subject to the negative procedure, but if it could be exercised to amend any primary legislation, including the bill when it is an act, should it not be subject to the affirmative procedure?

We have been down this road often.

I know.

I am happy with the power.

Kenneth Macintosh is inclined to agree, Gordon Jackson is probably constrained to agree and I am a bit reluctant to agree, but I do not think that we really have any option.

We will pass on.

Paragraph 17 of schedule 1 provides the power to make regulations on the tribunal, its procedure and suspension of members. The Executive's response was that there is to be no right of appeal. As for consultation, it will wait on a suitable legislative vehicle to bring the Parole Board for Scotland within the remit of the Scottish Committee of the Council on Tribunals. In the meantime, it will consult the SCCT on relevant matters that relate to the Parole Board. Are members happy that those regulations will be subject to the affirmative procedure?

Not having a right to appeal is certainly a policy matter. If the Lord President's people have said that someone should not be there, an appeal against that could mean having someone there who people think should not be there; that is why there is a strong policy reason that, once the decision is made, it must stick. That has nothing to do with us.

Okay. Can I happily move on to agenda item 4?

Members indicated agreement.