Official Report 196KB pdf
Smoking, Health and Social Care (Scotland) Bill: Stage 1
We move on swiftly to agenda item 2 because we have quite a heavy agenda today. Item 2 is delegated powers scrutiny of the Smoking, Health and Social Care (Scotland) Bill at stage 1. As members will have seen, the bill has a large number of subordinate legislation powers. Obviously, we will address that point very soon.
More substantive issues arise in section 4, which deals with the meanings of "smoke" and "no-smoking premises". The provisions in sections 4(2) and 4(7) are very much linked because of section 34(4), as members will have seen. The question is whether the bill strikes the correct balance between primary and secondary legislation and whether those matters should be dealt with in secondary legislation. If we want them to remain in secondary legislation, we must also consider whether the bill affords Parliament sufficient scrutiny of the regulations. Should Parliament be able to change the regulations if that is necessary? At the moment, the bill requires the regulations to be laid under the affirmative procedure. Do we need to go further than that and think about requiring a super-affirmative procedure? I seek members' ideas.
On the initial question, I think that it is reasonable that the issues be dealt with in regulations rather than in the bill. Certainly, section 4(2) simply makes provision for a list of premises in which the ban would be in effect. Given that any such list will require to be changed—I hope that it will be added to, but others might want items to be removed—it seems to be absolutely right that the issue be dealt with in regulations rather than in the bill.
Are there other views?
My view is not another view because, essentially, I agree with what Stewart Maxwell said. There will obviously be a debate about the principles of the bill, but once the bill has been passed, its implementation will—to quote a phrase—be a process rather than an event. At this stage, we probably cannot anticipate how its application will be extended. The extension of the bill to deal with matters such as the nature of premises is bound to raise all sorts of detailed debates about where it is fair to draw the line. It is clear that it is appropriate to do that by regulation and to be prepared for regulations to be amended and updated as time passes.
Murray Tosh has said it all; I agree entirely. In this case, the affirmative procedure would not be appropriate because that procedure means that we must take an instrument or leave it. It should not be a case of, "Take it or leave it." The Executive should tell us what it proposes and ask Parliament what we think. A super-affirmative procedure would be the way forward, because it would give Parliament the chance to consider draft instruments.
I agree with my colleagues.
I seek clarification on timing. I understand that the minister is due to speak to the Health Committee this afternoon. Where does that leave us? I presume that we have to decide now what our view is. Is that the case?
There are two issues, the first of which, as Stewart Maxwell has said, is timing. We must write a letter to the Executive to say that we are a little concerned about the speed with which we must react. Secondly, we must convey our points to the lead committee by this afternoon.
I ask because I would like to have heard the Executive's arguments on the matter before coming down firmly on the side of either a super-affirmative procedure or the affirmative procedure. Given the nature of the subject, I have a great deal of sympathy with the suggestion that we use a super-affirmative procedure. We probably do not have time for that—or perhaps we do.
We have time to write to the Executive and get a response. The problem is to do with how early we raise the point with the lead committee. We could raise the point with the lead committee and then report after the Executive has responded, if that would be useful.
That would make sense. We could make our points to the lead committee. I would like to hear the Executive's arguments on the subject before we make a decision.
The suggestion is that we make our points to the lead committee and hear from the Executive. If, at the end of the day, we go for the super-affirmative procedure, will we want section 4 to be amended? Do members see that as a way forward? [Interruption.] I hope that that is not my phone.
Mine is switched off.
It is not mine.
By members' silence, I take it that, at this stage, you do not want to make specific suggestions for amendments to the bill.
It would be appropriate for us to raise all the issues for the Health Committee's benefit, but I am not sure that I want at this stage to make a specific recommendation on which procedure it would be better to use, because I would like to hear the Executive's arguments. There is an issue about whether there should be consultation on section 4 or whether that should be left to section 34. If we could get across our points on the affirmative and super-affirmative procedures to the Health Committee before this afternoon, that committee might be able to raise them with the minister, which would be great. I am not prepared to come down heavily on one side or the other until we hear the Executive's arguments.
Perhaps we could suggest that the regulations be kept separate. With the first set, it might be more appropriate to go for the negative procedure, which would be the normal route. Is that what you are saying?
I just wanted to raise the point for discussion.
We can raise the point. The conclusion is logical, especially if after receiving an explanation from the Executive we decide to go for the super-affirmative procedure. Is that agreed?
Ruth Cooper can put all those points together for the lead committee. Is that okay?
Section 9 is on free oral health assessments and dental examinations and will make necessary amendments to existing regulation-making powers. It is suggested that there is no problem with this section. Is that agreed?
It is a good suggestion and an excellent policy.
Section 11 is on charges for certain dental appliances and general dental services. The existing powers are subject to the negative procedure. Our legal advice is that it is questionable whether that is the correct procedure, given that it will be the first time that such regulations have been introduced. The negative procedure would normally be appropriate, but members might think that we need something more.
We have come across recent examples in which the Executive has proposed in respect of a bill that the first substantive use of powers be subject to the affirmative procedure, but that the negative procedure be used thereafter. Perhaps this is another case in which that would be appropriate.
I tend towards that view. Is Murray Tosh's suggestion agreed?
Section 15 is on lists of persons undertaking to provide or assist in the provision of general dental services. Section 16 is on lists of people performing personal dental services and so on. The lists are modelled on the lists for general practitioners. We do not foresee any undue problems with those sections. Section 17 deals with lists of persons undertaking general ophthalmic services. Is it agreed that no further comment is necessary?
Section 18 deals with health boards' functions in relation to provision and planning of pharmaceutical care services. A typographical error was mentioned in the memorandum that has been submitted. The Executive has accepted that there is an error, so that has been cleared up. We have to consider whether, in relation to proposed new sections 2CA and 2CB of the National Health Service (Scotland) Act 1978, direction is sufficient or there should be a more formal process.
There is an argument for a more formal document that would be subject to parliamentary scrutiny, but I hesitate to specify at this stage what that might be.
Yes. Our legal advice is that there might be a case for that, but it is not that important. It is up to the committee to decide. What is your view, Adam?
Maintenance of the status quo would probably offer the best approach. I am loth to suggest any beefing up of the document.
Would it be appropriate to draw the matter to the lead committee's attention and to ask for its view?
With respect, the difficulty is that it is being argued that the directions would be regarded as having a general application and might amount to more than simple matters of administration, which raises procedural points for the Subordinate Legislation Committee, rather than policy points for the lead committee.
Okay.
So that we are consistent with how we handle similar issues, we should seek some form of procedure. I think that that case has been made.
We should err on the side of safety. Is Adam Ingram happy with that?
Yes.
We can take the approach that we have taken in the past and argue that there should be more parliamentary scrutiny. Do members agree?
Section 19 is on pharmaceutical care services contracts. Are we content that proposed new sections 17T and 17U(6) of the 1978 act will make provision for Scottish ministers to give directions, or should those matters be dealt with by regulation? It could be argued that the proposed new sections would deal predominantly with administrative matters and that therefore directions would be sufficient—I think that the provisions are more administrative than are the provisions in section 18.
I am happy to go with the convener's judgment.
I agree.
Okay. That is agreed.
Section 22, on disqualification by the NHS Tribunal, also seems to be okay.
Section 23, on corresponding provisions in England, Wales and Northern Ireland, would bring the system in Scotland into line with the UK system and provide for reciprocal arrangements. Are members happy with section 23?
Section 24 is on payments to certain persons who have become infected with hepatitis C as a result of national health service treatment. There would be no parliamentary input to what I think is a sensitive issue. Should not the proposed scheme at least be laid before Parliament?
It is strange that the Executive did not comment on the power in section 24. We should at least raise the matter with the Executive and seek to understand its thinking. When we know the Executive's reasons, we might be able to take a view on the matter.
Do members agree that, because of the shortage of time, we should also inform the lead committee that we are asking the Executive about section 24 and that, depending on the Executive's answer, we might have concerns about the matter?
Section 25, on independent health care services, seems to be okay. If members have no comments on section 25, we will move on to section 28, on the registration of child care agencies and housing support services, which contains a Henry VIII-type provision, although instruments would be subject to the negative procedure. The issue might not be serious, but if we are to take a consistent approach we should perhaps suggest that instruments be subject to the affirmative procedure. How should we proceed? A balance must be struck and the matter is perhaps not the major issue in the bill—there are many other issues.
If we are to be consistent, we will have to go for the affirmative procedure.
It is always the case that we would set an unfortunate precedent if we agreed to the use of a Henry VIII power by negative procedure. That said, the provision would be a relatively minor abuse, although if colleagues feel that the affirmative procedure should be used, I will go along with that.
Okay. We can discuss the matter again. Is that agreed?
We move to section 30, which concerns authorisation of medical treatment, specifically with regard to amendment of the Adults with Incapacity (Scotland) Act 2000. At the moment, only general practitioners are covered by the act and the amendment extends the provisions of the act to a range of health professionals. Are members agreed on the amendment?
Section 33 concerns ancillary provisions and the amendment follows standard practice for such provisions, as does the amendment to the short title and commencement date. Are members agreed on the amendments?
We move to schedule 1, which is on fixed penalties for offences under sections 1, 2, and 3. Members will have observed that paragraph 13(b) contains a Henry VIII power to amend certain other provisions in the schedule. The amount of the fixed penalty is not specified in the bill but is left to subordinate legislation. It is unlikely that the penalty will go above level 3 on the standard scale. Are members content with the amendment or do we want to question whether the provision should even be in the bill?
I am inclined to think that we should go with precedent. It is argued that special circumstances apply in this case, which may mean that there is little to gain by questioning the use of the power. However, given that we tend to follow precedent and that those who read and follow the law also tend to look for rational and logical patterns, I am inclined to think that we should ask for that in this instance, too.
I agree.
Are you suggesting that the affirmative procedure be used?
Yes.
Are you agreeable to the suggestion, Adam?
Yes.
To be fair, if we ask for the affirmative procedure to be used, it keeps us consistent on the use of the powers. Are members agreed?
We move to schedule 2, which concerns minor and consequential amendments. Are members agreed on the amendments?
I thank members. We got through the item more quickly than I had anticipated. [Interruption.] Our adviser is indicating that we may have missed something; I ask members to allow me a moment to consider the point at issue.
I am sure that members would be happy to delegate the power to adjust the detail of our representations to you, convener. Given the timescale, I am happy to give you that authority.
I am sorry—in what respect?
In other words, if you want to make the decision, we are happy for you to do so.
Given the timescale, if any fine tuning needs to be done, we are happy for you to do that, convener. You know broadly how we think.
The adviser and I are just clarifying one point that we want to be totally clear in the Official Report. The point is that the Henry VIII power to which we referred in schedule 1 is already subject to the affirmative procedure. I may have given the impression that we had to move to make the provision subject to the affirmative procedure. Our adviser has confirmed that that procedure is already in place.
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