Official Report 127KB pdf
Creative Scotland Bill: Stage 1
I welcome everyone to the meeting. I ask members to turn off their mobile phones. I have received apologies from Jamie Stone, Ian McKee, John Park and Jackson Carlaw.
Are members content to draw to the attention of the lead committee the following matters: first, that there may be scope for doubt as to the edges of the expression "artistic or cultural judgement" in section 5(2) and, consequently, as to what is excluded from the direction-making power; and, secondly, that there is no provision in section 5 to require the Scottish ministers to consult with creative Scotland before issuing directions to it?
Are members content to recommend that the ancillary powers in section 9, "Ancillary provision", are acceptable in principle?
Are members content to recommend that the draft affirmative procedure should apply in circumstances in which the ancillary provisions modify any enactment, as well as when there is textual amendment of any act?
Are members content to reject the suggestion in the final paragraph of the Government's response in relation to section 9, that the negative procedure could apply to all exercises of the ancillary power in section 9(1)?
Are members content to accept the commencement powers in section 10, "Short title, commencement and interpretation"?
We turn to paragraph 2 of schedule 1, "Membership of Creative Scotland". In relation to the powers in paragraphs 2(2) and 2(3) and in light of the Government's response, are members content that the delegated powers are acceptable in principle and, in the circumstances, that the approach of permitting the limited textual amendment of paragraph 2(1)(b) of schedule 1 is acceptable; and that, in the circumstances, it is appropriate for the delegated powers to be subject to the negative procedure?
Are members content to draw to the attention of the lead committee the delegated powers in paragraphs 2(2) and 2(3) of schedule 1?
Are members content to indicate to the lead committee that, although in principle the committee considers those delegated powers to be acceptable, the powers as drafted permit the substitution of any minimum or maximum number of members of the authority, and that the committee considers that, to ensure that the power is drawn only so far as is warranted, consideration be given to its amendment so as to impose maxima and minima of membership?
That concludes the committee's consideration of the bill.
Glasgow Commonwealth Games Bill: as amended at Stage 2
Agenda item 2 is the committee's first consideration of the delegated powers in the Glasgow Commonwealth Games Bill as amended at stage 2. I welcome the Government officials who are here to respond to the committee's questions. We have Nick Brown, the bill team leader; David Thompson, from the bill team; and Beth Elliot from the Scottish Government legal directorate.
Members have several questions for the officials on section 2, "Ban on outdoor trading in the vicinity of Games locations". I ask Richard Baker to kick off.
What is the Government's view of the committee's proposal that the powers in section 2(3) should be subject to affirmative procedure unless urgent circumstances exist, in which case the negative procedure should apply?
When the bill was first put before the Parliament, the thinking was that all the regulations should be made by negative resolution. The Subordinate Legislation Committee felt that that was inappropriate and the Government agreed. The regulations are important, so the Government considered how best to bring the recommendation into effect. We saw two principal reasons why changes might be required to the regulations. The first is that there could be material changes to the programme near the date of the games—one of the venues or the route of the marathon might need to be changed. A minor change of the regulations would be required to incorporate such late changes. The second possibility is that an unexpected loophole could be exploited by traders and advertisers. We would then need to introduce a change to the regulations quickly.
The committee proposed what it perceived to be a workable alternative. Why is it considered appropriate that any subsequent exercise of the power should be subject to negative rather than affirmative procedure, without any restriction on its use, given that the circumstances in which the Government may consider it necessary to make subsequent use of the power to make further substantive provision after the first trading regulations have been made are readily foreseeable? For example, additional circumstances may arise in which there is no accompanying urgency to bring the measures into force, or there may be drafting errors.
The Government's clear intention is that the first operation of the power to make the regulations would be the substantive power. The minister put that on record at stage 2 and during the stage 1 debate. We do not envisage that a second substantive set of regulations would be needed, but if it were, it would be likely to be needed quickly in a situation where making the case for the regulations to be made urgently by negative resolution would distract from actually achieving them rapidly. As I said, it would also be open to someone whose behaviour was caught by the regulations to challenge the legitimacy of the decision to make them urgently under the affirmative procedure because "urgent" is a subjective term.
What justification does the Government give for restricting the application of the provision for consultation in section 44 and public notice in section 46 to the first trading and advertising regulations, when substantive provision can be made by subsequent exercise of the power?
I mentioned that we do not envisage having to make a second substantive set of regulations. Sections 44 and 46 of the bill require an outline of the intention to be made public two years in advance of the regulations coming into effect and the detailed proposals to be published six months beforehand. If that requirement was to be applied to subsequent regulations, it would effectively mean that new regulations could not be considered any later than two years before the games. It is simply about practicalities. We cannot give two years' or six months' notice if we do not have two years or six months in which to give it. It is not the intention to not take into consideration the views of the public. There would have been consultation during the first, substantive iteration of the regulations and, presumably, those views would still stand. If it was practical to seek further views, that would be the intention, but to commit to and engage in a formal consultation process within a fixed period of, for example, 12 weeks, would not be practical given the nature of the changes that we might have to make.
That answers my final question.
Does the committee wish to press the Government for a commitment to lodge an amendment at stage 3 to the effect that the parliamentary procedure to apply to the trading regulations, the advertising regulations and the regulations to be made under section 19 relating to use of the internet will be subject to the affirmative procedure unless there are urgent circumstances, in which case the regulations may be made subject to negative procedure?
I am minded to do that, convener. The point of the debate seems to be about how we can define practically what is urgent and what is not and what process would be needed to arrive at a simple definition that would be clearly understood. By lodging that amendment, we could at least have that debate.
I agree. It would encourage the Government to reflect on the point and, if it does not lodge the amendment, we might decide to lodge one.
Yes. I think that we have been asked to sacrifice scrutiny. Do the officials have any further comments to make before the committee comes to a conclusion?
If that was the committee's conclusion, we would have to go back and consider it.
Is this the appropriate time to press the point or will we return to the discussion later in the meeting?
We should discuss it now. I am really in members' hands.
We should ask the clerks to assist us in preparing an appropriate amendment. Although we have heard what the officials have said, committee members have some residual concerns. If circumstances change, we can always withdraw the amendment.
The committee might wish to delegate to the convener the power to lodge amendments and take it from there. That would be the way forward.
I move that we do so, convener.
Okay.
The response is the same as that which I gave earlier. Any amendments that we envisage being made would either be minor, such as on the vicinity of games areas, or in response to unforeseen and urgent circumstances.
Thank you. We are in the same position as we were in earlier, so I recommend that the committee might wish to delegate the drafting and lodging of amendments to the convener. Do members agree to that?
The committee has the same concerns and questions about section 19, "Use of internet etc", as we did about the earlier sections. Our concerns relate to the procedure to be applied to the delegated power to make internet ticket touting regulations. I invite the officials to comment on those concerns.
The internet is developing very fast. I am not sure that we could have envisaged six years ago that the internet would look as it does today. It is therefore sensible to make internet regulations as close to the time of the event as possible.
Thank you. We are in the selfsame position as previously. I am sure that regulations could be laid under the affirmative procedure in June 2014. We are at an impasse again, although I thank you for your contributions so far. Again, my recommendation is that the committee might wish to delegate to the convener the drafting and lodging of committee amendments. Are members content with that?
Are members content with the power in section 22(2), "Enforcement officers", which was subject to a technical amendment at stage 2?
Are members content with the power in section 31, "Compensation and recovery of costs", which was subject to a technical amendment at stage 2?
On section 33A, "Action under sections 23 to 30: procedure", I welcome the replacement of the power that was referred to in section 21 with the new power in section 33A, which is restricted to specifying further procedure. Are members content with the amended power and that it is subject to negative procedure?
On section 38, "Games traffic regulation orders", are members content with new section 38(4), which is a further modification of the power conferred upon local authorities under section 14 of the Road Traffic Regulation Act 1984 to make games traffic regulation orders?
On the interpretation of "games ticket" under section 48, are members content with the delegation of the power to specify additional events connected with the games as games events for the purpose of the ticket touting offence and that the power is subject to negative procedure?
That concludes the committee's consideration of the bill today. We will consider it again next week when we consider the Government's response to the points that have been raised.