Finance Committee, 22 Sep 2009

Meeting date: Tuesday, September 22, 2009

Official Report 236KB pdf

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Public Services Reform (Scotland) Bill: Stage 1

Item 2 is continuation of our evidence taking on the Public Services Reform (Scotland) Bill at stage 1. Our first panel consists of only one witness—there were meant to be two. We welcome Michael Clancy, who is director of law reform at the Law Society of Scotland.

I will begin with a general question. The Law Society has expressed concern about the nature of the delegated powers in part 2 of the bill. I ask Michael Clancy to expand on those concerns and to give us his views on the matter.

I thank the committee for inviting me along to give my views—as a panel of one—on the bill. It is always a pleasure to appear before the committee.

Before we proceed, I will declare two interests. First, I am a member of the positron emission tomography advisory group, which is a national health service body. Secondly, I am a member of a short-life working party on tissue collection, which will start work in the next few weeks. Although neither body is mentioned in the bill, I thought it appropriate to draw my membership of them to the committee's attention.

The convener's question is broad ranging. As the committee has seen from the evidence that others have submitted, it touches on the central point of part 2—the very wide-ranging order-making powers that are contained in sections 10 to 13. The society is concerned about wide-ranging order-making powers—so-called Henry VIII powers. In the context of Scottish legislation, I have been trying for years to get people to call them James VI powers instead. I will keep plugging away.

The order-making power in section 13 would allow Scottish ministers to amend

"a public general or local Act of Parliament (whenever passed) or an Act of the Scottish Parliament".

Furthermore, an order made under section 10 may

"modify any enactment, instrument or other document".

Those are extremely wide-ranging powers. What is the problem with that? It is that they are powers to make orders that are subject only to the affirmative resolution procedure. The trouble with affirmative resolution procedure is that it does not require the same level of scrutiny—nor, indeed, should it—as the procedure for an act of Parliament. There may be pre-legislative consultation, but you all know that an order that goes through the Scottish Parliament or the United Kingdom Parliament is not subject to amendment—it can be either voted for or voted against. It is quite difficult to get into the detail of the order.

The committee will also know that, under the Parliament's standing orders, a committee is limited to 90 minutes debate on an order. The fact that the average bill takes between six and 12 months to go through the Scottish Parliament—there was one notable exception last year, when a bill was passed in one day—shows that the level of scrutiny and the amount of time that parliamentarians would have to consider such powers would be extremely curtailed.

Those are some of our general concerns about the order-making powers.

I am aware that a panel of one witness could be called an interrogation. I will try to ensure that it is not so.

You mentioned, as have others, the comparable UK legislation. Has the Law Society, in coming to the views in its written submission, taken account of how the powers, as they exist in UK legislation, have been exercised and the route by which the current legislative provision was arrived at? Are we getting incredibly excited about something that is likely not to be used frequently in practice? Are there lessons from the UK experience on which we can draw?

When the Legislative and Regulatory Reform Bill went through the UK Parliament in 2004-05, the society made representations on the powers contained in it. When it was introduced, it was the subject of extraordinary criticism. Some people called it a constitutional affront, and said that it was subverting the role of Parliament and was effectively surrendering parliamentary powers to ministers. Hilary Armstrong was the Minister for the Cabinet Office at the time; I attended a meeting that she held with Pat McFadden MP to discuss the bill. As a result of the broad range of criticisms, the bill was rolled back from being so extraordinarily weighted towards ministers.

I made enquiries of the Regulatory Reform Committee in the House of Commons. It is always difficult to get hold of people during parliamentary recesses; nevertheless, I received material—I have it here—that discloses that the committee has, so far, considered 12 regulatory reform orders under the 2006 act and has not rejected any legislative reform orders by way of veto. However, it has invoked the super-affirmative procedure to suggest changes and, on one occasion, it expressed reservations about an order, and that led to a debate in the House of Commons.

I also sent the Regulatory Reform Committee a copy of the Public Services Reform (Scotland) Bill, because it expressed an interest in it, so the Finance Committee may receive further comments as the bill proceeds. I will give a flavour of the orders that have been effected under the 2006 act. They cover issues such as miscellaneous provisions on insolvency, dangerous wild animals, limited partnerships, minor variations to premises licences and club premises certificates, local government animal health functions, supervision of alcohol sales in church and village halls, insolvency advertising requirements, verification of weighing and measuring equipment, the governance of Lloyds in the insurance market, local government consent requirements, consumer credit, and the Health and Safety Executive. That is a broad range of issues but, with 12 orders since 2006, the Regulatory Reform Committee has not been excessively employed, I would say.

That is busier than the legislative programme here.

You might say that—I cannot possibly comment.

I would not expect you to.

In your thinking, are the bill's provisions just an "affront"—you used that word, although I do not suggest that it necessarily represents your opinion—and so flawed in principle that they should never be in the statute book, or can sufficient safeguards be constructed? Is the debate about the principle or the safeguards that are necessary to make the provisions acceptable?

That is an interesting question. If sufficient safeguards were constructed to make the power broadly acceptable, the bill would be radically different. That would, in effect, involve writing in a super-affirmative plus procedure. I think that at the committee's previous meeting Professor Page said that he thought that the provision had the tenor of an opening bid, but I am not so cynical about ministers' intentions. I am more inclined to say that the provision was created in good faith, but with a perception of the relationship between Parliament and ministers that was balanced too much in favour of ministers.

I want to return to a point that Derek Brownlee raised, because I wonder whether I am making an appropriate distinction. Is it fair to say that what is going on down south is the reform of regulatory bodies to reduce the burden of regulation, but that what is going on up here is more of a general reform to reduce the number of public bodies but not necessarily to reduce the burden of regulation?

The powers under sections 10 and 11 are certainly aimed at the number of bodies rather than at the regulatory burden.

Perhaps setting a target of a 25 per cent reduction without an idea of which bodies it would be better to merge to reduce the regulatory burden was the wrong starting place.

Yes.

I will move on to the super-affirmative plus procedure, which I have previously heard described only by professors. Does not that procedure in essence resemble the initial stages of scrutiny of a bill? Why are we inventing yet another procedure? Is it not better to stick with primary legislation and have issues that are clearly important debated in Parliament?

Super-affirmative procedure in the House of Commons or the House of Lords invokes circumstances in which ministers can choose which form the order to be introduced will take. If memory serves me, a proposal for a super-affirmative order can be laid, and then within 60 days of the proposal representations should be made. After 60 days have expired, ministers may lay a draft order before Parliament, together with a statement of any representations. During a further 60-day period, the Regulatory Reform Committee must report on whether the draft should be approved. That has a flavour of stage 1 examination, but it is not stage 1 examination as we understand it here because it is only about ministers and not about the people who might be affected by the order or the people who might have views to give on it.

What people are thinking about in relation to super-affirmative plus procedure is that it offers an opportunity not only to quiz ministers, but to take broader evidence or even to require amendment of an order, which takes us into a mini-bill situation. As you heard in my response to Derek Brownlee, that would mean the creation of an alternative bill procedure. We do not really need that.

That is also my view. I am sure that we will hear in due course from the bevy of commissioners who are seated behind you in the public gallery. Do you have any worries about the independence of the parliamentary bodies that are listed in schedule 3?

I most certainly do, although—I hasten to add—not as they are constituted currently. "The bevy of commissioners", as you put it, guard jealously their independence, just as they ought. Schedule 3 lists not only commissioners but other bodies, some of which have quasi-judicial functions, such as the children's panel, the Lands Tribunal for Scotland and the Judicial Appointments Board for Scotland. You will remember the Lord President's comments about the Scottish Court Service and his anxieties about its requirement to be independent. Independence from ministers is an essential aspect of the constitutional function of all those bodies.

Similarly, as members know, the Commissioner for Children and Young People (Scotland) Act 2003, the Scottish Commission for Human Rights Act 2006 and other acts went through Parliament—sometimes not without their portion of controversy—on the basis that Parliament would make recommendations to Her Majesty, who would then make appointments. That signals to me the intention of this Parliament to ensure that those bodies and their sisters and brothers in the commissioner stable would be protected and reinforced. That is not something to be given up lightly to ministers. Those bills were subject to the full panoply of legislative procedure—scrutiny, evidence taken from a range of bodies at stage 1, amendments made at stage 2 and further consideration at stage 3—and the Parliament certainly intended that the bodies should be independent of ministers. It is difficult to conceive of a way in which that intention, at such a short distance from the bills' enactment, should be usurped.

I will be more direct than Mr Brownlee, who danced around the matter: is it the Law Society's view that the bill is a constitutional affront?

It takes a lot for me to use phraseology such as that. You are a politician and can use that kind of phraseology, but I would say that the bill is a difficult one that needs to be examined closely. It cuts across what I was taught about the separation of powers.

I will quote from the Law Society's evidence. You state:

"These provisions are constitutionally significant"—

your phrase is probably a bit more delicate than one that I might use—

"and at the very least the powers proposed to be used under these provisions should not be used as a replacement for primary legislation or full scrutiny by the Parliament."

You have eloquently expressed your views on that point in response to my colleague Jackie Baillie.

You go on to pose the question:

"Is it appropriate that the order making power should extend to such bodies?"

We have just heard from you in reference to commissioners. Could you amplify the comments that you make in your written evidence about the Mental Welfare Commission for Scotland? You clearly have strong views about whether it should be included in schedule 3.

Indeed—and having written that evidence, I really have to stand by it. The point about the Mental Welfare Commission was raised with our mental health and disability sub-committee some time ago. There was a suggestion that the commission might be subject to some revision. Our sub-committee met Government representatives on a number of occasions earlier this year to express concerns about the future of the Mental Welfare Commission, during which meetings the sub-committee was assured that the commission would not be included in the bill, as had originally been intended. That was confirmed in a formal announcement by the Minister for Public Health and Sport on 13 February. Instead, there was to be a separate consultation, which is now on-going.

However, the Mental Welfare Commission for Scotland does appear in the bill. We think that, pending the outcome of the consultation, it is inappropriate for it to be included. Furthermore, it is clear from the views that its representatives gave in evidence last week to the Health and Sport Committee that the Mental Welfare Commission is also of that view about its inclusion.

Do you think that all the bodies that are listed under section 2 should be removed from the bill, or should you work your way through them and justify each inclusion?

Do you mean under schedule 3?

Yes—I beg your pardon: I meant schedule 3.

I have very little experience of, for instance, Quality Meat Scotland, except in a consumer capacity, or of Caledonian Maritime Assets Ltd. However, the society does have experience of and has, as you might expect, had contact with the various bodies listed in schedule 3 that are more in the justice arena. It is difficult simply to have all those bodies listed without rationale.

That brings me back to an earlier point: there was a singular lack of consultation in relation to the provisions. One might reflect on the consultative steering group's principles of openness, accountability, consultation and power sharing, so we must think hard about introducing such measures without adequate consultation of interested parties, including the listed bodies themselves.

Although that does not answer the question, it edges towards an answer. A case-by-case analysis of each of the listed bodies would probably be the best way forward. Justification of their inclusion in schedule 3, if schedule 3 survives the committee's scrutiny, will doubtless be something to which ministers will shortly be turning their attention.

I move on to the proposals on scrutiny. In your submission, you comment that the provisions on user focus would "not be appropriate" for the Accounts Commission, the Mental Welfare Commission and the Office of the Scottish Charity Regulator. You feel that such a duty might compromise their independence. Can you elaborate on that?

Indeed. Sections 92 and 93 and schedule 13 contain the provisions on user focus. Section 92 states that the bodies

"must make arrangements which—

(a) secure continuous improvement in user focus in the exercise of their scrutiny functions, and

(b) demonstrate that improvement."

There is also a power for Scottish ministers to step in with guidance, and section 94 contains a duty of co-operation.

The society is concerned about those provisions because, although user focus is a fine idea where the duty is owed to the user, where the duty might be owed to the public at large or to some higher interest such as the protection of vulnerable people, that might not square with a duty focused on the user. When one considers the Mental Welfare Commission for Scotland, which has duties under the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003 to protect the rights, including the human rights, interests and welfare, of very vulnerable people, one sees that those duties must have an independent focus rather than a user focus. Users of the Mental Welfare Commission for Scotland's powers are by definition very vulnerable people.

Similarly, under the provisions of the Charities and Trustee Investment (Scotland) Act 2005, OSCR has responsibility for the registration, monitoring and compliance, and decommissioning of charities. Again, that is a duty owed to the public rather than to what one might describe as the user of the function or the body that wants to become registered as a charity.

Such bodies have a higher order of duty than those that simply provide some kind of service.

I want to pick up on the user focus point, albeit from a different angle.

Section 92(4) defines a service user as someone who

"will or may use the service in the future".

The list of bodies that are subject to the user focus duty includes the drinking water quality regulator for Scotland and health improvement Scotland—we all drink water and use the national health service—the chief inspector of constabulary and the road works commissioner. Under a plain interpretation, the list of people who could be defined as users of a service must therefore encompass everyone in the country.

The duty that section 92(1)(a) imposes on the bodies listed is to

"secure continuous improvement in user focus"

and to demonstrate that. User focus is defined as

"the involvement of users … in the design and delivery of scrutiny functions … and the governance of the listed scrutiny authorities."

Is that not such a general provision, encompassing so many potential different individuals with different views on what should or should not happen, that it becomes almost a nonsense to encapsulate it in legislation? Is it not more fundamentally about policy than something that ought to be enforceable through primary legislation?

Service users are important people because they invariably pay for the service in one way or another. One would not automatically denigrate the idea that the organisation should have the user in mind when it provides a service—certainly not. User focus is quite an important aspect of the provision of services by organisations such as the drinking water quality regulator. We all know the dangers of poor quality water.

From that general principle, one can take the idea that the drinking water quality regulator must surely already have in mind an obligation to be user focused. The sentiment behind the provisions—that the user should be in mind—could be expressed by way of extra-statutory guidance or codes of practice, or something like that. I agree with Derek Brownlee that statutory provisions that impose such obligations sit somewhat uneasily with the crispness and clarity that one expects from a statute. Furthermore, what happens if there is a failure to have the user focus? If it is simply a failure to meet the statutory obligation, remedies might be at the hand of the user of the service. There might be court remedies or judicial review, or something like that. However, under the bill, the failure would lead to ministers being parachuted in with guidance. That is where there is an anxiety. Ministers can impose guidance on that.

Under sections 93(6) and 93(7), if a scrutiny body does not comply with guidance, the remedy is for ministers to require the body to provide a written explanation of that, which they can publish. In relation to section 92, there must also be a broader remedy for dissatisfied users that is separate from the remedy for when a body has not complied with the guidance, because there might not be guidance for the body in question. Does section 92 in effect give anyone who is a user of a service that is listed in schedule 13 a right, however unlikely it is to be exercised, to seek judicial review of decisions that it could be argued do not demonstrate continuous improvement in the involvement of users in the design of services?

You know as well as I do that an opinion on whether someone has a right to judicial review is something that Queen's counsel scratch their heads about all day long. I might take the substantive element of that question back and think about it but, on first flush, any failure of a statutory body to act reasonably, or any contravention of a statutory duty, could give rise to an action for judicial review. Whether any consumer of drinking water, for example, would have title and interest in that is another matter. It is also another matter whether there would be title and interest for any person who, after having his or her wallet stolen in the street, found that the police did not arrive when they had been called and who then took the matter to the inspectorate of constabulary. Section 92 contains an obligation that does not seem to have any correlative sanction for non-compliance, other than the kind of actions that I have spoken of.

Linda Fabiani has what I suspect will be the last question.

It is always nice to have the last question.

To return to earlier questions, the bodies in the schedules that we have talked about all receive public funding. There are valid arguments from all sides about how much direction should be given to such bodies. However, there is a distinction between bodies that are publicly funded by the Parliament and those that are publicly funded by the Government. Are those that are funded by the Parliament a specific case in considering the rights and wrongs of who directs?

Funding is only one element of dependence. There was a long-running debate—anyone who is interested can look it up—in the Journal of the Law Society of Scotland in the 1970s.

I will run away and look it up after the meeting.

I will send you the citation.

The debate was between Sir David Edward—he was plain old David Edward then—and a professor at the University of London, and it concerned the meaning of independence. The conclusion was that independence is a state of not being dependent. Funding is a clear way of tracking dependence. Making a distinction between bodies that are funded through ministers and bodies that are funded by Parliament gives you a neat and ready reckoner for schedule 3 but less so for schedule 13. Even for schedule 3, however, that model falls down in some respects. For example, the Scottish Legal Complaints Commission, which is mentioned in schedule 3 under the Legal Profession and Legal Aid (Scotland) Act 2007, is funded neither by ministers nor by Parliament—it is funded by the legal profession. It was created by the 2007 act in such a way as to ensure its independence by having Scottish ministers make the appointment with the consent of the Lord President. Jackie Baillie will remember well the arguments from those dark days of 2006.

They were quite bright when you were before the committee.

Ah, charming as ever.

It is not as easy as one might think to make such a split. In any event, having those bodies in schedule 3 and trying to ensure their independence from ministers goes way beyond their funding. The Scottish Legal Aid Board funds litigants who may be suing Scottish ministers—in fact, every day of the week they may be suing Scottish ministers. It will certainly provide funds for the defence of people who are being prosecuted by the Lord Advocate as a public authority.

We must go a step beyond the balance sheet. It is about the ethos of independence, having clear lines of independence and maintaining independence from ministers in such a way that it eschews any possibility of any interference in their day-to-day consideration—even the inference that, somewhere along the line, some minister may take a dim view of what has gone on in one of those bodies. It is not about the current group of Scottish ministers; it is about the people who will succeed them, who may not even be born yet. The question is the relative balance of power in our constitution. The Parliament is celebrating its 10th anniversary. At the moment, the balance of power is about right, but the bill would radically change the balance of power.

We have had a long session. Do you have any last-minute comments to make?

No. I would just like to thank you all for listening to me. It has been a great pleasure to appear before you.

We thank you for your advice, based on substantial knowledge, on what are deep, fundamental democratic principles. Your evidence is much appreciated.

I suspend the meeting until our next witnesses can take their place.

Meeting suspended.

On resuming—

Our next panel of witnesses consists of the parliamentary commissioners who made written submissions to the committee. I welcome Tam Baillie, Scotland's Commissioner for Children and Young People; Kevin Dunion, the Scottish Information Commissioner; and Professor Alan Miller, who chairs the Scottish Human Rights Commission.

I will start off with a general question. The witnesses have all made submissions about part 2 of the bill. Before we come on to that, I ask for comments on the bill as a whole—on the contribution that it might make to public services reform and simplification, and to improving scrutiny and accountability of services. What are the bill's wider implications?

I have one general comment on the bill: I understand the Government's desire to simplify the range of bodies that are under consideration, but there is a balance to be maintained between that process and maintaining parliamentary scrutiny. I have already commented in my written submission that the balance is tipped too far in favour of expedience.

Like Tam Baillie, I recognise and support the bill's general purpose and intention to simplify the public sector landscape. On the other side of the coin is the concern that we should all be vigilant that the protection of rights—particularly those of the most vulnerable members of our community—is not undermined by any diminishment of the effectiveness of scrutiny and regulation as a result of that simplification.

I associate myself with that comment. The Government's intent has been made clear and I do not take issue with it. My concern—which has also been expressed by Michael Clancy—is that Parliament cannot tie the hands of any future Government, but the bill would grant extremely wide-ranging powers that go well beyond tidying up and efficiency measures and would change fundamentally the basis of accountability and scrutiny of Government.

We are deeply into the democratic balancing of power and responsibilities.

I have an obvious question. We have seen the answer to it in the submissions, but I will ask it for the record. Why should the witnesses' organisations not be listed in schedule 3?

What is at the heart of the case I am proposing for removing the Scottish Information Commissioner from the bill is that I fail to understand why my office is still in the bill, particularly after the recent review of Scottish Parliamentary Corporate Body supported bodies, which made it quite clear that my efficiency would be subject to scrutiny and accountability, but my office's direct functions would not be subject to direction.

The ministers have made it quite clear that they are trying to use their resources sensibly and efficiently, with the taxpayer in mind, by reducing the burden for bodies

"for which Ministers are ultimately accountable."

Those are the words that they have used. My fundamental contention is that I am not ultimately accountable to ministers, but to Parliament, and it designed the Freedom of Information (Scotland) Act 2002 with that safeguard. It was not glossed over. As Jackie Baillie knows, Parliament debated that point hard to make sure that we got an independent information commissioner. Indeed, there is now some discussion down south, where the information commissioner is appointed by ministers, about whether the Westminster Parliament should consider introducing legislation that would bring it into line with Scotland. I would hate to see Scotland going in the opposite direction and removing the right of Parliament to be ultimately accountable for the Scottish Information Commissioner.

I think we all well understand that the matter is about constitutional independence. As chair of the Scottish Human Rights Commission, I am proud to be held to account by the members of the committee and your peers in Parliament. That is as it should be, but more important than my feelings about it is that Scotland should be proud of it.

In 1993, the United Nations General Assembly approved the Paris principles of best practice for setting up national human rights commissions around the world. There is no doubt that the Scottish Government, which introduced the bill to establish the Scottish Human Rights Commission, had the Paris principles in mind. The Scottish Parliament clearly had them in mind when it debated the bill, as did the Review of SPCB Supported Bodies Committee. All of us in Scotland should cherish that.

My office is applying for UN accreditation as a category A national human rights commission, which means that it can represent Scotland and Scottish opinion in all the processes of the human rights system within the UN. If the commission's independence was seen to be subject to interference as a result of the bill, it would be compromised in the UN's eyes and—which is probably more important than that, to be frank—in the eyes of the public in Scotland. The perception of independence and public confidence in that independence is most at stake. It would be severely tested if the provisions in the bill were to be passed.

I do not want to repeat what Kevin Dunion and Alan Miller said, but I endorse it.

Michael Clancy said that we would jealously defend our independence. I have been in post for four months and my experience is that that independence is well respected by parliamentarians. The measure of that is in the acts that set them up and the independence that has been built in to each of the offices. We are not acting out of self-interest; our offices' independence is a reflection of the parliamentary system and the people in it.

The list that is included in schedule 3 seems to be a huge catch-all. Apart from your bodies, should others not be on that list?

I sat and listened to Michael Clancy, which is always a pleasure and an education. He referred to a number of bodies that I identify with, such as the Judicial Appointments Board for Scotland and the Scottish Legal Aid Board, which are crucial to the administration of justice in Scotland. My concerns are not just about the Scottish Human Rights Commission or the other office-holders of the Parliament being on the list; the independence of bodies such as those that I just mentioned is also critical. There are other bodies listed in schedule 3 about which members should be concerned.

All three of you have said that you understand why the Government is doing this; it is an attempt to narrow down the public bodies landscape. Far be it from me to give it advice, but would it help the Government if it were to listen to what a number of witnesses have told us, which is to revisit schedule 3 and make the list a bit smarter?

As was suggested earlier, the starting point should be the order-making powers themselves. By suggesting that the Government should simply go through the list, we make the assumption that an order itself can strike the balance between ensuring parliamentary scrutiny and simplifying the process. However, as Michael Clancy pointed out, the more robust the safeguards in the order-making power, the closer we get to parliamentary scrutiny—which means that, in the end, the process comes to resemble that for a bill. We need to find the level of safeguard that is workable if the order-making powers are to be retained.

I can see the merit of revisiting the list, but Michael Clancy—and, indeed, some of us—have put the strong case that some of our functions are clearly quasi-judicial and are therefore of a different order. Secondly, bodies such as mine were created to simplify things and to provide better and cheaper access to decision making and justice. If there were no Scottish Information Commissioner, people would probably have to go to the courts. I do not think that it makes sense for the Government, having created a body that is quasi-judicial in nature but is actually much cheaper to operate, to begin to draw us back in and make us not dissimilar to a quango, which is not really what we are.

Mr Clancy also said that there had been a "singular lack of consultation" on the proposals. Was there any consultation of the three of you about your inclusion in the list or, indeed, about your views on the bill's purpose?

There was no consultation of the Scottish Human Rights Commission. Another concern that we have about the measure is that there would be no public consultation on an order that sought, for example, to impact on the functioning of the Scottish Human Rights Commission. When Parliament established our commission, it wrote into the Scottish Commission for Human Rights Act 2006 that in everything that we do we should place an emphasis on the most vulnerable and voiceless people in Scotland. Those people would continue to be voiceless if the measure in the bill were to be agreed to and the Scottish Human Rights Commission which was, after all, brought into being for their benefit, was to be impacted on without their views and experience being taken into account. In short, not only was the commission not consulted, but those for whom it was established will not be consulted on any negative consequences.

I was not part of any consultation and made my submission like any other person in Scotland in response to the bill as published. I have to say that I was extremely surprised to find that we were still in the bill; I felt that we had had a very constructive dialogue with the Government and the Scottish Parliamentary Corporate Body and that we had co-operated well with the Review of SPCB Supported Bodies Committee. All the commissioners and ombudsmen clearly recognise the need to reduce costs and the regulatory burden, and they want to play their part in that work. I thought that we had reached an agreement in that respect. I share the view of the Presiding Officer, who also seems to be surprised by the fact that we remain encompassed within the proposed legislation.

I was also surprised, particularly in the light of the recommendations of the Review of SPCB Supported Bodies Committee. Initially, I thought that those who had drawn up the bill had thought that that committee might have made different recommendations, but had simply left it to stand.

We are coming to the end of a very long process. If you have any supplementary written information, please send it to us.

Having read your three submissions, I get the feeling that you do not believe it incumbent on yourselves to be ultimately accountable to ministers. We have taken that on board, but I notice that unlike Kevin Dunion and Professor Miller, who have simply asked for their own organisations to be removed from schedule 3, Tam Baillie in his submission recommends that all

"organisations whose nature and functions require independence from government should be removed".

Do you see it as the role of Scotland's Commissioner for Children and Young People to make recommendations on behalf of other organisations?

I might have overstepped the mark there, although I believe that the general principle stands. I repeat what I said with regard to my reading of politicians' respect for the independence of our offices. People have certainly respected the need for my office to be independent of ministers and accountable to Parliament.

With regard to respect for parliamentary integrity and for the bodies that are supported by Parliament, you will have read not only the letter from the SPCB to Government ministers but the response from the bill team, which will have been directed by ministers. Does that response, which says that

"Ministers have indicated that they will consider Stage 2 amendments to the PSR Bill in light of Parliament's consideration of the RSSB Committee report"

give you any comfort and reassure you that your current position can be maintained with ministers' agreement?

It is a proof-of-the-pudding thing—we will just have to wait and see. It would certainly help if the committee took a view on the matter. I was very reassured by the SPCB letter, which I hope will resonate with members and will influence the Government's decision to lodge the amendments that should be lodged.

In relation to the safeguards in the section 10 power, Tam Baillie has commented in some detail on the sections on proportionality, necessary protections and so on, and on parliamentary procedure and consultation. Do you wish to add to those comments?

I was just acknowledging that the bill contains safeguards, even though they are not sufficient and still represent a challenge to parliamentary scrutiny. Although we should respect the desire to build in such safeguards, the fact is that, as the earlier discussion about their robustness demonstrated, we might find ourselves going down a route that is closer to the parliamentary process for a bill.

The bill contains certain preconditions and safeguards that might be entirely sufficient if the changes in mind are simply tidying-up measures or minor alterations. After all, I do not want Parliament to become preoccupied with relatively minor changes. However, the bill could allow for fairly significant changes that should require amendment to primary legislation, which would, in any case, be my preference.

I can certainly imagine a number of scenarios that might arise. Let us say for the sake of argument that I, as commissioner, take a decision that the Government does not like and in response the Government exempts a whole class of documents or decides to create a second body, such as a tribunal, to which it can appeal its case—in other words, it does not attempt to challenge me on a point of law but simply takes its case somewhere else. Such a situation could well happen under the order-making powers in the bill. I am sure that Parliament would not have wished that to happen when it passed the Freedom of Information (Scotland) Act 2002, and it should not be allowing it to happen under this bill.

Do you accept that that is not the intention of ministers?

I make that absolutely clear in my submission. I mentioned the point solely because it is the kind of thing that has happened in other countries. There has been absolutely no canvassing of it in Scotland.

It is a classic case of checks and balances.

I think that you have outquestioned the committee. Do you have any final comments?

I am content. Thank you very much for the opportunity to give evidence.

Thank you for your evidence and your attendance this afternoon. If you wish to make any other comments, please do not hesitate to make a supplementary written submission.