Health Boards (Membership and Elections) (Scotland) Bill: Stage 1
Item 2 forms the meat of today's agenda—at least in my opinion. I found the bill to be of considerable interest, having read our legal brief. My first remark is that the bill is pretty skeletal and a great many powers are intended to be given to ministers. They are mostly subject to negative, rather than affirmative procedure. Secondly, you will note the references to Henry VIII powers in the legal brief. The Scottish Government said that the same sort of procedure would be followed for elections to health boards as for those to national park authorities. That is all very well, but as our legal advisers have pointed out, the instruments governing national parks are subject to affirmative procedure. The same thing is not being done in this case.
Finally, if the pilot scheme runs out of time—after seven years—or if it is stopped by the relevant minister, that effectively kills off the original legislation without any reference back to Parliament. In my view, we have some probing questions to ask the Scottish Government.
I agree, convener. The bill is quite thin and there is very little detail in it. That is slightly unusual for Government, although it is not unwelcome. However, a substantial use of delegated powers is proposed and you are right that we should ask the Government further questions.
Issues such as the franchise for elections and how to gather information on the eligibility of 16 to 17-year-olds need to be spelled out in more detail. Questions about prescribing the date of the election and ward boundaries might excite only politicians, but they are issues of substance and one worries about the use of negative procedure, which is perhaps not appropriate. We should ask the Government to explain its thinking.
I spent a lot of time dealing with the early legislation on national parks—Loch Lomond and the Trossachs is Scotland's first national park. You are right, convener, that the national park authorities' election procedure is governed by affirmative rather than negative resolution. If we wish the bill before us to be consistent, we should seek an explanation from the Government.
You raise two more substantial points, convener. First, we note the circumstances under which any minister could remove somebody from office. I understand that the Government wishes to extend the automatic categories, but we are straying into a degree of discretion for ministers under which a minister could actually remove somebody who has achieved elected office. That is slightly different from a ministerial appointment. We should seek clarification on that.
Secondly, it would be extraordinary if Parliament did not have a further say if the pilot schemes were either to be cancelled or to lapse in some way. I wonder whether the power is appropriate and I think that we should query that with the Government.
I will go through the powers one by one. We start with section 1, "Constitution of Health Boards". Section 1(2) inserts into schedule 1 to the National Health Service (Scotland) Act 1978 new paragraph 2(2), which confers a power to
"specify … the total number of members of the Board, and … the number of each type of member."
Are we content that the proposed power is acceptable in principle and that it is subject to negative procedure?
Members indicated agreement.
Section 1(5) inserts into schedule 1 to the 1978 act new paragraph 10A(2), which contains powers to
"specify the circumstances in which … an elected member must vacate office".
Section 1(6) inserts a similar power into paragraph 11(a) of schedule 1 to the 1978 act.
Are we content to ask the Scottish Government the two questions that are set out in the summary of recommendations?
Members indicated agreement.
It is very important that we see what the Government comes back with on those points.
Section 2(2) of the bill inserts new schedule 1A, "Health Board elections", to the 1978 act. Paragraph 13 of new schedule 1A confers a power to make "election regulations". A number of issues arise in relation to the delegated power, including whether some of the matters that are covered by it are appropriate for delegation to subordinate legislation as a matter of principle; whether the supplementary powers that have been provided are too broad in scope; whether negative resolution procedure is appropriate; and whether the bill should specifically make additional provision concerning certain matters. Are we content to ask the Scottish Government the 13 questions that are set out in the summary of recommendations?
Members indicated agreement.
Section 4(1) relates to the elected members pilot scheme and confers powers to make a "pilot order". Are we content to ask the Scottish Government the five questions that are set out in the summary of recommendations?
Members indicated agreement.
Section 7 is on "Roll-out", and subsection (1) confers powers to make a "roll-out order". Are we content to ask the Scottish Government the four questions that are set out in the summary of recommendations?
Members indicated agreement.
Section 11(3) confers the power to appoint the day on which
"Section 8 and the schedule come into force".
Are we content with the power and with the fact that it is not subject to parliamentary procedure? There appears to be no problem with that.
Members indicated agreement.
Paragraph 1 of the schedule to the bill amends paragraph 4 of schedule 1 to the 1978 act and confers a power to prescribe members of committees of health boards for the purposes of remuneration. Are we content with the power and with the fact that it is subject to negative procedure?
Members indicated agreement.
That concludes our consideration of the bill at stage 1. Before we move on, I emphasise that those are important questions of substance. We should consider the responses carefully when they arrive. It is vital to get the answers. We are playing with democracy, which is kind of important—it is about real people voting. The rights or wrongs of the bill are not for this committee to discuss at all, however—that is for the subject committee and for discussion in the chamber.
I thank our legal team and the clerks at this point for the very detailed and thoughtful legal brief.