Subordinate Legislation Committee, 23 Nov 1999

Meeting date: Tuesday, November 23, 1999

Official Report 79KB pdf

---

Adults with Incapacity (Scotland) Bill

We will now deal with the Adults with Incapacity (Scotland) Bill.

The first aspect that concerns us relates to section 2(7) and section 9. There are concerns about whether rules are to be specified by a sheriff or in legislation.

We need some more information about that. I am not sure whether it is better that rules are specified by a sheriff or in primary legislation. I would want to know why the Executive had chosen a particular route. There is a contrast between section 2(7) and section 9—the latter deals with guardianship and seems to be tighter. I would like an explanation of that.

I share your concerns. As I mentioned earlier, the Children (Scotland) Act 1995 and the Adoption (Scotland) Act 1978 tend to be dealt with by rules of court. That is probably the correct approach, but we need clarification on the logic of that.

Section 5 of the Adults with Incapacity (Scotland) Bill relates to the public guardian. Does Trish want to add to her earlier comments?

My only point would be to draw attention to the inconsistencies in the use of the word "prescribe".

We could ask the Executive to clarify that, along with the previous points.

Our advice on section 8(2) was that we should note that. On section 11, it was suggested that we note that there is provision for the operation of the bill including the delegated powers under it to be governed by codes of practice, and that we agree that those powers are appropriate. Similarly, it was suggested that we note section 13(3)(c) and section 14(3)(c) as before.

That brings us to section 25(1), paragraphs (c) and (f), section 35, subsections (2) and (9), section 44(3) and section 51(3)(a), which we note as before. Points have been raised about a possible oversight in regard to section 34(3) and section 38(1)(e). Does anyone want to comment on that?

It is suggested that a power be included to allow amendments to be made to section 38 to reflect changes made by regulation under section 34. The Executive must consider that.

I would concur with that.

On section 37(3), section 39(1)(d) and section 39(3), we are looking for an explanation as to why it was thought necessary to prescribe the sums in regulations if they can be varied by supervisory bodies.

We have no real comments on sections 45 and 48.

We might want further details on section 58 and how matters will work in practice.

That is not absolutely clear. We need more information on how it will work in practice.

Section 78 deals with matters that have caused problems in other bills.

We move on to schedule 1(2) and schedule 6, paragraphs 2, 4 and 7. Are there any comments on them?

The appointing of a safeguarder can be left to the rules of court. The Executive must be asked why it considers that the functions of the safeguarder should be prescribed by rules of court, rather than set out in the bill or regulations made by Scottish ministers. I am not clear about the thinking on that.

I agree with what Trish has said.

I share those concerns. It appears to me that something as specific as the functions is best dealt with clearly and should be properly defined.