Subordinate Legislation Committee, 24 Jan 2006

Meeting date: Tuesday, January 24, 2006

Official Report 128KB pdf

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Delegated Powers Scrutiny

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Scottish Commissioner for Human Rights Bill: Stage 1

I welcome members to the third meeting in 2006 of the Subordinate Legislation Committee. I have received apologies from Murray Tosh. I remind all members to switch off their mobile phones.

Agenda item 1 is scrutiny of the delegated powers in the Scottish Commissioner for Human Rights Bill at stage 1. Section 6(6)(d) deals with restrictions on the scope of any inquiry that the commissioner may carry out under section 5(1). It will allow any future human rights treaties that are ratified to be recognised by the commissioner. Do members have any points to make on that provision or are we content with it?

We are content.

Section 11 concerns the power to intervene. Under section 11(7), the commissioner will be allowed to intervene in certain civil court cases, either with the leave of the court or at its invitation. Do members have any points to raise?

No.

Section 19 is on the short title and commencement of the bill. Once the bill has been agreed to, the power to commence it will be exercisable by an order in council. As is customary, there is no parliamentary procedure attached to that. Are members happy with that?

Members indicated agreement.

In addition to delegated powers, the bill contains other direction-making powers. The relevant powers are conferred by provisions in section 12(3) and in paragraph 14(1) of schedule 1 to the bill. Do members have any comments on those provisions?

No.

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Human Tissue (Scotland) Bill: as amended at Stage 2

Agenda item 2 is consideration of the delegated powers provisions in the Human Tissue (Scotland) Bill, as amended at stage 2. Members will wish to note that the Executive has fulfilled a number of the undertakings that it gave to the committee following the committee's comments at stage 1 and that it has made a number of amendments to the bill.

The bill includes several new delegated powers. First, we will deal with section 15(3). The Executive has agreed with the committee that, in view of the public interest in the subject, the regulations that are made under the provision in that section merit more detailed scrutiny. Section 53(3) of the bill has therefore been amended to provide that regulations that are made under the provision are subject to the affirmative resolution procedure, which is what we asked for. Are members content with that?

Members indicated agreement.

Section 15, "Restrictions on transplants involving live donor", contains new powers in subsections (3A) and (3B). Members will note that the Executive has given no indication of the type of additional condition that might be included in the regulations. As the Executive does not know the types of condition at the moment, we can therefore possibly accept that it is appropriate to deal with such matters in subordinate legislation. However, members will see that any regulations must contain provision for appeals. Do members want to comment on the matter?

You are correct to say that what conditions will be included in the regulations will have to be decided in future, but even a rough idea of what the Executive intends would have been helpful to us. However, the bill prohibits commercial transactions and, generally speaking, we should be satisfied. We should certainly welcome the addition of the provision for appeals.

New section 15A is on "Meaning of adult with incapacity for purposes of section 15(1)(c) and (2)(c)". Section 15A(2) is a new provision that will give Scottish ministers powers to prescribe in regulations the form in which a certificate under new section 15A(1) is to be issued. The regulations are subject to the negative procedure.

The committee previously noted that the power to define by regulations a term that is used in primary legislation gives a very wide discretion to ministers, who may, by use of the power, have a considerable effect on the legislation's scope, which may not necessarily be what we want. However, the power of ministers is limited to some extent by the definition of "incapable" in section 15A(3). Do members have any comments on that?

The issue is awkward, as ministers would have a fairly wide power, but that power would, as you said, be partially restricted. On balance, that is probably the best that we could have expected.

Okay. We welcome Adam Ingram to the meeting. We are about to deal with section 16, "Records, information etc.: removal and use of parts of human bodies for transplantation etc."

The powers in sections 16(1)(a) and 16(1)(b) were amended at stage 2 to extend the scope of regulations that were made under the provisions so that they may apply to the maintenance of records and the making available of specified information on the removal, use and retention of parts that have been removed from the bodies of living and deceased persons. Members will remember that the regulations were previously confined to deceased persons only and might remember that we raised issues to do with confidentiality. Do members have any comments to make?

I have no comments on the extension of the regulations to cover living persons, but the issue that we raised related to data protection and we have not received an answer to what we asked. I would have liked an explanation from the Executive about how it will deal with confidentiality issues. It is rather disappointing that we have not received such an explanation.

Shall we write to the Executive again?

Is there enough time to do so?

Yes.

In that case, I would like us to write again.

We will ask the question that we previously asked about confidentiality and data protection.

I now welcome Gordon Jackson, who has just joined the meeting.

further provision". Section 36(2)(c) was amended at stage 2 to enable Scottish ministers to specify by order the manager of a university for the purposes of sections 33(2) and 35(2)(a) in terms of the receipt of fiscal notices. Are we content with the amended provision, which is subject to the negative procedure?

Members indicated agreement.

We now move on to sections 47(a) and 47(aa), on the "Power to prescribe forms and descriptions of persons who may act as a witness". Section 47(a) was amended at stage 2 following questions from the committee about whether it would be mandatory for forms to be used when they are prescribed under this provision or whether their use would be optional. New section 47(aa) was inserted at stage 2 to distinguish the circumstances in which the form prescribed under this provision will or will not be mandatory. The Executive has done what we asked it to do. Are we content with that?

Members indicated agreement.

Section 48(9) will insert new section 6A(1A) into the Anatomy Act 1984. That will give Scottish ministers the power to specify the persons responsible for the operation or control of specified museums by order. Are there any comments?

No.

We are happy with the provision.

Sections 48(12)(b) and 48(12)(c) will amend the existing regulation-making powers under section 8 of the 1984 act so that it applies to bodies as well as body parts. Are we content with the new provision, which is subject to the negative procedure?

Members indicated agreement.