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Protection of Vulnerable Groups (Scotland) Bill: Stage 1
Under agenda item 3, we are considering the Protection of Vulnerable Groups (Scotland) Bill at stage 1. The bill contains a large number of delegated powers, the drafting of which follows closely the drafting of equivalent provisions in the Safeguarding Vulnerable Groups Bill, which is being considered by the House of Commons. Part 1 is entitled "The lists". Sections 3, 4 and 5 are on references by organisations, agencies and businesses. It is suggested that the drafting of those sections is a little confusing because of the use of the term "prescribed information", which as we will discover occurs frequently in the bill. As the legal brief states, the issue is whether the term confers a power or is simply a descriptive noun that needs a definition. Are members happy that we ask for clarification on that?
Yes. If the term comes up frequently, the issue is important.
We will come across it time and again.
The legal brief suggests that the Executive is confused because of the use of the term "prescribed information". We should ask the Executive to clarify whether the power is necessary.
Yes. Is that agreed?
Section 7, "Reference by court", again contains the term "prescribed information", the use of which is not clear. Do members agree to ask about that?
It is not clear why section 8, "Reference by certain other persons", is necessary, as it does not impose a duty to provide information, only a power to do so. The power appears to be acceptable, but there is a question mark over whether the power in section 8(2) is sufficient for the stated purpose. It does not appear to be wide enough to remove or make any alterations to references to bodies that are listed in the bill. That is, the references can only be added to. I do not know whether we want to ask the Executive again to clarify the drafting of the provision.
Indeed.
We can ask in particular about "prescribed information", which also relates to sections 10(1)(a) and 11(1). Is that agreed?
Section 14, "Automatic listing", which confers a power, not a duty, on ministers to make the relevant order leaves considerable discretion to the ministers. Perhaps the bill should at least specify some parameters for the conduct that would lead to automatic barring, given the significance for the individuals. Do we want to question the Executive further on how it intends to exercise the powers and on the definition of "specified description"?
We have to question the Executive. Listing can be significant for individuals, and on the face of it a lot of discretion seems to be being left to ministers. If the Executive were to give at least a fuller explanation of its intentions before we decide on our recommendation, that would be helpful.
Is that agreed?
Ministers intend to use the power in section 17, "Information relevant to listing decisions", to extend a "relevant finding of fact" to include those made by the professional regulatory bodies identified under section 8. The section also allows consequential changes to be made if any bodies undergo changes of name or structure. It is subject to negative procedure.
The intention is to limit the power to the regulatory bodies named, but that is not the only thing that could be done. The power could apply to other bodies, and we should clarify that point too.
Is the list of bodies that the power will extend to also covered in section 17(5)?
Yes.
Is there anything else?
No.
Section 19, "Information held by public bodies etc", is similar to section 17 and raises the same issues. Shall we put the same questions?
Section 25, "Application for removal from list", gives the listed individuals the powers to apply to the sheriff for review of their listing. The power, as read with section 99(2), may be used to prescribe different timeframes between listing and application for removal from the list for different individuals depending on their circumstances. Are we content with the procedure or do the regulations require the more detailed scrutiny of the affirmative procedure?
Am I wrong in thinking that we wanted to keep the bill in parallel with the UK bill, which is going through Westminster? We may wish to return to the point. We can exercise our judgment about the level of scrutiny, but it would be useful to know what Westminster is doing.
We will keep alert to that one. Is there anything else?
I hear what Ken Macintosh is saying, but that is not necessarily where my primary motivation would come from.
I did not think it would be.
My concern is more whether it is appropriate in the circumstances to leave the power under negative procedure. There are arguments on both sides, but in principle the affirmative procedure might be more relevant in this case than the negative procedure. I take Ken Macintosh's point that we should find out what Westminster is doing, but I would like to hear more from the Executive to explain why it feels that the negative procedure is appropriate in this case.
I do not think that we have a problem with asking the Executive for a justification for using the negative procedure.
It sounds as though Westminster will amend the Safeguarding Vulnerable Groups Bill to give greater reassurance on a very sensitive matter. I would be interested to hear what is being suggested at Westminster. I do not want to ask the Executive to defend a position that we then suggest should be changed.
One would hope that some collaboration takes place between the Executive and the Westminster Government on the two bills, given that they are similar.
One can always hope.
Let us ask the Executive for a justification for the use of the negative procedure.
Section 29(4) and section 29(5) authorise ministers to publish guidance, but there will be no statutory obligation on organisations to follow or have regard to that guidance. We discussed this issue earlier. It does not appear necessary, therefore, for the guidance to be incorporated in or be confirmed by a Scottish statutory instrument or to be subject to any parliamentary procedure. How important do members think the guidance is? Are we quite happy with the provision?
This goes back to our discussions about the publication of such guidance. The issue is how widely published the guidance is and whether people are aware of it. Is such guidance sometimes published as an SSI for that reason?
It would do no harm to ask why the guidance will not be published as an SSI. We can also ask about the publication of the guidance. Do members have any other points?
Perhaps we should draw the point to the attention of the lead committee, given that it will also consider the guidance.
We can do that.
No.
In section 31, "Offences against children and protected adults", the power to remove offences from the list is subject to the affirmative procedure. Are we happy with that?
The provision seems to be a Henry VIII power, but the bill lists the offences that are covered. The suggestion is that we should give the Executive flexibility in case the law is changed and new offences are introduced or other offences are removed.
Yes, that is the reason for the power.
The concern about the power to remove offences from the list is self-evident, but I am sure that the circumstances that Ken Macintosh mentioned are why it is thought that some offences might need to be removed from the list in the light of future legislative changes. I have a slight concern about the width of the power, but I do not envisage that the Executive would use it in a malicious way. However, I register my concern about the fact that the power would allow such changes. It would be nice if the Executive could confirm that its intention is to use the power to remove offences for the reason that Ken Macintosh suggested.
We can ask the Executive to reassure us that what Ken Macintosh said is correct. Is that okay?
Yes.
On section 32, "Duty to notify certain changes", there is some concern about the clarity of the proposed power. Do we want to ask how the power might be used?
Under section 37, "Police access to lists", ministers will be required to make information from the lists available to chief constables for the purposes of preventing or detecting crime. Are members content that the information will be prescribed in regulations that will be subject to the negative procedure, or should the bill provide for the use of the affirmative procedure?
The provisions provide an interesting example of the phenomenon that Professor Himsworth and Professor Reid described, whereby importance is ascribed to regulations by making them subject to the affirmative procedure. The use of the affirmative procedure would not make much difference in practice, but it would emphasise to everyone who handled the legislation that the regulations covered an important and sensitive matter. The inclusion of names on lists and the sharing of information are sensitive matters that go to the heart of the bill. We must decide whether, for the sake of making that point, we want to burden the Parliament by recommending that the regulations be subject to the affirmative procedure.
We are discussing sensitive issues.
The bill is full of sensitive issues. It is a long, complicated bill and its progress is at an early stage, so I am not in a position to judge whether the regulations that are made under section 37 should be subject to the affirmative procedure. Perhaps we should return to the matter.
Like Kenny Macintosh, I am struggling to decide what we should do. I take solace from the fact that the main issue is the inclusion of a person in a list. Information that was made available under section 37 would be used just to confirm a person's identity, which is a more technical issue. The sensitive aspect is the inclusion of a person in a list and not the use of information—such as a person's date and place of birth or current address—for verification purposes. In the light of that, perhaps the negative procedure would be acceptable.
We will leave it at that for the moment.
During the past few years we have had a debate with the Executive about illustrative lists.
Yes. We have been told that they are not inclusive, so—
The Executive would give us the answers that it has given us in the past. I am not saying that we should not ask the question, but I could probably write the letter that we will receive from the Executive.
To be fair, the DPM gives an indication of the Executive's approach. Perhaps we should leave it at that.
It is up to you, convener. We could ask the question, but we might not gain much from doing so.
We would probably get the answer that we usually get. What do other members think?
I do not feel strongly about the matter.
We will leave it, then.
We need to ask why section 46(2) does not appear to provide for sanctions, which is a different approach from that of other provisions in the bill. We should ascertain whether that was the Executive's intention and, if it was, we should ask for a brief explanation of the reason for the different approach.
Are members content that regulations that are made under section 47, "Duty to notify certain changes", will be subject to the negative procedure?
Yes.
Regulations made under section 54, "Disclosure restrictions", will be subject to the negative procedure. I think that that is okay.
The provisions again refer to "prescribed information".
We can ask for clarification on that.
I have not read the bill in detail. Is it the intention that fingerprints will always be taken at a police station? In other legislation that the Parliament has considered, we have opened up the possibility of fingerprints being taken for the purposes of identification away from police stations. The Police, Public Order and Criminal Justice (Scotland) Bill, which was passed earlier this year, made provision for the use of remote and electronic devices.
The intention is not clear. The delegated powers memorandum states that it is
That does not mean that fingerprints will necessarily be taken at a police station.
No. Do members agree that we should seek clarification of the memorandum?
Regulations made under section 61, "Power to use personal data to check applicant's identity", are subject to the negative procedure. There are no problems with the provision.
Regulations made under section 69, "Procedure", are subject to the negative procedure. The provision seems okay.
A suggestion was made earlier concerning guidance that is issued by ministers. It is obviously unclear at what point codes of practice or guidance acquire legislative overtones. My concern relates to the importance of the policy. For that reason, I suggest that we refer the matter to the lead committee and indicate that we have concerns about whether the code of practice should be enshrined in legislation or whether the provision is adequate as it stands. If the code of practice is to be as thorough as it can be, it must be published, as there is a duty to consult.
According to my interpretation of the provision, the code of practice does not have to be laid before Parliament. I am concerned about that.
Section 76(5) states:
MSPs have been concerned to ensure that there is sharing of information and that that happens in the proper way. For that reason, we should know about the code.
In time, we might pass on our concerns to the lead committee but I presume that, at this point, we simply want to question the Executive and express our concerns about the matter. This is only the first week that the matter has been with us.
That is true. Do we agree to write to the Executive?
Section 80, "Relevant persons", gives ministers the power to extend the definition of "relevant persons". Ministers cannot remove anything from the list, nor can they take into account changes to the names of the bodies listed; they can only add to the list. That does not appear to meet the policy objective set out in the delegated powers memorandum.
It is always good to be asking the Executive to take on more powers, is it not?
There are a number of issues in relation to section 81, "Enforcement etc.", which gives ministers an order-making power to define further provisions to ensure compliance with the duties imposed by part 3 and empowers ministers to modify any enactment, instrument or document for that purpose. The power is very wide and is subject to the affirmative procedure. It has been suggested that we might want to ask for a bit of clarification about what the power will cover.
There are a number of concerns. Apart from anything else, although the power is subject to the affirmative procedure, that is the case only when it amends the text of the act. In other situations, it is subject to the negative procedure. The Executive appears to be slightly unsure about what the power will be used for. However, I think that we should debate the point with the Executive because the power is rather open handed given the powers that this committee would usually accept should be granted to ministers.
Okay. It has also been brought to our attention that the memorandum makes reference to the need to make provision to ensure compliance with the duties in part 3 but does not give any indication of what that provision might be. Further, the use of the term "any enactment" in section 81(2) is less than clear. Do we agree to ask the Executive to clarify the points that have been raised?
Another point that has been raised relates to the way in which section 81(1)(b) dovetails with section 99(4). There is a question about why we need the former section if we have section 99(4), because they seem to deal with similar things. Do we agree to ask for clarification of that matter?
On part 4, "Amendment of part 5 of the Police Act 1997", the powers in sections 82, 84 and 85 are subject to the negative procedure. Are we content with the powers and the procedure?
On part 5, "Meaning of ‘school care accommodation service'", the power in section 86 is a re-enactment of an existing power in the Regulation of Care (Scotland) Act 2001 and is subject to the negative procedure. Are we content with the power and the procedure?
In part 6, section 87, "Transfer of Disclosure Scotland staff etc.", involves the transfer into the Scottish Administration of certain employees, which will enable Disclosure Scotland to become part of the new executive agency. Although the nature of the provisions has a precedent elsewhere, there are some practical reservations about the power to specify persons.
It is quite clear that the intention is to protect staff during the transfer period. At the same time, it is good practice, at the very least, to ask members of staff for their views.
With other bills, we have picked up on the fact that the necessary consultation might not have been undertaken. Shall we raise those issues?
Section 88, "Power to give effect to the Safeguarding Vulnerable Groups Act 2006", contains a wide power, but we have been told that the Executive intends to make amendments to the section at stage 2. The question is whether we want to return to the matter at stage 2 or make a point about it at the moment.
I do not think that we need to make a point at the moment, as we have said that we will return to the matter at stage 2 if necessary. We should wait and see.
That is fine.
It is obviously a difficult issue. In effect, the Executive is saying that we can proceed with the legislation, but it is giving ministers the power to amend the provisions if they do not gel properly with the United Kingdom legislation. That is a sweeping power, so it is obviously a big concern, but at this stage we are talking about a safety clause more than anything else. The situation will become clearer as the Westminster bill progresses.
Fair enough.
No.
Section 94, "Meaning of ‘protected adult'", also includes powers subject to the negative procedure. Are there any issues? Under subsection (2), an order may have a wide effect on a particular service and will be subject to the affirmative procedure. The legal brief suggests:
That is the least that we must do, given the width of the power, which is about not just adding to but modifying subsection (1). We must be clear about what that means.
Okay. Let us ask for an indication of how the power is to be exercised and what that will mean.
That is rather odd. I do not see why the bill could not define "care service provider" and include the power to amend, as happens in other sections. We have just considered many similar sections, and that would seem the more logical way to work. I do not understand why the approach is different in section 96, and at the very least we need sound reasoning from the Executive for why it has chosen to work in such a way.
The legal brief suggested asking whether there should be an indication in the bill, for example of the type of provider envisaged or a list of providers with a power to amend by order. Another question is whether the definition should be covered by the negative procedure, but it seems as if that will be okay if we get clarification on the first point.
If the definition of "care service provider" was in the bill, it would probably be agreeable to amend it by negative procedure in future. However, given that there is no definition in the bill, I am not sure that it is appropriate for the negative procedure to be used.
Let us frame a response to the Executive, saying that we cannot comment on the appropriateness of the negative procedure until we know the answer to the first question.
I have sympathy with the Executive. The difficulty is that it is using the provision of care services to define vulnerable adults, which is why it is a thorny problem. However, there are concerns about the issue, so there is no harm in asking for further discussion.
Part 8, "Final provisions", includes section 97, "Ancillary provision". Unusually, by virtue of section 99(4), the power in section 97 will extend to amending the provisions of the bill. Is that acceptable? We might want to ask why the section includes that power.
We have had discussions about this before and the fact that the power exists has never sat comfortably with us. However, we have seen it used elsewhere. We should certainly question the Executive on it before we make a final decision.
Yes. We should say that we have worries about the issue.
We should just raise that point.
Yes.
We move on to the schedules.
There are also some concerns about the words
We should ask the question.
It is a significant point; we should draw attention to it by asking the Executive to explain how the power will operate, and we should draw the attention of the lead committee to the potential significance of the power if it is used.
We should ask whether the power in the bill needs to be restricted or whatever. The lead committee can think about that. Is that fair enough?
Schedule 3, part 5, paragraph 15, "Power to amend schedule", raises the same points as we have just discussed in relation to schedule 2. Are we agreed on that?
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