Community Payback Orders (Prescribed Persons for Consultation) (Scotland) Regulations 2011 (SSI 2011/1)
Does the committee agree to report the regulations on the basis that the use of the expression “one or more”, which is used at regulation 2(e) to (g) in the context of the intended prescription of persons or a class or classes or person for the purposes of section 227ZL(2) of the Criminal Procedure (Scotland) Act 1995, appears to represent an unusual or unexpected use of the powers conferred by the parent statute?
When I read the legal brief, I was concerned to see mention of an
I hear what Helen Eadie said, but this is a technical committee and the clerks’ recommendation covers what she said. It is for the subject committee to discuss the issue further. We have drawn that committee’s attention to the regulations, which is all that we need to do.
I would like the committee’s report to draw my comments to the lead committee’s attention, if the clerks would be so kind.
If I may say so, Helen Eadie makes some reasonable points. The legal team has used the expression “unusual or unexpected”. The regulations might be intra vires but their policy intention is unclear. We must flag up our concerns about the use of the power, even if it appears to be competent. As Dr McKee said, whether that is a policy intention is for the subject committee to consider.
Thank you.
May I assume that the committee is agreed?
Restriction of Liberty Order and Restricted Movement Requirement (Scotland) Regulations 2011 (SSI 2011/3)
Council Tax (Discounts) (Scotland) Amendment Order 2011 (SSI 2011/5)
Can we highlight to the lead committee the fact that we have had representations that it should deal with and leave it at that?
That would be a reasonable thing to do, although I do not know that it will lead anywhere. I suspect that the lead committee will analyse the policy intention of the order but, if we have all been lobbied, it would be worth while noting that in our report to the lead committee.
I do not want to go to the wall on this convener, but the committee’s job is to check that the instruments are technically in order. We could comment on every instrument that came in front of us and say how we have been lobbied about this, that and the other. Where do we stop?
If members will indulge me for a second, I have a suggestion. We could note that we have been lobbied. I also think that, if we have been lobbied in our capacity as members of the Subordinate Legislation Committee, it might be in order for the committee clerks to write to those who have lobbied us to point out that the committee does not deal with policy, only with enabling powers in secondary legislation. We could also make it clear in our report to the lead committee that we are making no judgment on the instrument; we are merely noting that we were lobbied on it. Dr McKee, however, is clearly saying that, if that becomes routine, it might defeat the purpose of the committee.
I agree with that and am happy to pass the NUS brief to the clerks. I am sure that Dr McKee’s memory is better than mine, but I have been a member of the Subordinate Legislation Committee for four years and can count on the fingers of one hand the number of times that I have been lobbied about the policy content of any instrument that is coming to the committee. It is highly unusual for us to get a lobbying document from any organisation. The Subordinate Legislation Committee is not notorious for being one of the stars of the Parliament, but there we are.
I do not think that we can read anything into the fact that we have been lobbied by this particular group. The fact that it has lobbied us does not make its case any more or less important; it has just incorrectly lobbied the wrong institution within the Parliament. If we can gently remind it that we do not deal with policy and refer it to the lead committee for any further representations that it might want to make, that might do a service.
Fine. That would be helpful.
My concern is that, if we create a precedent, future subordinate legislation committees might well have lobbying on a much greater scale, which would be totally inappropriate for a committee that deals with technicalities rather than policy.
We need to make it clear that we are not taking a position on the material, as it is not our job to scrutinise the policy; we are just pointing the lobbyists in the direction in which they should go. It is important that we encourage people to engage with the Parliament. If they do not receive any response, that could be off-putting. The committee has clearly not examined any of the issues and should make it clear to the subject committee that we are not giving this representation any emphasis above any other representations that it might get. We are basically signposting somebody in the right direction.
I wonder whether this is a one-off or whether there is a growing need for a protocol whereby we can, as nicely as possible, dead-bat the issue if it comes to the committee. We could tell people that we look at the powers underpinning the policy but not at the policy, and routinely refer them to the lead committees. That would create a precedent for informing our constituents, rather than dissuading them from contacting the Parliament.
I have not the slightest objection to us or our clerks, when they receive a submission or when we mention one to them, saying that there is a lead committee that will deal with the issue. However, I would be concerned if, as part of our official proceedings, we passed on lobbying efforts and created a precedent whereby everyone lobbied the Subordinate Legislation Committee in the knowledge that the committee would bring their petition or their arguments before the lead committee. They should be encouraged to bring those things before the lead committee themselves.
Dr McKee has raised concerns. The committee tends, when possible, to proceed on a consensual basis. I gently ask Dr McKee and Helen Eadie how strongly they feel about our notifying the lead committee that we have been lobbied. This could be about angels on the head of a pin or whatever the expression is—we could be splitting hairs that do not need to be split.
I would not get too excited about it, but I think that it is a matter of information for the public record that we have received this material. It is highly unusual for us to be lobbied in this way. All that is required is a note saying that the committee has had representations.
I offer a suggestion, which I hope will enable us to move on. I suspect that the Official Report of this meeting will have all over it the fact that concerns have been raised by a lobby group. That would not normally be the mainstay of a committee meeting. It is suggested that the committee clerks could informally notify the clerks of the lead committee of that, so that that information will not be on any official representations made by this committee.
We could do the same with our political colleagues.
Would that be an acceptable compromise?
Absolutely.
I accept that.
Perhaps, in the future, that will be a way of not going off on a tangent towards policy content, whether inadvertently or whatever. That may be a way forward.
In the interest of working together.