Subordinate Legislation Committee, 25 Mar 2008

Meeting date: Tuesday, March 25, 2008

Official Report 105KB pdf

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Delegated Powers Scrutiny

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Creative Scotland Bill: Stage 1

I welcome everyone to the 11th meeting of the Subordinate Legislation Committee in 2008. We have received apologies from Helen Eadie; although she might join us later, she probably will not be able to. I ask everyone to turn off their mobile telephones and so on.

This is our first consideration of the Creative Scotland Bill, which establishes a new cultural development body, creative Scotland. It contains a small number of delegated powers.

Colleagues, do we consider the powers in section 5 to issue directions or guidance to be acceptable, or should they be expressed as powers to make subordinate legislation—that is, as order-making powers—either as a whole or in certain respects? Alternatively, we may wish to seek further explanation from the Government as to why it is considered that the powers to issue requirements to creative Scotland on general and specific matters should be exercisable by directions, rather than by statutory instrument.

I crave members' indulgence. Subsection (1) of section 5, "Directions and guidance", states:

"The Scottish Ministers may give Creative Scotland directions (of a general or specific nature) as to the exercise of its functions."

That seems to be fairly broad and far-reaching. Subsection (2) adds:

"But the Scottish Ministers may not give directions so far as relating to artistic or cultural judgement in respect of the exercise of Creative Scotland's functions under section 2(1) or (3), 3(3) or 4(4)."

I will explain the argument that has been forming in my mind. We know that the cultural and artistic stuff has been addressed in this way as a result of the consultation—that is right and proper. Under section 5(1), if—to choose a purely hypothetical example—ministers felt that the National Theatre of Scotland should definitely be located in Perth, rather than being a peripatetic body, that would be outwith the artistic or cultural area, but it would nevertheless be a rather important matter for the theatre.

I do not know how the committee feels, but I would rather explore the issue, at least at this stage, and ask why the route of a Scottish statutory instrument has not been taken, rather than the route of directions. Using an SSI would at least give Parliament a chance to consider the issues, which might be very important, without necessarily being of an artistic or cultural nature. Using an SSI might be better than a straightforward ministerial direction—possibly, but not necessarily.

The matter is worth exploring with the Scottish Government. We could ask why it seeks a power of ministerial direction, rather than using SSIs. What are the comparable pieces of legislation, and have there been similar instances? Have similar bodies been placed in various parts of Scotland by the use of directions, rather than an SSI? How was the National Theatre of Scotland placed in Glasgow?

The National Theatre does not have a base; its peripatetic nature was supported by the previous Scottish Executive. There may be a debate to be had about that, but ministers will have powers to determine such things by direction. If such a hypothetical example were to arise, I would be keener for there to be some parliamentary involvement.

Other bodies have certainly been positioned in Edinburgh, and there is the example of Scottish Natural Heritage moving to Inverness. I do not recall that decision coming before Parliament by means of a statutory instrument. My understanding was that the decision was made by ministerial direction. Is that right?

I am not able to answer that question.

It would be useful to compare other legislation. Perhaps the Scottish Government could supply a comparison with its response to indicate what previous practice has been. You make a good point, convener; such decisions should perhaps come before Parliament for scrutiny. To be fair, I am not sure that the bill marks a departure, but it is worth exploring the general question with the Scottish Government.

I have no objections to the route that you are proposing, convener. The normal thing would be for the Government of the day to make a strategic decision and to leave the organisation itself to make the organisational decisions. That is how the Government's proposals look to me. I might be wrong about that, but I am more than happy to agree to seek further clarification on the matter.

Is that the will of the committee?

Members indicated agreement.

So we will go with the alternative: we will seek further explanation from the Government.

Are we content with the ancillary powers in section 9, and with their being subject to negative and affirmative procedures?

Members indicated agreement.

Also in relation to section 9, are we content to ask the Scottish Government why the draft affirmative procedure should not also apply in the circumstances where the ancillary provisions shall "modify any enactment"—beyond a textual amendment of the eventual act? These are specific, detailed questions.

Members indicated agreement.

Are we content with the commencement powers in section 10?

Members indicated agreement.

Are we content to ask the Scottish Government, first, why it is considered necessary to frame the powers such that they permit the textual amendment of schedule 1—I refer specifically to paragraph 2(2) of that schedule—and why it is necessary to allow any possible minimum or maximum number of members of creative Scotland to be substituted? Secondly, are we content to ask why it is considered appropriate for the powers to be subject to the negative procedure, given that they permit textual amendment of the eventual act?

Members indicated agreement.

We will have a look at the Government's response at our meeting of 22 April.