Subordinate Legislation Committee,

Meeting date: Tuesday, May 25, 2004

Official Report 114KB pdf

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Delegated Powers Scrutiny

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Prohibition of Smoking in Regulated Areas (Scotland) Bill: Stage 1

We return to the Prohibition of Smoking in Regulated Areas (Scotland) Bill at stage 1. Stewart Maxwell is with us as both a member of the committee and the member in charge of the bill. Members will recall that the committee questioned whether the bill potentially made it possible for a ban on smoking to be imposed in almost all public areas. Stewart Maxwell was to take the matter away for consideration and return to us with his response, so I hand over to him.

The main concern on the part of the committee—and rightly so—was that the power under section 2(1) as drafted could effectively allow private places to be regulated. For instance, somebody's car, home or other private space could potentially be regulated. Obviously, that is not the policy intention. I am happy to accept the comments that the committee made on 11 May.

It is my intention to lodge an appropriate amendment effectively to debar private places from the scope of the bill, so that a private space could not be created as a regulated area. Any private space would be protected and further primary legislation—a separate bill—would be needed to change that. Following amendment, the power under section 2(1) could not be used to regulate somebody's home, car or other private space. I think that that covers members' main concern. The exact wording of the amendment has not yet been worked out, but I think that it will deal with that main point.

Could you elaborate on the example of a hotel bedroom, which we considered the last time we discussed the matter? Secondly, could you clarify your stance with regard to more open public spaces, rather than enclosed public spaces?

I checked the position on the example of hotel rooms, about which there was some dubiety. I have received clarification on the matter from lawyers, and I understand that hotel rooms would be considered as private spaces. Once they are hired out, and guests have a key to their lock, they become a private space, so they would not be caught under the bill.

Would a hotel's function suite or meeting room also be considered to be a private space, or would it constitute a public space?

I think that such rooms would constitute public spaces, but I reiterate that a hotel bedroom would be exempt. It could not be included as a public space under the bill.

On open spaces, there is a clear distinction between an "enclosed public space" that is completely enclosed, such as this room, and places that are wide open. There is no policy intention to create restrictions or regulated areas in wide open spaces. There are places that fall between the two, which the bill does not cover. At the moment, a regulated area could not be created for somewhere that is partially enclosed. As is mentioned in the policy memorandum, a beer garden that was attached to a premises, or that was located outdoors and next to regulated premises, would not be included. Whether or not such places would be included at some point in future would be a matter for the Parliament to take up.

As one of the members who was concerned, I welcome what Stewart Maxwell has told the committee this morning. Obviously, we will want to see the precise terms of the amendment but, if it lives up to the spirit of what has been said this morning, I imagine that the committee will welcome it and—without wishing to pre-empt a decision—would recommend that it be agreed to.

We must report on the bill as it is, having heard what Stewart Maxwell has said. We will not see his amendment before we make our report, but we welcome the clarification that it is intended to make at stage 2.

Is it agreed that we will report to the lead committee on that basis?

Members indicated agreement.

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School Education (Ministerial Powers and Independent Schools) (Scotland) Bill: Stage 1

Members will recall that we sent the Executive some questions regarding the School Education (Ministerial Powers and Independent Schools) (Scotland) Bill, which is at stage 1. They largely related to the question of the person who will be defined as a "prescribed person". We were somewhat concerned about the breadth of the powers that were being suggested, especially as the matter was not being dealt with under the affirmative procedure.

Members will note that, halfway down paragraph 1 of its response to our first question, the Executive states, in justification of why it thinks the measure is needed, that:

"It would also be valuable were Scottish Ministers to decide for example to impose a particular standard for teachers within independent schools, requiring registration with the General Teaching Council of Scotland."

I have asked our legal advisers about the matter and, as members will see, they are not happy with the explanation that has been given. It is quite reasonable to seek that the affirmative procedure be used for the power.

It is all very well for the Executive to cite the potentially benign use of the power, but that does not get away from the fact that the power is very wide indeed. The Executive states later in its response:

"it is anticipated that use of this power would be made infrequently, and in limited circumstances … There is no question of this provision being used to discriminate against wider sections of the community."

That is not the point. It is not the intention of the current Executive that is the issue; the issue is that the bill gives powers to any future Executive to do just that. There need to be parliamentary safeguards against that happening. The affirmative procedure, rather than the negative procedure, should be used, and it should be necessary to consult before any further proposal is introduced.

The Executive says that it would carry out appropriate consultation, but does the committee think that that should be specified in the bill?

Members indicated agreement.

The two proposals are that the affirmative procedure be used for the powers in relation to the "prescribed person" under section 4(2), and that a reference to consultation be included in the bill.

It might be useful to put it on the record that, although the Executive has said that the power is included in the bill in order to give it the ability to take account of minor consequential changes that might arise from other legislation, the thrust of paragraph 11 of our briefing paper is that the proper vehicle through which to take account of such changes is that other legislation.

We should encourage the Executive to look at the range of amendments that may be required at the point at which it introduces primary legislation, instead of coming back and combing through subordinate legislation to see how other legislation might need to be changed to reflect the primary law that it has just passed.

Absolutely. Two main points arise in respect of the "prescribed person" list, if we include the point that Murray Tosh has just made. Are we agreed?

Members indicated agreement.

We will make our report on the bill to the lead committee.