Subordinate Legislation Committee, 25 Oct 2005

Meeting date: Tuesday, October 25, 2005

Official Report 143KB pdf

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Delegated Powers Scrutiny

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Management of Offenders etc (Scotland) Bill: as amended at Stage 2

The delegated powers memorandum to the Management of Offenders etc (Scotland) Bill came rather late. It arrived within the timescale, but the fact that it got to us quite late presented a certain amount of difficulty. However, sterling work has been done, as ever, by our legal team and the clerks. Members will note that a number of issues arise.

The first point concerns section 7, which is headed

"Transfer of functions to community justice authority".

The bill was amended at stage 2 to include additional functions in orders made under sections 7(1) and 7(2). Section 7(5) was also amended at stage 2 to include a duty on ministers to consult relevant local authorities and the community justice authority, and to obtain agreement with all of them before laying a draft order. We made various points about that at stage 1. We would perhaps have liked some acknowledgement that we did so, but I suppose that we should be happy that our input has been taken on board. Are there any further points?

I have no further points to make, but I would say that there has been a curious turnaround in the Executive's position. We argued our point, but we were dismissed out of hand. Then, the Executive went from opposing what we said to not just agreeing with it, but going further and adopting a very strong position based on the idea that the other bodies concerned effectively have a veto. That is a very different position from the one that the Executive was maintaining not so long ago. It is strange. I would have liked some explanation as to why such a turnaround was made.

We have the correspondence that has been going backwards and forwards, but we have not received a fuller explanation of the Executive's position. I do not see any reason why we cannot ask for that.

It was just curiosity on my part.

Is it agreed that we write back to the Executive to request such an explanation? We are obviously happy, at any rate, with the result that has been achieved.

Members indicated agreement.

The second point is on section 10A, which is entitled

"Scheme of accreditation and procedure etc of the Risk Management Authority".

The provision amends section 11 of the Criminal Justice (Scotland) Act 2003, which regulates the accreditation scheme to be put in place by Scottish ministers. It specifies that an order made under section 11 of the 2003 act may authorise decisions and appeals to be taken by committees of risk management authorities. Are we happy with that provision?

Members indicated agreement.

I welcome Adam Ingram to the meeting.

We now come to section 11(1B), which amends the Prisoners and Criminal Proceedings (Scotland) Act 1993. It adds new section 1AA, which is headed

"Release of certain sexual offenders".

Section 11(1B) does not create a new delegated power but, in introducing new section 1AA into the 1993 act, it will have an indirect bearing on a rule-making power in section 20 of that act. However, there do not appear to be any points of concern in relation to that. Do members have any points to raise on the matter?

I have a question. I might be mistaken, but I understood that, under the new rule on early release, sexual offenders were not included—that they were one of the categories to be exempted from the provision. Do I understand correctly that, effectively, certain sexual offenders would in fact be entitled under the early release scheme?

We do not know the answer to that question. I think that we should ask the Executive. There has been a lot of discussion about the matter in the Parliament, so there should be no problem trying to get clarification on it. I propose that we write to that effect.

I presume that it relates to the part of the Management of Offenders etc (Scotland) Bill that provides for home detention curfews. The Minister for Justice came before the Justice 2 Committee, and I understood her to say that sexual offenders would not be considered for release under the home detention curfew.

I think that that is right, but there is no harm in getting clarification on the matter.

That would be useful.

There are no further points of clarification to raise in our letter on the Management of Offenders etc (Scotland) Bill.

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Human Tissue (Scotland) Bill: Stage 1

Various issues arise under the Human Tissue (Scotland) Bill that concern delegated powers. We are considering only a few of them today, however. The first relates to section 15, which is entitled

"Restrictions on transplants involving a live donor".

Section 15(3) gives the Scottish ministers powers to allow sections 15(1)(b) and 15(2)(b) not to apply—that is, for offences not to be committed—when requirements or conditions set out in regulations made under section 15(3) are complied with. There seem to be two issues with that. First, are we content that that is a delegated power? Secondly, if we are content with the power being delegated, should the power be subject to the negative procedure, as it currently is? The issue is sensitive and the power is fairly wide. It might be that we think that the affirmative procedure ought to be used, rather than the negative.

Murray Tosh (West of Scotland) (Con) indicated agreement.

You are nodding, Murray.

I am not aware of any discussion that you may have had on the matter already, but my sense of the briefing notes before us is that there is a bit of a contradiction in what the Executive has been saying, between acknowledging, in one part of the delegated powers memorandum, that the

"Affirmative procedure is used … where there is significant public interest"—

which will arise in sensitive areas—while proposing that the negative procedure be used in this instance. I think that we should challenge that and suggest that the affirmative procedure is more appropriate.

Is the committee agreed on that? You do not seem to be sure, Ken.

No—I agree that we should make that suggestion. It is simply a question of balance.

That is fine. The second area on which there seem to be some questions is section 16, which is entitled

"Records, information etc: removal and use of parts of human bodies for transplantation etc".

Section 16(1)(a) gives the Scottish ministers powers to make regulations requiring persons to maintain records in connection with the removal of human parts for transplantation and the use or retention of parts.

Section 16(1)(b) gives ministers powers to make regulations requiring persons to make information available to ministers or to a specified body. There do not appear to be any issues in relation to the use of a delegated power or to the fact that the regulations will be subject to the negative procedure. There is, however, a possible issue in relation to confidentiality. It does not seem to be clear that the bill as drafted would provide vires for regulations to cover confidentiality matters. It could be that data protection or freedom of information legislation covers that area. The question is whether we wish to write to clarify the issue. Do members have any other points to make?

There is a good argument for raising with the Executive the desirability that the legislation should contain its own cover for confidentiality, rather than rely on other legislation.

There is no doubt that we should write to confirm that.

So we will write about the confidentiality issue.

Yes.

Section 35 is entitled

"Use of organ no longer required for procurator fiscal purposes".

Section 35(2)(c) gives ministers the power to specify persons who may give approval to carry out research on an organ removed from a deceased person. While the Executive memorandum states that the intention is that the order will specify that a research ethics committee will be able to provide the approval, the choice of persons is currently left wide open. The intention is there, but is that sufficient?

The briefing note asks us two questions: the first is that we should seek clarification from the Executive about how it intends that the section will work; and the second question is whether we feel that the negative procedure is adequate. I find it difficult to make any informed judgment on the latter point without first getting the information from the Executive about how it sees the section working. We should ask for clarification on that and reserve our position on the other question until we get an answer. The same would apply to section 43(2), where the same issues arise.

I agree. The intention is clear from the policy notes. I do not know what the problem is; it may just be the definition of an ethics committee. If the Executive uses a definition in the policy note I do not see why it cannot allude to that in the bill as an example of somebody who could be appointed. Clarification would be helpful.

We will write for clarification on our concern that the choice of person should not be interpreted more widely than is the Executive's intention.

Section 43 is on

"Use of organ removed before day on which section 35 comes into force".

Murray Tosh has made the point that section 43(2) raises the same points as section 35(2)(c), so that has been dealt with.

We have a general point on part 3 of the bill, relating to delegated powers. There do not seem to be any sanctions for failure to comply with the requirements of part 3. Should that point be raised with the Executive?

Members indicated agreement.

Section 47 is about the

"Power to prescribe forms and descriptions of persons who may act as a witness".

Section 47(a) gives ministers powers to prescribe the form in which authorisation for certain activities under parts 2 and 3 of the bill can be given by nominees, relatives or persons with parental responsibilities and rights. Section 47(b) gives ministers powers to prescribe persons who are eligible to act as witnesses to authorisation in certain cases. However, it is not clear whether it is mandatory for forms to be used. We may want to ask about that.

The briefing note suggests that the opposite is implied in section 47. There appears therefore to be a degree of uncertainty about the intention of the section. We should raise that.

Absolutely. Is that agreed?

Members indicated agreement.

Essentially it is a drafting point. It is not made clear.

The next item deals with section 48(13), and new sections 8A(2)(a) and 8A(2)(b) of the Anatomy Act 1984. Members may be interested to note that the code of practice under the section will now be subject to quite a large amount of consultation and agreement by Parliament. It is an issue that the committee is examining as part of its inquiry. Do members wish to raise any further points? As members will have read, there is quite a procedure for that code.

It is suggested in paragraph 38 of our legal brief that there is a degree of uncertainty about whether the code will create a criminal offence. It seems to be suggested in new section 8A(7) that failure to comply with the code could establish guilt of a substantive offence. Since we are raising other matters with the Executive we should be absolutely clear on that point as well.

Is that agreed?

Members indicated agreement.

Section 50(1) is about the power to give effect to Community obligations. This section allows ministers to amend the act that the bill will become in order to implement any Community obligation of the United Kingdom relating to material that consists of human cells. Ministers have the power to do that under section 2(2) of the European Communities Act 1972. The question might therefore be asked why the Executive needs the section.

I was curious about that. It has been suggested that the 1972 act might be redrafted at some stage. We should clarify that with the Executive.

There are a number of other powers in the bill, but there do not appear to be any points concerned with those.