Official Report 356KB pdf
The purpose of this item is for the committee to consider the delegated powers in the bill at stage 1. The committee is, as always, invited to agree the questions that it wishes to raise with the Scottish Government on the delegated powers in the bill. It is suggested that those questions are raised in written correspondence. The committee will have the opportunity to consider the responses at a future meeting before the draft report is considered.
Section 36(1) allows ministers to make provision for the charging of fees by the chief constable in respect of applications under part 1 of the bill, and otherwise in respect of the performance of functions by the chief constable under part 1. Fees may be set for various aspects of the air weapon licensing regime in regulations.
Sections 32 and 35 of the Firearms Act 1968 initially specified the fee levels payable for the grant, renewal and variation of a firearm certificate or shotgun certificate, or for registration as a firearms dealer, though fees are variable by order.
Does the committee therefore agree to ask the Scottish Government why a comparable approach is not taken to specify on the face of the bill the initial fee levels proposed for an application for an air weapon certificate and other functions chargeable by the chief constable in connection with the air weapon licensing regime?
Members indicated agreement.
Section 37 enables the Scottish ministers to make further provision for the purposes of part 1. In particular, this enables further provision for the application and approvals process for air weapon certificates, police permits, visitor permits, event permits or club approvals. That includes prescribing the mandatory conditions that will attach to certificates, permits or air weapon club approvals.
Specific matters may be prescribed by regulations under section 37(1), as provided for in sections 4(1), 6(1), 7(2), 13(9), 14(2), 15(1), 17(6), and 18(2) and (4). Beyond that, section 37(1) enables any further provision for the purposes of part 1 of the bill.
Does the committee agree to ask the Scottish Government what is enabled by that power to make further provision that would not, in the absence of such power, be enabled by the ancillary powers to make incidental, supplementary or consequential provisions in sections 75 and 76, and how might that power be used, beyond prescribing the matters set out in sections 4(1), 6(1), 7(2), 13(9), 14(2), 15(1), 17(6), and 18(2) and (4)?
Members indicated agreement.
Section 68 creates a new licensing regime for sexual entertainment venues by inserting new section 45A in the Civic Government (Scotland) Act 1982, which I will hereafter refer to as the 1982 act. Subsections (2) to (7) of proposed new section 45A of the 1982 act define what is meant by a “sexual entertainment venue”. It is any premises at which sexual entertainment is provided before a live audience for or with a view to the financial gain of the organiser.
The power in proposed new section 45A(7)(b) of the 1982 act, which is inserted by section 68(3) of the bill, enables the Scottish ministers to prescribe other types of premises that would not be sexual entertainment venues. The delegated powers memorandum explains that the power is intended to have a very narrow focus and would be used in very limited circumstances if sexual entertainment venues were inadvertently caught within the licensing regime in section 68.
Does the committee agree to ask the Scottish Government why it has been considered appropriate for the power to be drawn broadly to enable the exemption of any other premises, as specified by order; why it could not be drawn more narrowly to define the very limited circumstances or range of premises that might potentially be exempted; why it is not possible to avoid the need for the power by using more appropriate or clearer definitions in proposed new section 45A of the 1982 act to remove the possibility that certain types of venue or premises could inadvertently be caught within the licensing regime; and what, in general terms, might be inadvertently included?
Members indicated agreement.
Proposed new section 45A(11) of the 1982 act allows ministers to prescribe descriptions of performances or displays of nudity that are not to be treated as sexual entertainment for the purposes of the licensing regime. The delegated powers memorandum explains that that power is also intended to have a very narrow focus and would be used in very limited circumstances if certain types of performance were inadvertently caught within the licensing regime in section 68.
Does the committee agree to ask the Scottish Government why it has been considered appropriate for the power to be drawn broadly to enable the exemption of any descriptions of performances or descriptions of displays of nudity, as specified by order; why it could not be drawn more narrowly to define the very limited circumstances or range of performances or displays that might potentially be exempted; why it is not possible to avoid the need for the power by using more appropriate or clearer definitions in proposed new section 45A of the 1982 act to remove the possibility that certain types of performance or display could inadvertently be caught within the licensing regime; and what, in general terms, might be inadvertently included?
Members indicated agreement.
Proposed new section 45B of the 1982 act, as inserted by section 68(3) of the bill, confers powers by resolution on a local authority for sexual entertainment venue licensing to have effect in its area.
The authority may resolve that schedule 2 of the 1982 act, as modified by new section 45B, is to have effect in its area. The section also confers power on a local authority to determine an appropriate number of sexual entertainment venues for its area. That determination must be publicised by the local authority.
Proposed new section 45B also provides that local authorities, in carrying out the functions conferred by the section, must have regard to any guidance issued by ministers.
Does the committee agree to ask the Scottish Government why those powers are appropriate; why it is appropriate for them to be exercised by means of published resolution and determination; why the power of ministers to issue guidance is appropriate; and why there appears to be no provision for the guidance to be published when a resolution or determination by a local authority under the section would be published?
Members indicated agreement.
Section 71, which seeks to insert new section 45D in the 1982 act, allows ministers to set mandatory conditions that would apply to all licences issued under part 3 of the 1982 act. That includes the regime for sexual entertainment venues, which is inserted by section 69, and sex shops. That could encompass different licences and particular purposes and sets of circumstances or cases.
By inserting new section 45E in the 1982 act, section 71 also confers a power on a local authority to determine standard conditions to which such licences are to be subject. Again, that could encompass different licences and particular purposes and sets of circumstances or cases. Any such conditions must be published, and they must be consistent with any mandatory conditions set by the Government.
Does the committee agree to ask the Scottish Government why it has been considered appropriate that any mandatory conditions set in regulations under section 37 in relation to an air weapons certificate or permit should be subject to parliamentary scrutiny by the negative procedure, while any mandatory conditions set by regulations in relation to sex shops and sexual entertainment venues would be subject to the affirmative procedure? Furthermore, does the committee agree to ask why the powers conferred on a local authority in section 71, which inserts new section 45E into the 1982 act, are appropriate, and why it would be appropriately exercised by informal published determination?
Members indicated agreement.
In section 76(1), which confers the power to make
“incidental, supplementary, consequential, transitional, transitory or saving provision as”
the ministers
“consider necessary or expedient for the purposes of, or in consequence of, or for giving full effect to, any provision of this Act or any provision made under it”,
the words
“or any provision made under it”
expand the scope of the ancillary powers and are unusual in comparison with recent acts that contain a comparable number of delegated powers or powers of potentially wider scope than are contained in this bill. Does the committee agree to ask the Scottish Government why, for this particular bill, that proposed expansion of the ancillary powers has been considered necessary?
Members indicated agreement.