Delegated Powers Scrutiny
I welcome everyone to the 33rd meeting of the Subordinate Legislation Committee in 2002. We sure do pack 'em in.
We have a couple of things to get rid of this week—no, not to get rid of, but to dispose of in the time-honoured fashion: the Dog Fouling (Scotland) Bill and the Agricultural Holdings (Scotland) Bill, both at stage 1.
Dog Fouling (Scotland) Bill: Stage 1
We have had a letter from Keith Harding, the sponsor of the bill, answering some of the questions that we had raised. He has been very co-operative in dealing with our concerns.
On the form of fixed-penalty notices in section 6(3), Mr Harding has said that he obviously has no experience of operating fixed-penalty schemes, nor could he predict the operational issues that might arise when the scheme is finally implemented. He is therefore pleased that the committee recognises that there may be further matters that need to be set out on the form. We were querying whether or not they could be removed. However, Mr Harding has agreed to amend the procedure for any order under the powers of the bill to be subject to the affirmative procedure. We may agree that that is a reasonable compromise.
We should welcome that concession from Mr Harding.
Section 9(2) concerns the amount of the fixed penalty and allows Scottish ministers to alter that amount and therefore increase or decrease the relative seriousness of the offence. We also queried the fact that that power was to be subject to the negative procedure, because it impacts on the policy intention. Mr Harding has replied that there is a difference between amending a sum to take account of changes in the value of money and amending a percentage of another figure, because the latter has more far-reaching consequences. He says that, where the negative procedure is prescribed, it tends to be prescribed because the limits of the exercise of the power are set out or implied in the power. However, he has agreed to amend the procedure. Once again, it is up to the committee to decide whether that is a reasonable amendment on Mr Harding's part.
We should go with that compromise.
Right. The next question relates to the Criminal Procedure (Scotland) Act 1995. The committee asked whether Mr Harding had considered including a provision to the effect that an order made under section 9(2) would not affect the penalty for an offence that was committed before the order came into force.
Obviously, Scottish ministers are bound to act in a manner that is compatible with the European convention on human rights. Mr Harding intends to lodge an amendment providing for orders under section 9(2) to be subject to the affirmative procedure. Therefore, he thinks that it is unnecessary to include a provision specifying that an order under that section will not affect the punishment of an offence committed before the order comes into force. Do members accept Mr Harding's explanation?
Members indicated agreement.
Agricultural Holdings (Scotland) Bill: <br />Stage 1
The committee raised a number of points on the bill with the Executive and may be satisfied with the Executive's answers.
Section 26 concerns transfers not requiring notice. The section lists those transfers of land, notice of which does not require to be given to a landlord and that do not trigger the right to buy. Section 26(6) allows the Scottish ministers to alter those provisions by order. As the provision is important, we asked the Executive to provide further justification of the power to amend the primary legislation, which we normally frown upon, as members know.
The department is sensitive to our concerns, but points out that the power mirrors a similar power in section 39 of the Land Reform (Scotland) Bill.
The Executive's response explains the interrelationship between the order making powers in sections 26(6) and 27(6) of the Agricultural Holdings (Scotland) Bill and that in section 39 of the Land Reform (Scotland) Bill and why the trigger mechanisms in sections 26 and 27 of the bill mirror those in section 37 of the Land Reform (Scotland) Bill, as introduced. The response made sense to me.
We should approve the power, which will be subject to the affirmative procedure anyway, so there will be scrutiny. We should not delay matters when that safeguard exists.
Section 27 of the bill is on the right to buy. The section confers the right to buy on the tenant and sets out the circumstances that trigger the right. Section 27 is linked to section 26, which we have just discussed. In view of the pivotal importance of section 27(6), which allows the Scottish ministers to amend the list of circumstances by order, subject to the affirmative procedure, we asked the Executive to provide further justification of that power.
The Executive's response draws our attention to what it said about section 26(6) and the equivalent power in the Land Reform (Scotland) Bill.
We accepted the point that was made on section 26(6). The same point applies, so we should accept what the Executive has said.
Okay.
Section 32 is entitled "Valuation etc.: further provision". Sections 30 and 31 make detailed provisions as to the valuation of land for the purposes of sale to the tenant and section 32(7) allows ministers to make further provision by order in connection with such matters. Because of the drafting, we were not sure whether the Executive would get into the business of judging particular cases. The Executive has reassured the committee that there is no question of the bill's seeking to create a hybrid instrument—I did not realise what a hybrid instrument is, but now I know.
The Executive assumes that the committee's concern relates to the words
"or in a particular case",
in section 31(5), which was the phrase that made us think that the guidance might deal with individuals. The Executive says that those words are designed to indicate that the guidance can be issued either at a general level or for a specific set of circumstances. However, the reference to a particular case is not intended to mean that the guidance should be directed at a particular outstanding valuation that is as yet unresolved by the two parties.
If the committee still thinks that the wording gives rise to concern as to its interpretation, the Executive will consider whether it is necessary to amend the wording of section 31(5).
The Executive should reconsider the drafting to make the position clear, as the meaning is slightly hazy at the moment. Although the Executive has given us an explanation, section 31(5) may not be clear to people who read the bill without having heard our deliberations or seen the submission that we received from the Executive. It is worth asking the Executive to think again about the matter before the bill goes through.
I agree. The issue is at the very kernel of the bill.
Section 55(2)(b) will insert proposed new subsection 24(5) into the Agricultural Holdings (Scotland) Act 1991. Section 55 of the bill will further restrict the right of a landlord to issue notices to quit. Section 55(2)(b) provides that certain expressions that are not defined are to be defined in regulations made by the Scottish ministers. We asked the Executive to comment further on whether it was appropriate that a delegated power should determine the terms "economic and social benefits" and "community". We also asked for further comment on the appropriateness of using the negative procedure.
We would normally think that the affirmative procedure would be needed for this sort of thing. Do members agree? The Executive says that an alternative would be to provide guidance rather than legislation.
The Executive also says that it might lodge amendments at stage 2, so that the definition of the terms would appear in the bill. If the Executive either did that or made the power subject to the affirmative procedure, that would be a positive step.
Does anyone have a preference?
We should raise the issue with the Executive and let it consider the matter. Either of those two procedures would be an improvement on the current proposal. We will see what we think when the Executive responds.
Okay.
Section 58 deals with the rights of certain persons where the tenant is a partnership. The section is intended to ensure that no one can thwart a tenant's right to buy. Does anyone have any comments on the Executive's response on section 58(9)? The Executive does not seem to share the serious concern that the committee raised.
The wee problem with all of this is that it is thought that, during the passage of the bill, amendments might be made that would change the perspective.
Will we draw the issue to the attention of the lead committee?
Is that what we should do?
Does Murdo Fraser have any thoughts on the matter?
The question that arises is whether ministers should be given the power to amend lists. In the past, we have taken rather a cautious attitude on such things.
Perhaps we should draw it to the attention of the lead committee, because there are doubts as to whether section 58(9) is proper procedure.
Okay. We will say that we note the Executive's reply, but that we remain concerned that, although the matter is certainly one for delegated powers, there is broad scope to affect the impact of the legislation if ministers have a list to which they can add or from which they can subtract.
Section 77(4) is entitled "Meaning of ‘family'". Do we want that to be in the bill? Is the Executive going to keep that in the bill, because there is already a broad definition? Perhaps that is one thing that has yet to be decided. As a committee, perhaps we should wait to see what comes back to us.
That is right. Other legislation that is related to the bill is going through the Parliament, and there is no doubt that when this bill comes back to us at a later stage it will have been changed.
I agree with Ian. It is better to wait and see.
Okay, we will do that.
What the Executive said has been helpful in setting the scene, but there is a strong implication that—
—the section will not appear like that when the bill comes back.
Homelessness etc (Scotland) Bill: Stage 1
The bill contains a number of proposals that are intended to prevent homelessness and provide for a more effective response to homelessness. There are proposals relating to the various tests that are applied by local authorities to homeless persons to establish whether they are entitled to accommodation: the priority need test, the intentionally homeless test and the local connection test. In addition, there are proposals in respect of possession proceedings taken by landlords and mortgage lenders. There is also a question of Henry VIII powers.
Section 2 is on the abolition of the priority need test. It gives Scottish ministers the power to appoint a day from which local authorities will no longer take account of whether a homeless applicant is in priority need when assessing their duties towards that applicant. As the committee will appreciate, that is very important.
It looks to me as if the use of the negative procedure for the timing of the implementation is okay. If the act were being amended, the affirmative procedure would be necessary and it looks as if that is also in order, and that we will have the appropriate level of parliamentary scrutiny.
The change to the priority need test is a big measure. At the very least, it should be subject to the affirmative procedure.
I am informed that orders made under this section regarding when it comes into force will be subject to the negative procedure, which seems all right. Where an order that is made amends the Housing (Scotland) Act 1987, it will be subject to the draft affirmative procedure, as specified in section 2(5). That concern would appear to have been met.
Section 7 amends the Housing (Scotland) Act 1987 to introduce two powers, one to modify section 33 of the act and one to issue a statement on the exercise of the power to modify that section.
The same issue arises in section 7 as arose in section 2. We need a provision in new section 33A of the 1987 act to say that orders that amend the 1987 act must be subject to the affirmative procedure, although other orders can be subject to the negative procedure.
Right. We will inform the Executive of that. I am surprised that the Executive has not done that.
Section 10 gives notice to local authorities of proceedings for possession and the enforcement of standard securities. That is okay. Just as a passing comment, could a local authority be required to give notice to itself under section 10? We are not sure. I am not going to go to the wall on that one, but it is an interesting question.
Section 13 sets out the commencement and short title. A query is raised over commencement orders including transitional provisions, but I think that it is of no import.