Official Report 177KB pdf
Protection of Vulnerable Groups (Scotland) Bill: as amended at Stage 2
I need to give members the timescale for the bill. We have another week to have a look at the bill but, if we are going to lodge stage 3 amendments, it might be better to consider them this week. It might be difficult to do anything about amendments next week, as stage 3 is so close—it is a week on Thursday. If we get what we are looking for, we could withdraw the amendments.
If you lodged an amendment next week, would it have to be a manuscript amendment?
Yes.
It is therefore wise to consider any amendments this week.
Yes. We spoke about a similar situation the other week in relation to another bill.
In section 8, "Reference by certain other persons", subsection (2) lists the bodies that may give prescribed information to ministers about persons carrying out regulated work. Further bodies have been added to that list at stage 2. The power itself remains subject to negative procedure. We were content with that at stage 1. Are we still happy with that?
Section 14, "Automatic listing", contains a duty to prescribe the duration of listing and a minimum period of listing prior to removal. The power to specify criteria is amended by the addition of a further offence. It is subject to affirmative procedure and, again, we were content with that at stage 1.
No, I think that the matter is fairly clear now. I do not think that there are any problems with it, and the changes are acceptable.
Okay. Is that agreed?
In section 17, "Information relevant to listing decisions", subsection (5)(f) contains a power to specify other bodies that may make relevant findings of fact. The same point arises here as arose at section 8, which we have discussed. It involves an extension to the list of bodies. Are we happy with the power and its being subject to negative procedure?
A similar point arises at section 19, "Information held by public bodies etc", as arose under sections 8 and 17. Under section 19(1), ministers have a power, when considering whether to list a person, to require information from the bodies that are listed in section 19(3). Section 19(3) also empowers ministers to specify other persons who may be required to give information. The list has been expanded to include new bodies.
Section 25 is headed "Application for removal from list". The power in section 25(3)(a) has been amended to clarify the drafting. It now enables greater flexibility in regulations by specifying the beginning of the minimum period before an application for removal is competent. Are members happy with that power and with the fact that it is subject to negative procedure?
Section 29 is "Notice of listing etc". Subsections (4) and (5), containing the power to issue guidance, have been deleted. The Executive has indicated that it intends to lodge an amendment at stage 3 giving ministers a general power to issue guidance on any aspect of the bill and its operation. Are we content with the deletion?
Section 31, "Relevant offences etc", contains a power to modify the circumstances in which a person is treated as having committed various offences. The power has been amended, as a simplification of drafting, rather than to change to the substance of the power. Are members happy with the power and its being subject to affirmative procedure?
The power in section 37, "Police access to lists", which enabled ministers to prescribe information from the children's and adults' lists to be made available to chief constables, has been deleted. There are two ways of considering the deletion of that power.
No. I assume that you will raise with the Executive officials the matters that are noted down before us.
Yes. The first question is the obvious one. Could the officials explain what type of information will be held on the list? How do you propose to exercise discretion in disclosing information to the police in practice?
The kind of information includes the fact that the person is listed in respect of one or other or both workforces; there is then other information that correlates the identity of the individual, for example their date of birth and address. The fact that the individual is listed is itself the most sensitive piece of information. The bill establishes that the police should have access to that. The other information is really just to confirm identity. That is the thinking behind the change that we made.
You do not think that there will be any problems with inconsistencies about what information is being passed on, do you, given that a lot of discretion is being left with ministers?
No. There is a limit on the information that may be held on the list. It would include only an individual's name and address and the type of regulated work that they did. There would not be any other information on the list that could be passed by ministers to chief constables.
Are members reassured by that explanation and content simply to note the deletion?
Section 43, "Statement of scheme membership", is a new power that was introduced at stage 2 and is subject to negative procedure. It provides that a statement may contain
The power in section 46, "Vetting information", was amended at stage 2. At stage 1, in response to our question whether the reference to vetting information was intended to be a distinct regulation-making power, the Executive confirmed that it was not. However, we reported to the lead committee that the drafting remained unclear. The Executive has amended the provision to remove the existing ambiguity and to ensure that it no longer confers any subordinate legislation-making powers. Are members content with the amended version?
Section 60(2), which conferred the power to prescribe circumstances in which fingerprints may be destroyed and persons who may destroy them, was deleted at stage 2 and replaced by an express duty in the bill. Are members content to note the deletion?
Section 67, which was amended at stage 2, confers a power on ministers to prescribe fees in certain matters. New section 67(2)(za) amplifies that power.
Yes.
Why is section 99(2)(b) not adequate for the Executive's purposes?
We felt that the amendment was necessary to put beyond doubt the point that in charging for a disclosure ministers can take into account an individual's history within the disclosure system and the previous fees that they have been charged. The bill contains a number of different types of disclosure, and we want ministers to have the flexibility to charge different fees for those different types. Moreover, if an individual has paid a higher fee in the past, we might want to give them a discount on the second or third disclosure.
If members are happy with that explanation, are we content with the power and the fact that it is subject to negative procedure?
Section 69A, "Consideration of suitability: supplementary", provides a new power that is subject to negative procedure. According to the supplementary DPM, the power is needed to cover contracting out arrangements to allow contractors as well as employers to ask for a disclosure. Are members content?
Sections 73 to 81 formed part 3 of the bill, which was entitled "Sharing child protection information", and were deleted at stage 2. Are members content simply to note the deletion?
Section 85, "Regulations about registration", inserts new section 120ZB into the Police Act 1997. The new section has been amended at stage 2 to reflect a change in terminology. We were content with the power at stage 1; are we still content with it, and the fact that it is subject to negative procedure?
In section 88, "Power to give effect to corresponding legislation in England, Wales and Northern Ireland", subsection (1A) is a new power that has been inserted at stage 2 and is subject to affirmative procedure if it is used to amend the terms of the bill or any other act. Otherwise it is subject to negative procedure.
Westminster could simply have sent us a legislative consent memorandum and asked us to legislate on its behalf.
Possibly.
The power will be subject to affirmative procedure if the legislation is being amended, otherwise it will be subject to negative procedure. In what circumstances would it be subject to negative procedure? I can envisage some, but it would be interesting to find out your thoughts on the matter.
Affirmative procedure will apply if amendments are made not just to this legislation, but to any act. The stage 2 amendments to this provision do not change the power in relation to the Safeguarding Vulnerable Groups Act 2006; they simply extend the power to ensure that it applies in the same way to any future Northern Ireland legislation, in the event that a reconvened Northern Ireland Assembly chose to legislate distinctly in this area. If anything, the provision ensures that the 2006 act, or any future Northern Ireland legislation, is fully implemented. If such a move requires us to amend any existing act, we will apply affirmative procedure; however, if we do not require to make textual amendments to an act, we will seek to apply negative procedure.
I am trying to think of examples that would not involve amending existing legislation.
For example, if a section in a future Northern Ireland act barred certain people from working with children, we might have to refer to that section to ensure that they were also barred in Scotland. However, we would not be amending that act.
Is that okay, Euan?
I will need to think about that.
Are members generally content with the new power?
Despite our stage 1 recommendations, the power in section 87, "Transfer of Disclosure Scotland staff etc", is unamended. We considered that it was inappropriate for an order to specify individuals by name; after all, it would be a Scottish statutory instrument and it would be published on the internet. We drew to the lead committee's attention our concern that staff could be identified by definition or classification, but the supplementary DPM makes no reference to the point.
We could ask for some examples of circumstances in which such a measure would be "absolutely necessary" to ensure full legal effect. Obviously, we would not ordinarily want individuals to be named but, if a case can be made for doing so, I am sure that the committee will accept it. However, it is a bit difficult to know in the abstract what those circumstances might be.
Section 87 was not amended at stage 2 and our position is still that we will do everything that we can to describe people without using their names. Some of the complexity is a result of the background to Disclosure Scotland's staffing arrangements. Some people are employed by Strathclyde joint police board but have been seconded to Disclosure Scotland to exercise functions of the Scottish ministers under the Police (Scotland) Act 1967. We have to cover ourselves for the complexity of those arrangements and to ensure that every one of the 90 individuals that we will be transferring can be covered. We anticipate that we will be able to do that using descriptions of their job titles or functions, but because they will have come from a wide range of home employers, the situation is complex and we cannot remove the possibility that we might have to identify individuals by name. We will strive not to, however.
So you think that the provision will apply only in the circumstances of someone who has been seconded or transferred and whose job title is not sufficiently clear for all their terms of employment to be covered adequately by reference to that title.
When we come to make the order, we will have to go through the backgrounds of each one of the 90 individuals because of the historical complexity of Disclosure Scotland's staffing arrangements. Different provisions might have to be made for different people because of those circumstances.
Is it your point, therefore, that you are doing this to protect the employment rights, for example, of the people in question?
Yes. The aim is to ensure that all those people are transferred into Disclosure Scotland. They have been informed about the transfer and are apparently content at the prospect of being transferred into the core civil service. This is a way of ensuring that we can capture them all within the order.
To summarise what Murray Tosh said, if you have to release a name, it would be to protect that individual's pension, for example, or for some other reason. Is that right?
Yes. It would be done to ensure that their employment and pension rights and so on get transferred to their new job. If the only way to identify an individual is through their name, we would use it to protect their employment rights when they are transferred into the civil service.
I understand the reasoning behind the provision and I support your wanting to ensure that everything goes smoothly, because that is in the best interests of the staff. However, I am still struggling to understand why the order would have to name someone and why it cannot just refer to them by definition or classification. I am trying to think of an example where that would cause a problem. Surely we should be able to describe a particular role without having to name the person. If you could give me a solid example of the problems that you foresee, it might help me to understand.
We might be concerned about a scenario where person A is to be transferred and person B is not, for whatever reason, but both A and B are doing a similar job in the organisation, so their job title might be the same. The only way to distinguish between A and B would be to name A in the order. Obviously, we will do everything that we can to avoid that, but we might get to that position.
That is helpful.
Yes, thank you. That has clarified the point.
Individuals can be distinguished by their different dates of birth, for example, so the order would not have to use the person's name. It could mention the person who was born in or around January 1947, so that the person who was not would not be transferred. I do not understand why you need the name specifically. You could identify individuals without using their names, if you got to that situation.
There might be staff identification numbers that could be used, but I am not fully aware of that. We want to avoid distinguishing between people by using their personal characteristics for fear of age discrimination and so on, but if we want to identify particular individuals, we either have to use a name or a unique staff ID number, if there is one. It would be difficult to frame it in any other way.
Are you not thinking of using a staff ID?
Yes. In a way, we cannot answer these questions properly until we have been through the job titles and functions of each of the 90 individuals in Disclosure Scotland, especially with reference to their home employers. We need to be able to fall back on identifying people by their names in case that is absolutely necessary, but we would only do that if we could not find another way of identifying them. It is an ingenious thought that we could say that we were transferring people who were born on a certain day in a certain month of a certain year. It might be possible to do that. However, we need a fallback position to ensure that these people's employment rights are protected, that their transfer is legally absolutely clear and that, if we need to, we can identify them by name.
I am content with that.
I think that the point has been clarified. It is, however, curious that we should have got to this point and not yet explored whether it is possible to identify the individuals concerned by their staff number. It seems rather odd that we are this close to stage 3 of the bill, that you, the Executive officials, are in front of the committee, and that you are unable to say that you have explored that possibility. That seems to be slightly curious. I will not put it in any stronger terms, but I would have thought that we could have done that before now.
Are there any further comments?
We know who the 90 individuals are in Disclosure Scotland, but it is because of the complexity of their employment backgrounds, which is tied to the historical circumstances of where they have come from.
Could you not just have asked them if they have an ID number?
If they come from different employers, they might not have the same system of ID numbering.
I accept that. I do not want to get into a debate about this, but I am trying to make the point that it is slightly curious that you have not yet asked them about that. You are saying that you do not know about their ID number; I am asking why not?
We have not been through the employment backgrounds of the 90 people yet. That will be part of the implementation of the bill once it has been passed.
However, we are taking from this discussion the reassurance that you will consider all avenues so that you do not have to disclose names.
That would be a last resort.
Okay. On that note, we will leave section 87. Are we happy enough with that?
In section 94, "Meaning of ‘protected adult'", subsection (1)(d) confers a regulation-making power on ministers to prescribe welfare services. The power is subject to negative procedure. Are we content with the power and the procedure?
Section 94(2) enables ministers to change the meaning of "protected adult" by modifying section 94(1) by order. At stage 1, we asked the Executive to explain how the power will be used and, on the basis of the response, we reported that if the power was to be restricted in the way that was suggested, the drafting of section 94(2) should be amended. However, it has not been amended. The Executive commented that it is not free to depart radically from the definition in the bill in this regard. Are there any further questions on this one? Are we quite happy with what we have been told?
In section 95, "Meaning of ‘work'", subsection 9 is a new power that is subject to negative procedure. The supplementary DPM explains that the power is needed to link with other legislation, such as fostering law and so on. Are we happy with that?
In section 96, "General interpretation", subsection (1) of the bill as introduced defined "care service provider" as a person who provides care services of a type specified by order by ministers. The term "care service provider" has been removed from the bill, so there is no need to define it. Are we content to note the deletion of the power?
The power in part 3 of schedule 2, on establishments, was amended at stage 2 to remove the ambiguity that we identified at stage 1. Are we content with the amended power and that it is subject to negative procedure?
Schedule 4 concerns minor and consequential amendments and repeals. New paragraph 21 inserts three new sections into the Police Act 1997. In relation to new sections 113CA and 113CB of the 1997 act, the supplementary DPM states:
New section 113CC(1) of the 1997 act enables ministers by order to amend new sections 113CA and 113CB
We kept within the guideline that you mention, in that powers to amend the provisions in the bill are subject to affirmative procedure. However, the sections that you mentioned are new sections that the bill inserts into the Police Act 1997.
There is an interesting point in your answer. I appreciated the second part of your answer better than the first. The second part essentially downplayed the significance of the change that you are making. However, the first part of your argument suggested that you accept that you should use affirmative procedure in amending the text of the bill itself, but that, if you amend the text of another piece of law, it is all right to use negative procedure. That seems a bizarre argument. Is it a general statement of Executive practice in determining the appropriate level of procedure?
No. It was a statement on our approach in, for example, section 88 of the bill. Ministers' power to amend legislation in consequence of the Safeguarding Vulnerable Groups Act 2006 or Northern Ireland legislation is subject to affirmative procedure. However, we want to ensure that the bill is consistent with the Police Act 1997. The bill inserts new sections in part V of the 1997 act, and it is to maintain consistency that the powers are subject to negative procedure.
So you are saying that there is a body of law in the 1997 act that is subject to amendment by negative procedure and you are therefore applying that procedure in this case in the interest of consistency.
I cannot speak on every power in the 1997 act because our bill relates only to part V of it. It contains a variety of powers that are used for different purposes.
And they are subject to negative procedure.
There is a mixture of negative and affirmative procedure in the 1997 act.
Given that both procedures are used in the 1997 act, why did you choose negative procedure in this case?
As I said before, the generality of what is done by new sections 113CA and 113CB is set out elsewhere in the bill, so any modification of those sections under the power in new section 113CC would be made in the context of provisions in earlier sections.
So you gave us too much information.
I asked our legal adviser about the matter. Like you, she is not 100 per cent certain about the Police Act 1997, but she thinks that quite a lot of the powers in it are subject to negative procedure.
Yes. The powers in section 125 of the 1997 act are subject to negative procedure. There are other powers—I think in sections 113C to 113F—that are subject to affirmative procedure.
Are there any further questions, or are members content with the power and the procedure?
I do not hear any alarm bells ringing, so I think that we can let it go.
Part 5 of schedule 2 contains a power to amend schedule 2. The provision is unamended and is subject to affirmative procedure. Paragraph 26 of schedule 2 states:
It is clear that the Executive is sticking to its guns on the matter. Perhaps the officials could clarify the scope of the power. We were concerned about its breadth, but the Executive states in its response that, although the power is broad, it is clear. I ask the officials to expand on that.
The bill gives ministers the same power to modify schedule 3. As the committee knows, schedules 2 and 3 are essential to the scheme because they specify what regulated work with children and adults is. The powers in paragraph 26 of schedule 2 and paragraph 15 of schedule 3 apply to those schedules in their entirety, so they are wide modification powers.
That is helpful. Part of the problem at stage 1 was that we were unclear about what was going to happen with the power. That is why I wanted you to put its purpose on the record. It is helpful that it is subject to affirmative procedure.
I should have pointed out that the second side of the annex to the Executive's response elaborates on the point.
Paragraph 26B(b) of schedule 4 deletes a power in the Police Act 1997 to make regulations on the destruction of fingerprints.
I thank the officials for coming along and for the clarifications that they have given us.
Aquaculture and Fisheries (Scotland) Bill: as amended at Stage 2
We considered the bill at our meeting last week.
I feel that it is a step forward and I welcome it. We had a lengthy debate with officials on the point last week and I could not understand why they took the view that they did, which is why I wanted them to go away and come back with proof to back up their assertion that what they proposed was reasonable. What has happened is what I suspected would happen, which is that it has transpired that fixed penalties are mostly all dealt with in the same way and that the Executive was suggesting a new or different way of dealing with them. I am glad that it has decided to think again and to lodge an amendment to the bill. I do not understand why it could not have proceeded in that way in the first place because it seems perfectly sensible to set a maximum, as it now proposes to do. I am pleased.
Now that we have got back the information that we requested, does everyone agree with how the matter has been resolved? The power will still be subject to negative procedure, but we simply wanted clarity in relation to the setting of a maximum.
We argued that the use of negative procedure was fine.
The clerk tells me that we must clarify whether we are content with the powers in sections 25A, 25B(3) and 25B(5), which we did not make clear last week. Are members content with those powers?
Next
Executive Responses