Given the significance and effect of the exercise of the power, do we agree to ask why the Scottish Government does not consider that affirmative rather than negative procedure is more appropriate?
Yes.
Section 7(4) contains the power to amend the maximum waiting time. Why does the Scottish Government consider it necessary to take the power to substitute any maximum waiting time for the 12-week maximum that is specified in the bill? Could not the power be drawn more narrowly? Do we agree to ask those questions?
As the power provides the ability to amend the definition of “maximum waiting time” in section 10, which is a central policy matter, do we agree to ask what the justification is for the choice of negative rather than affirmative procedure?
Section 9(3) provides for suspension of the treatment time guarantee. Given that the treatment time guarantee is a key part of the bill and that directions do not allow any parliamentary scrutiny, what is the justification for suspending the treatment time guarantee by directions rather than by statutory instrument? Do we agree to ask that important question?
I have raised an issue.
The legal brief makes a similar point about section 9(1).
You want to ask the Government a general question.
Yes—to have more information before we consider our report.
As I said, we will return to the bill to consider the responses at our meeting on 11 May, which is a fortnight hence.
Are you happy?
It is just as well that members are—
Given that the exercise of the bolt-on power in section 21(1)(c) when attached to a commencement order will not be subject to parliamentary scrutiny, do we agree to ask the Scottish Government whether it would be appropriate to make an amendment to the effect that section 21(1)(c) should not apply to commencement orders or that, when section 21(1)(c) is applied to a commencement order, it should be subject to negative procedure?
We return to Rhoda Grant’s point.
I propose to discuss the matters in detail when we consider the draft report.
The difference between guidance and subordinate legislation is that the organisation that is being guided can overrule guidance, whereas subordinate legislation is mandatory. The balance is in favour of providing as much freedom as possible.
If we are going to ask the Government questions, would it not be wise to raise the points that are in the legal brief and to ask why the Government prefers guidance? That would help to inform us when we write our report.
We can ask the question—the suggestion is sensible. Is that all right? Are members happy?
Does that wrap up the matter?
I welcome everyone to the Subordinate Legislation Committee’s 13th meeting in 2010. I record apologies from Jackson Carlaw and Margaret Curran and I ask members to turn off mobile phones and BlackBerrys.
Convener, I am puzzled as to why you have missed out the recommendations on sections 5(1) and 9(1).
I refer you to page 3 of your legal brief.
Okay—my apologies, convener.
Yes.
Rhoda Grant has a query.
The legal brief asks whether we wish to consider whether the delegated power in section 5(1) is acceptable in guidance rather than subordinate legislation. I thought that we would ask the Government about that.
Can we return to that at the end of the item? Is that appropriate?
The point is fair.
As the waiting time is a central provision, do we agree to ask whether the maximum should be set in primary legislation and whether only shorter periods should be specifiable by order?
Section 21(1)(c) contains the power when making orders or regulations to make consequential, supplementary, incidental, transitional, transitory or saving provision in those orders or regulations. Given the power in section 20(1) to make ancillary provision by order, do we agree to ask what the justification is for the power in section 21(1)(c)?
Does the Scottish Government intend suspension of the treatment time guarantee to be specific—to apply to a specified health board or health boards or to a specified hospital or hospitals—or of general application? Could that be made clear in the bill? Do we agree to ask those questions?
Do members wish to raise other points about the bill?
I am happy.