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Health Board Elections (Scotland) Bill: Stage 1
I welcome members to the 22nd meeting in 2006 of the Subordinate Legislation Committee. Apologies have been received from Adam Ingram.
I wonder whether Bill Butler can explain the thinking behind a power that would permit rules of procedure only to be added to schedule 1, rather than having a power that would also permit the removal of rules of procedure, given the point that has been made about things being untried and untested and the possibility of administrative changes in the future. Surely it should be possible to add or remove rules of procedure. Why was the power restricted in such a fashion?
I thank the committee for its consideration of the bill and for any advice that it can give today.
I am not suggesting that the bill should go one way or the other; I am simply asking a question. It seems to me that your argument was that changes may be necessary because the system is untried and untested, but it seems odd that the bill would want to provide the power only to add changes that cannot yet be envisaged.
Perhaps we were overcome by having too positive a frame of mind and thought that the provisions were reasonable and that ministers could make additions and refinements. The bill may include provisions that people think will not be effective or are deficient in some way and may need to be omitted. I take the point that has been made, and we will proceed to insert words that take it on board at the appropriate juncture, if that is acceptable.
Yes. Before we discuss the use of the word "such", are there any other aspects of the issue that members want to discuss?
It is a question of giving the matter further thought. The bill outlines the arrangements for a type of election. The procedure is new and the rules can be changed by being added to. However, including the word "omit" would mean that the Executive could change the procedure for the elections altogether. The question is whether that should be done. Obviously, one does not need to omit anything. The procedure is described because it is necessary to run an election, but the word "omit" is unnecessary. If it is included, would not a procedure be opened up by which the Executive could change things altogether and entirely replace the type of election procedure that is outlined?
I understand what Ken Macintosh is saying, but would have thought that the bill could be drafted in such a way that the system could be altered, rather than wholly removed and replaced by a new system, which would seem to be excessive.
To use the words that are used in all the best committees, I will reflect on that point.
The legal advisers nodded their heads at what Stewart Maxwell said, so what he suggested is possible. I take Kenneth Macintosh's point. Obviously, there are certain things that Bill Butler would want to keep and we must ensure that that happens, but there could be procedures that he might want to add in the future.
Or, rather, that the Executive may wish to add, with the Parliament's agreement.
Absolutely. On the second, drafting point, I think that you have accepted that the word "such" could be omitted.
Yes, convener. I am grateful to the committee for pointing that out. Whether the word "such" is omitted or the words "as they think necessary or expedient" are inserted after the word "provision", we accept the good advice from the committee and will act on it.
Are members happy with the discussion and the points that were made in Bill Butler's response? Is the committee happy with the use of the affirmative procedure?
Yes. Bill Butler makes a valid point about that.
On section 13(2), we asked whether it is the policy intention that all orders made under the provision—even those that do not amend primary legislation and which might be minor and uncontroversial—be subject to the affirmative procedure. Bill Butler acknowledges that the power in section 13(2) is potentially wide and could be used to amend primary legislation. He indicates that such exercises of the power should be subject to the affirmative procedure, in the interests of parliamentary democracy.
I take your point, convener. We did not want to fetter the Executive unduly, but we did want to ensure that there was a democratic check, which is why we suggested the use of the affirmative procedure. I take your point about matters that could be dealt with more easily and efficiently by the negative procedure. I am grateful for the advice from the legal adviser with regard to section 62 of the Adult Support and Protection (Scotland) Bill.
It is section 68(2).
I beg your pardon.
You could make the changes that you wanted to make to the bill. The legal advice is that you might have difficulty amending the enacted bill in the way that you want, using the affirmative procedure, given the drafting. Something like the provision in section 68(2) of the Adult Support and Protection (Scotland) Bill would be clearer. The distinction is made between using the affirmative procedure to make changes to the face of the bill and the negative procedure to make minor changes.
I take the committee's advice on dealing with minor matters by negative resolution for the sake of clarity and efficiency. I will reflect on the committee's wise words with my bill team. We will lodge amendments in due course, if that is agreeable.
There might be confusion about the two points that are being made. The first is whether it is right to use the affirmative procedure in all cases or whether to use the negative procedure to deal with minor or uncontroversial matters.
In terms of the incidental nature of some of the amendments that may be lodged, we will consider that particular point. I will reflect on whether section 68(2) of the Adult Support and Protection (Scotland) Bill matches in with or works with section 13 of the Health Board Elections (Scotland) Bill, and I will take some advice. At the moment, I am not sure.
We should congratulate Bill Butler on the approach that he has taken to his bill. It is refreshing to find that the procedures that he has selected have been chosen in the interests of parliamentary democracy, bearing in mind what this process is all about.
I take Murray Tosh's point and will reflect on that. With the bill team, I will seek to lodge amendments that will add to the clarity of the putative legislation.
To help as much as we can, we can share with you the relevant paragraphs of our legal brief, just to make the two issues clear.
I would be obliged if that were permissible, convener.
That is permissible. We will put that information in our report.
I am grateful to the committee.
I gather that there is plenty of time with regard to the bill. We will simply report to you. Are there any further points on the bill before we finish this item?
No.
I thank Bill Butler for coming along.
I am obliged, convener.
Adult Support and Protection (Scotland) Bill: Stage 1
The bill contains a large number of delegated powers, the first of which is in section 3, "Adults at risk". Section 3(2) confers a power on ministers to amend the definition of adults at risk "as they think appropriate". That is a fairly significant power with a wide scope, although it is subject to the affirmative procedure. I would like members' views on the power. If you look at section 3(1), you will see how broad the definition is. The bill states that
The central issue in the section is addressed in paragraph 26 of our legal brief, which makes a comparison with the Adults with Incapacity (Scotland) Act 2000. The definition in that act is not amendable and does not require to be amended. In order for us to understand the thinking behind the proposal in the bill, the questions that we need to ask the Executive are why it is taking a different approach; why it does not think that the definition that is given in section 3 is sufficient; and what amendments to the definition it imagines might be possible. Otherwise, I would have thought that it should be an exercise in consistency and that the Executive should approach the bill in the same way that it approached the Adults with Incapacity (Scotland) Act 2000.
The nature of risk is such that it is possible to envisage that the categories of adults who might be at risk might need to be changed. I can see why the Executive wants the power of amendment. However, the definition is crucial—it is the centrepiece of the whole bill—and it is rather worrying to open it to amendment in this manner. We should certainly ask the Executive why it has asked for the power and whether it thinks that it would be advisable to include a statutory duty to consult, given that the power is already subject to the affirmative procedure. That would give us an extra assurance that any changes to the definition would have the support of the wider community.
If the definition is to be amended by subordinate legislation, I agree with Ken Macintosh about the need for a statutory duty to consult. However, I am not convinced at this stage that it should be dealt with by subordinate legislation at all. Ken Macintosh's point, and Murray Tosh's earlier point, was that that definition is the core of the bill. If you were to change that, it could create quite a serious policy shift, and I do not think that that is what subordinate legislation should be about, particularly given the fact that the definition is very wide. What would the Executive do? Does it envisage removing some of the categories? If so, that would mean a significant shift and change in policy, and it would not be right for that to be done by subordinate legislation. If that is done, it should be with primary legislation. Unless we get a further explanation, I suggest that the definition should not be amendable by subordinate legislation.
I cannot for the life of me see any justification for the power. I am interested in what Stewart Maxwell said. I had been thinking, in my naive fashion, about adding other categories besides disabled, ill, mentally ill, infirm and aging, and I could not think of any other categories that there could be. However, as Stewart said, you could remove categories, which is a big policy issue. It strikes me that there is something in the Executive mindset—all Executives are like this—that makes it want to put a definition in a bill and then take a power to change it. There is a belt-and-braces mindset. It does not matter how basic the definition is; the Executive wants to take a power to change it. I do not think that subordinate legislation was ever meant for that. It is meant for regulation or for advising councils on how to do things. The idea of changing a central definition is nonsense.
There is great concern about changing the definition by subordinate legislation; we believe that it would have to be changed by primary legislation. We cannot envisage how such a wide definition would be changed, but we will ask the Executive how it thinks it might be changed. I suppose that the fallback is that, if such a change were to be effected by subordinate legislation, there should be a statutory duty to consult on a draft order, as Ken Macintosh said. As Murray Tosh said, we should also ask specifically about the parallel with the Adults with Incapacity (Scotland) Act 2000, which takes our preferred approach, and ask why a change from that is considered necessary.
It almost follows that if the Executive thinks that the facility to amend the definition is important in the context of the bill, it should use the bill to amend the Adults with Incapacity (Scotland) Act 2000 by including a similar provision in that act. If the Executive does not intend to do that, it would be interesting to know why. That gets to the heart of the apparent inconsistency between the bill and the 2000 act.
You are absolutely right.
Murray Tosh makes a fair point. Research would be needed to prove this, but I suspect that there are dozens of acts of the Scottish Parliament in which a central definition cannot be amended just because the Executive thinks that it is appropriate to do so. Murray Tosh has picked out the 2000 act, which is the best and most obvious example in this context, but there must be dozens of other definitions that it would not make sense to change by subordinate legislation.
Section 5(1)(e) will confer on the Scottish ministers a power to extend co-operation duties to public bodies and office holders other than those that are mentioned in section 5. There are plenty of precedents for such an administrative power and orders made under the power would be subject to the negative procedure. Do members have comments?
The provision offers a good example of how subordinate legislation is meant to be used.
Exactly. Section 23(2)(a) will confer on the Scottish ministers a power to prescribe the type of documents to be served with any power of arrest that is attached to a banning order. Paragraph 10 of the delegated powers memorandum explains the provision. Our legal adviser says in the legal brief:
In our massive inquiry report, we recommended that such matters should not be dealt with in subordinate legislation and that the court should be left to get on with it. We can hardly object to the provisions on the ground that the Parliament should have more control over the exercise of powers that our report would get rid of completely.
Are members content with the provisions?
Section 39(1) lists the statutory functions of adult protection committees. Section 39(1)(d) will allow ministers, by order subject to negative procedure, to confer on APCs additional administrative functions in relation to safeguarding adults at risk, which might emerge in the light of experience and practice. It is not unusual for ministers to take a power to add functions in such a way.
No.
Sections 41(2)(d), 42(2)(e) and 43(b)(vi) will confer on the Scottish ministers, respectively: the power to prescribe public bodies and office holders who are entitled to attend APCs; the power to prescribe public bodies and office holders who provide information to APCs; and the power to prescribe other recipients of the biennial report. The provisions are similar to the provision in section 39(3)(e) and orders made under the powers would be subject to the negative procedure.
The committee may wish to draw to the Executive's attention the definition of the word "prescribe" in the Adults with Incapacity (Scotland) Act 2000, which defines it as meaning to "prescribe in regulations", but does not say by whom the regulations should be made. Although the committee and others have accepted that it means by ministers, that could be made clearer, and perhaps we could suggest to the Executive that it should now take the opportunity to amend the 2000 act.
It is a good opportunity to do that. Are members happy with that suggestion?
The alternative would be for you, convener, on behalf of the committee, to propose an amendment yourself, but I think that it is appropriate to give the Executive the opportunity to address the point in the first instance, with perhaps a strong steer to the effect that we would very much like to see the anomaly resolved.
Is that agreed?
The second point is about the negative procedure. Are we happy with that?
We now come to section 61, "Guardianship orders". This is similar to section 49, which we dealt with earlier, but that section was a little tighter. Section 61(1)(d) confers the power to prescribe additional categories of medical practitioners who may prepare the medical report that must accompany an application for a guardianship order, and it is very wide. A great deal of discretion is left to ministers to define a "relevant medical practitioner" as
The point is made well in the legal brief. A similar issue arose in relation to section 49, where the negative procedure was allowed, but there the power was circumscribed in the bill by the fact that ministers had to prescribe the type of individual by reference to skills, qualifications and experience. It might be appropriate in the context of section 61(1)(d) to ask why the Executive has not similarly qualified the width of the power that it is seeking in this case. On the basis of the answer to that question, it might be appropriate for the Executive to amend that section to include an explicit requirement. Again, it is an area where we might ultimately be interested in pursuing an amendment but where, if confronted with the logic of its approach, the Executive might see the wisdom of initiating that change itself.
If the Executive is not, in fact, thinking of qualifying that power, I take it that we should be looking for the affirmative procedure.
At least. It is quite a serious power; it is not a trivial one. I am sure that the Executive is not providing for that power in bad faith and that the provision is well meant, but it is quite a serious power—too serious to be provided without an explicit provision for consultation or to be dealt with by the negative procedure. The bill does lots of purely administrative things, but that power is not purely administrative.
The legal brief also mentions consultation with the Mental Welfare Commission for Scotland and other key stakeholders, and we can add that to our report. Is that agreed?
We now come to section 63, "Direct payments: sub-delegation to councils". The amendment to the Social Work (Scotland) Act 1968 allows ministers to make provision, in regulations made under section 12B of that act, to delegate their functions to local authorities. Are members content with the negative procedure?
Section 64(1)(c) is on adjustments between councils in relation to social services. It inserts new subsections into section 86 of the 1968 act to extend the provisions for financial adjustments between local authorities. Are members happy with the power in new section 86(6), which is an administrative matter that will be subject to the negative procedure?
Section 64(1)(c) also inserts new section 86(7) into the 1968 act, which provides for ministers to make regulations setting out the circumstances that must be taken into account or disregarded in determining a person's ordinary residence under section 86(1) of the 1968 act. Where the power is exercised to modify sections 86(2), (3) and (5)(b) of the 1968 act, it will be subject to the affirmative procedure; otherwise, it will be subject to the negative procedure. Are members happy with the provision?
Finally, the legal brief also draws our attention to a minor drafting error in new section 86(6) of the 1968 act, as inserted by section 64(1)(c) of the bill. Do members agree to draw the Executive's attention to the error?
Section 64(2) amends the meaning of "accommodation" in section 2 of the Community Care and Health (Scotland) Act 2002. Our legal adviser feels that the provision, which is subject to the affirmative procedure, is necessary and consequential. Do members have any further comments?
No.
Section 65, "Application of the Social Work (Scotland) Act 1968: persons outwith Scotland", inserts new section 87A(1) into the 1968 act. The power, which broadly replicates the power in section 5 of the Community Care and Health (Scotland) Act 2002, is subject to the affirmative procedure. Do members have any further points on that provision?
No.
The power in section 68(1), which relates to ancillary provision, is subject to the affirmative procedure when it amends primary legislation and to the negative procedure when it does not. We have already referred to this power.
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Executive Responses