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School Education (Ministerial Powers and Independent Schools) (Scotland) Bill: as amended at Stage 2
The committee will recall that we raised a number of issues about the bill, mostly concerning section 4(2).
Fire (Scotland) Bill: Stage 1
Although we were generally content with the delegated powers in the bill and with the procedures proposed by the Executive, there were a number of issues on which we wanted further explanation. The first of those concerned sections 10 and 42, which go together. We sought assurance about the consultation process. Is the committee content with the assurances that have been given regarding consultation, or do members want anything further?
Yes.
You want something further.
No—my answers are yes and no respectively.
The committee is content with the Executive's assurances.
Section 41 is about directions for public safety purposes. It is suggested that using the negative procedure would give greater flexibility than the affirmative procedure.
That may well be the case. Nonetheless, we are advised that, if a motion to annul were successful, the legality of any action that had already been taken under the negative procedure could be called into question. In this instance, the affirmative procedure would perhaps be more appropriate.
There is time to raise the matter with the Executive. Should we question the Executive on the matter, giving our views as to why the affirmative procedure could be used with as much flexibility?
It does not seem to me that there would be more flexibility in the negative procedure compared with the affirmative procedure. I do not understand the logic behind the argument, and I think that we should ask the Executive about that.
That is agreed.
I do not have a problem with there not being such a requirement in the bill. That requirement might well be contained in the 2003 act, but I understand that there is none in any other act. It seems perfectly reasonable to proceed as the Executive has suggested.
So we are content that such a requirement is unnecessary in this case.
We move on to creating new offences by regulation. A rather interesting account of the matter has been provided by the legal adviser—I hope that nobody will get life imprisonment as a result of this. The issue is serious, however; it is suggested that we follow the matter up with the Executive.
Our first question to the Executive might be whether it is appropriate to leave the power to create offences to subordinate legislation. I do not know what my fellow members think but, if it is in order for that to be done, should the regulatory powers at least limit the nature of the offences and the penalties that might be imposed?
I agree with that. I am looking in particular at paragraph 33 of our legal briefing paper, which sums it up for me. I have no huge problem with minor offences being created in this way, but the idea of there being a blank cheque to create criminal offences through subordinate legislation strikes me as extremely unusual and over the top. I suspect that most people would be uncomfortable with that. Of course, the Executive would say that it would never use the power for such purposes but, if that is the case, then why have the power?
We should also ask why no maximum penalty is set out.
I see no reason why that cannot be set out in the bill.
We shall pursue those points with the Executive.
Sections 75 and 83 deal with inquiries and commencement. Are we happy with the replies that we received on those?
Water Services etc (Scotland) Bill: Stage 1
Part 1 of the bill provides for the introduction of the new water industry commission and the phasing out of the old water industry commissioner. Does the committee agree that the negative procedure is a reasonable approach to dissolving the office of the water industry commissioner for Scotland? The legal adviser suggests that we may not need even the negative procedure, but it would give a limited safeguard. Are we agreed that the negative procedure is okay?
Section 4 will prohibit common carriage on the public water supply and retail competition in water services for domestic customers. Exercise of the power under section 4(7) will be subject to the affirmative procedure and must be the subject of prior consultation. However, the Parliament cannot amend an affirmative instrument. Is the matter appropriate for subordinate legislation, or should it be on the face of the bill?
Clearly, the power should not be a matter for subordinate legislation. To give the Executive the power to make regulations that dictate the circumstances in which prohibitions do not apply would be to allow it a very wide power. For example, the power could be used effectively to privatise Scottish Water or large chunks of it. That should be possible only through primary legislation. I am sure that, as Gordon Jackson said in our discussion of the previous item, the Executive will say that it has no intention to do such a thing. However, if it has no such intention, it should not provide a power that some future Executive could use in that way.
At this stage, I would be content that we give the Executive the point of view that has been expressed in the committee. There is a genuine issue, but the Executive might provide an explanation that makes me feel okay about it. Stewart Maxwell has raised a legitimate question, but we need raise the matter only as a question at this stage to see what the Executive says about it.
I am quite happy that we just ask the question. Some detail from the Executive would be extremely helpful.
We have a genuine concern. Is it agreed that we raise that question with the Executive?
Section 5(7) is on exemptions to offences in relation to the public sewerage system. The issue that we have with section 5(7) mirrors that with section 4(7), so we shall ask the same question for both sections. Is that agreed?
Section 7(2) deals with the granting of a water services licence. Are we agreed that what is suggested is okay?
Paragraph 66 of the legal adviser's briefing paper also makes an interesting point about the guidance that is mentioned in section 7. The procedure seems reasonable. Are we agreed on that?
Section 9(5) deals with the commission's power to charge fees. Are we agreed that that presents no problems?
Section 16(3) deals with notices of discontinuation of the water supply and the information that must be included in such notices. The provision appears acceptable. Is that agreed?
Section 17 deals with the disconnections code. An interesting point to consider is whether a more formal parliamentary procedure, such as the code's being laid before the Parliament, should be required.
My view is that the code should be subject to parliamentary approval. Parliament has a legitimate interest in the conditions under which disconnections might be carried out. We could suggest how that might be done and ask the Executive to say which its preferred route is.
Presumably, there is no technical reason why a disconnections code could not be put into subordinate legislation and laid before the Parliament.
We should make that sensible suggestion to the Executive.
Is that okay with the committee?
Section 19 will give powers to the Scottish ministers to adjust the core functions of Scottish Water. Do we agree with the legal advice that the procedure seems reasonable?
In section 20, which deals with the meaning of "eligible premises", section 20(3) provides the power to change the meaning of "dwelling". The legal adviser suggests that we should ask whether such changes to a definition should not be made under the affirmative procedure.
Let us ask the question.
The Executive might give us an answer that satisfies us that the power is okay.
We shall ask the question then.
On paragraph 1(7) of schedule 2, the legal adviser suggests that exemptions from the provisions should perhaps be made under the affirmative procedure. Do we need an answer on that?
Let us ask the question.
Okay.
The legal adviser makes an additional observation about the provisions for replacing the charging regime. Have members any points about that?
The legal advice can perhaps be summed up as, "This is interesting, but it's none of our business."
Well said.
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