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Adoption and Children (Scotland) Bill: as amended at Stage 2
Item 3 is delegated powers scrutiny of the Adoption and Children (Scotland) Bill as amended at stage 2. I welcome to the meeting Peter Willman, who is the bill team leader.
At stage 1 we approved the power in section 5, "Adoption agencies: regulations about carrying out of functions". The section has been amended, but the effect has been to narrow the scope of the power and to remove ambiguity. I am sure that we welcome that. The power is still subject to the negative procedure. Are we agreed?
I have a question for Peter Willman. I do not want to be cheeky here, but was it intended to focus on applications for permanence orders that relate to the possibility of moving on to adoption? Was that a deliberate change? Why did the Executive bring that in?
Yes, that was a deliberate change. We brought it in at this stage because we thought it appropriate, among the general powers to make regulations on the duties of adoption agencies, to make specific reference back to permanence orders with authority to adopt. That was in order to be clear that, although a permanence order is not an adoption order, those that have a clear link to adoption through the authority to adopt are covered by the scope of the regulation-making power.
At stage 1 we approved the power under section 6, "Adoption support services". It has been amended in two respects, but they do not appear to be significant. Are we content with the changes and with the power being subject to the affirmative procedure?
We had no concerns about section 7, on adoption support services, at stage 1. Although that section has been removed from the bill, its provisions have been merged with those of other sections. Are we content to note that?
I have another question. Has the power to add to or modify the list of adoption support services been retained elsewhere in the bill?
Yes. It is now at section 6(4), which simply reintroduces the provisions of section 7(4) in the bill as introduced.
There is a new power in section 7A, "Assessment of needs for adoption support services". It imposes a duty on local authorities to assess certain persons for adoption support services. The supplementary delegated powers memorandum explains that the power
We did not expressly consider at stage 1 the power in section 57, "Guidance", but it has been drawn to our attention at stage 2. Under that section, local authorities must, in discharging their functions,
One of the areas that is covered is the transfer of responsibility between authorities. I raised that issue at stage 1. However, I do not think that the guidance is important enough to be made subject to parliamentary procedure.
So you are happy with that.
Apologies for my late arrival.
That is okay. At stage 1 we were content with the power in section 58, "Regulations about adoption support services". However, it has been amended at stage 2. The section confers a power on ministers to make regulations on various matters relating to adoption support services. The power is subject to the negative procedure. It has been amended in three respects, two of which—as members will see from the legal brief—appear to be okay. It is suggested, however, that we might wish to question the Executive on the third of the changes, which relates to section 58(2). Why is section 58(2) needed, given the terms of sections 109(2) and 109(3)? I do not think that it affects the validity of the provisions, but we wondered why section 58(2) was necessary.
Section 58(2) is not strictly necessary, in that one could use the powers in section 109 to the same effect. There was a recognition that adoption support services cover a wide spectrum of provision, ranging from simple information and letterbox contact with parents once a year, to much more intensive, therapeutic input. It was acknowledged that it might well be appropriate to make different provisions because of the range of and differences between the types of services that are provided. Therefore, there was some merit in expressing that directly in section 58. That could be said to be desirable, rather than necessary.
We are quite happy with that. We understand that the provision is perhaps not entirely necessary, but there is no problem with it.
On section 40, "Disclosure of information kept under relevant enactment", we undertook to return at stage 2 to the power to make provision on disclosure of information, because we were not able to form a definitive view on the appropriateness of the power being subject to the negative procedure.
In our original letter to the Executive, we asked why it chose to delegate the power to make provision on disclosure of information, but we have not received a response.
We saw that as a sensitive issue and, given that setting out the power might take up some space, we thought that it was probably useful to do so in regulations, which will now be subject to the affirmative procedure, rather than going into such detail in the bill.
Do you think that there might be unforeseen changes that would make it necessary to set out the power in regulations? I do not understand why the sensitive nature of the power means that it should be set out in secondary, rather than primary, legislation.
Perhaps it would be better to describe the power as complex, rather than sensitive. We felt that it might take quite a lot of text to set it out and that it was better to make it clear in regulations rather than setting it out in the bill.
I am struggling with that explanation. You said that it would take a lot of text to set out the power, but I do not see why the fact that extra pages would be needed is a reason for setting it out in regulations rather than in the bill. I am not trying to demean your point; I am just trying to be clear about the reasoning.
We considered the precedent that the Adoption Agencies (Scotland) Regulations 1996 (SI 1996/3266) make provision on disclosure of information. It seemed to us that the complex and important details would fit better in regulations than in the bill.
I do not know whether this is of interest to Stewart Maxwell and other members, but the Education Committee asked the Minister for Education and Young People about the issue. There are a lot of issues around the disclosure of information between different parties and many of those who submitted evidence to the Education Committee felt strongly about it. It was felt that, although further work needed to be done, the level of detail involved meant that it would be more appropriate to set out the relevant power in secondary legislation.
Which enactments, other than previous adoption enactments, are thought to impose duties to keep records as to adoptions? Why have the enactments that have been identified so far not been specified in the bill in the form of a non-exhaustive list?
The two relevant enactments are the Adoption Act 1958 and the Adoption (Scotland) Act 1978. The reason why they have not been specified is a matter of how the drafter chose to express the provision. Although some extant records refer back to the Adoption Act 1958, the requirement to keep them will gradually expire, so it might be better to refer to any "relevant enactment", rather than specifically to the 1958 act.
The delegated powers memorandum does not give us much information about what the process for the review of decisions of adoption agencies will involve. What will the procedures and powers be? Who will carry out the review? What right will people have under it? Will you give us more information on that and say whether the Executive intends to flesh that out in any way?
I am sure that we will flesh it out. If I recall correctly, the Deputy Minister for Education and Young People, Mr Brown, made it clear in the Education Committee that we will consult on the regulations before they are brought before the Parliament.
So, the regulations will spell out all the procedures.
Yes. The 1996 regulations include detailed provisions about complaint procedures. That will be our starting point, but we will adapt the provisions to meet the particular requirements of disclosure of information.
Are members content with what they have heard?
Section 47, "Post-adoption services", with which we were content at stage 1, has now been deleted and the substance of the power has been subsumed in section 6. Are members content with that?
Section 48, "Assessment of needs", with which we were content at stage 1, has now been deleted and the power has been subsumed in section 7A. I assume that that is okay.
Section 55, "Reassessment of needs for adoption support services", with which we were content at stage 1, has been amended at stage 2 to reflect the change in terminology to "adoption support services". Are members happy that the power is subject to the negative procedure?
Section 56A, "Guidance", is a new provision that imposes a duty on local authorities to have regard to any guidance issued by ministers when preparing or reviewing adoption support plans. The guidance relates to administrative processes and is not subject to parliamentary procedure. Are members content with that?
We were content at stage 1 with section 56B, "Regulations about reviews of adoption services". The new provision differs a little and confers on ministers the power to make regulations specifying how reviews of adoption support plans are to be carried out. Are members content with the power and the fact that it is subject to the negative procedure?
Section 66, "Restriction on removal of children for adoption outwith Great Britain", was amended at stage 2. We were content with it at stage 1, but we drew to the attention of the lead committee the fact that there was nothing to prevent subsequent exercises of the power making substantive amendments to the original regulations. The power has been amended, but only in a technical and indirect way. The first exercise of the power is subject to the affirmative procedure, with the negative procedure to be used thereafter. Are members content with that?
We agreed at stage 1 to look again at the power in section 78, "Disclosure of medical information about parents of child". In our report, we expressed concern about the provision being subject to the negative procedure, given the sensitivity of the information that might be disclosed and the potentially controversial nature of the regulations. At the time, the Executive agreed to look again at the provision. Although the power is unchanged, it is now subject to the affirmative procedure. Are members happy with that?
Although we were content at stage 1 with the power in section 97, "Permanence orders: rules of procedure", it has been amended at stage 2 to make it clear that the most onerous notification requirements must apply in such rules where adoption is an issue in the proceedings. It is suggested that the amendment might be an attempt to ensure that there is balance and that all interests can be heard where adoption is an issue. The power itself is not subject to parliamentary procedure. Are members happy?
Although we were content at stage 1 with the power in section 103, which deals with regulations on fostering allowances, it has been amended at stage 2. In the bill as introduced, the power extended to children placed under section 26(1)(a) of the Children (Scotland) Act 1995. As amended, it also extends to children who are required to reside with a person other than their parent and now provides for the making of a permanence order in favour of the person with whom the child is placed, without disentitling that person to payments under the power. Are members content with that provision, which is subject to the negative procedure?
At stage 1 we drew to the Executive's attention the fact that in section 109, "Orders and regulations", although the intention seemed to be that powers delegated to the registrar general would be exercisable by statutory instrument, the bill did not provide for that. The section has now been amended to ensure that any power conferred on the registrar general is exercisable in that way.
As you say, the bill as introduced made a straight omission that has now been rectified.
But I take it that you have made the power subject to the negative procedure for a reason.
Yes. Although the registration of adoptions is an important matter, I do not think that it is terribly controversial and, in such circumstances, the use of the negative procedure does not seem unreasonable. However, we might well look at the matter again.
I just wanted to make sure that it was not an error.
We were content with the power at the time, so the introduction of the negative procedure is probably fine. After all, we did not recommend that the Executive make it subject to the affirmative procedure or anything. I do not want Peter Willman to hear our comments and head down the wrong route.
I am happy to leave the matter; I was just wondering whether an error had been made. Mr Willman has said that the Executive might explore the matter again, but I think that in any case we are quite happy with the provision.
I think that that is everything. I thank Peter Willman for clarifying certain matters, and we will welcome any response you might make about the use of the negative procedure in section 109.
Bankruptcy and Diligence etc (Scotland) Bill: as amended at Stage 2
The next item on the agenda is delegated powers scrutiny of the Bankruptcy and Diligence etc (Scotland) Bill as amended at stage 2.
On section 198(1), which refers to regulations on information disclosure, we felt that the power should be subject to open procedure and we lodged a number of amendments to that effect. The Executive agrees, although it has slightly changed the wording of our amendments to make the first set of regulations subject to the affirmative procedure. I hope that that means that our approach has been successful.
I welcome the Executive's amendments, which, as you say, mean that the first set of regulations will definitely be subject to the affirmative procedure and that, afterwards, the procedure will be open. That is more or less what we wanted.
Are members content to withdraw the amendments that we lodged last week?
A letter from Allan Wilson has also been circulated, advising the committee of amendments that have been lodged for stage 3. We should perhaps note that such information is useful.
The letter also partly addresses some of the concerns that we have expressed over the past few weeks about problems of timescale between stages 2 and 3.
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