Agenda item 1 is the scrutiny of delegated powers in the Regulation of Care (Scotland) Bill, as amended at stage 2. As the stage 3 debate will take place later this week and our report will require to be made for that, we are having Executive witnesses now.
I am the bill's solicitor. My colleague, Roddy Macdonald, is from the bill team.
That saves us from asking you to clarify one point. Do members wish to raise other points?
Following comments by the committee, the Executive amended section 5 to place a duty on, rather than give a power to, Scottish ministers to publish national care standards. The committee is interested in a further issue. Section 5 does not define how the standards are to be published. Will they be published as subordinate legislation, or in another form? We would like to explore that issue. How does the Executive intend to publish the national care standards?
The national care standards are not intended to be published as subordinate legislation, but some aspects of them may be included in subordinate legislation that is made under section 24. Various committees continue to discuss various aspects of the care standards, so we are not yet in a position to say what will be in the standards.
That was my major concern—not so much whether this committee would have that opportunity, but the Health and Community Care Committee. I will take it as read that you mean appropriate committees.
Both committees will have that opportunity.
We discussed consultation on the care standards when we last gave evidence to the committee. Consultation has been a major element of the work of the national care standards committee. The Executive is committed to consultation on the care standards. That has been a key part of the way in which the standards have been developed and will be a key part of how they are implemented.
May I ask a question that may not fall within the committee's remit? As I looked through the bill, I saw that section 3 offered Scottish ministers the possibility of amending the definition of care service. I presume that such an amendment would be made by subordinate legislation.
It would. Following what the committee said when we last met it, such an amendment will be made by an order that is subject not to the negative procedure, but to affirmation. The provision is drafted with a view to amendments adding to or removing from the definition, depending on how circumstances change.
Would private ambulance services, for example, be the kind of thing that might be added?
If it were deemed appropriate, such services could be added later by subordinate legislation that the Parliament would scrutinise.
Section 24(9B) specifies that an offence under the regulations will attract a fine of up to level 5 on the standard scale. It has been flagged up to the committee that some offences might be relatively minor. We appreciate that judicial discretion is involved, but the possibility exists to specify that some offences should attract a lower fine. Is there any reason for choosing the method in the bill and leaving it to court circulars to decide what view should be taken on offences of different magnitudes? Is there an alternative way of differentiating offences that are more and less serious?
It was felt appropriate to leave the matter to the courts to decide, in accordance with judicial discretion. That makes the legislation relatively straightforward.
Section 24(10) was changed in accordance with our suggestion about consultation. That strengthens the provision and we welcome that. However, the wording remains open-ended. The bill says that the Scottish ministers shall consult anyone they consider appropriate. I have no particular objection to that, but the Executive has decided not to try to list consultees.
It was felt that if the document was to be dynamic and reflect the appropriate players—carers and those cared for—it would be appropriate to leave that wording, subject perhaps to questions of direction. It was felt inappropriate to set out the names of the consultees in primary legislation.
Paragraph 5 of schedule 1 and paragraph 5 of schedule 2 allow regulations to be made which are subject to the negative procedure. Why was that procedure chosen over the affirmative procedure, given the matters involved?
The procedure was not changed during stage 2 and follows the normal process for appointments. Changes are being made to the structure of the boards because the appropriateness of the numbers on all boards that are being created has been considered. It was felt that the original balance of membership was inappropriate to the envisaged result. Similar future amendments will be dealt with under the negative procedure.
We have covered all the matters on which we wanted clarification. I thank the witnesses for attending.
I am comfortable with the response, as parliamentary committees are intended to have a role in framing those standards. It gives credit to our legal advice that the Executive took the first point on board without argument.
I agree. We cannot ask for more. If the care standards will be scrutinised by this committee and the lead committee, that is as good as it will get. I have no criticism about that.
The witnesses seemed fairly pessimistic about the possibility of lodging an amendment.
Perhaps we should refer the matter to the Procedures Committee. When a technical and non-controversial amendment is proposed, a procedure could be introduced to allow such amendments to be lodged even at a late stage.
The trouble is that we never know when an amendment will be uncontroversial.
Sure. However, allowing the amendment to be lodged might give members an opportunity to debate it.
Such an amendment could be lodged with the Parliamentary Bureau's agreement, for example. That is a good point to flag up to the Procedures Committee. Proceeding on Thursday with a bill that, two days before the debate, we know is fundamentally flawed because an amendment cannot be lodged seems a bit daft.
I accept that we should find out whether such amendments can be lodged, but I imagine that someone might complain and be uncomfortable about an amendment that was slipped in at the last minute. However, if the amendment to the bill that we are discussing can be lodged, it should be, as that would save everyone much trouble.
There must be a way of describing amendments to correct typographical or other nonsensical errors that are clear flaws, rather than amendments to introduce new provisions, with which we would probably all be unhappy.
Absolutely. I asked the question just to obtain a statement from the witnesses.
I am probably satisfied with paragraph 5 of schedule 1 and paragraph 5 of schedule 2. If they follow the procedure that is followed elsewhere, we cannot quibble that the procedure is negative rather than affirmative.