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Agenda item 2 is oral evidence on the Community Empowerment (Scotland) Bill. This allows the committee to follow up on matters in relation to the bill that it previously raised in writing with the Scottish Government.
I welcome the first panel of a cast of thousands: Ian Turner is the bill team leader, Norman Macleod and Rachel Rayner are from the Scottish Government legal directorate, Dave Thomson is from the land reform and tenancy unit, Dr Amanda Fox is food and drink policy leader and Anne-Marie Conlong is from the performance unit. Good morning one and all. We will test you a great deal this morning, but I hope that it will not take forever because we also have to hear from lots of lawyers later on.
I want to start by looking at how the legislation provides for determining the national outcomes, and the role of Parliament in seeing whether those are met. Before I ask my questions I want to go back to the progenitor of Scotland performs, which is, of course, the Virginia performs model. In particular, I want to explore, perhaps with Mr Turner and Ms Conlong, the extent to which the Virginia performs model has been examined. That model differs in certain ways from how our bill is constructed, in that the council on Virginia’s future, which essentially determines the targets, is not simply a Government body, but requires the inclusion of the majority and minority leaders from each house—they are part of the body that sets the targets. In that context, there is a role for a more widely based, rather than simply Government-driven, setting of the targets.
To what extent have officials and ministers looked at the Virginia performs model and the council on Virginia’s future in deciding how to take the bill forward?
I am happy to take that question. Back in 2007—and before that, when Scotland performs was being developed—there was a huge amount of research and liaison with the people who were involved in Virginia performs. A lot of what happened there informed and led across to Scotland performs. Stewart Stevenson is absolutely right that the key difference is around the council on Virginia’s future; that leads me to the difference between that approach and what we propose in the bill.
The Scottish Government believes that what we have set out in the provisions reflects the current separation of powers between the Scottish Government and the Parliament. It would be for the Scottish ministers to co-ordinate Government business and to set out the strategic direction for Government—within its overall accountability to the Parliament, of course—and the Parliament would exercise a scrutiny function, holding ministers to account on progress towards the national outcomes and objectives. Of course, the Scottish Parliament may wish to debate the national outcomes as set by Scottish ministers, and the arrangements that are proposed would not prevent that in any way.
I will pick up on your point about the widely based element of the outcomes in Virginia performs. Part of the work that we are doing under Mr Swinney and the round table that is chaired by him—which is quite a diverse group of stakeholders as it includes cross-party support from the Parliament, and key civic organisations in Scotland such as the Carnegie Trust and Oxfam Scotland, as well as some academics—involves working together to develop an improved Scotland performs. In fact, that is where the impetus to put provisions in the Community Empowerment (Scotland) Bill came from. The national outcomes will therefore be widely consulted on. In the provisions, we have left the basis for that consultation as open as possible so that as many people as possible, including the whole of the public of Scotland, where that is appropriate, can be consulted. That is a broad base for setting the national outcomes.
The fundamental difference from what we propose in the bill is that, as Stewart Stevenson said, the council on Virginia’s future is quite separate. We are more than happy to take back for further consideration with ministers the committee’s views on the respective roles of the Scottish Parliament and the Scottish Government in setting the outcomes.
This committee’s role is restricted and is not to look at the broader policy issues. It simply relates to whether the construction in the bill that is before us is appropriate. The policy committee will perhaps pick up some of the points that you make.
I am simply trying to explore the process to ensure that what we have in the bill properly reflects the policy outcome. I note that the Virginia performs framework and the council on Virginia’s future were established not by ministerial fiat but by the governing legislation that was passed in Virginia. I just want to be clear that that is forming part of the consideration. From the answer that I have had, I think that we as a committee should properly conclude that that is the case, even if there might be different views elsewhere, in respect of policy.
I note that the bill makes no specific provisions on persons or bodies that should be consulted about national outcomes. It seems that you would be able to identify particular bodies that you would consult. Is there any particular reason why we do not see a list in the bill?
The intention is to leave the potential scope for consultation as broad as possible. That is something that our stakeholders have been very keen on. In some cases, a review of the national outcomes might focus on a specialised or specific issue, in which case only certain bodies or persons would be consulted, because that would be the most appropriate thing to do. In other cases, the consultation might be much wider because the review of the outcomes is of a much more general nature.
The intention behind not listing bodies was not to limit or narrow in any way the scope of the bodies and people who can be consulted. However, if the committee thinks that the bill should include a minimum list of bodies, we can consider doing that, but we would be clear that we do not want to limit the scope of potential consultation in any future review.
It would not be for this committee to suggest who should be on such a list. That would be a policy matter.
The point on which I want to be clear is whether consideration has properly been given to the possibility of involving some people or bodies in looking at the whole thing, while ensuring that the bill does not restrict consultation. I assume that consultation has taken place on exactly that point. I see that you are nodding.
Yes.
Right. I will move on.
The bill makes no provision for regular periods of reporting, unless I have misread it. Is there a reason for that?
Again, the intention was to keep some flexibility. Currently, the Scotland performs website is the reporting tool for the national outcomes. The approach is unique, in that the website is constantly updated, as soon as new data become available. This might also be a policy matter, but we have debated with our colleagues around the table whether a report that is static in time would be helpful and whether such a report would add to the existing reporting process. How we might maintain the constant dynamic reporting of Scotland performs while providing regular reports, if there is an appetite for them, is still under consideration.
In the context of formulating policy, the bill provides that public bodies beyond Government will have a duty to “have regard to” the outcomes that are set, while not placing such a duty on the Government itself. Was there a reason for that? Let me characterise the position in the most extreme way: the Government gets to choose the questions for the exam sheet and then answers them, but that is not the case for other public bodies.
I assume that the Scottish Parliament’s scrutiny role is to hold the Government to account on the national outcomes. If the outcomes are set based on broad public and civic consultation, there is a collective view of what they should be and progress against them would be tested on a wide consultative basis.
I will ask one more question. The Government has brought together a group, which includes Opposition representatives, but there is no direct parliamentary input. We have a range of bodies and individuals, who represent a range of political views, but there is no process in the bill for the Parliament to be part of that. Is that correct?
That is correct, as the bill stands.
Okay. It is important to get that on the record, so that we understand the position.
I will pursue that issue. If we are talking about the outcomes providing a framework to which other people must have regard—I take the comment about things being subject to parliamentary scrutiny, as we would expect in a parliamentary democracy—it seems strange that there is no mechanism for the Government to bring to Parliament an affirmative statutory instrument setting out the principles, which we could consider and then reject or approve. I am struggling to understand why there will be no such process.
As I said, the position until now has been that the provisions reflect the Scottish Government view of the separation of powers between scrutiny and the setting of the strategic direction of Government. That has been the thinking up to now, but we welcome the committee’s views and can consider the matter further with ministers.
I argue that we will always scrutinise such things, but we must find them before we can do so. If the Government does not set out its approach in a form into which a parliamentary committee can get its teeth, there will be only peripheral scrutiny, which is not a good process.
At the moment, Scotland performs is set out publicly—all the information is publicly available. In fact, both last year and this year, we have assisted parliamentary committees with scrutiny of the draft budget by producing performance score cards for each of the committees. There are processes available, albeit that they are not laid out formally in statute. Scotland performs information is publicly available and has been well used by Parliament to scrutinise performance.
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At the risk of pursuing the issue too far, I make the point that, if a set of things to which public bodies must have regard is set out in law, they ought, I suggest, to be laid out in such a way that a parliamentary committee—ours or another—could scrutinise those things instead of having to work its way round and generate some debate about the general principles that we think we have. There seems to be a process point there, which I think is what worries us.
I am certainly happy to take that point away.
Thank you. That completes that line of questioning, unless other members have questions on it.
We move on to question 5, which will be asked by John Scott.
Sections 4(6), 8(3), 16(2), 16(3) and 51(2) are all broadly concerned with the procedure to be applied to powers that enable bodies to be added to or removed from the lists in the schedules to the bill. In the bill, the power to add or remove a body is subject to negative procedure. In that regard, you draw a parallel with the Freedom of Information (Scotland) Act 2002.
However, a different approach has been taken in more recent acts, with the power to add a body being subject to affirmative procedure and the power to remove a body being subject to negative procedure. That approach has been taken in the Public Services Reform (Scotland) Act 2010 and the Regulatory Reform (Scotland) Act 2014. Why have you not adopted that more recent approach? In particular, why have you chosen to apply negative and not affirmative procedure to the power to add a body to a list?
The powers provide the flexibility to make changes, should that be necessary. Across the bill, the powers in the relevant provisions are limited to amending the list of public bodies that can be involved.
We believe that such regulations would be unlikely to generate any controversy, so because there is unlikely to be an issue at that stage, negative procedure would be the more appropriate procedure to use.
Right.
I appreciate the point that you made about more recent acts, and we would be happy to consider the views of the committee.
I think that our view would be to ask why there should be a sudden reduction of standards, as it were. I am happy to have made the point; I will leave it at that and leave it for others to say more.
The point is well made, but I suspect that the problem is that, without knowing the circumstances that are being referred to, it is not obvious which process it would be desirable to use. I suppose that we would tend to give the Government the benefit of the doubt and assume that it would consult on things that needed to be consulted on, and would not lay a negative instrument if it had not consulted the appropriate people.
Absolutely.
In practice, therefore, the procedures might be almost the same.
Yes, I think that that is our view. The bill has gone through a hugely consultative process, with individual consultations being followed by more detailed consultation on the draft bill. That is what we intend to do with regulations in the future.
I suspect that making the point is all that we can do for the moment.
As parliamentarians, we do not want to see a reduction in parliamentary scrutiny, and the answers that have been given suggest that there will be a reduction in parliamentary scrutiny, which is a departure from what we have been used to. Is that a fair comment?
Negative procedure would still be used. That certainly represents a reduction in scrutiny compared with the use of affirmative procedure, but we believe that the use of negative procedure is appropriate in relation to the powers as they stand.
Good morning, panel.
I have some questions about section 10 of the bill. There is a possibility that they may stray into policy matters, in which case I understand that you would not be able to answer them, but I will pose them and we will take it from there.
Section 10 provides that community planning partnerships and partners must carry out their functions in relation to community planning in accordance with any relevant guidance that is issued by the Scottish ministers. Why is it proposed that the guidance under section 10 will be binding on community planning partnerships and partners, rather than that they will be required to have regard to it?
That became an important point during the process of developing the bill. The intention is that section 10 will be used for community planning partnerships, which have been in place for a number of years, although we are putting them on a statutory footing under the bill. The section should ensure a consistency of approach to community planning throughout Scotland. We want local discretion and local innovation in how community planning is approached and dealt with, but there might be some matters that we feel are fundamental enough to apply on a national level, hence the reason to comply with national guidance.
You are aware that I also sit on the Local Government and Regeneration Committee, as we met last week.
Yes.
Over the past few years, much of the work that has been undertaken by that committee has highlighted that point regarding community planning partnerships. Much of the community-facing work that we have undertaken has highlighted the stark differences in the public understanding and knowledge of community planning partnerships.
At the same time, one key issue that has been raised time and again has been the perception of a top-down approach, with the Government—of whatever hue—imposing restrictions on local government and community planning partnerships. What was the thinking, not so much behind putting community planning partnerships into statute, but behind what is proposed in section 10 in relation to guidance?
The community planning part of the bill feels a bit top down, because it places duties on the statutory partners. It is not possible to place duties on voluntary or community bodies in that way. The proposed statute has the feeling of a top-down approach, but we are trying to use those duties to ensure that community bodies participate and resource the process properly.
There might be processes within that involving emerging best practice that we wish to be actively promoted and encouraged. As you heard at the Local Government and Regeneration Committee last week, that involves a culture change within the public sector, to some extent. The issue is how to engage community bodies and how to get them to participate. We think that the guidance can help with that process of culture change.
Could some of that culture change and some of those methods not happen through other routes, such as the benchmarking tool that the Convention of Scottish Local Authorities has recently established?
Absolutely. Those routes are not ruled out; the guidance is in addition to those.
How do you foresee the power in section 10 being utilised?
It is hard to know at the moment. As I was saying in response to a previous question, the guidance will be subject to quite a lot of consultation before we put it out. There will be consultation with public sector and community bodies, and with all the interested partners that we have had throughout the bill process. It is hard to say what particular provisions will be used for, but that will emerge from the process.
Is there an opportunity for Parliament to be involved in that consultative process and for it to discuss any guidance?
There is always an opportunity for Parliament to discuss it. There is no specific provision on that in section 10, and we are aware of that. If the committee would wish to include such a provision, I am certainly happy to consider that.
Would you consider it an appropriate use of parliamentary time to consider the use of guidance or scrutiny?
It would sometimes depend on the guidance, which might go into a lot of detail. You might not necessarily want a negative or affirmative procedure; you might just want the guidance to be laid before you, and you might not require to use any further processes.
New section 97C(3)(a) of the 2003 act, in new part 3A, provides that
“Eligible land does not include ... land on which there is a building or other structure which is an individual’s home”
other than buildings or structures that may be set out in regulations by ministers. It appears, therefore, that ministers may make regulations that have the effect of applying the provisions of the new part 3A to buildings or structures that constitute an individual’s home. Can you explain in more detail why you have taken that power? In your response to written questions on the matter, you suggest that it is to allow for flexibility. What other factors did you take into account when taking that power?
The flexibility on those powers is the key part at the moment. The policy intent is not to take people’s homes away in any circumstances, but still to allow community bodies to take control of assets. Essentially, the powers that we are looking to take on through that provision are simply to allow that flexibility to set out in detail the types of buildings or assets that can be included or excluded. At the moment, we do not have specific examples, hence the current need for flexibility in the powers.
I am sure that you appreciate the need to get that right, though. There will be lawyers across the country scratching their heads and hanging on every word, I suspect. It is a wee bit disappointing that you have not got to a stage in your thinking where you are able to provide more detail.
I will move on. When previously asked to justify the width of the power in new section 97E(4) of the 2003 act, the Government cited examples of similar powers in sections 1 and 2 of the Transport and Works (Scotland) Act 2007. However, the connection between those powers and the powers in section 97E(4) is not wholly apparent to the committee. Can you shed light on that?
The connection between the two is largely to do with process. Rachel Rayner may be better at explaining the legal connections.
I can take you quickly through the power in the Transport and Works (Scotland) Act 2007, section 1 of which gives ministers a power to make an order relating to, or to matters connected with, construction of transport systems or inland waterways. Section 2 goes on to set out matters about which provision can be made in such an order, and the schedule makes it clear that that includes compulsory acquisition of land. Section 2 goes on to provide that the order that ministers can make can apply, modify or exclude enactments relating to those matters.
That is used as an example because the power that we are proposing in new section 97E of the 2003 act would enable ministers to make a process for acquiring land, and that could be done by modifying existing processes for compulsory acquisition, if that was thought to be an appropriate way of achieving what was wanted. The aim of taking the power is to ensure that, where ministers have the power to compulsorily acquire land, there is a fair, robust, open and transparent process for doing that. The detail that you are asking about is just a means of making that happen. Rather than writing out a process longhand, you could apply existing legislation but modify it to suit the particular purpose.
I am glad that you are talking about modification, because I am quite sure that you are aware that the existing provisions are not without their problems. How can you justify the width of the power in new section 97E(4)? I understand that it apparently makes sense to use something that works reasonably well in practice, but how can you justify the width of the power?
It is so that the power is wide enough to ensure that the process that would need to be put in place should that happen is fair, transparent and robust. If you have concerns about the power, I would be happy to consider them.
Is it subject to parliamentary scrutiny?
Yes, it is subject to the affirmative procedure.
Why has the power in new section 97E(4) been drawn in such wide terms, and have you considered restricting it?
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We would be happy to take away any particular concerns and consider them further. I should point out, though, that this power for ministers to acquire such land compulsorily can be used only in limited circumstances. What the regulations will set out is not when ministers can acquire the land but the process for exercising the power, to ensure that the process is transparent and fair and includes the appropriate detail.
Do you have any examples of the kinds of modifications to primary legislation that the Scottish Government expects to make in the exercise of this power as permitted by the provision in proposed new section 97E(5) of the 2003 act?
I cannot give you any such examples at the moment, although the power would give us the opportunity to modify and apply existing compulsory acquisition schemes, if that was thought to be the most appropriate approach.
I am sure that you appreciate that some of this is going to be quite contentious. Although that is a policy matter, there is nevertheless an interlinking between policy and this committee’s work that is quite crucial to the successful operation of this bill—or the act, when it becomes an act. Thank you very much for your responses.
Going back to a previous question that I think is linked to this issue, I am disappointed to hear that, despite the massive powers that you are assuming, you have no idea of the sorts of assets that you would be considering as eligible for compulsory purchase. Can you try a little harder to give us some idea? I should of course declare an interest as a landowner and farmer, which means that the issue is of specific interest to me and certainly to many others.
Going back to the issue of flexibility, I said at the beginning of the session that this provision will allow us to ensure that a person’s home, for example, or the land that they use is not taken off them. As for the width of the powers, one of the changes made by the bill is that the Land Reform (Scotland) Act 2003 will now apply to urban as well as rural situations. That means that a whole different set of issues needs to be taken into consideration, and we are considering some way of ensuring that what we put in the bill covers both urban and rural areas. As you will appreciate, they are two completely different beasts as far as assets are concerned, and the bottom line is that we want to get things right.
We need flexibility at this stage until we manage to narrow down the sorts of buildings, land and other assets that we would like to include or exclude from this provision. At the moment, we are certainly not talking about homes or land that is being used constructively. The whole basis of the provision is to ensure the sustainable development of land; we want to include community purchases of assets or land that help us in that aim, and we are not interested in simply having some means of acquiring assets that do not result in the sustainable development of land. That is why we are still considering the issue and why, I am afraid to say, I cannot give you any more specific examples.
Obviously any regulations made by ministers would have to comply with the European convention on human rights. As you will be aware, article 8 of the ECHR provides a right to respect for private and family life, which would include respect for a person’s home, and that would have to be taken into account were the power to be used.
My next question was actually going to be about whether the provision was ECHR compliant. The committee has, in its recent history, dealt with a problem with the legislation relating to 1991 tenancies. You have constantly referred to a transparent and fair process, but in that example there was a judgment by, I think, the Supreme Court that turned on the fact that the legislation was not fair to both parties. I trust, therefore, that this legislation will endeavour to be fair to all sides; otherwise we will be back in the position of making legislation that is subsequently knocked down.
Thank you for your answers. Again, we are looking at a fairly wide-ranging piece of legislation that has fairly wide powers. Officials such as you come along, absolutely rightly, and in perfectly good faith, tell us that there is no intention of doing this, this, this and this. We understand that, and it is undoubtedly what the Government wants.
However, once upon a time, there was a principle that we only legislated for what we wanted and the man in the street was defended against the misuse of power because the Government was never given that power. Increasingly, we seem to be looking at legislation that gives Government very wide powers and Parliament is having to trust the Government not to abuse those powers, which is not difficult to do. I am conscious that the specific purpose of everything is in the top line of the bill and we could not use any of the powers in the bill for a purpose that was not within the purpose of the bill. Nonetheless, I get the impression that we are increasingly looking at bills that are just widening the scope of what the Government has within its discretion, and there is part of me, as a parliamentarian, that is slightly worried about that trend. However, as officials, that is not your problem of course.
I am grateful to you for your answers. We now go to a point of detail from Stewart Stevenson.
Thank you, convener. I want to explore the use of the word “prescribed” in the new section 97N that will be inserted in the 2003 act by section 48 of the bill. Section 98 of the 2003 act says:
“‘prescribed’ means prescribed by regulations made by Ministers.”
However, the new section 97N uses the word “prescribed” on a number of occasions, particularly in section 97N(1), which says:
“Ministers may by regulations make provision for or in connection with prohibiting, during the prescribed period, prescribed persons from transferring”
and so on. It is not clear in the written answers that we have got that “prescribed period” and “prescribed persons” are subject to the definition in section 98 of the 2003 act and it will therefore have to be made clear through secondary legislation what the “prescribed period” and the “prescribed persons” are.
Perhaps I can help you with that. We agree that “prescribed” will mean
“prescribed by regulations made by Ministers”
and that is what is intended in new section 97N. The use of the term “prescribed” that you have given will definitely be in regulations. The provision that you read out is a regulation power. Ministers may make regulations and those regulations may set out the period for which the restriction on a transfer of land may apply, and they may set out who can be restricted from transferring land. Those matters will be in regulations under section 97N(1) or 97N(3), both of which attract the affirmative procedure.
New section 97N(2)(b) mentions “prescribed persons” and “prescribed circumstances”, section 97N(2)(c) mentions “prescribed circumstances” and “prescribed information”, section 97N(3) mentions “prescribed period”, and section 97N(4) mentions “prescribed circumstances”. You are therefore confirming that, in each and every instance in new section 97N, the use of the word “prescribed” is as described in section 98.
Yes. For example, new section 97N(2) sets out further detail of the regulations that may be made under section 97N(1). The same applies for section 97N(4), which has details about the provisions that may be made in regulations under section 97N(3). I can confirm that those examples you give will be matters in regulations.
Section 97N(3) uses the word “prescribed” without making backwards reference to section 97N(1).
Section 97N(3) is a separate power. Section 97N(1) is about a power to make provision about restricting transfers of land during an application process. Section 97N(3) is about suspending rights over land such as, for example, possible rights to buy or pre-emption rights. That is a separate power in section 97N(3) and section 97N(4) provides further detail about that.
Right—I understand that. Let me test our mutual understanding of the issue by asking how many powers you think new section 97N creates for ministers to provide secondary legislation.
In practice, I think that it provides two powers, because although the details about the prescribed period and the prescribed persons will have to be set out in regulations, they will all fall within regulations that are made under subsections (1) or (3).
What about “prescribed circumstances”, which is mentioned in subsection (4)?
That is the same, because it relates back to regulations that are made under subsection (3). I would be happy to put the matter in writing if that would be of assistance.
It would be of assistance to me; the convener will decide whether it is of assistance to the committee. It is right to flag up the issue. It is technical, but we will have to be satisfied that we understand what we have been told today and what you subsequently write to us. At present, until we discuss the issue, we probably remain a little uncertain as to the effect of the use of the word “prescribed”.
If you are able to set that down in writing, Ms Rayner, that would be helpful, not least because it would absolutely guarantee to you and your colleagues that you really have got it. I do not doubt you.
Certainly—I am happy to do so.
Section 54(1) gives the Scottish ministers a power to make further provision by regulation about asset transfer requests. The Government has explained that the power has been drawn relatively widely to allow for flexibility in the making of regulations relating to asset transfer requests. However, the committee still seeks clarity on the power. For example, could the power be used to make any further provision as long as it is about asset transfer requests?
I think that that is for me again.
You are correct that the power has been deliberately drawn widely to deal with asset transfer requests—it is wide in the sense that it deals with that part of the bill. The detail that is set out in section 54(2) provides an indication of the areas in which we think the provision will mostly be used: the manner of requests; the procedures to be followed; and the information to be included on requests. However, section 54(2) does not provide an exhaustive list and issues might emerge during consultation on the regulations or during practice and in the light of experience. Potential problems or issues might arise that require regulations to do with asset transfer requests as a whole, which is why we think that the power might be useful. It is to ensure flexibility of approach.
Has consideration been given to restricting the power in a way that still allows a degree of flexibility?
Not at the moment, although we are happy to consider any improvements that could be made to the bill. Because asset transfers happen at the moment and we are putting in place a statutory framework for what they can do, issues might arise in the way in which the provisions are used by community transfer bodies or public sector organisations. We want to ensure that, without having to return to the bill as a whole, we can deal with some of those problems, if they arise, through regulations.
Scotland is made up of a wide variety of communities. My take on what you have said is that the flexibility is to allow for, say, an island community to go through an asset transfer request process that might be somewhat different from the process in the likes of Glasgow, Edinburgh or Dundee. Is that correct?
That is potentially the case. We want the process to be as consistent across Scotland as possible, but there might be instances in which communities require different things to get their transfer application going and into the procedure as defined by the bill. Often, such issues are about the pre-transfer process, and are to do with setting out the business case, how the community wants to use the asset, how it will maintain the asset and the income streams that there might be. That is probably not the sort of thing that we are talking about in the bill; it is probably to do with other guidance and funds that might be available to community transfer bodies.
Is “probably” an accurate word to use, or should it be “definitely”?
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The word is probably “probably” at this stage.
My questions relate to sections 58(4) and 59(4), which concern the powers that are laid out in sections 58(3) and 59(3). We asked you in correspondence about those powers and about why it is deemed appropriate for appeal procedures to be left to the discretion of the Scottish ministers or local authorities. Will you explain further which aspects of appeals or reviews the Government considers might be subject to the discretion of the Scottish ministers or local authorities?
What exactly the regulations will contain has yet to be formulated, but there are powers to make regulations in connection with procedure. The provisions in the bill mirror closely the provisions that apply to appeals under planning legislation. Parallels with that can be drawn: the processes will be set out in the regulations under the bill, and the discretionary element will be up to the decision maker, who will decide in each case which of the processes should apply and how they will apply within the flexibility that the regulations allow. The model that is being used works in exactly the same terms for all appeals under planning and listed buildings legislation.
Is that why the Scottish Government believes that it is adequate to leave the appeal procedures to the discretion of ministers or local authorities rather than to specify them in subordinate legislation?
I will give a more concrete example. The purpose is to allow the decision maker who is faced with determining the appeal or review to choose the process that they consider is best suited to enabling them to have in front of them the information that they need to reach a decision. Typically, that might involve a choice between using a written submissions procedure, which is likely to be set out in the regulations, or a hearings procedure, for which a process will be set out in the regulations.
Why is the negative procedure considered appropriate, given that aspects of appeals and reviews will be left to the discretion of ministers or local authorities? Did you consider using the affirmative procedure?
The negative procedure is fairly standard for such procedural regulations. All the regulations on planning appeals are subject to negative resolution.
We want the process to be as transparent, effective and efficient as possible. We have talked about having a fair process for all parties; that applies to the appeal procedures, too.
Are we clear that the appeal process will be sufficiently disconnected from the Government to satisfy the requirement of being fair? When one party—the Government or a public organisation—is in any sense involved in the appeal process, it is always a worry that the process might be perceived to be biased in that body’s direction. Are we clear that the process will be adequately independent?
The bill does not change much, as the decision maker is the authority in the end. The appeal process reviews the process that the authority followed. The bill does not change who makes the decision.
I take it that the Government’s lawyers are confident that the process will be ECHR compliant.
Yes—certainly. We are confident of that. I make the general observation that somebody must be the appellate body. ECHR compliance in such contexts relies on the courts’ oversight. Ultimately, the courts have the power to consider how decisions were made, which makes any such administrative decisions ECHR compliant.
Throughout the bill, there is a far greater assumption of powers by the Scottish ministers. Usually the sort of appeals that we are talking about are decided by the Scottish ministers. Unless I am missing the point, there is an inherent contradiction in there.
I do not see the contradiction. It might be helpful to draw a comparison with planning appeals. Ministers are the final port of call for planning appeals. There is judicial authority for these powers all being compliant with the ECHR. The reason for that is that the courts have the oversight necessary to ensure that the powers are exercised in accordance with law and through fair and transparent processes.
But the potential difference in this case is that, whereas a planning appeal would only allow somebody to use land on the presumption that they owned it by the time that they wanted to use it, we are talking here about the ability to expropriate people’s land, are we not?
No, not in the asset transfer provisions.
Okay.
Would it be fair to say that there is a significant assumption of extra powers by the Scottish ministers throughout the bill, without apparent justification—such as in respect of asset transfer and the power of compulsory purchase—along with an apparently reduced level of parliamentary scrutiny? Would that be a fair summary?
I do not think that that is true in relation to asset transfers. Asset transfers can happen at the moment, and they often do.
I mean in the generality. Things that were previously looked at under the affirmative procedure are now to be looked at under the negative procedure. There seems to be a great deal of movement towards that. I am certainly no expert—I am the first to admit that—but it appears to me that the level of parliamentary scrutiny is reducing. Is that a fair comment?
It is not, in the context of the question that we were originally asked on section 58.
I am sorry—I was widening it out to the generality, rather than asking about the particular. I was perhaps too early in my summary of the points.
We do not think that there is a general reduction in parliamentary scrutiny. In fact, including a statutory process for things such as asset transfer requests means that there is an increased amount of scrutiny in the process generally.
I have a final quick question regarding the process and the appeal of decisions. You talked about ECHR compliance, which ultimately would be determined by the courts. It does not strengthen the hand of ministers and local authorities if the process is laid out more clearly in primary legislation and there is therefore a standard process to follow, rather than what seems to be a potentially quite ad hoc arrangement.
There is a power to make regulations to set out processes and how appeals and reviews will be conducted. Those will be set out and transparent. The discretionary element that will not be set out is really a matter of choice in relation to processes, including choices within those processes. There needs to be that flexibility for the system to work efficiently.
I seek officials’ confirmation about the difference between affirmative and negative instruments. It seems to me that the opportunity for scrutiny is the same for both. What is different is that a negative instrument can have immediate effect, whereas an affirmative instrument requires the consent of Parliament before it has effect. In fact, the distinction between the two lies in when they take effect and the process by which they may be undone, rather than the parliamentary process around scrutiny. Do I have the wrong end of the stick or the right end of the stick?
You are absolutely correct. A negative instrument could come into force immediately. Obviously there are rules—for example, there should be a 28-day period before it comes into force—which are normally adhered to. An affirmative order would have to have the Parliament’s approval before it could come into force. How quickly that could happen would be a matter of parliamentary process. No doubt it could happen quickly, and could indeed happen faster than some negative instruments that allow 40 days or more before they come into force. You are quite correct in your understanding.
In essence, there is no difference in the opportunity for scrutiny.
A negative instrument is laid before Parliament, parliamentary committees consider it and it is for members of Parliament to choose whether to have a debate on whether or not it should stand.
The Scottish Government has explained that the power in section 80(7), which will allow ministers to make further provision in relation to the removal of unauthorised buildings from allotment sites, as provided for in section 80(2), is required in order to allow for flexibility. Can you give more detail on the intended purpose of the power in section 80(7)? In particular, can you provide examples of the types of further provision that the power in section 80(7) may be used to make?
Section 80(7) will permit, but not require, Scottish ministers to expand on the detail in the procedure that is cited in sections 80(5) and 80(6).
On flexibility, the current procedure provides for local authorities to give a period of notice to the tenant and details the tenant’s right to make representations and the local authority’s duty to take account of those representations and inform the tenant of the outcome. The provisions also give the tenant the right of appeal through the sheriff court.
The additional power could be used to add timeframes to those areas that do not already have specified timeframes. For example, it could be used to detail a timeframe in which the local authority might take account of representations. It might also be used to detail the methods through which tenants might make representations. We would expect the power to cover that type of thing.
When the committee wrote to you to ask that question, why did you not provide that level of detail when you wrote back?
I do not know why we failed to provide that level of detail. I can only apologise for that.
Can anybody else answer that question?
I think that a point has been made there.
We have covered everything that the committee wants to consider at this stage. I thank the team for its extensive answers and its patience with us.
I suspend the meeting to enable everybody to change places.
10:58 Meeting suspended.