Subordinate Legislation Committee, 31 Jan 2006

Meeting date: Tuesday, January 31, 2006

Official Report 132KB pdf

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Delegated Powers Scrutiny

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Human Tissue (Scotland) Bill: as amended at Stage 2

I welcome members to the fourth meeting of the Subordinate Legislation Committee in 2006. I have received apologies from Gordon Jackson. I remind members to switch off their mobile phones.

Members will recall that the committee sought reassurance from the Executive that no specific provision in relation to confidentiality was needed in the Human Tissue (Scotland) Bill. I think that it was Stewart Maxwell who pointed that out. The Executive has provided a summary of the legal background and the reasoning behind its view that confidentiality issues are already adequately covered elsewhere and that, as a result, no specific provisions are required in the bill.

The Executive's explanation was useful. It would have been helpful if it had produced it in the first place, or even the second place—it should not have taken the Executive until the third place to provide it. That is the issue here. The reasons that the Executive has given are fine, and I accept what it has said, but to have had such a flurry of correspondence on the matter has not been helpful.

So we are pleased enough with the reply that we have now got.

Yes.

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Local Electoral Administration and Registration Services (Scotland) Bill: <br />Stage 1

Part 1 of the Local Electoral Administration and Registration Services (Scotland) Bill covers local government elections; section 1 is on "Setting of performance standards". During its consideration of the bill the lead committee, the Local Government and Transport Committee, expressed some concern about the lack of parliamentary scrutiny to which performance standards will be subject.

Part 1 does not have enough explanation accompanying it to make it satisfactory for our purposes. A number of questions arise throughout part 1, and one of them is on the setting of performance standards. It is perhaps an issue of policy as much as anything else. It is not clear what the Executive intends to do with the code on performance standards that it intends to draw up. Because that is not clear, it is not easy for the committee to judge whether the appropriate level of scrutiny is being applied or whether the appropriate type of instrument is being used.

It is difficult to decide exactly what to do, but I suggest that we write to the Executive and request further information and draw the matter to the attention of the lead committee. The issues are more to do with policy than with the appropriateness of the level of scrutiny that is applied or the statutory vehicle that is used.

As I understand it, the only current statutory requirement is that ministers lay a copy of the final published performance standards before the Parliament. Therefore, the Parliament will have no opportunity to debate them. The question is whether or not we think that the matter is sufficiently important for us to do more.

That is why it is really a matter of policy. I cannot imagine that the Parliament will want to get particularly involved in most of the issues that are covered in this part of the bill. The standard of returning officers in Scotland is important, but I cannot imagine that it is really necessary to treat the matter as other than an Executive, administrative process. It does not require parliamentary debate. At the same time, local government elections are of considerable political and parliamentary significance.

At this stage, I think that we should draw it to the attention of the lead committee that the nature of the subordinate legislation is such that there will not be as full parliamentary scrutiny as its members might think, and that it is up to them to judge whether the matter is important or not.

I was at the Local Government and Transport Committee meeting when the bill was discussed and I would say that part of the issue was about understanding what will happen in relation to the various standards. I think that you are saying that there is not much concern for this committee as far as subordinate legislation is concerned, compared with the concern about the clarity of the policy and what is actually going to happen.

I will not disagree with what has been said, but I do not think that there are only policy issues to consider here. Section 1 seems to cover the grey area that we sometimes discuss about whether or not something is legislative in character. We have discussed such examples here at the committee and with the Executive. It appears that the performance standards will be enforceable, which suggests that they are legislative in character.

I do not think that this is just about policy. There is a genuine issue about whether there should be parliamentary scrutiny. If we agree that the standards are legislative in character, there should be that scrutiny, and it will not be sufficient simply to lay a copy of them before the Parliament. That is the question for us. How to judge the standard or performance of returning officers is a policy matter for the lead committee. The legislative character of the performance standards is for this committee, however. There is an argument to be had on that.

If you think that it would be safer to be cautious, we should write to the Executive.

I thought that we had already agreed to write to the Executive.

Yes.

We should also include the point that I have just discussed. That is the issue for us.

Yes. We can ask about that grey area and about the slightly legislative nature of the performance standards, given that they are enforceable.

That is the point that we must ask about. It is not absolutely clear whether the standards are or are not enforceable. As I think both you and Ken Macintosh said earlier, there is an issue of clarity. If the Executive had explained the matter earlier, we would not be having this debate about it. If the Executive can tell us whether or not the standards are enforceable and what its intention is, with a bit more explanation, we might be able to answer those questions.

Do you have anything to add, Murray?

No, I am quite happy with that recommendation.

Good. Is that agreed?

Members indicated agreement.

Section 2 is on directions concerning performance reports. The provision enables ministers to

"issue directions to returning officers to provide the Scottish Ministers with such reports regarding their level of performance against the standards … as may be specified in the direction."

Are members quite happy with that?

Members indicated agreement.

Section 4 is on "Access to election documents". The lead committee voiced some concern about the provision. The delegated powers memorandum gives no indication of the sorts of restrictions that ministers may wish to impose on the use of information in what is a potentially sensitive area. The exercise of the power is subject to the affirmative procedure, but we might want to ask the Executive a little more about it.

We should ask about it. This brings us back to the subject of clarity. We can guess what ministers would probably do, but we should ask the Executive about the circumstances, and what restrictions are envisaged. Those are the questions that the Executive should have answered in the first place, but I think that we should ask them now.

Okay. Section 6 is entitled "Access to election documents: supplementary". A couple of things have been highlighted that we might wish to clarify with the Executive.

The Executive is rather hedging its bets here. It does not seem entirely sure. The phrase from the memorandum on delegated powers that is highlighted in our legal briefing is:

"likely to be subject to negative resolution procedure".

That seems an unusual phrase to use. Powers either are or are not subject to the negative procedure.

Perhaps the Executive is anticipating that the rules will be changed to give the committee the right to determine that.

Perhaps.

Perhaps not. That point is highlighted in paragraph 24 of the legal brief, which covers the difficulty of the phrase:

"likely to be subject to negative resolution procedure".

The question is what procedure will apply to orders under section 3(1) of the Local Governance (Scotland) Act 2004, which are affected by the bill.

There is a second point. Why has the Executive chosen to draft section 6(10) of the bill using a cross-reference to section 3(1) of the 2004 act? That would seem to add to the confusion that is already created in relation to section 3 of the act. How does the Executive consider that that will work in practice? Those are the two main points that we should raise. Is that agreed?

Members indicated agreement.

Section 9 is on the power to make a code of practice regarding the attendance of observers at elections. The lead committee expressed concerns about the lack of scrutiny of the proposed code of practice. If I am correct, this is the point that is not included in the delegated powers memorandum. Section 9(1) of the bill simply states:

"The Scottish Ministers must prepare a code of practice".

The code requires only to be laid before the Parliament, so the Parliament will have no formal opportunity to debate it or to influence its scope and content. Ministers are not obliged to consult on the content of the code, but answers given by officials to the Local Government and Transport Committee suggest that they intend to do so. The code is being drafted in close consultation with Whitehall, where the Electoral Administration Bill is currently being considered and in respect of which a similar code is being drawn up. Do members have any views?

I am in danger of repeating myself because we are talking about the same problem. The issue is sensitive and many people will be concerned about these matters. We should at least ask the Executive for its reasoning, and whether it is not more appropriate to lay a draft before the Parliament, as the legal brief suggests, so that the Parliament can consider it before it is approved. There is a variety of possibilities; if it came forward with one of those, the Parliament might have more confidence in the Executive's intentions.

The second suggestion that we might consider is that ministers could make the code, but they would need to make an order that would be subject to procedure before the code could come into force. Perhaps we should just write back to the Executive and say that because of the sensitive nature of the issue, it should consider those possibilities. Is that agreed?

Members indicated agreement.

Section 17 is entitled "Return as to election expenses". Given the nature of the subordinate legislation involved, there is a question mark over whether an order might be a more suitable legislative vehicle than regulations in this case. Is it reasonable that we should write to the Executive to ask that?

Members indicated agreement.

No points arise on section 19, "Personal identifiers: piloting etc" or on section 22, "Details to appear on election publications". Do members have any further comments?

No.

Section 25 is on "Miscellaneous amendments". The power being conferred allows ministers fairly wide discretion to prescribe in regulations the circumstances in which ballot papers may be cancelled or removed. There are two questions that we might ask. In what circumstances is it envisaged that the power will be used, and why, on such a sensitive issue, did the Executive not feel able to put conditions on the exercise of the power into the bill?

This is probably one of the most sensitive issues in the bill. I am sure that it is perfectly all right and that the Executive's intention is to deal with voter fraud, which is admirable, but given the extent and scope of the power, limits should have been included in the bill.

I do not know what the current position is, but I think that if someone wants to make a challenge, they will have to go to court. It might be that the new power will allow returning officers—I am not sure—effectively to cancel ballot papers. That is a big change. If that is what is happening, the Parliament will want to be fully aware of it and take a view on it. Again, I am not sure from the bill or the delegated powers memorandum if that is what is happening. The Executive must provide clarity in that area.

Correct me if I am wrong, but the existing power is subject to the affirmative resolution procedure.

Yes, it is, but the big issue is the clarity of the provision.

I agree with that.

Good point. Keep checking.

We move on to the schedule, on the meaning of election expenses. There are some concerns about the delegated powers memorandum and some confusion about whether the power is an order-making power that is subject to the affirmative procedure or the negative. It is considered that it should be subject to the affirmative procedure. That is the first point.

The second point is that the scope of the power is very wide, but the delegated powers memorandum is unfortunately short on detail about the policy background. It is hard to tell how the Executive envisages using the power. Again, the issue is one of clarity.

I thought that the phrase in our legal brief that it is "clearly and unhelpfully inaccurate" summed up the delegated powers memorandum.

Yes. So we are seeking much greater clarity on those two points. Is that agreed?

Members indicated agreement.

We move on to part 2 of the bill. Several delegated powers on which no particular points have been raised are listed in the memorandum. Does anyone have any comments?

No.

Part 2 also went through the Local Government and Transport Committee more easily than part 1.

No points arise on the sections in part 3 of the bill. Does any member have any points?

No.

Likewise, no points arise on section 52, "Ancillary provision" or section 53, "Short title and commencement". Is that okay?

Members indicated agreement.