Equal Opportunities Committee, 13 Dec 2005

Meeting date: Tuesday, December 13, 2005

Official Report 333KB pdf

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Subordinate Legislation

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Scotland Act 1998<br />(Modifications of Schedule 5) Order 2006 (draft)

Good morning. I welcome members to the 18th meeting in 2005 of the Equal Opportunities Committee. Mobile phones should be turned off. We have received no apologies this morning.

The first item on the agenda is consideration of the draft Scotland Act 1998 (Modifications of Schedule 5) Order 2006. I welcome the Minister for Communities, Malcolm Chisholm, and Yvonne Strachan and Fiona Campbell from the Scottish Executive equality unit. Members will be aware that this draft statutory instrument is subject to the affirmative procedure, so the minister is required under rule 10.6.2 of standing orders to propose by motion that the draft order be approved. Copies of the draft order have been circulated to members. I invite the minister to speak briefly on the SI, but he should not move it yet.

Committee members will be aware that orders that are made under section 32 of the Scotland Act 1998 may amend the list of matters that are set out in schedule 5 to the 1998 act that are reserved to the Westminster Parliament. The draft order would not amend the list of reserved matters; its only purpose is to add the new commission for equality and human rights, which will be created by the United Kingdom Equality Bill, to the list of reserved bodies that is given in part III of schedule 5 to the Scotland Act 1998.

To have effect, such orders need to be debated and approved by the Scottish Parliament and the Westminster Parliament. On this occasion, we are having our debate first, but it is likely that the draft order will be debated in the House of Lords and the House of Commons in a few weeks. All being well, the aim is that the draft order be approved and then made at the Privy Council at the turn of the year.

I move that the Equal Opportunities Committee recommend—but you do not want me to do that yet.

No, we do not want you to move the motion yet.

I welcome Stewart Maxwell. Do members have questions for the minister?

I have some concerns about the Equality Bill, which I raised in the parliamentary debate. They include the provision that UK rather than Scottish ministers are to make appointments to the proposed new commission. That is one of my concerns, although it is not relevant to the draft order.

Paragraph 8 of the original Executive note on the draft order, under the heading "Legislative background", states:

"Amending the reservation by adding paragraph 3(2)(d) of Part III to Schedule 5 by means of the draft Order will ensure that it accords with current policy by ensuring that only the UK Parliament can legislate to change the way the body operates, or confer or remove functions of the CEHR.

If the CEHR was not a reserved body a number of functions of the CEHR (both in human rights and equality areas) could come within the Scottish Parliament's power to legislate."

I would like clarification of that.

The CEHR will be a reserved body. It is obvious that Sandra White does not approve of that, but it is in accordance with the Scotland Act 1998; therefore, we do not have the freedom to legislate on such matters. However, we have wide powers and responsibility outwith legislation.

The last sentence of paragraph 8 in the original Executive note might have given a false impression, which is why it was changed. There has been no change in policy; we have just made sure that the precise nature of the Scotland Act 1998 is reflected in the note to which Sandra White referred.

I take on board what the minister said because the Scottish Parliament approved the Equality Bill, although some members abstained or voted against the motion. If the draft order were not approved, could the Scottish Parliament legislate on the human rights of asylum seekers and on rendition flights?

We can safely assume that that would not be the consequence of the draft order not being approved. You could vote against the motion to approve the draft order, but we cannot devolve reserved matters using that method. A change to the Scotland Act 1998 would be required to do that.

I follow up on that point and ask for clarification. The Executive note states:

"If the CEHR was not a reserved body a number of functions of the CEHR (both in human rights and equality areas) could come within the Scottish Parliament's power to legislate."

Did I hear you right when you said that that Executive note is false?

The original note might have given a wrong impression because it was not worded in the most accurate way. That is why it was changed.

So the Executive note is incorrect?

It has been corrected. It was not intended to be incorrect, but it gave a misleading impression. This is an argument about nothing; we cannot change the Scotland Act 1998 through an Executive note. Irrespective of what members think, our underlying starting point has to be the Scotland Act 1998, rather than an Executive note. We cannot suddenly assume legislative powers through an Executive note. If the note gave that impression, it was certainly misleading.

I absolutely accept that we cannot use the draft order to take away a reserved power from Westminster and that is not what I suggest. However, I have checked with the clerks to the Subordinate Legislation Committee what exactly the original Executive note meant and what the effect would be if the SI were voted down by Parliament. The explanation that I have received is that power over the promotion of equality and human rights would pass to this Parliament if the SI were not approved.

We already have that power, so that is not an issue.

The clerks' view was that if we did not approve the SI, additional powers would be transferred to this Parliament.

That is not the case, because we already have the power to promote equal opportunities, which we do vigorously all the time.

It seems strange that the Executive note is so incorrect.

I did not write the Executive note; I do not know whether anyone else can help us out.

I cannot help other than to say that the note was changed to clarify a comment that was, or might have been, misleading. The minister has made it fairly clear that the intention behind the Executive note was not what the original note conveyed, so it was important to change it. However, that changes nothing about the substance of the proposition or its context. That is why the note was changed; the intention behind the draft order was never anything other than the original intention, despite what appeared in the note.

I accept that the minister did not write the note about the draft order and the legislative powers, but the fact is that the note was provided with that wording, which was obviously flawed. The replacement note gave no explanation for the change—it was just another note with some text removed. The draft order is flawed. The committee should have had an explanation for the change.

Another Executive note was provided because the original note was confusing. However, I understand that that does not affect the draft order.

I take that on board, but we were not told that the first Executive note was flawed or wrong. That is unacceptable because the SI is flawed.

The draft order is not flawed; the Executive note was flawed.

The Executive note was flawed, but we were then given another note that did not explain why the Executive note had been changed.

I had not seen the amended Executive note. Perhaps the officials can explain why the subsequent Executive note was issued. The Subordinate Legislation Committee examined the original SI with the original Executive note and took decisions on that basis. The only reason that was given for reissuing the draft order—I presume that the subsequent version is what is in front of us—was to change the date by which it had to be approved or refused. I am not aware that any change to the Executive note was mentioned.

If that change was not mentioned, that is unfortunate. I understand your concern; the change should have been more explicit. However, I am concerned with the substance of the issue. I totally understand the point that Sandra White and Stewart Maxwell make, but the fact is that equality is reserved—that is explicit in the Scotland Act 1998, with the qualifications about promotion and so on. If the CEHR were not added to the list of reserved bodies, that would not make equality a devolved issue.

There is no issue about the substance of the draft order, but I accept fully that it was very unsatisfactory that substitution of the original Executive note's wording was not flagged up to members. I apologise for that, although I was not aware of that until I prepared for this meeting last night—the matter did not cross my desk. The officials who are here are in the same position, so I assume—I will correct this if I am wrong—that the legal people dealt with matters without reference to me or to the officials.

I accept that, but the situation must be examined. We were given wrong information and an Executive note with no information about why it had been changed. We must ensure that that does not happen to us or any other committee again.

I am sorry—I am not clear about what you want to do.

I want it noted that the Executive note that we were given was unsatisfactory.

We will ensure that the Subordinate Legislation Committee receives a copy of this meeting's Official Report.

I am a member of the Subordinate Legislation Committee.

I understand that.

The original draft order was sent to us, then the draft order was reissued. The only explanation for the second draft order related to a change in the date by which it had to be approved. As far as I am aware, no mention was made of a change in the Executive note. Subordinate Legislation Committee members did not necessarily examine the draft order in detail because the note did not refer to a change, so the committee did not discuss the matter.

We will pass the information back to the Subordinate Legislation Committee.

Motion moved,

That the Equal Opportunities Committee recommends that the draft Scotland Act 1998 (Modifications of Schedule 5) Order 2006 be approved.—[Malcolm Chisholm.]

Motion agreed to.