Public Health etc (Scotland) Bill: Stage 3
The next item of business is the stage 3 proceedings on the Public Health etc (Scotland) Bill. In dealing with amendments, members should have the bill as amended at stage 2, which is Scottish Parliament bill 3A (revised); the marshalled list, which is SP bill 3A-ML; and the groupings that I have agreed. If members picked up documents from the back of the chamber earlier, they might not be the right ones—the documents must be those that are relevant to stage 3. The right documents are available in the coffee lounge.
The division bell will sound and proceedings will be suspended for five minutes for the first division this afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. All other divisions will be 30 seconds.
I remind members that, as always, all contributions should be made through the chair, which means that members should refer to other members by name or by their preferred title.
Before section 18
Group 1 is on fees for notification of diseases. Amendment 1, in the name of Mary Scanlon, is the only amendment in the group.
The purpose of amendment 1 is to ensure the on-going co-operation and support of registered medical practitioners in implementing the bill by providing help to meet the costs of undertaking notification.
The current fee system allows for payment, to doctors working in all specialties, for reporting notifiable diseases, but the bill will remove such payments. In order to ensure effective reporting of notifiable diseases, however, general practitioner practices need robust systems, which require resources that are not currently provided under the new general medical services contract.
A number of fees are currently paid to GPs—for example, the fee for a secondary examination for compulsory treatment orders under the Mental Health (Scotland) Act 1984. Such fees recognise the additional work associated with the responsibility for carrying out a particular duty. The principle behind the new contract is that any additional services outwith the core contract should be fully funded.
Nothing has been removed from the notification scheme that would justify the removal of the fee previously paid to GPs. Indeed, the proposals in the bill appear to increase the requirement for GP notification and, of course, failure to notify would be breaking the law.
The national health service has always depended on the good will and dedication of staff. At a time when GP morale is fragile, it would be particularly detrimental to remove that fee. I suggest that the matter should be negotiated between the Government and the Scottish general practitioners committee.
The Government papers state that amendment 1 would require consequential amendments and that order-making powers are needed to retain the fee paid to general practitioners for notification of a disease. I was not advised of any problems relating to the amendment at any stage following lodging. The issue has come to light only because we have been given copies of the Government's papers on the purpose and effect of stage 3 amendments. Amendment 1 would retain the current position, so no parliamentary approval would be required. It says in the minister's papers that there are no order-making powers in the bill. However, order-making powers are set out in section 108(2).
I lodged amendment 1 in good faith. I am not a parliamentary draftsman, so I would expect problems to do with an amendment that I lodged to be highlighted by the minister, the bill team or other officials. Presiding Officer, will you consider the support and advice that is available to members of the Scottish Parliament who lodge amendments in good faith? Members are not given the legal advice and support that would assist them in the democratic process. Surely all amendments are of equal value and every member should receive equal advice and support when they lodge an amendment, whether or not other members intend to vote against it. There is a principle of equity in that regard. I ask Labour and Liberal members to support amendment 1, not just so that the £3.50 fee to GPs will continue, but on the basis that all MSPs deserve equal support and advice in the parliamentary process.
I move amendment 1.
I was surprised by amendment 1. I understand that the British Medical Association wants to retain what it regards as the principle that GPs should be paid for the notification of notifiable diseases, but the bill will reduce the number of notifiable diseases.
Mary Scanlon suggests that her approach represents an attempt to retain the support of GPs for participating in the notification scheme. I would be disappointed if the medical profession said that GPs would not be prepared to pass on information about notifiable diseases unless they were paid to do so. I would have thought that GPs and other medical practitioners would be willing to pass on such information whether or not they received a fee for doing so—never mind the suggestion that GPs would not participate in the scheme if a fee were not provided.
The bill will require hospital-based doctors as well as GPs to pass on information about notifiable diseases, but amendment 1 deals only with GPs and does not say whether hospital-based doctors should also be paid for undertaking that function.
I do not think that there is an appetite for providing more funding to GPs, given that the overall burden of notification will reduce. Members should not support amendment 1.
I would not be supporting amendment 1 if I thought for a minute that doctors would not participate in the notification scheme unless they were paid to do so. It might be argued that such is the high calling of a doctor that perhaps they need not be paid at all, but I am not sure that even I would want to sustain such an argument.
Doctors are asked to perform a number of tasks and, as Mary Scanlon made clear, there is precedent in statute for recognition of medical practitioners for providing additional information—it is not about doctors acting out of altruism at all times.
Michael Matheson was right to say that the number of notifiable diseases will be reduced, but that is not the issue; the issue is that doctors must notify. Amendment 1 would not create a new approach, as Michael Matheson seemed to hint in his closing remarks; it would retain the approach that will otherwise be abolished by the bill. I see no good reason not to do that. Liberal Democrats support amendment 1.
I separate the issue about fees from the issue about support for members who lodge amendments.
On fees, GPs constantly complain about the administrative burdens under which they are placed in relation to dealing with quite small and nominal fees. The fee for notification is particularly small. If the number of notifications were large, the aggregated administrative effort of dealing with the fees would be worth while. However, the minister gave evidence to the Health and Sport Committee that it is likely that 85 per cent or thereabouts of notifications will be abolished. In those circumstances, the retention of this small fee for a decreasing number of notifications does not seem an appropriate use of general practitioners' time or their staff's time. They need to be engaged on other issues. Whether the BMA cares to come back to the Government and renegotiate general practitioners' total salary package on the basis of what is lost by this measure is a matter for the BMA and the Government. That is a matter in which, for the moment and until 2011, Labour Party members will not be involved.
I turn to the issue of drafting advice for members. I was a member during the first session of the Parliament, when Labour was in government and I was a minister. At that time, one was able to turn directly to the drafters to ask for their comments on amendments. I am surprised at the paucity of support that is currently made available to individual MSPs in preparing amendments such as that which Mary Scanlon lodged.
In legislative terms, the provision of such drafting support is vital. Presiding Officer, I ask you and the Scottish Parliamentary Corporate Body to take another look at whether additional support should be provided to members. Doing so would mean that amendments not only are judged as competent, and therefore passed by yourself as being competent, Presiding Officer—as I assume amendment 1 must have been—but properly reflect the intentions of the member who lodged them.
As members have said, the Public Health etc (Scotland) Bill removes payment to registered medical practitioners for notification of certain diseases. Existing legislation specifies 32 notifiable diseases. Most notifications—the figure is approximately 80 per cent—are of food poisoning and chickenpox, neither of which will be notifiable diseases under the bill.
During stages 1 and 2 of the bill, only the BMA voiced any concern about the dropping of the fee for notification. In our discussions with public health medicine consultants and other health professionals, the matter was not highlighted as an issue for medical practitioners. Our view is that notification should be undertaken as a matter of course under a registered medical practitioner's duty of care. We are talking about the notification of serious illnesses that have wider public health implications. I do not believe that members would argue that registered medical practitioners would be unwilling to notify those serious illnesses if they were not paid separately for this duty. I do not believe for a minute that that would be the case. Furthermore, at present, not all general practitioners claim the fees that are currently available for notification.
The effect of Mary Scanlon's amendment would be that only those registered medical practitioners who are contracted by a health board to provide primary care would receive fees for notifying a disease—basically, only GPs. The amendment would introduce disparity between registered medical practitioners who work in different areas of health care but who are equally likely to come into contact with persons with a notifiable disease. In any case, notification by a registered medical practitioner is not voluntary; the bill requires them to do it. The bill also requires laboratory directors to notify specified organisms. No one is suggesting that they should be paid for complying with their duties. Why should some doctors be treated differently?
Mary Scanlon raised the issue of support for Opposition amendments. As Richard Simpson rightly pointed out, the matter is one not for the Government but for the SPCB to resolve. She is right to highlight the significant flaw in the drafting of her amendment. It provides that
"the Scottish Ministers may by order"
specify the amount of fee that should be paid to medical practitioners and the timescale within which those fees must be paid, but there are no other order-making powers in the bill and therefore there is no provision for the parliamentary procedure that is needed to make such an order under the bill. If amendment 1 were agreed to, any order made would not be subject to parliamentary procedure or scrutiny.
On that basis, I ask the chamber to reject amendment 1.
I clarify for the minister that I neither said nor implied that any GP would refuse to give notification of a disease on the basis of not receiving a £3.50 fee—that is the minister's interpretation, not the BMA's, the GPs' or mine. Nor am I suggesting renegotiation of the GP contract.
On the drafting issue, I received information at lunch time from a member of your office, Presiding Officer, and from the Health and Sport Committee clerk, that the bill contains order-making powers, so the point that the minister made about that should not be an issue. I see that the Minister for Parliamentary Business is shaking his head. I am not a legal draftsman, so I do not know whether I have been given the right or wrong information, which puts me in a difficult situation. I was referred to section 108(2). However, I intend to press amendment 1.
The question is, that amendment 1 be agreed to. Are we agreed?
No.
There will be a division. As it will be the first division in the proceedings, I suspend the meeting for five minutes.
Meeting suspended.
On resuming—
We move to the division on amendment 1.
For
Aitken, Bill (Glasgow) (Con)
Brocklebank, Ted (Mid Scotland and Fife) (Con)
Brown, Gavin (Lothians) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Carlaw, Jackson (West of Scotland) (Con)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West of Scotland) (Con)
Hume, Jim (South of Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Lamont, John (Roxburgh and Berwickshire) (Con)
McArthur, Liam (Orkney) (LD)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
O'Donnell, Hugh (Central Scotland) (LD)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elizabeth (Mid Scotland and Fife) (Con)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)
Against
Adam, Brian (Aberdeen North) (SNP)
Ahmad, Bashir (Glasgow) (SNP)
Allan, Alasdair (Western Isles) (SNP)
Brown, Keith (Ochil) (SNP)
Campbell, Aileen (South of Scotland) (SNP)
Coffey, Willie (Kilmarnock and Loudoun) (SNP)
Constance, Angela (Livingston) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Don, Nigel (North East Scotland) (SNP)
Doris, Bob (Glasgow) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
FitzPatrick, Joe (Dundee West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Christopher (Mid Scotland and Fife) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Central Scotland) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Adam (South of Scotland) (SNP)
Kidd, Bill (Glasgow) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)
Marwick, Tricia (Central Fife) (SNP)
Mather, Jim (Argyll and Bute) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West of Scotland) (SNP)
McKee, Ian (Lothians) (SNP)
McKelvie, Christina (Central Scotland) (SNP)
McMillan, Stuart (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Gil (West of Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Somerville, Shirley-Anne (Lothians) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow Govan) (SNP)
Swinney, John (North Tayside) (SNP)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
Welsh, Andrew (Angus) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
Abstentions
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Margaret (Glasgow Baillieston) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Foulkes, George (Lothians) (Lab)
Gordon, Charlie (Glasgow Cathcart) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Kelly, James (Glasgow Rutherglen) (Lab)
Kerr, Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Tom (Hamilton South) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Murray, Elaine (Dumfries) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Whitton, David (Strathkelvin and Bearsden) (Lab)
The result of the division is: For 29, Against 47, Abstentions 35.
Amendment 1 disagreed to.
Section 30—Public health investigations: compensation
Amendment 2, in the name of Shona Robison, is grouped with amendments 3 to 7, 32 and 33.
Sections 30, 56, 57 and 77 make provisions to the effect that any dispute concerning a person's entitlement to compensation, or concerning the amount of compensation payable, is to be determined by a single arbiter appointed by agreement between both parties. [Interruption.]
Order. Too many conversations are taking place in the chamber.
If agreement cannot be reached, application is to be made to the president of the Lands Tribunal for Scotland to appoint a suitable arbiter. During stage 2 consideration of the bill, further consultation took place with the president of the Lands Tribunal, who expressed the view that, despite there being relevant precedent in legislation, the role proposed was not appropriate for the Lands Tribunal.
The Scottish ministers have taken further advice and now consider that it would be appropriate for a sheriff to determine who a suitable arbiter would be in cases of dispute. That decision has the support of the Scottish Court Service. Concerns were expressed at stage 1 that sections 30, 56, 57 and 77 might lack clarity as to which dispute and agreement were being referred to. Amendments 2, 4, 6 and 32 insert the word "such" before the word "agreement", to put the matter beyond doubt.
I move amendment 2.
Amendment 2 agreed to.
Amendment 3 moved—[Shona Robison]—and agreed to.
Section 36—Medical examination of groups
Amendment 45, in the name of Shona Robison, is grouped with amendments 22, 23, 24, 38 and 44.
Amendments 45, 22, 23 and 24 are minor amendments to ensure consistent drafting throughout the bill.
Section 98(4) grants wide immunity for disclosures made under section 98. Section 99 gives narrow immunity for the exercise of functions under the bill generally. Amendment 38 removes the potential overlap between sections 98(4) and 99 by excluding section 98 from the provisions to which section 99 applies. The immunity provided by section 98(4) applies only to actions under section 98. For all other matters under the bill, section 99 will apply.
Amendment 44 is a technical amendment. The long title of the bill was amended at stage 2 to reflect Kenneth Macintosh's amendments on sunbeds. Amendment 44 ensures that the long title reflects the bill's contents following stage 2.
I move amendment 45.
Amendment 45 agreed to.
Section 56—Compensation for voluntary compliance with request
Amendments 4 and 5 moved—[Shona Robison]—and agreed to.
Section 57—Compensation for persons subject to certain orders
Amendments 6 and 7 moved—[Shona Robison]—and agreed to.
After section 57
Group 4 is on compensation for carers. Amendment 8, in the name of the minister, is the only amendment in the group.
Amendment 8 will widen the availability of compensation under part 4 to those carers, as defined in the amendment, who incur loss as a result of having to care for a child or other relevant person who is subject to quarantine, exclusion or restriction of activity, whether through complying voluntarily with a request by a health board or being subject to a quarantine exclusion or restriction order. That fulfils the policy intention in the original public health legislation consultation, which received broad support.
Members of the Health and Sport Committee might recall that the issue was raised by a number of stakeholders during stage 1. There have been a number of public health incidents in which parents have been reluctant to take time off work to care for their children who are excluded from nursery or school, because they were in casual employment and would suffer financial loss as a result of taking time off. The availability of compensation in such circumstances, where there is a proven loss, will allow those people to stay off work and to adhere to health board advice regarding limiting the spread of infection.
Subsection (4) of the new section that amendment 8 will insert sets out the arrangements for resolving cases of dispute over compensation. Those arrangements are in line with other compensation provisions in the bill as amended by members earlier today. However, we acknowledge that further detail might be required about how the compensation arrangements will work in practice, so subsection (5) of the new section will provide Scottish ministers with a regulation-making power to make further provision if required.
I move amendment 8.
Amendment 8 agreed to.
Section 57A—Recall of orders granted in absence of person to whom application relates
Group 5 is on the effect of application for recall and appeals. Amendment 9, in the name of the minister, is grouped with amendment 21.
Section 57A makes provision for applications to the sheriff to recall quarantine, detention and exceptional detention orders made in the absence of the person to whom the order relates. There are already express provisions in the bill about the effect of appeals in section 34(4A) and section 61. Amendment 9 is necessary to remove any doubt that the orders under section 57A continue to have effect until or unless they are recalled.
Amendment 21 is a technical amendment that clarifies section 61 and ensures that where an order appealed against has been extended or modified and the person subject to it appeals against the extension or modification, the order continues as extended or modified in the interim.
I move amendment 9.
Amendment 9 agreed to.
Section 58—Appeal against exclusion orders and restriction orders
Group 6 is on appeals. Amendment 10, in the name of the minister, is grouped with amendments 11 to 20 and 34 to 37.
The amendments in this group are technical amendments. The purpose of amendments 10 to 20 is to ensure that the appropriate range of actions is available to the sheriff, the sheriff principal and the Court of Session following an appeal against certain part 4 orders. Currently, the powers of the sheriff, the sheriff principal and the Court of Session do not fully reflect the fact that not only orders but decisions may be appealed against. Amendments 34 to 37 are technical in nature and ensure consistency in appeal provisions throughout the bill, in light of other amendments that have been made at this stage.
I move amendment 10.
Amendment 10 agreed to.
Amendment 11 moved—[Shona Robison]—and agreed to.
Section 59—Appeal against quarantine and hospital detention orders
Amendments 12 and 13 moved—[Shona Robison]—and agreed to.
Section 59A—Exclusion orders and restriction orders: further appeal to sheriff principal
Amendments 14 to 17 moved—[Shona Robison]—and agreed to.
Section 60—Appeal to Court of Session
Amendments 18 to 20 moved—[Shona Robison]—and agreed to.
Section 61—Effect of appeal under section 58, 59, 59A or 60
Amendment 21 moved—[Shona Robison]—and agreed to.
Section 65—Offences arising from breach of orders under this Part
Amendment 22 moved—[Shona Robison]—and agreed to.
Section 65A—Failure to ensure child's compliance with order
Amendments 23 and 24 moved—[Shona Robison]—and agreed to.
Section 74—Use of powers in emergencies
Group 7 is on use of powers by a local authority in an emergency: application. Amendment 25, in the name of the minister, is grouped with amendments 26 to 28 and 31.
Section 74 provides that, when an authorised officer who is entitled to enter premises by virtue of part 5 of the bill considers that there is an emergency, he or she may exercise the power of entry at any time and use reasonable force. However, under part 5, the power of entry available to an authorised officer can be exercised only once a notice has been served on the owner or occupier of the premises.
The need to go through that process conflicts with the need to act in cases of emergency. Amendment 25 rectifies the situation by providing that the authorised officer may enter the premises in question in emergency situations, provided that the criteria for entry have been certified by a local authority competent person. Amendments 26 to 28 and 31 are consequential amendments.
I move amendment 25.
Amendment 25 agreed to.
Section 75—Obstruction
Amendment 26 moved—[Shona Robison]—and agreed to.
Section 76—Recovery of expenses
Amendments 27 and 28 moved—[Shona Robison]—and agreed to.
Group 8 is on recovery of expenses. Amendment 29, in the name of Mary Scanlon, is grouped with amendment 30.
Amendment 29 would delete the word "civil" from section 76(4). I am reliably informed that the term "civil debt" is not a term of art in Scots law and should be amended.
Amendment 30 would allow a person who has received a notice of expenses to appeal to the court against the local authority's notice in respect of the amount sought or the instalments proposed. The reason for the amendment is that section 76 entitles local authorities to recover expenses for work done under part 5, but there is no provision in section 76 for review. The amendment would remedy that deficiency.
Amendment 30 has two main advantages. First, it would make it clear that the sheriff can decide what is reasonable in terms of recoverable expenses. Secondly, by providing for summary application procedure, it would provide one procedure with one set of appeal rights.
I move amendment 29.
The amendments are unnecessary.
Amendment 29 would remove the word "civil" from the term "civil debt" in section 76. That term is not new. It is straightforward and clearly understood, and it has been used in other pieces of legislation, most recently in the Transport (Scotland) Act 2001, the Edinburgh Tram (Line One) Act 2006, the Edinburgh Tram (Line Two) Act 2006, the Business Improvement Districts (Scotland) Regulations 2007, and many more besides. Amendment 29 is therefore unnecessary.
Amendment 30 would provide for the court process by which a local authority could recover expenses for action taken under part 5. However, that is already the effect of section 76, which provides the local authority with the right to recover expenses. If there is a dispute about the amount of expenses sought or instalments suggested, recourse may be made to the court because it is clear that the local authority can recover expenses as a civil debt.
Rules of court will be made to cover the procedure for that. I envisage that summary application in a sheriff court may be the appropriate route to take. It will allow the sheriff the opportunity to decide what expenses are reasonable, and it will allow appeals against that decision. Leaving such detail to rules will provide a degree of flexibility that would be lost if amendment 30 were agreed to. Our approach is consistent with the rest of the bill, and there is therefore no need for amendment 30.
What is the difference between a debt and a civil debt?
As I have explained, a local authority can follow a simple process to recover expenses as a civil debt. Murdo Fraser should know all about that, as he was party to the passing of legislation that contained the term "civil debt".
It is unfortunate that the drafting of amendment 30 is flawed. I will not make too much of that but, for example, proposed new section 76(5) mentions "expenses under subsection (1)" but does not mention the administrative expenses that a local authority can recover under subsection (2). If amendment 30 were agreed to, it could create confusion about which expenses could be recovered and the procedure for recovery.
On the basis of all that, I urge members to reject amendments 29 and 30.
Members will not need to reject amendment 29, because I have decided to ask to withdraw it.
Amendment 29, by agreement, withdrawn.
Amendment 30 not moved.
Section 77—Compensation
Amendments 31 to 33 moved—[Shona Robison]—and agreed to.
Section 78—Appeals against notices under this Part
Amendment 34 moved—[Shona Robison]—and agreed to.
Section 79—Appeal to sheriff principal
Amendments 35 and 36 moved—[Shona Robison]—and agreed to.
Section 80—Appeal to Court of Session
Amendment 37 moved—[Shona Robison]—and agreed to.
Section 90H—Power to enter premises: entry to dwellinghouses
Group 9 is on enforcement of sunbed offences: power to enter dwelling-houses. Amendment 46, in the name of Ross Finnie, is the only amendment in the group.
Section 90H was inserted at stage 2 by amendment 9, which was part of a group of amendments that Kenneth Macintosh lodged on the regulation of sunbeds. Through nobody's fault, those amendments were discussed late in the stage 2 proceedings. Health and Sport Committee members expressed reservations about some aspects of the provisions, but advice from third parties was received late.
I have two concerns about section 90H. First, I instinctively hesitate to create statutory provisions that allow any officer of any body at any place and any time to go on fishing trips by entering private dwelling-houses. I appreciate that the draftsman has provided that 48 hours' notice must be given and that a person must grant consent, but how on earth can an officer phone to gain entry to premises without meeting a legal test to demonstrate good cause to do so, a link between a person and the offence or anything else?
Much more important is the fact that the enforceability of the sunbed provisions would be affected. Under section 90H, if consent were not given, we would have no opportunity to obtain the evidence. That is exactly what the Law Society of Scotland's late submission to the committee says:
"It seems to"
us
"that if someone is committing an offence in relation to sunbeds",
they
"may have records or equipment at home. So who would give consent to entry then? It's unlikely I think."
The society believed that amendment 9 at stage 2 should have been
"changed to allow for a power of search to a dwellinghouse to be granted by a sheriff".
Accordingly, amendment 46 would apply the standard test that one would expect. If good cause existed to believe that an offence was being or might be committed, if it were believed that evidence of commission of that offence was in the dwelling-house and if a sheriff were satisfied by evidence on oath that those conditions applied, the sheriff could issue a warrant. That would provide the opportunity to obtain the evidence that would allow us to bring a prosecution. I accept that the provision may apply only to a limited number of cases, but if the Government originally thought it right to have that provision, I hope that it will agree that the measure should be enforceable.
I move amendment 46.
The Labour Party will support Ross Finnie's amendment because in the cases—which will be extremely rare, as he said—in which an individual did not consent to the entry of an officer who sought to ascertain whether something unlawful was occurring, it would be unsatisfactory for that to put an end to the matter. When there is a supposed breach, it is important that the law should be enforced. Doing so under a warrant that has been given by the sheriff on the basis that Ross Finnie has outlined appears to be appropriate.
As Ross Finnie knows, although I lodged the original amendment at the committee, I had some reservations about it at the time. I did not move the amendment; it was moved by a colleague on the committee. Although I do not agree that the powers will be abused, the additional hurdle that Mr Finnie proposes will provide additional reassurance. For that reason, I am happy to support his amendment.
As you know, Presiding Officer, we have some concerns about the amendment. Although our original approach favoured a light touch, we appreciate the sentiments that have just been explained by Mr Finnie and others. We will, therefore, not oppose amendment 46.
Mr Finnie, would you like to wind up?
Construing not opposing as support, I have no further comment.
Amendment 46 agreed to.
Section 99—Liability of persons exercising functions
Amendment 38 moved—[Shona Robison]—and agreed to.
Section 102—Regulations and orders
Group 10 is on regulations: procedure. Amendment 39, in the name of the minister, is grouped with amendments 40 and 41.
Section 102(3) provides that a statutory instrument containing regulations under the act is generally subject to negative procedure, subject to the exceptions that are set out in section 102(4), to which affirmative procedure applies.
Section 25(3) enables Scottish ministers by regulation to give such additional powers to investigators as they consider necessary for the purposes of public health investigations. This is an important power, and one under which regulations might need to be made quickly, which is why negative procedure was first proposed.
Section 90D(1) enables Scottish ministers by regulation to make provision for sunbeds used for medical purposes. That power will be used only if we need to ensure that medical use of sunbeds remains outwith the scope of the legislation and in case we need to do anything in the future to guard against sunbed operators and manufacturers trying to circumvent the law through the medical exemption route.
We recognise that those are broad powers, however, and are, therefore, content that they be made by affirmative procedure, which will afford the Parliament proper scrutiny of the regulations.
In urgent situations, amendment 41 will allow us to make regulations under section 25(3) using emergency affirmative procedures, which meets the policy intention.
I move amendment 39.
Amendment 39 agreed to.
Amendments 40 and 41 moved—[Shona Robison]—and agreed to.
Schedule 2
Minor and consequential amendments
Group 11 is on consequential amendments and appeals. Amendment 42, in the name of the minister, is grouped with amendment 43.
Schedule 2 provides for changes to section 47 of the National Assistance Act 1948. Later this year, that section will be repealed by the Adult Support and Protection (Scotland) Act 2007, so the provision in schedule 2 is no longer necessary.
Amendment 42 removes the amendments to section 47 of the 1948 act. It also makes consequential amendments to other legislation.
The repeal of the Public Health (Scotland) Act 1897 has consequences elsewhere in the statute book. Some of the references to the 1897 act were removed at stage 2. Amendment 43 continues the tidying-up process and removes another outstanding reference.
I move amendment 42.
Amendment 42 agreed to.
Schedule 3
Repeals and revocations
Amendment 43 moved—[Shona Robison]—and agreed to.
Long Title
Amendment 44 moved—[Shona Robison]—and agreed to.
That ends consideration of amendments.