Local Government and Communities Committee

Meeting date: Wednesday, February 24, 2021

Official Report 727KB pdf

---

European Charter of Local Self-Government (Incorporation) (Scotland) Bill: Stage 2

Item 3 is stage 2 consideration of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. Our fellow committee member Andy Wightman is the member in charge of the bill and will move and speak to his amendments. I am pleased to welcome the Cabinet Secretary for Communities and Local Government, Aileen Campbell, to move and speak to amendments on behalf of the Scottish Government.

I will make some brief comments before we begin, because these are our first remote stage 2 proceedings. I will take things a little slower than I would normally, particularly when it comes to disposal of amendments after a debate.

If you wish to object to agreement of an amendment—that is to say, if you want to put it to a vote—please raise your hand when I call that amendment, to register your objection. I hope that that will be captured in the gallery view of proceedings. However, to be sure that your objection is noted, I suggest that you type “Object” or “No” in the BlueJeans chat box. I will pause to take note of whether anyone has objected in that way.

If there are any votes on amendments, I will call the vote alphabetically by roll call, to aid recording and transparency. I will put the question on the amendment and ask each member in turn whether they agree or disagree to the amendment or wish to abstain. My vote will be recorded last, and I will then read out the result.

Interventions on someone’s speech are, as ever, permitted, but bear in mind that it is harder to catch a speaker’s attention in a remote debate and that broadcasting needs a second to catch up. Overall, I would encourage you not to intervene if you have the option instead of making your point in a short speech.

I will call those who have amendments that are being considered today in the usual order. If any member wishes to contribute to a debate in a grouping, even when they do not have an amendment in the group, they should catch my attention by typing “R” in the chat box.

Section 1—The Charter Articles

Amendment 1, in the name of the cabinet secretary, is in a group on its own.

Good morning to the committee. Before I describe the detail of amendment 1, I extend my thanks to Mr Wightman and his team for the helpful discussions and collaborative work in the lead-up to stage 2 of the bill. The amendments that he and I have lodged will lead to an improved bill—subject, of course, to the committee’s agreement to those amendments.

Amendment 1 is an important amendment that needs some explanation. It would ensure that the charter is applicable, subject to any reservations, objections or interpretative declarations by the United Kingdom. That is important because, as it stands, the bill does not reflect the two declarations made by the UK in relation to the European Charter of Local Self-Government.

The first declaration provides that the charter applies to councils in Scotland under the Local Government (Scotland) Act 1994. That is mentioned by Mr Wightman in the policy memorandum to the bill and is useful in ensuring that the bill does not apply to any other bodies that exist or might be established in future that have functions that are similar to those of local government. Currently, the best potential example in Scotland might be the national park authorities. The second declaration simply provides that the UK considers itself bound by all the paragraphs in part 1 of the charter, in accordance with article 12. The declaration reflects the menu structure of the charter.

The effect of the amendment is simply to ensure that incorporation exactly mirrors the UK’s international obligations in relation to the charter. Neither of the declarations impact on the policy aims of the bill, and neither does amendment 1. However, it is necessary to ensure that the bill is compatible with the UK’s international obligations.

The policy intention of the bill is to achieve the incorporation of the charter into domestic law in Scotland in order to give it legal effect and allow compliance with the charter to be enforced in the Scottish courts. Amendment 1 will ensure that that intention is fulfilled. Inclusion of reference to the declarations is consistent with incorporation and would avoid any potential for confusion.

Without such an amendment, there may be an argument that the bill is not compatible with international obligations. As such, there would be a risk that the bill could be challenged under section 35 of the Scotland Act 1998.

I apologise, cabinet secretary, but I have been told that the first amendment should be amendment 17. I will suspend the meeting to get that sorted out.

11:21 Meeting suspended.  

11:26 On resuming—  

I invite the cabinet secretary to come back in.

Thank you, convener. Given the necessity to explain the rationale behind amendment 1, I will repeat a wee bit of what I said before we were cut off.

Without amendment 1, there could be an argument that the bill is not compatible with international obligations and there would be a risk that the bill could be challenged under section 35 of the Scotland Act 1998. That would prevent the bill from being submitted for royal assent. The amendment removes that risk.

Amendment 1 also deals with other risks. The UK, and not Scotland, is a party to the charter; it is therefore an international obligation of the UK. The subject matter of international relations is reserved to the UK Parliament by the Scotland Act 1998. Although we can make some laws in that area—such as this bill—if we did not pass amendment 1 and the UK departed from the terms of the treaty at some point in the future, it would present some risks. We would still be bound by international law to comply with the charter under the terms set by the UK, but we would have this act, which would now say something different. That issue would need to be resolved.

If the area was within devolved competence, the Scottish Parliament could legislate—but what if it was not within devolved competence? It might not be as simple as amending the act to make it compliant with the terms set, should we wish to do so. Amendment 1 removes those risks. It provides for a flexible approach in incorporating the charter and gives effect to the treaty in accordance with the UK’s international obligations.

Finally, this type of provision is not unusual. For example, the amendment is similar to the provisions included in section 1(3) of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and section 16(2) of the Commissioner for Children and Young People (Scotland) Act 2003. I hope that the committee supports it.

I move amendment 1.

I echo the cabinet secretary’s opening remarks and thank her and her team of officials for their constructive engagement up to this point. Amendment 1 is one of the amendments lodged by the cabinet secretary, Aileen Campbell, to which I did not add my name in support. That is due to the fact that I did not have time to consider it fully ahead of the lodging deadline; indeed, this is the first time that I have heard the justification for the amendment.

I understand the rationale for the amendment as presented by the cabinet secretary. I emphasise that there is nothing problematic in either of the two declarations that are referred to by the cabinet secretary, which were made by the UK when it ratified the treaty. However, my reason for opposing the amendment at this stage is broader and is one of principle.

I do not believe that the Scottish ministers should be bound by the charter articles only to the extent that the UK, as a state, is bound by those articles in international law. My view is that the incorporation of the charter into Scots law should subsist for so long as the bill, if enacted, is not amended or repealed, even if the UK departs from the terms of the charter at the level of international law.

11:30  

As I understand it, the effect of amendment 1 would be that if the UK made new declarations, the content of the obligations under the bill would change. Because amendment 1 seeks to mirror the UK obligations internationally, as they

“may be in force from time to time”,

it would, in my view, undermine the policy intention and put the on-going policy purpose of the bill squarely in the hands of the UK Government. That is a strange policy position for any member of the Scottish Parliament to adopt. I believe that, in any event, it is likely that a court would interpret the charter articles by reference to the two existing UK declarations, without the need for amendment 1, as they were the basis for UK ratification in 1988. I do not believe that amendment 1 is necessary for that reason.

If, in the future, further declarations were made on behalf of the UK state, a Scottish Government could reflect those new declarations or reservations by seeking to amend the act in primary legislation. I would prefer a process that would allow consideration as to whether any new limitations on the UK’s international law obligations need to be reflected in the act as a matter of domestic law, rather than a situation where that would be automatic, which I believe would be the effect of amendment 1.

Finally, on the drafting level, the language of amendment 1 appears to be a straight carry-over from section 1(3) of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. However, as a Council of Europe treaty, the charter uses language of declarations and denunciations and, so far as I am aware, there are no provisions in the charter for “objections”, which is one of the terms that is used in amendment 1.

I am not supportive of amendment 1 at this stage. I would like to have further conversations with the cabinet secretary about its exact purpose and whether it could stray into reserved matters. This is the first that I have heard of that concern so, rather than vote amendment 1 through at the moment, I would prefer to have conversations in advance of stage 3. However, I am in the hands of the committee as to what you wish to do with the proposal that is before you.

Thank you. Cabinet secretary, would you like to wind up?

I have a great deal of sympathy with much of what Andy Wightman has set out. I recognise that the issue emerged fairly late in the day, but we cannot ignore it. In pursuit of the positive outcome that the bill will bring, we need to be live to the risk that the bill might not receive royal assent, for the legal arguments that I have set out. Amendment 1 would remove that risk, but it would not change the policy intent. As Andy Wightman pointed out, that provision has already been presented within other bills, such as the UNCRC bill and the 2003 act, as I mentioned. Therefore, although it is in within that constitutional framework, it is not an unusual provision within a bill. It is not new; it has been used and has been inserted into other bits of legislation. It takes away the risk that the bill might not receive royal assent.

In pursuit of getting the bill to the place where we want it—which is passed and enacted—I believe that removing that risk is worth agreeing to amendment 1, so I press amendment 1 in my name. However, ahead of stage 3, we commit to continuing the dialogue with Andy Wightman to further reflect on refinements or suggestions that he might wish to make. The risk is there, so it is important that I point that out to the committee and I hope that you understand that I do so in the pursuit of ensuring that the bill gets to the place where we want it to be, which is enacted and doing the positive things that we all agree that it can achieve. We will continue to engage with the member who is in charge of the bill ahead of stage 3, but I press amendment 1.

The question is, that amendment 1 be agreed to. Are we agreed?

Andy, I think that you oppose the amendment, but I cannot see anything in the chat box.

My understanding is that I do not have a vote, convener.

Oh right—my apologies.

Amendment 1 agreed to.

Section 2—Duty to act compatibly with the Charter Articles

Amendment 2, in the name of Andy Wightman, is grouped with amendments 3 and 4.

My amendments 2 and 4 are technical amendments to address an ambiguity in language in section 2(2) that was drawn to the committee’s attention in written evidence by Professor Chris Himsworth. It relates to how the definition of “act” as including failure to act in section 2(2) interacts with section 2(1). The formulation that is proposed in the amendments provides for better consistency of language between sections 2(1) and 2(2). I believe that it is clearer and more effective in making acts and failures to act challengeable in court if they appear to be incompatible with charter articles. Otherwise, the nature of the duty on ministers in section 2 and its effect will remain unchanged.

The cabinet secretary’s amendment 3 helps to clarify what is excluded from the section 2 duty on the Scottish ministers to act compatibly with the charter, and for that reason I support amendment 3.

I move amendment 2.

Before we go any further, I will suspend the meeting.

11:37 Meeting suspended.  

11:39 On resuming—  

Section 1, as amended, agreed to.

Schedule 1 agreed to.

Section 2—Duty to act compatibly with the Charter Articles.

Amendment 2, in the name of Andy Wightman, is grouped with amendments 3 and 4.

My amendments 2 and 4 are technical amendments to address an ambiguity in language in section 2(2) that was drawn to the committee’s attention in written evidence by Professor Chris Himsworth. It relates to how the definition of “act” as including failure to act in section 2(2) interacts with section 2(1). The formulation that is proposed in the amendments provides for better consistency of language between sections 2(1) and 2(2). I believe that it is clearer and more effective in making acts and failures to act challengeable in court if they appear to be incompatible with charter articles. Otherwise, the nature of the duty on ministers in section 2 and its effect will remain unchanged.

The cabinet secretary’s amendment 3 helps to clarify what is excluded from the section 2 duty on the Scottish ministers to act compatibly with the charter, and for that reason I support amendment 3.

I move amendment 2.

As Mr Wightman said, amendments 2 and 4 are technical ones that deal with the way that the critical duty in section 2 is interpreted and applied. The discussions on the issue were probably the longest and most technical ones between our teams. I am pleased that we were able to work together and I agree that the new formulation of the duty as proposed by Mr Wightman clarifies its effect and will ensure that section 2 works as intended.

My amendment 3 is a technical amendment that amends the exclusion from the definition of “functions” in section 2(2). The exclusion means that the section 2(1) duty does not apply to the preparation or introduction of bills, or the exercise of other functions in relation to bills. Essentially, amendment 3 makes two minor adjustments. First, it clarifies the intended effect by excluding from the section 2(1) duty functions that specifically relate to bills rather than primary legislation more broadly.

Secondly, the amendment replaces the term “promotion”, as that is not a term that is normally used to describe the progress of a bill through Parliament. The term “promotion” might not cover some of the Scottish ministers’ parliamentary and non-parliamentary functions in relation to bills. For example, the function of lodging a motion to withdraw a bill in accordance with rule 9.13 of the Parliament’s standing orders would not be “promotion” of the bill. The effect of amendment 3 is to make it clear that the functions that are excluded from the section 2(1) duty are not only the preparation or introduction of bills but the exercise of other parliamentary and non-parliamentary functions in relation to bills.

Accordingly, I ask members to support my amendment 3 and Andy Wightman’s amendments 2 and 4.

Amendment 2 agreed to.

Amendment 3 moved—[Aileen Campbell]—and agreed to.

Amendment 4 moved—[Andy Wightman]—and agreed to.

Section 2, as amended, agreed to.

Section 3—Duty to promote local self-government

Amendment 5, in the name of the cabinet secretary, is in a group on its own.

The purpose of amendment 5 is to clarify the scope of the consultation duty in section 3. It will amend section 3(4) to specifically require the Scottish ministers, in complying with their duties under sections 3(1) and 3(2), to consult

“such persons appearing to them to be representative of the interests of local authorities”.

That covers consultation with the Convention of Scottish Local Authorities, the Society of Local Authority Chief Executives and Senior Managers and any other similar representative body, and local authorities. I believe that it is right that the interests of local authorities should be highlighted as being of special importance, given the bill’s purpose and the fact that consultation is an essential part of the duty to promote local self-government.

Amendment 5 will also require the Scottish ministers to consult

“such other persons as they consider appropriate”.

That covers any other person whom the Scottish ministers consider to have a particular interest in local self-government and the autonomy of local authorities. That would include academics with relevant expertise in relation to those matters.

I move amendment 5 and ask members to support it.

11:45  

I have nothing to add to what the cabinet secretary said on amendment 5, which I support.

Amendment 5 agreed to.

Section 3, as amended, agreed to.

Section 4—Interpretation of legislation

Amendment 6, in the name of the cabinet secretary, is grouped with amendments 7 and 8.

Amendments 6 to 8 are minor technical amendments that make it clear that the interpretation duty in section 4 is to apply only to acts and subordinate legislation to the extent that their provisions are within the legislative competence of the Scottish Parliament. I ask members to support all the amendments in the group.

I move amendment 6.

I have nothing to add to what the cabinet secretary said. I support all three amendments in the group.

Amendment 6 agreed to.

Amendments 7 and 8 moved—[Aileen Campbell]—and agreed to.

Section 4, as amended, agreed to.

Section 5—Declaration of incompatibility

Amendment 9, in the name of Andy Wightman, is grouped with amendments 10 and 11.

Amendment 9 is a technical amendment to provide clarity that the court that is referred to in section 5(5)(a) is the Supreme Court of the United Kingdom. The amendment responds to a point that Professor Chris Himsworth raised in his written evidence to the committee.

Amendments 10 and 11 are technical amendments that, together, adjust the positioning of the word “only” in section 5(7). The effect is to provide greater clarity that a declaration of incompatibility may be made in respect of a provision only if the provision is within the legislative competence of the Scottish Parliament.

I move amendment 9.

As Mr Wightman said, the amendments in this group are minor and technical in nature. Amendment 9 is a clarifying amendment that simply makes it explicit that the supreme court that is referred to in section 5(5)(a) is the Supreme Court of the United Kingdom. Amendments 10 and 11 make minor adjustments to clarify the effect of section 5(7).

I support Andy Wightman’s amendments 9 to 11 and I ask members to vote for them.

I have nothing to add except that I will press amendment 9.

Amendment 9 agreed to.

Amendments 10 and 11 moved—[Andy Wightman]—and agreed to.

Section 5, as amended, agreed to.

Section 6—Power to take remedial action

Amendment 19, in the name of Andy Wightman, is grouped with amendments 13 and 13A.

Amendment 19 addresses an issue that the Delegated Powers and Law Reform Committee raised in a letter to me of 9 October 2020 and in its report on the bill. It is not the policy intention that the delegated power in section 6 should be used to create criminal offences or modify existing offences. Amendment 19 will make that clear in the bill and I am hopeful and confident that that will address the issue that the DPLR Committee raised.

Amendment 13 is a substantive policy amendment that will introduce a super-affirmative procedure for regulations that are made under the powers that are delegated to ministers by section 6. The DPLR Committee, in its stage 1 scrutiny of the bill, and the Law Society of Scotland, in its stage 1 written evidence to the committee, commented on the breadth of those powers.

The delegated powers under section 6(1) are intentionally broad in order to ensure that they can be used to address a declaration of incompatibility, however the courts choose to express it. The powers are available to the Scottish ministers only in very specific circumstances—namely, in the event that a court makes a declaration of incompatibility in respect of a provision of an act or subordinate legislation and if it considers it “necessary or expedient” to use the powers in consequence of such a declaration.

Having reflected on the feedback in the stage 1 evidence, I decided that additional checks and balances would be appropriate in relation to the powers in section 6. Amendment 13 proposes a super-affirmative procedure, which is the most appropriate way to deal with the issue. The effect of the amendment will be to introduce a super-affirmative procedure and ensure that there is enhanced scrutiny of any regulations that Scottish ministers make under section 6(1). The amendment will introduce a period of at least 60 days during which the Parliament may undertake the required scrutiny.

That will be facilitated by a statement that will have to accompany a draft of the proposed regulations. In the statement, ministers will have to outline clearly, first, the nature of the incompatibility that the draft regulations relate to; secondly, how they will address the incompatibility; thirdly, whether they include any provision that goes beyond what is necessary to address the incompatibility and, if so, why that was included; and finally, why ministers propose to use the power under section 6(1) rather than remedying the incompatibility through other action, such as by introducing primary legislation.

The cabinet secretary’s amendment 13A is an amendment to my amendment 13 that seeks to add the possibility to expedite the procedure by dispensing with the 60-day pre-laying period. I understand the need for that in the context of other legislation such as that on human rights, under which ministers might have to act quickly as a consequence of a declaration of incompatibility, but I do not believe that the remedial action powers in the bill will ever require an expedited procedure.

A declaration of incompatibility by the courts would not affect the validity or continuing operation of a provision, so the law would not need to be changed immediately as a consequence of a declaration. Furthermore, it is very unlikely that a case will arise related to the bill that is so urgent that the 60-day pre-laying period will need to be dispensed with. If there is ever such a situation, there will always be the option of emergency legislation. For that reason, I do not support amendment 13A.

I move amendment 19.

Mr Wightman’s amendment 19, which provides that regulations under section 6 must

“not create, widen the scope of, or increase the penalty for, a criminal offence”,

deals with an issue that the DPLR Committee raised at stage 1. I am happy to support the amendment.

Andy Wightman’s amendment 13 will require that, at least 60 days before Scottish ministers lay a Scottish statutory instrument that contains regulations under section 6, they must lay before Parliament a draft of the regulations and an explanatory statement. This amendment was also lodged as a response to concerns that the DPLR Committee raised at stage 1. Mr Wightman responded by proposing that the power in section 6 should be subject to a super-affirmative procedure, and I am pleased to support amendment 13.

I believe that my amendment 13A, which is an amendment to Andy Wightman’s amendment 13, will help to future proof the bill. Its effect is to allow for a draft SSI to be put before Parliament before the expiry of the 60-day period that is required in amendment 13. Scottish ministers would need to explain why the 60-day requirement was not being met.

I accept the position that Andy Wightman set out in his letter to the committee dated 19 February, which is that

“the law will not need to be changed immediately as a consequence of a declaration”

of incompatibility and that

“it is unlikely that issues related to this Bill—e.g. local government law—would require such an expedited process”.

However, I emphasise the word “unlikely”. It does not mean never, so the prospect is not eliminated.

Amendment 13A will provide for an exception to allow the additional pre-laying period of 60 sitting days to be dispensed with. If there is no exception, that period will apply to all regulations under section 6(1), on top of the conventional affirmative laying period of 54 days. That means that the period from the laying of draft regulations and an explanatory statement to the making of the SSI could be 114 sitting days. Depending on when in the year the draft regulations and explanatory statement were laid, that could equate to up to eight months.

The committee commented in its stage 1 report on the legal uncertainty that arises from the bill, which was also mentioned in members’ contributions to the stage 1 debate. That uncertainty means that the bill should provide a degree of flexibility in the procedure that will be put in place by amendment 13. My amendment 13A seeks to provide an exception for use in unforeseen circumstances where it would be desirable to act more quickly than the procedure under amendment 13 will allow, but the circumstances do not justify an emergency bill.

Amendment 13A will not eliminate the elements that will be put in place by amendment 13. It will retain the requirement for the Scottish ministers to lay before Parliament draft regulations and an explanatory statement before they lay a draft SSI that contains the regulations for approval. Amendment 13A will also require the Scottish ministers to explain to the Presiding Officer why the 60-day requirement was not being met.

Crucially, it will not prevent effective parliamentary scrutiny, as the draft SSI will still be subject to the affirmative procedure with the conventional laying period of 54 days. That will mean that regulations cannot be made without parliamentary scrutiny and approval. That is an important point and I stress it.

Amendment 13A offers a practical and sensible solution to ensure that the bill will provide the correct balance of flexibility and scrutiny where there is a need to act more quickly than is provided for under amendment 13. Scottish ministers are unlikely to rely on the exception to the process under amendment 13 often, but I hope that members are persuaded that there may be circumstances in future where the exception will be required and that it is better to build in that flexibility now.

I urge members to support my amendment 13A and Andy Wightman’s amendments 19 and 13.

Amendment 19 agreed to.

Section 6, as amended, agreed to.

After section 6

Amendment 13 moved—[Andy Wightman].

Amendment 13A moved—[Aileen Campbell]—and agreed to.

Amendment 13, as amended, agreed to.

Section 7—Power to remove or limit retrospective effect of decisions etc

Amendment 14, in the name of Andy Wightman, is grouped with amendments 15 to 17.

12:00  

Amendments 14 and 15 are technical amendments that would provide for a slight restructuring of section 7(1)(b) to make it clear that the test that is set out in subparagraph (ii), like the one that is set out in subparagraph (i), is something on which the court is required to reach a view, rather than it just being a matter of fact.

Amendment 16 is a technical amendment for clarification. Section 7(1) currently states that one of the circumstances in which a court has the power to remove or limit the retrospective effect of a court decision, or to suspend its effect, is, as per paragraph (b), when pre-existing subordinate legislation is found to be “incompatible”. At present, that is defined by reference to when “this Act” comes into force, but that risks causing uncertainty because there is no single date on which the act will come into force. Therefore, the effect of amendment 16 is that the test would be whether “section 2” is in force.

The reason for amendment 16 is that, as soon as section 2 is in force, ministers will be under a duty to ensure that anything that they do, including making subordinate legislation, is compatible with the charter. As a result, if charter-incompatible subordinate legislation were to be made after that date, that would constitute a breach of the section 2 duty. The section 7 powers are already available for that scenario by virtue of section 7(1)(a).

Amendment 17 is another technical amendment, which clarifies that what determines the availability to a court of the section 7 powers is the nature of the legislation—for example, subordinate legislation when primary legislation does not prevent the removal of the incompatible subordinate legislation—and not which court it happens to be. As the bill is drafted, there is a risk that section 7(1)(b)(ii) could be misinterpreted. Amendment 17 would remove the risk of misinterpretation by rewording the provision as the converse of the condition in section 5(4)(b).

I apologise, convener. Those are technical amendments, but I assure the committee that they are worth while, and I would welcome support for them.

I move amendment 14.

As Andy Wightman said, amendments 14 to 17, which I support, are technical amendments that will improve clarity in section 7.

Amendment 14 agreed to.

Amendments 15 to 17 moved—[Andy Wightman]—and agreed to.

Section 7, as amended, agreed to.

Sections 8 and 9 agreed to.

After section 9

Amendment 18, in the name of the cabinet secretary, is in a group on its own.

Amendment 18 will insert a new section that confers on the Scottish ministers the power to make ancillary provision. It is a positive change, which I hope will improve the bill. The amendment will insert a standard provision, which is a feature of many bills that pass through the Parliament, including the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, which is another incorporation bill.

The purpose of conferring the new power on the Scottish ministers is to allow for greater flexibility in giving full effect to the act or any provision that is made under it. Although ancillary provisions are not always needed, they provide a useful implementation tool and safeguard. They are used proportionately and appropriately, for instance when consequential provision is required to make necessary changes to related legislation. Further, incidental or supplementary provision might be required to address any oversight or unforeseen situation. That might involve filling in some detail that is consistent with, but missing from, the resulting act and is required to make it work.

Transitional, transitory or saving provision might also be required to deal with any legislative changes made by virtue of the act, in particular by regulations under section 6(1). That could help to tailor the application and effect of those regulations before the new law comes into force. It could also help to manage the impact of any changes on the existing functions of local authorities. Given the potential need for incidental, supplementary or consequential provision, the power expressly enables the modification of any enactment. That includes the act itself.

The ancillary power is limited, in that it must be used only where

“appropriate for the purposes of, in connection with or for giving full effect to this Act or any provision made under it.”

It would be outwith the scope of the power to use it to subvert or undermine the substantive effect of any of the act’s provisions. It could not be used to make provision that is contrary to or inconsistent with the act’s purposes or provisions.

Without the power to make ancillary provisions, it might be necessary to return to Parliament with another bill to deal with a matter that is clearly within the scope and policy intention of this bill. Again, I emphasise the need for flexibility.

Finally, any regulations made under the proposed new section would be subject to the affirmative procedure and would therefore require to be closely scrutinised and approved by Parliament. The Delegated Powers and Law Reform Committee, in particular, carefully scrutinises the scope and substance of any subordinate legislation that contains an ancillary provision.

I move amendment 18 and ask members to support it.

I hope that members are familiar with ancillary provisions, because they often appear in bills. However, they are rarely scrutinised. My bill contains no ancillary provisions, because I considered that none were necessary. The committee is now being invited to decide whether ancillary provisions should be inserted by amendment 18.

In discussions over the past few weeks with the cabinet secretary and her officials, I expressed scepticism about the necessity of such provisions and emphasised that the onus is very much on the cabinet secretary to justify here, before the committee, why they are necessary, their precise scope, and whether, in particular, regulation-making powers that can modify the act itself are necessary. This is the first time that I have heard on the record the precise purpose of ancillary provisions—when they can and cannot be used, and the role of the DPLR Committee—all of which is very helpful for members. On balance, I am satisfied that the cabinet secretary has set out, for the record, the purpose of ancillary provisions. I am content—although not with the greatest enthusiasm—to recommend that the committee supports amendment 18.

I am grateful to Andy Wightman for indicating his support for amendment 18, albeit with the caveat that he outlined. I reiterate to the committee that this is a standard provision that enables us to have greater flexibility and give full effect to the act or any provisions made under it. The power is limited and will have appropriate scrutiny attached to it. Its use will be scrutinised under the affirmative procedure. The power would be used proportionately and appropriately, with the aim of implementing the bill’s provisions fully, effectively and efficiently, in accordance with the will of Parliament. I underline again those parameters, which set out clearly that it will be for Parliament to scrutinise any use of the ancillary power, which gives us the flexibility that will be necessary for the bill. However, I repeat that the power would be used proportionately and appropriately, if at all. I am pleased that the member has indicated his support and urge members of the committee to do likewise.

Amendment 18 agreed to.

Sections 10 and 11 agreed to.

Long title agreed to.

That ends stage 2 consideration—

Convener, I was not given the chance to wind up on the group that included amendments 13 and 13A. I say for the record that I look forward to some further conversations on amendment 13 as amended, perhaps to ensure that some of the language is improved on a little. Apologies, convener, for that late intervention.

Not at all. My apologies for not calling you.

No problem. Thank you very much.

That ends stage 2 consideration of the bill. The bill will be reprinted as amended at stage 2 and it will be published tomorrow morning. The Parliament has not yet determined when stage 3 will be held. Members will be informed about that in due course, along with the deadlines for lodging stage 3 amendments. In the meantime, stage 3 amendments can be lodged with the clerks in the legislation team.

I thank the cabinet secretary for taking part in our meeting. Cabinet secretary, you can leave the meeting by pressing the red telephone icon. I remind committee members that we remain in public for the next item.