- The Convener (Dr Sylvia Jackson):
I welcome members to the 16th meeting in 2006 of the Subordinate Legislation Committee, and remind members to switch off their mobile phones and put their cards into their consoles.
The committee considered the Adoption and Children (Scotland) Bill two weeks ago and we asked the Executive several questions.
On section 3, "Assistance in carrying out functions under sections 1 and 2", we asked whether the regulations ought to be the subject of prior consultation with the affected bodies. The Executive has stated that they will be.
Are we content with the power and that it is subject to the negative procedure?
Members indicated agreement.
- The Convener:
On section 23, "Scottish Ministers' power to amend period of time in sections 21 and 22", we asked the Executive to justify the delegation of the power and to clarify in what circumstances it anticipated that it would be exercised. The committee received a helpful response from the Executive that section 23 simply restates the provision in the Adoption (Scotland) Act 1978, which provision has not been exercised in the intervening 28-year period. The Executive has, however, agreed to consider the matter further at stage 2.
- Mr Stewart Maxwell (West of Scotland) (SNP):
I understand the Executive's argument and I do not have any big problems with it. However, if the provision has never been used in what is effectively three decades, do we need it?
I also note that the Executive concedes that the provision is different to the parallel provision in the Adoption and Children Act 2002, so it is not as straightforward as saying, "This is the way it has always been, so it is right that it should continue in that way." Also, although the Executive has said that it will consider the matter further, it has not committed itself to any changes. We should therefore keep an eye on the bill at stage 2, as well as making the lead committee aware of our concerns. A number of points are still up for debate.
- The Convener:
So we will report our concerns about section 23 to the lead committee and give it the Executive's response, and we will monitor the matter at stage 2.
- Mr Maxwell:
Yes.
- The Convener:
On section 40, "Disclosure of information kept under section 39", we asked the Executive to clarify the scope of the regulations and say why the power will be subject only to the negative procedure, given that the issue is potentially sensitive. We also asked about plans for consultation.
The Executive has indicated that its intention is broadly to restate the regulations that currently govern the disclosure of adoption information, and has argued that the negative procedure is therefore appropriate.
If members check the legal brief they will see that two issues have been raised. The first is about the possible extension of the scope of the people to whom adoption information can be given, and the second is about the nature of that information. Do members share those concerns?
- Mr Maxwell:
I share both those concerns. I am less concerned about the first point because of the European convention on human rights, which contains restrictions for confidentiality and the protection of private life, but I think that the bill is still slightly unclear.
I am slightly more concerned about the second point. As the legal brief points out:
"The power in section 40 is to disclose information ‘kept by virtue of section 39'. Unfortunately, the information in section 39 is itself to be prescribed in regulations",
and we do not know what those regulations will be. The argument is almost circular. It might be all right, but until we see the regulations, we do not know. The question of the nature of the information that can be disclosed is very open.
- Mr Kenneth Macintosh (Eastwood) (Lab):
The Executive makes it clear that the information that it wants to be able to disclose is that which is already covered by existing regulations; that is quite helpful. We should draw the lead committee's attention to the points that the Executive and Stewart Maxwell have made.
- The Convener:
Do you think that we should go a step further and ask whether the negative procedure should be changed to the affirmative?
- Mr Macintosh:
No.
- Mr Maxwell:
I do not know. I am not absolutely sure. It would depend upon the nature of the information. I hear what Kenny Macintosh is saying about the existing regulations, but section 40 is still slightly open-ended on the first point about the people to whom the information can be given, and slightly vague on the second point about the nature of that information. We probably do not need to ask for the negative procedure to be changed to the affirmative, but it is difficult to say either way from the information that we have. As Kenny Macintosh has already said, we should just pass on our concerns to the lead committee. It will be up to that committee whether to take up those points and question the minister.
- The Convener:
Jamie, are you in agreement?
- Mr Jamie Stone (Caithness, Sutherland and Easter Ross) (LD):
I am, yes.
- The Convener:
We will highlight paragraphs 14 and 15 of the legal brief—particularly paragraph 15—to the lead committee. We will leave the question of whether the procedure should be affirmative, but say that we have concerns and would like the lead committee to find out more information about those points.
- Mr Maxwell:
Perhaps we should go back to the issue at stage 2 if we get further information. The minister's evidence to the lead committee might help us.
- The Convener:
Yes.
On section 56, "Care plans: directions", we asked the Executive why the bill does not provide for any directions to be subject to parliamentary scrutiny. The Executive said that the care plan is local authority administrative practice that is not currently in legislation, so it considers that directions are appropriate. Are members happy with that?
Members indicated agreement.
- The Convener:
We asked the Executive to clarify the meaning of section 60, "Searches and extracts". It said that the section simply applies current regulations to the new adopted children register. Paragraph 23 of the legal brief says:
"It does appear to us, nevertheless, that the effect of subsection (1) is to extend the existing regulation making power by applying the provisions of the regulations made under it to the new Adopted Children's Register. To that extent, it might have been expected that the Executive would have made some comment about this provision in the DPM."
Paragraph 24 of the legal brief also observes that the drafting technique would have helped with transparency, but that is just an additional point. Should we report to the lead committee just on the legal adviser's first point?
- Mr Macintosh:
I am satisfied with that.
- Mr Maxwell:
It is an administrative matter. Perhaps we should report just that we asked the Executive for clarification.
- The Convener:
We should also report the Executive's response.
- Mr Maxwell:
Yes. That is fair enough.
- The Convener:
On section 64, "Restriction on bringing children into the United Kingdom", we asked why the power given in section 64(8) will be subject to the affirmative procedure only the first time that it is exercised. Stewart Maxwell will remember that he raised that particular issue.
- Mr Maxwell:
I remember the debate that we had on this issue. At that time, it did not seem clear why the first set of regulations should be made under the affirmative procedure and subsequent ones under the negative procedure. The explanation from the Executive is reasonable and has made matters clearer. I still have slight concerns about the issue because, at the end of the day, it means that the Executive could make major and substantive changes in future regulations that would be subject only to the negative procedure. However, given the explanation, I am content with the Executive's proposal.
- The Convener:
Jamie, do you have any further thoughts?
- Mr Stone:
I accept the view of Mr Maxwell, our leader on this particular issue. If he is content, so am I. I am the new boy on the beat, you see.
- The Convener:
We should tell the lead committee that we had concerns about this issue and that, although the response from the Executive has given us some clarification, we have some reservations on the ground that we do not know the magnitude of any issues that may be dealt with by this means on subsequent occasions.
- Mr Maxwell:
It is important that we point that out.
- Mr Macintosh:
The explanation from the Executive is sensible. I thought that we were keen on the idea of using the affirmative procedure in the first instance and using the negative procedure thereafter, as that seemed to get the balance right between scrutiny and Executive action. In this case, the Executive says that the first use of the measure will be not to criminalise parents and it does not intend to make any policy changes after that point, only minor administrative changes. That is a good explanation and a sensible use of the power.
- The Convener:
It is a sensible procedure, but we are unclear about what any subsequent changes might be, which means that we do not know whether the negative procedure would be adequate. That is the problem.
- Mr Maxwell:
Yes. Effectively, we are just talking about asking a question. I was much more concerned about the issue last week, before I read the explanation. I was in favour of the affirmative procedure being used until I read the Executive's response. Now I accept that its proposal is sensible. However, a question remains about the use of the power. It is not restricted, which means that the Executive could make further substantive changes. I accept that it probably will not do so, but it is worth pointing out to the lead committee that that is the case.
- The Convener:
That sums it up quite well. Do we agree to follow the course of action that I outlined?
Members indicated agreement.
- The Convener:
On section 65, "Preliminary order where child to be adopted abroad", the committee asked the Executive to clarify the intended use of the power. The Executive has explained that the power will specify administrative preconditions on the granting of the order by the court. Are we content with the power and that it is subject to the negative procedure?
Members indicated agreement.
- The Convener:
The provision in section 66 raises the same question about the level of scrutiny as was raised by section 64(8), which we discussed earlier. In this case, the child is being taken out of the United Kingdom for adoption.
Are we similarly content with the power and that it is subject to the affirmative procedure in the first instance and the negative thereafter?
Members indicated agreement.
- The Convener:
On section 67, "Regulations under section 64: offences", we asked the Executive about the scope of the power and how it envisages using it. The Executive has said that the power is intended to extend the time for compliance with the conditions and requirements set out in section 64.
- Mr Maxwell:
The provision is practical and sensible. As the legal brief points out, however, if the issue had been explained in the delegated powers memorandum in the first place, we would not have needed to enter into this discussion.
- The Convener:
Are we content with the power and that it is subject to the negative procedure?
Members indicated agreement.
- The Convener:
On section 72, "Power to charge", we asked the Executive to explain why the determination of fees was not to be provided in a statutory instrument. The Executive has argued in its response that its approach is consistent with that taken in England and Wales and that its intention is to take a unified approach to fees charged in the UK. The legal brief suggests that it would be possible to have an SSI and maintain a unified approach. What are members' views on this issue?
- Mr Macintosh:
I think that we should pass it to the lead committee. The Executive could have taken either route. It chose to take this route and that is fine by me.
- The Convener:
Is this something that we feel strongly about or should we simply report what the Executive has told us?
- Mr Maxwell:
I suggest that we just report it. I agree with the points that were made in the legal brief about the irrelevance of the Executive's argument. We have had other examples of things being done differently but with the same end in sight. It does not seem to be a reasonable argument that we must have exactly the same process as England and Wales in order to reach the same end. I accept what the legal brief says, but agree with Ken Macintosh that we should just pass on our comments to the lead committee.
- The Convener:
The other thing that our legal advisers have told me is that, in plant health regulations, the Executive has gone down the different route of using an SSI.
- Mr Maxwell:
Ken pointed out that the Executive could have chosen either route. There is not a lot to say beyond that, whether or not you agree with the choice. Perhaps we could inform the lead committee of the point that you have just made.
- The Convener:
I will ask our legal advisers for fuller advice on that.
- Mr Maxwell:
Is it just me or do we always use plant health regulations as an example? They seem to come up rather a lot.
- The Convener:
Are members content to follow the suggested action?
Members indicated agreement.
- The Convener:
On section 75, "Section 74: supplementary provision", we asked why this procedural matter was to be determined by ministers in regulations and not by the court itself. In its response, the Executive has indicated that the detail of the annulment application should be amalgamated into the regulations that ministers plan to make.
Are we content with the power and that it is subject to the negative procedure?
Members indicated agreement.
- The Convener:
On section 78, "Disclosure of medical information about parents of child", the concerns that we raised were similar to those that we raised on section 40, which we discussed earlier. We asked the Executive to provide clarification of its decision to delegate the power and why it will be subject only to the negative procedure. It has undertaken to consider the matter further at stage 2.
Are we content to monitor the position at stage 2 and to report our concerns and the Executive's response to the lead committee?
Members indicated agreement.
- The Convener:
With regard to the Registrar General, we asked the Executive to confirm whether it intends regulations made by the Registrar General to be exercisable by statutory instrument. The Executive has confirmed that that is its intention and that it intends to bring forward an amendment at stage 2.
Are we content with the response?
Members indicated agreement.