- The Deputy Convener:
Under the rules, we had until last Friday to get from the Executive a revised or supplementary DPM. Members will be unsurprised to learn that we received it late on Friday, which is why the briefing for the bill was issued to members only yesterday.
In March 2006, we considered the bill at stage 1. It is due to be dealt with in the chamber all day Wednesday and Thursday next week. What does that mean in terms of what we can now do? Presumably, if we raise questions, we can insist on receiving answers by the time we meet again next Tuesday. That would allow us to lodge amendments at stage 3—if we were advised to do so and had a beef. I am not saying that we will have a beef, of course.
- Murray Tosh:
It would be possible to lodge only manuscript amendments at that stage. The Presiding Officer might have some difficulty if policy issues, rather than genuine manuscript amendments, were raised.
- The Deputy Convener:
Indeed, but we would not be dealing with policy issues.
- Murray Tosh:
Yes, but a manuscript amendment is usually just a technical or minor supplemental or consequential change in other people's amendments. If we were raising an issue, it would be to do with policy on a procedure.
- The Deputy Convener:
Indeed, but we would have the answer. What else could we do? We do not get the updated DPM until Friday, we meet on Tuesday, we do not get an answer back until the following Tuesday—we do not have any other method of dealing with the issue if it turns out that there is an issue that needs to be dealt with. There is no fault in the fact that any amendment would not be lodged in time—you cannot lodge an amendment if you do not know what needs to be amended.
- Murray Tosh:
That is right. I raised some of the questions that we were awaiting answers to, but as I did not get the briefing until this morning I finished reading it only during the earlier part of this meeting and I have not had time to relate the briefing to the bill to see whether the concerns that I had about some of the sections have been addressed. Even if we manage to work our way through to asking proper questions and the Executive gets answers to us in a short period of time, I do not think that there is, realistically, time for me to get amendments in before Friday—if I wished to do so, which, given my position, is doubtful.
It is unsatisfactory, given that it has taken eight or nine years for the bill to get to this stage, that this part of the process should end up as a hell of a clatter in the last fortnight, which has meant that people do not have time to do their jobs properly.
- The Deputy Convener:
I am told by the clerk that amendments have to be in by Thursday, which makes it worse.
I agree that, given that we have a responsibility to examine certain aspects of the bill and to lodge amendments if we are advised to do so, it is a bit of a nonsense that we will have no time in which to do so if we do not ask for special permission to do so by means of manuscript amendments at the tail end of the process. We should complain. Do you agree?
- Murray Tosh:
Yes. It might also be appropriate for us to refer this example to the Procedures Committee. I do not know whether it is currently examining time limits, but I know that it does so from time to time. It might be useful for that committee to have this example on file so that it can be referred to next time the issue is scrutinised.
- The Deputy Convener:
Let us try to get through the provisions. If members need to take time to read anything as we go through them, that is fine; we will not rush this process. When we finish, we might find that nothing is concerning us. Perhaps we should find out whether anything worries us before we find out what to do about our worries.
- Murray Tosh:
No worries, convener.
- The Deputy Convener:
On section 2, new section 7(1)(d) and (2)(a) of the Town and Country Planning (Scotland) Act 1997 concerns the form and content of the strategic development plan. These provisions were considered by the committee at stage 1. New section 7(1)(d) was amended at stage 2.
We recommended that the first set of regulations be subject to affirmative procedure and that subsequent exercise of the power be subject to negative procedure. The Executive has accepted that recommendation and the appropriate amendment has been made. Are we content with the amendment?
Members indicated agreement.
- The Deputy Convener:
Section 2 also introduces new section 12 of the 1997 act, which concerns the examination of the proposed strategic development plan. We recommended that the Executive reconsider the drafting of new section 12(3) to clarify it, but nothing has happened.
Do we ask the Executive to clarify why it has not done anything?
- Murray Tosh:
This is the point that I was making. We have, in this area, an apparent ambiguity. One part of the legislation appears to specify the procedures that are to be followed in a public inquiry, but another part appears to allow the reporter who is in charge of the inquiry to determine the procedures and the shape of the inquiry.
It would have been useful if the Executive had sent us a proper response that clarified the issue absolutely. Given that we are not happy with the situation, it would be useful to go back to the Executive to ask for clarification before we proceed. In the absence of clarification, it might be appropriate for us to lodge an amendment or to flag the issue up to someone on the lead committee so that they can lodge an amendment, but there is not enough time to get an answer.
I am quite frankly surprised that the Executive has not responded to our question, either to accept that there is ambiguity or to clarify why we are wrong and there is no ambiguity.
- The Deputy Convener:
Could someone explain the ambiguity to me?
- Murray Tosh:
I would need to go through the documents and examine the bill again to answer you accurately but, as I recall our discussion in March, the ambiguity arises from the fact that new section 12 sets out the circumstances in which ministers will appoint a person to examine the plan and the processes that are to be followed during the examination but, elsewhere—I do not have a reference for it at the moment—the reporter in charge of the examination seems to have the right to determine the shape, form and processes of the inquiry.
- The Deputy Convener:
Yes. New section 12 says:
"The Scottish Ministers may make regulations as to … costs … procedures … and … what is to be assessed"
but it also says that
"the form the examination is to take … is to be at the discretion of the person appointed."
- Murray Tosh:
I think that the same point arises later in the bill in relation to what would effectively be like appeals: the processes would be specified, but the reporter would have the option of determining what the processes would be. How those two elements sit together is not at all clear.
- The Deputy Convener:
The Executive can say that it will pay for the assessment and state what procedures are to be followed and then say that the person will decide the procedures, such as whether it will be done in public or in private and whether the evidence will be oral or written.
- Murray Tosh:
Yes, and whether it is to be an interrogative, courtroom-style process or a panel meeting or some other customer-friendly arrangement. At the moment, the processes are highly legalistic and adversarial. The Executive is trying to soften them in a variety of ways, to encourage better participation. There is going to be much more flexibility, except it is going to be prescribed.
I do not see any way out of this.
- The Deputy Convener:
Originally, the Executive said that it would set out the procedures in regulations—I do not really understand this, either—and the person who conducted the assessment would have a choice from those procedures.
In our stage 1 report on the bill, we noted that the Executive had written that the reporter
"cannot invent new procedures but can select an appropriate procedure from those provided for in the regulations".
- Murray Tosh:
A drop-down menu.
- The Deputy Convener:
They can have public or private hearings and take written or oral evidence, but they cannot hang people up by their fingers—although they would not do that anyway. There are limits to the reporter's powers. I am being slightly facetious, but I am serious about trying to establish that there are a limited number of possible procedures and that common sense will be applied. If ministers set out the procedures and the reporter picks the procedure that he will follow, how will the two interrelate? It does not make sense.
- Murray Tosh:
It is possible that the system will work in practice, that reporters will be perfectly happy with the options that are open to them and that conflict or ambiguity will never arise but, having raised the issue, we are entitled to some kind of response that clarifies it.
- Euan Robson:
There was some debate on the matter in the Communities Committee. I do not remember there being difficulty with it. The key phrase is "form of examination". It seems to suggest that there is a limit to what the person who conducts the examination is allowed to do, but that the procedures they follow once they have determined the form of the examination are set down in regulations.
- The Deputy Convener:
It is coming back to me as I read the papers. In March, we accepted that the provision was okay but recommended that the wording be made clearer. We told the Executive that we followed roughly what it was saying but that it would be better if the provision were clearer. Nothing has happened, which may mean that the Executive has said, "Och, it is just those people from Sub Leg again—ignore them," or that, after thinking about how it could word the provision better, it decided that it could not and that changing the provision would make it more confusing. It may be worth asking whether any thought was given to the matter.
- Murray Tosh:
It might, if there were time for us to do that, get a response, assimilate it and act in accordance with the answer. Our problem is that, realistically, there is not time for us to do that. Convener, both you and Mr Robson are speculating about what the Executive might have meant and trying to rationalise things for the Executive. You have done a good job, but we should have received a letter from someone at the Executive that rationalised things for us, so that you did not need to do it.
- The Deputy Convener:
I am guessing, not rationalising. We can either ask the Executive whether thought was given to the matter or we can shut the papers and go away, saying that there is no point in our dealing with the bill. That is a temptation—I am trying to stop a rush to the door in response to that suggestion.
- Murray Tosh:
By all means, let us ask, but in practice—
- The Deputy Convener:
I note that it is pointed out that if there are problems we can get the officials in next Tuesday. I say that with the caveat that I will not be here then. We should bear that option in mind when we have completed consideration of the bill—if we think that there are enough issues that we need to raise.
- Murray Tosh:
We will think about that at the end.
- The Deputy Convener:
We will say to the Executive that back in March the boundary between the powers of ministers and the powers of the reporter was not clear and ask why nothing has happened since. Is that because the Executive decided that the boundary is clear, or did it simply forget about the issue? Is that agreed?
Members indicated agreement.
- The Deputy Convener:
At stage 1 we were content with proposed new section 18, "Preparation and publication of proposed local development plan", but it has been amended by the deletion of existing subsections, for which new subsections—some of which include new delegated powers—have been substituted. As the provisions introduce a complex process, it is reasonable that the delegated powers relating to manner of publication and notice should be appropriate.
The power in proposed new subsection (3B) is potentially more significant, as it enables regulations to prescribe what modifications trigger the second round of notification. The revised DPM implies that major modifications will be prescribed, but we should ask the Executive to confirm which modifications are likely to be prescribed. That is our second question. If we keep in mind an idea of how many questions we have, that might help us to decide how best to deal with the matter between now and next Tuesday.
Proposed new section 19 is on "Examination of proposed local development plan". At stage 1, we recommended that the Executive reconsider the drafting of proposed new section 19(5) and clarify it, but nothing has happened. Again, we should ask whether the Executive thought about it and decided not to change it or did not think about it at all.
- Murray Tosh:
This is the point I referred to earlier. I said, in error, that it might arise in relation to conventional planning appeals, but it might arise in relation to proposed new section 19. The issues are the same as those that arise in relation to new section 12.
- The Deputy Convener:
Proposed new section 19(10)(a)(i) concerns the prescribing of grounds for rejecting the examiner's modifications. At stage 1, we asked why the bill does not contain criteria and a power to amend them from time to time. We recommended that, if such an approach were adopted, the power should be subject to the affirmative procedure.
No amendment has been made to the power and no further explanation or justification of it has been offered.
- Murray Tosh:
From recollection, we felt that the provision represents a significant accretion of power to the Executive, which at the moment cannot require local authorities to incorporate into plans the findings of public local land inquiries. We felt that the Executive should explain why it was taking the power. As our briefing note states, and as the convener said, we have not received an answer. It is a significant matter and our concerns remain live, so we should ask the Executive about it.
- The Deputy Convener:
At the risk of repeating myself, this highlights the problem. The committee made certain proposals at stage 1. We could have gone to all the stage 2 meetings if we had had the time and inclination, but the next time we see the bill is two days before the stage 3 amendments are due in. That is crazy.
- Euan Robson:
Are we talking about paragraphs 117 to 120 on pages 18 and 19 of the legal briefing?
- Mr Macintosh:
No. The point is covered in paragraphs 123 to 126.
I am looking back at the helpful notes from the previous meeting. Proposed new section 19(10)(a)(i) is about the grounds on which local authorities can ignore a reporter's recommendations. At the moment, local authorities can ignore the reporter's recommendations as a matter of policy. We may or may not accept that the Executive should be able to limit that, but that is what the bill would do. The Executive has described the criteria that might apply. We suggested that it would be helpful to include the criteria in the bill and to amend them using subordinate legislation. The Executive has used that approach in other sections, but in this case it has not included a list and it will leave the criteria to subordinate legislation.
- The Deputy Convener:
We raised that issue but never heard any more.
- Murray Tosh:
There may be a sound reason for the Executive retaining the whole corpus of guidance or direction in subordinate legislation, but it seemed to us that, as the concept of creating such restrictions on local authority decision making is a significant shift, there was an argument for including some criteria, some justification and some rationale in the bill so that the regulations would have to relate to an intention of Parliament.
At the moment, that will not happen unless the bill is amended next week. It appears that ministers will have the power to prescribe virtually any action or response from local authorities. A number of local authorities will find that challenging, in the light of the way in which local plan inquiry recommendations have been handled before. There should be discussion of the issue so that we can have some clarity.
- Mr Macintosh:
Another concern was that if the Executive is going to leave provisions to secondary legislation, those provisions should be subject to the affirmative procedure, not the negative procedure.
- The Deputy Convener:
We said that using the affirmative procedure was the very least that should happen.
When did stage 2 of the Planning etc (Scotland) Bill finish?
- Ruth Cooper:
I would have to check. Under standing orders, the Executive has approximately three weeks from the end of stage 2 in which to produce an amended DPM for this committee.
- The Deputy Convener:
I am going off at a tangent but, while we are on this subject, I want to think about what will happen in future. Should there be a way in which we can consider issues more quickly after stage 2 has finished, even if we do not have the DPM? The DPM is worse than useless half the time anyway. If we could consider issues immediately after stage 2, at the beginning of the three-week period, we would be able to check whether things that we had asked for at stage 2 had or had not been done. That would give us loads of time, relatively speaking, to call in officials and decide whether to raise the issues again at stage 3.
- Murray Tosh:
I suspect that we would also have to pick up on all the changes that might create new subordinate legislation issues. I wonder what the resourcing and staffing implications would be of shadowing every bill at every committee, week by week, in an effort to spot new implications for this committee. It is the Executive's job, through the DPM, to highlight changes to us.
- The Deputy Convener:
I accept that. What I am suggesting may be impractical, but with a bill as complex and important as the Planning etc (Scotland) Bill, if the committee had information three weeks before stage 3 about what had happened at stage 2—forget the DPM—we would have loads of time to say, "We asked you to change that and you haven't. Come and tell us why." We could then make decisions on amendments for stage 3. If we do not consider the issues until much later, we are knackered. To use a technical term.
- Ruth Cooper:
The delegated powers memorandum sets out for the committee not only the detail of what has been amended but the Executive's rationale. I wonder whether something is falling through a gap. The DPM is not a direct response to the committee's report on a bill, so the committee will not know from it whether matters have been picked up. I wonder whether a response from the Executive, in addition to the DPM, would plug some of the gap, so that the committee would at least have a heads-up on issues that have not been covered by the DPM and have not been amended or responded to. The committee might want to take a view on that.
- The Deputy Convener:
I am still thinking about the future and about our legacy. We have a bill that has huge subordinate legislation provisions but the Subordinate Legislation Committee gets to look at the final position only when it is too late to do anything about it. There may be another way of doing things.
- Mr Maxwell:
As Ruth Cooper suggested, we are looking for a direct response to our report rather than for an amended DPM. Such a response would be more helpful to us, and the Executive might be able to provide at least a partial response much earlier than it can provide an amended DPM.
- Mr Macintosh:
At the moment, we have to interpret the amended DPM; we do not have an answer to the points we have raised.
- Mr Maxwell:
Perhaps we should write to the Executive on that very point.
- The Deputy Convener:
For the future, we will have to think about how the Procedures Committee could deal with this.
- Murray Tosh:
I think that that would require a change to standing orders, but it would be perfectly possible to invite the Executive to institute a new practice without its being validated by standing orders, simply because doing so would be courteous. Standing orders could be tackled in due course, perhaps after considering experience on a string of bills to find out whether a substantive case for change exists. It might be argued that this bill on its own merits such an innovation.
- The Deputy Convener:
It is as good an example as we will get.
We agreed to reconsider new section 22, "Supplementary guidance", because the Executive was considering the balance between planning authority discretion and ministerial intervention. New section 22(9) responds in part to our concern, so we may be content with that. [Interruption.] I apologise—we are not content.
- Murray Tosh:
I am not clear about something—perhaps the legal adviser can advise me on it. When reference is made to statutory guidance, is that limited strictly to procedural issues, or do Scottish planning policies and planning advice notes fall within the definition of statutory guidance?
- Mairi Gibson (Legal Adviser):
Under new section 22(2)(b), other matters may be prescribed for inclusion in the statutory guidance. They might be wider than procedural matters.
- Murray Tosh:
Local authorities are all permanently caught up in the plan process. They all roll plans forward all the time; they do not do that in relation to specific dates. On any given date, 32 local authorities will have their local plans at one stage or another. When a new policy is issued, local authorities want to respond to it but, in many cases, they cannot do so for years. The target is that the plan process should last five years, but it is often longer than that. If an authority has a newly finalised and adopted local plan and new guidance is issued, it will probably be five years before it can incorporate the new policy that the Executive has recommended.
- Euan Robson:
No.
- Murray Tosh:
In practice, many councils introduce supplementary guidance to incorporate new policies into their local plans. Paragraph 130 of our briefing says that local authority guidance
"must not cover the same ground as statutory guidance",
so the bill might restrict local councils' ability to use the supplementary guidance route to incorporate new policy more quickly into their local plans. I would have thought that that was of some concern, although that might be more for the lead committee than for us. However, the point arises from the definition that we have been given, so it is pertinent to our remit. If the statutory guidance can never include a statement of policy and the policy question is immaterial, my concerns are groundless, but it would have been nice to have a week to ask about that and find out whether a problem exists.
- Euan Robson:
Mr Tosh makes an important point, but it is founded on the premise that the existing performance—for want of a better description—of planning authorities in producing plans will continue. A key component of the bill is that although five-year plans should be established, a revision process should be considered at an interim point of two years.
In the situation that Mr Tosh describes, it is correct that the bill would restrict an elongated timetable, but if the timetable were drawn more narrowly and a quicker revision process were undertaken, the concern that he raises might diminish.
Murray Tosh indicated disagreement.
- Euan Robson:
I think that the concern would diminish, but perhaps I have missed the point that Mr Tosh makes.
- Murray Tosh:
I understand the point that Euan Robson makes, which is correct. However, powers of alteration and revision already exist.
My point is that even though councils are able to alter a statutory structure or local plan, in practice, they find that sufficiently time-consuming to the extent that they introduce supplementary guidance in certain circumstances to allow them to write new policy guidance from the Executive into existing policy much more quickly. That is important to them, because it allows them immediately to start obtaining the benefits of what might be new practice. For example, a number of local authorities that do not have provision in their local plan to seek 25 per cent contributions from private housing developers for affordable housing use contain that within their supplementary planning guidance. They have to have some broad enabling statement in the local plan to validate that, but, if they can, they put it into supplementary guidance, which gives them a policy platform for seeking those outcomes before alteration. Alteration itself can take a couple of years.
My concern is that the provision removes a degree of flexibility that councils currently have to amend their local plans. My concern might be entirely misplaced, but, realistically, we do not have the opportunity to flag that up and get a proper answer from officials before the point in the process at which we can try to make a change.
- The Deputy Convener:
I will not pretend to understand that absolutely, because I do not have that expertise. I am sure that we can ask the question and that Ruth Cooper knows enough to be able to do that.
On proposed new section 23D of the 1997 act, which is on the power to specify a "key agency", we asked whether any characteristics of key bodies could be put in the bill, on which basis we would accept the use of the negative procedure. That suggestion was ignored, but the power might still be acceptable. Are members content?
Members indicated agreement.
- The Deputy Convener:
Section 4 inserts into the 1997 act proposed new section 26A, "Hierarchy of developments". In the absence of an adequate explanation from the Executive, we recommended that the first set of regulations made under the power should be subject to the affirmative procedure and that the negative procedure should be used thereafter. That suggestion was not accepted—we will of course ask why not. That is another example of a question that we should have asked weeks before stage 3, so that we could decide whether we wanted to lodge an amendment to provide for the use of the affirmative procedure.
Section 5 inserts into the 1997 act proposed new section 27A, "Notification of initiation of development". The provision imposes a duty on a person to notify the planning authority of the date when work is to start. There is a new power to enable regulations subject to the negative procedure to prescribe further matters that are to be notified.
I suppose that we would normally ask the Executive what matters it intends to prescribe under the power and for what purpose. It might be a bit late, but we could still ask.
- Murray Tosh:
We should ask those questions.
- The Deputy Convener:
Absolutely.
Section 5 inserts into the 1997 act proposed new section 27C, "Display of notice while development is carried out", which contains a new power. Section 27C(1) imposes a duty on a person carrying out a development to display a notice for the duration of the work. Regulations subject to the negative procedure may prescribe the class of development to which the duty applies and the information that the notice is to contain. That seems sensible. The new power is to tell people more about what is happening in their street. Is that all right?
Members indicated agreement.
- The Deputy Convener:
Section 15, "Manner in which applications for planning permission are dealt with etc", amends section 43 of the 1997 act. We were concerned that there had been no justification for the use of the negative procedure and no explanation of why the prescription of classes of development would be sub-delegated to directions and not subject to parliamentary procedure. Nothing happened to the section at stage 2 and there is no mention of our concerns in the DPM. We will ask again.
Section 16 inserts into the 1997 act proposed new section 43A, "Local developments: schemes of delegation". At stage 1, we were concerned by the apparent downgrading of decision making to an official and asked for further explanation of compatibility with the European convention on human rights. We thought that we needed to see the draft regulations and recommended the use of the affirmative procedure.
Section 16 has been amended at stage 2 by the addition of matters that are to be covered in regulations—that is something at least. However, the regulations will be subject to the negative procedure. If we ask why they are still to be subject to the negative procedure and get a good answer, we could leave it, but if we get an answer that we think is bad we could lodge an amendment to provide for the use of the affirmative procedure. We will ask the question, regardless of whether it is too late.
Proposed new sections 136A and 145A of the 1997 act, which fix penalties under section 23A of the bill, contain new powers. Proposed new section 136A enables planning authorities to issue fixed-penalty notices where a developer fails to comply with an enforcement notice. Ministers may prescribe the amount of the penalty under regulations subject to the negative procedure. Proposed new section 145A sets out the same provision with regard to breach of condition notices.
Although in principle this use of delegated powers appears to be appropriate, there is no restriction on the amount that may be prescribed. As a result, the power is not restricted to such changes. Moreover, the DPM contains no explanation of what limits should apply.
- Murray Tosh:
In those circumstances, would we not expect the affirmative procedure to be used?
- The Deputy Convener:
That is what I was about to say. One would think that in the absence of any restriction on the amount the affirmative procedure would be appropriate. Even though they apply to developers rather than to the wee man in the street, such open-ended powers should be subject to the affirmative procedure. Should we not say so?
- Murray Tosh:
We should certainly ask the question.
- The Deputy Convener:
Okay. We will also ask the Executive about what it intends to do with regard to setting minimum and maximum amounts.
Although we were content with the powers in respect of the business improvement district proposals in section 36, section 36(2) has been extended to make provision for consultation on BID proposals. Those powers are subject to the negative procedure. Similarly, the powers set out in section 36(3) have been extended. I do not see anything wrong with those moves; if anything, they are something of an improvement.
On section 36A, "Entitlement to vote in ballot", a new power set out in section 36A(2) provides that those drawing up BID proposals must draft a statement on eligible persons who are entitled to vote. Moreover, section 36A(8) sets out a regulation-making power, subject to the negative procedure, to make provision to alter who will be an eligible person under section 36A(5). I am told that that is a Henry VIII power that could permit variation in the definition of domestic tenants or owners who are eligible to vote in a ballot. Again, even at this late stage, the DPM provides no justification for the use of such a power.
I take it that we will ask the Executive whether the power to alter will be extended to subsections (6) and (7) of section 36A and that we will seek its views on whether the negative procedure is appropriate in this case. After all, we would always ask such questions about similar provisions—the point is that we usually do not ask them only two days before the deadline for lodging stage 3 amendments.
- Murray Tosh:
It seems particularly unfortunate that such a new power is not covered in the DPM.
- The Deputy Convener:
Absolutely.
- Murray Tosh:
It is bad enough when something like that happens at the outset but, in those circumstances, we at least have the opportunity to say to the Executive, "Hey—there's a gap here".
- The Deputy Convener:
Our legitimate grumble is not only that we have received no notification of the changes that were made at stage 2 but that in some cases we are starting from scratch with only a couple of days to go.
Section 37, "Approval in ballot", has been amended, with the addition of subsections (8A) and (8B). Section 37(8A) enables different definitions to be made and section 37(8B) enables regulations to delegate functions. The DPM explains that the powers are needed to cover situations in which ratepayers and tenants are required to pay a levy or to determine how the rateable value element of voting will be distributed. This wide-ranging power will enable the variation of proportions of votes that can approve proposals in different situations.
We should certainly ask the Executive about how the power will be used but, frankly, I do not think that anyone will be able to get their mind around such a provision in the time that is available.
- Murray Tosh:
I think that the general question is worth asking, because I presume that the Executive has got its mind around the provision and should be able to provide us with a comprehensive explanation by next week.
- The Deputy Convener:
Absolutely.
On section 39, "Power of veto", we were concerned at stage 1 that the criteria for that power did not appear in the bill. The Executive said that it would reconsider the drafting and the section has now been significantly recast to spell out the criteria in the bill. I thank the Executive for that.
The criteria are subject to section 39(2C), which confers a regulation-making power enabling the circumstances in section 39(2B) to be changed or added to. That is technically a Henry VIII power, but as the Executive has done something that we asked for, we may be content with that.
- Murray Tosh:
In principle, we would be happy that, having asked for criteria to be spelled out in the bill, we have now them. However, this raises the same question as was raised in relation to proposed new section 19(10)(a)(i), when we also asked for criteria but did not receive an answer.
- The Deputy Convener:
We did not get any answer at all.
On section 43, "Regulations about ballots", we were content with the power at stage 1. Section 43(2)(b) has been amended. It originally said:
"as to the non-domestic ratepayers entitled to vote in a ballot".
It has been amended to read:
"as to the persons entitled to vote in a ballot held for the purposes of section 42(2)".
We had better ask for some explanation about how that provision interacts with other sections.
- Murray Tosh:
Is that about non-domestic ratepayers?
- The Deputy Convener:
Yes.
Section 46A, "National Scenic Areas", inserts proposed new section 263A into the 1997 act. Proposed new section 263A(9) confers a power to make regulations as to the form of directions, the manner of describing a national scenic area, the publicity to be given to any such directions and other procedural matters. The power is subject to the negative procedure. It is a new power but probably not one that we would have objected to anyway.
Section 48 is on "Further amendment of the principal Act". Section 48(13)(za) inserts proposed new subsection 2A into section 275 of the 1997 act. This is a new power to make incidental provision. Section 48(13)(e) concerns procedure as regards regulation. Those are consequential changes.
- Murray Tosh:
I am not sure, because paragraph 202 of the legal brief flags up a significant and substantial point on the use of Westminster legislation. The point is that a similar use might be made of the power in the Planning etc (Scotland) Bill, so there are concerns about the scope of the power that is being asked for.
- The Deputy Convener:
Proposed new section 275(2A) puts a consequential provision, which we get all the time, into the 1997 act. In other words, it is putting into the 1997 act all the stuff that is being put into other legislation. It is the same point that we raise constantly.
- Murray Tosh:
Yes, but I am simply trying to apply to the discussion the point that legal advisers made for us in paragraph 202. I felt that they were trying to flag up something significant, although it was not entirely clear what inference we should take from that part of the legal briefing.
- Mairi Gibson:
The intention was to draw the committee's attention to an extreme use of a similar power.
- Murray Tosh:
So the point is that the power in the bill is similar to one where an extreme use has been made in practice.
- Margaret Macdonald (Legal Adviser):
No.
- Murray Tosh:
One legal adviser is saying yes, and one is saying no.
- The Deputy Convener:
That is because we have two lawyers in the one room.
- Murray Tosh:
We are entitled to a third opinion then. [Laughter.]
- Mairi Gibson:
In my view, the powers are similar. The use in the example was extreme—a retrospective use. I am not suggesting that such a use would be made of the power in the bill. I was just drawing the committee's attention to it.
- Murray Tosh:
So you were giving us another example, and the supplemental powers do not raise anything that we have not considered earlier. I am happy with that.
- The Deputy Convener:
What do we do now? We have finished. I have not been counting, but we must have raised about a dozen points.
- Murray Tosh:
We have raised more points on the bill between stage 2 and stage 3 than we do on many bills in total.
- The Deputy Convener:
We have now raised between 15 and 20 points. Some are to do with our being ignored for no good reason, some are to do with our not understanding the changes that have been made and some are to do with brand new powers that never appeared at stage 1. That is a lot of substantive material to deal with in a ridiculous timescale.
We have several choices. We could get answers back for next Tuesday and then those who are here next Tuesday could decide which issues, if any, are worthy of a stage 3 amendment. The Executive might say that it will deal with some of them by way of stage 3 amendments if we ask it to do that. Alternatively, we could ask officials to come before the committee. We need to deal with these matters in such a way that we get a clear answer next Tuesday. We cannot go back to the bill because stage 3 starts the following day, on Wednesday. What do members think? Are the issues big enough for that?
- Murray Tosh:
In the absence of responses in so many areas, it is not really possible to say whether the issues are big enough. I suspect that the relevant officials will crack up next week as they prepare briefings for ministers going into the debates on Wednesday and Thursday to respond to the amendments that have been lodged this week and which will doubtless continue to be lodged until Thursday as everyone tries to work out how on earth they are going to timetable stage 3 of the bill. The obvious thing to do is haul officials in and make them go through the whole thing. However, that might be unreasonable; it might just be about making a point rather than doing anything at this stage that is likely to lead to substantive amendment.
- The Deputy Convener:
When do we expect to get the written response to our 15 questions?
- Ruth Cooper:
We will issue the correspondence today and expect a response by Thursday of this week for the committee's meeting next Tuesday.
- The Deputy Convener:
I presume that that would give us all, including those who are not here on Tuesday, the chance to look at the response and decide whether to invite the convener to lodge any stage 3 amendments. I am not saying that such amendments are particularly likely. I do not want to sound petty but there is a serious principle about the time that we have been given to consider the delegated powers. We might well not do anything at the end of the day.
- Mr Maxwell:
I agree with Murray Tosh that there is little to be gained by having the officials here next Tuesday. I agree that we should ask the questions and that we should also write a separate letter on the point that Ruth Cooper raised about there being a separate response to the committee report, rather than an amended DPM that does not answer the points that we raised.
- The Deputy Convener:
The Procedures Committee or the Subordinate Legislation Committee must think out a procedure in which, when we have a bill such as the Planning etc (Scotland) Bill, we get back into the park quite soon after stage 2 is completed, and not two days before the deadline for lodging stage 3 amendments. There must be some method that allows the Subordinate Legislation Committee back in to consider the bill with three weeks to go. It cannot be about getting the Executive to produce its DPM; the nature of Government means that it can always do things at the last minute. There has to be another mechanism. It will not work for us to say to the Executive, "Do you think that you could be nice to us and give us your DPM three weeks before the stage 3 debate?" It is nothing to do with being nice and everything to do with workload and the nature of Government.
- Mr Maxwell:
That would not have helped with a lot of the points that we raised because the Executive did not answer a lot of them anyway.
- The Deputy Convener:
So we need something that says that the DPM needs to come back to the Subordinate Legislation Committee more quickly. Are we agreed?
Members indicated agreement.
- The Deputy Convener:
I am sure that this will come up in half an hour at the Labour group meeting. I will have a whine and I will mention to ministers that the situation is a nonsense.
- Murray Tosh:
Do you want to send us an official extract from the minutes of that meeting?
- The Deputy Convener:
Everybody will yawn hugely and say, "The anoraks are revolting again," and that will be it. That is the reality.
- Mr Maxwell:
We can write to the Executive and the Procedures Committee. That is about as much as we can do.
- The Deputy Convener:
I have chaired the meeting for an hour and 24 minutes, which must be a record. If we cannot finish in under an hour and a half, my pride will be badly hurt. We will move swiftly on.