Official Report

  • Subordinate Legislation Committee, 05 May 2009 Share | Copy Link Copied | View PDF
      • [The Convener opened the meeting at 14:15]

      • Decision on Taking Business in Private Share | Copy Link Copied
        • The Convener (Jamie Stone): Share | Copy Link Copied
          I welcome everyone to the 15th meeting in 2009 of the Subordinate Legislation Committee. We have received apologies from Jackson Carlaw and Tom McCabe. Mobile phones should be turned off, please.

          Agenda item 1 is a decision on whether to take item 8 in private. Under item 8, we will consider last week's evidence session with the Minister for Parliamentary Business on the draft interpretation and legislative reform (Scotland) bill. Given the nature of the discussion, the proposal is that we consider that item in private. Is that agreed?

          Members indicated agreement.

      • Flood Risk Management (Scotland) Bill: After Stage 2 Share | Copy Link Copied
        • The Convener: Share | Copy Link Copied
          Agenda item 2 is the Flood Risk Management (Scotland) Bill as amended at stage 2. As a general issue, we welcome the fact that the bill has been amended in response to the various recommendations in our stage 1 report. That is good news.

        • Helen Eadie (Dunfermline East) (Lab): Share | Copy Link Copied
          We welcome that.

        • The Convener: Share | Copy Link Copied
          Yes, didn't we do well?

          Let us get some points down for the record. The first point in the legal brief is about the new powers to issue directions and guidance in the following provisions:

          "Section 2(1) – Directions and guidance

          Section 9(2) – SEPA to prepare flood risk assessments

          Section 18(4), (5) and (6) – Scottish Ministers powers of direction – Flood hazard maps".

          Are we content to find those powers to issue directions and guidance acceptable?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          Powers for which no procedure is provided are included in the following provision:

          "Section 15A(2) to (9) – Powers to direct on the date of preparation of assessments of flood risk from sewerage systems, and determination of their form".

          Are we content to find the delegated powers in subsections (2) to (9) of section 15A to be acceptable and that it is appropriate that they are not expressed as a power to make subordinate legislation?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          Next we consider powers to which the negative procedure will apply. Of course, I should have said at the beginning that, as we did last week, we are clumping together the different types of procedure. The provisions to which negative procedure will apply are:

          "Section 5 – Power to designate ‘responsible authorities'

          Section 15A(1)(c) – Power to specify the content of Scottish Water assessments of flood risk from sewerage systems

          Section 15B(2) – Powers to specify the content, form and date of preparation of local authority maps of bodies of water and ‘SUDS'

          Section 56(1B)(b) – Power to specify the content and the form of local authority schedules of clearance and repair works

          Section 15C(1)(c) – Power to specify the content of SEPA maps of artificial structures and natural features

          Section 15C(2)(c) – Power to specify the form of SEPA maps of artificial structures and natural features

          Section 29(6) – Power to make further provision in relation to local authorities preparing local flood risk management plans

          Section 53C (1) – Power to make provision about the keeping of registers".

          Are we content to find those powers acceptable and that it is appropriate that they are subject to negative procedure?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          The next grouping is of powers to which the affirmative procedure will apply. They are as follows:

          "Section 44(1) – Power to give effect to Community obligations etc

          Section 52(4) – Power to amend flood protection scheme making process

          Section 77 – Power to make provision for reporting incidents relating to reservoir safety

          Section 77A – Power to make provision for preparing reservoir flood plans".

          Are we content to find those powers acceptable and that it is appropriate that they are subject to affirmative procedure?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          Our attention is also drawn to "Section 82(1) – Ancillary provision". Are we content to find that the ancillary provisions in section 82 are acceptable?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          Are we content to report further that, in our view, the modification of enactments without textual amendment using such ancillary powers might be appropriate by negative procedure in limited circumstances, such as a transitory provision applying only for a short period, but that we would generally expect that any significant or permanent modification of enactments using those powers should be effected by textual amendment and subject to affirmative procedure?

          Members indicated agreement.

      • Schools (Consultation) (Scotland) Bill: Stage 1 Share | Copy Link Copied
        • The Convener: Share | Copy Link Copied
          Agenda item 3 is the Schools (Consultation) (Scotland) Bill. When we considered the bill at our meeting on 31 March, we asked two questions. We have in front of us copies of those questions and the Government's response.

          First, on the ancillary provisions in section 20(1), are we content that the Scottish Government's response is satisfactory and that the proposed power under section 20(1)—and the related provision in subsections (3) and (4)—is acceptable?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          Secondly, are we content with the reference to procedure being by negative resolution of the Scottish Parliament unless the instrument amends an act, in which case the affirmative procedure will be used?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          We move on to consider the power in subsection (2) of section 22, "Commencement and short title". Do we agree to invite Scottish Government officials to attend the committee meeting in order to provide further clarification—in so far as not covered by their reply of 14 April, which we have before us—on whether it is possible that section 22(4)(a) could be used to amend other enactments and, if that is the case, why no procedure is justified for such an order, given the approach in section 20(6)(b)?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          Thank you for that. It will be good to pull in the Government officials just to make the point.

      • Criminal Justice and Licensing (Scotland) Bill: Stage 1 Share | Copy Link Copied
        • The Convener: Share | Copy Link Copied
          We now embark on a really big bill. Under agenda item 4, we consider the delegated powers memorandum to the Criminal Justice and Licensing (Scotland) Bill. Again, I intend to consider the delegated powers within the bill according to the different types of procedure and—as we did under the previous agenda item—to dispose first with those powers that it is recommended in the legal brief the committee find acceptable.

          The following powers are not expressed as a power to make subordinate legislation:

          "Section 5 – Sentencing guidelines

          Section 14, so far as inserting section 227ZH(4)(5) of that 1995 Act – power to determine persons in relation to different methods of monitoring

          Schedule 1, paragraph 4 – Scottish Sentencing Council – term of office".

          Are we content to find those powers acceptable and that it is appropriate that they are not expressed as a power to make subordinate legislation?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          Powers for which no procedure is provided are:

          "Section 14 (Community payback orders), so far as inserting section 227B(2) of the Criminal Procedure (Scotland) Act 1995 – specification of information to be included in report from local authority officer to court relating to an offender

          Section 14, so far as inserting section 227E(6) of the Criminal Procedure (Scotland) Act 1995 – power to make provision for the form of a community payback order by Act of Adjournal

          Section 14, so far as inserting section 227Z(2) of that 1995 Act – power to specify the nature of information to be provided by a responsible officer in a report to the court before variation of a Community payback order

          Section 57(3), so far as inserting section 113A(4)(c) of that 1995 Act – power to specify classes of persons who may have access to the trial judge's observations in relation to an expedited appeal

          Section 66(1), so far as inserting section 271U(3) of that 1995 Act – power to prescribe procedure for an appeal against a witness anonymity order

          Section 148 – commencement".

          Are we content to find those powers acceptable and that it is appropriate that they are subject to no procedure?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          The bill contains only one laid-only provision:

          "Section 114(1) - Code of practice on disclosure".

          Are we content to find that power acceptable and that it is appropriate that the code of practice need only be laid before the Parliament?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          The powers to which the negative procedure will apply—there is no escape, as I must read them out in full—are as follows:

          "Section 12 – Business plan of the Scottish Sentencing Council

          Section 13(2) – Annual report by the Scottish Sentencing Council

          Section 14 (Community payback orders), so far as inserting section 227O(1) of the Criminal Procedure (Scotland) Act 1995 – general power to make rules about unpaid work and other activity

          Section 14, so far as inserting section 227ZG of that 1995 Act – application of regulations made under section 245C of that 1995 Act on remote monitoring, to restricted movement requirements

          Section 14, so far as inserting section 227ZH(1) of that 1995 Act – regulations making further provision in relation to restricted movement requirements

          Section 14, so far as inserting section 227ZJ(2) of that 1995 Act – power to prescribe persons who must be consulted by a local authority in relation to the nature of unpaid work and other activities undertaken by offenders in its area

          Section 30(3) – section 1A Crossbows Act 1987 – Power to prescribe documents valid for establishing the age of a purchaser

          Section 31(4) – replacement section 141A(4) Criminal Justice Act 1988 – Power to prescribe documents valid for establishing the age of a purchaser

          Section 72(7), so far as inserting section 40A(4) of the Antisocial Behaviour etc (Scotland) Act 2004 – power to add to or otherwise modify the specification of ‘exploitation offences'

          Section 79(3) – Power to make further provision about registration under section 120 of the Police Act 1997 by virtue of regulations made under section 120ZB

          Section 81 – Amendment of section 28A of the Legal Aid (Scotland) Act 1986 – Power to enable the Scottish Legal Aid Board to employ solicitors for the purpose of providing criminal legal assistance

          Section 86(9)(b) – Power to specify bodies which constitute an ‘investigating agency'

          Section 114(3)(c) – Power to specify persons for the purpose of the code of practice on disclosure under section 114

          Section 126(2) – new section 41(2)(h) Civic Government (Scotland) Act 1982 – Power to prescribe premises for which a public entertainment licence is not required".

          The final power mentioned relates to section 1—

        • Shelagh McKinlay (Clerk): Share | Copy Link Copied
          The reference is to schedule 1.

        • The Convener: Share | Copy Link Copied
          Sorry, I stand corrected. The final power mentioned is:

          "Schedule 1, paragraph 2(3) to (5) – Scottish Sentencing Council – procedure for appointment of members".

          Before I put the question, let me say that I never get it absolutely right, but never mind.

          Are we content to find those powers acceptable and that it is appropriate that they are subject to negative procedure?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          We now move to consider powers that are subject to the affirmative procedure, which are:

          "Section 14 (Community payback orders), so far as inserting section 227A(8) and (9) of the Criminal Procedure (Scotland ) Act 1995 – power to change the powers of justice of the peace courts to impose requirements on an offender

          Section 14, so far as inserting section 227J(3) of the Criminal Procedure (Scotland) Act 1995 – power to make regulations to allow justice of the peace courts to impose a level 2 unpaid work and other activity requirement

          Section 14, so far as inserting section 227ZD(6) – power to amend maximum time periods relating to restricted movement requirements in relation to period in section 227ZD(3)

          Section 19, inserting new section 9B(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 – power to modify the number of days specified in section 9B(1) of the 1993 Act (early removal of short-term prisoners from the UK)

          Section 59, inserting section 18B(6) of the Criminal Procedure (Scotland) Act 1995 – power to prescribe lists of relevant offences

          Section 79(2), inserting section 113BA(1) of the Police Act 1997 – power to amend the meanings of ‘criminal conviction certificate'; ‘central records; ‘criminal record certificate'; ‘relevant matter' and ‘enhanced criminal record certificate' in Part 5 of that Act".

          Are we content to find those powers acceptable and that it is appropriate that they are subject to affirmative procedure?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          I turn to those powers in the bill on which it is recommended that we seek further information. The first is:

          "Section 14 (Community payback orders) so far as inserting section 227I(6) of the Criminal Procedure (Scotland) Act 1995 – power to vary the minimum and maximum hours of unpaid work or other activity requirement".

          Are we content to ask the Scottish Government to provide further explanation of why the scope of the power requires to be drawn to permit any variation of the minimum and maximum hours stated in section 227I(3), and the figure of 100 in section 227I(4) and (5), rather to permit a variation within defined maximum and minimum limits; and, given that this is a Henry VIII power and that such a power would usually be exercisable, when justifiable, by affirmative procedure—particularly when concerned with levels of maximum penalty—why it is justifiable that negative resolution procedure should apply?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          The next power is:

          "Section 14, so far as inserting section 227K(3) of the Criminal Procedure (Scotland) Act 1995 – power to vary the limits of the balance of activity within the unpaid work or other activity requirement".

          Are members content to ask the Scottish Government to provide further explanation of why the power is required to amend subsection (2) in any respect rather than to specify different figures in subsection (2)(a) or (b); and, given that this is a Henry VIII power—enabling amendment of primary legislation that affects a type of sentencing—why negative rather than affirmative procedure is considered appropriate?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          The next power is:

          "Section 14, so far as inserting section 227ZB(12) of the 1995 Act – power to vary the maximum number of months in which a restricted movement order can have effect".

          Are members content to ask the Scottish Government for confirmation whether the intention is that there is a single overall maximum period of 12 months for which a restricted movement requirement may last, subject to the ability to modify that period; if that is the case, why the maximum is specified in two places with a separate power to change each figure rather than providing the maximum in one place only, albeit that cross-reference to the maximum may be appropriate elsewhere; and, further, whether the provision of two separate powers will give rise to the theoretical risk that they may not be used to maintain parity?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          I turn to section 18(2)(a)(iii), which is the power to prescribe by order the "prescribed period" for the purposes of certain sentences under part 2 of the Custodial Sentences and Weapons (Scotland) Act 2007.

          Are members content to ask the Scottish Government to explain, in relation to the width of the delegated power in section 18(2)(a)(iii) of the bill, why the power is required to be taken to prescribe any new period whatever, instead of 15 days, and why the parameters of any new period could not be drawn within a minimum and maximum set out in primary legislation? Are we further content to ask the Government to explain the "potentially significant" effects of the use of this power in relation to the sentencing of offenders, given that the period could be prescribed at less than 15 days or substantially more than 15 days? The delegated powers memorandum suggests up to a year.

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          We move to:

          "Section 70(3), so far as inserting section 26G(1) of the Public Finance and Accountability (Scotland) Act 2000 – power to amend list of persons mentioned in the act."

          I ask members whether they are content to seek clarification from the Scottish Government on the following issues:

          "(a) the choice of procedure in relation to this power, and in particular why negative procedure has been preferred to affirmative, having regard to the terms of this power, including the consequences of being on the list,

          (b) the need for an unlimited power to modify Part 2A in respect of new bodies added to the list (including it would appear the ability to modify the purposes for which data matching may be conducted) and

          (c) why it is thought necessary for provision for an order under inserted section 26G(1) being able to include (in terms of 26G(2)) such incidental, consequential, supplementary or transitional provision as the Scottish Ministers think fit, and in particular to provide further explanation as to how and in what circumstances it is envisaged that the ancillary power under section 26G(2) might require to be used".

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          That takes us to:

          "Section 82(1)(a) – Amendment to section 133 of the Criminal Justice Act 1988 – Power to specify further circumstances in respect of which compensation may be paid for a miscarriage of justice".

          The DPM simply states that the purpose of the power is to enable a statutory basis for the existing ex gratia payment scheme to be established. Are members content to ask the Scottish Government to explain the scope of the current scheme and whether the powers sought extend beyond what is necessary to replicate the current non-statutory arrangements?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          The Scottish Government has not explained why it seeks to use delegated powers to provide a statutory basis for the extended scheme. Given that the scope of the existing statutory scheme is set out in primary legislation, are members content to ask the Government to explain why it considers it necessary to use delegated powers for the extended scheme?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          That takes us to section 82(1)(d), which inserts new section 133(4B), on guidance to assessors, into the Criminal Justice Act 1988. Are members content to ask the Scottish Government whether it has considered whether the guidance to be issued under this subsection should be laid before Parliament; and to comment on whether, in its view, such provision is appropriate, given Parliament's interest in ensuring the independence of assessors and the proper use of public funds?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          We move to:

          "Section 115 – Power to establish rules of court in relation to Part 6".

          Do we agree to ask the Scottish Government the following question? Given the fact that the Scottish Government refers to section 305 of the Criminal Procedure (Scotland) Act 1995 as the model for the power to be conferred on the High Court, why is the power an open power to make such rules as may be considered necessary or expedient and not restricted to making rules of court or other provision to regulate practice and procedure in relation to criminal proceedings?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          That takes us to:

          "Section 121(3) – Power to set mandatory conditions to licences granted under the Civic Government (Scotland) Act 1982".

          The DPM states that it is the Government's intention that the power to prescribe mandatory conditions in respect of licences granted under the Civic Government (Scotland) Act 1982 should be subject to affirmative procedure in line with the approach taken to alcohol licensing under the Licensing (Scotland) Act 2005. However, the committee notes that new section 3A(3) provides for such orders to be subject to annulment. Do we agree to ask the Government to clarify its intention and, if the power is not to be subject to affirmative procedure, to explain why it takes that view?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          We come to:

          "Section 129(4) – new section 27A Licensing (Scotland) Act 2005 – Power to prescribe those areas in respect of which licensing boards may vary all or a particular group of premises licences' conditions of operation".

          Do we agree to ask the Scottish Government the following questions? No justification is provided in the DPM as to why it is considered appropriate to use subordinate legislation to enable licensing boards to vary certain licence conditions. If consistency of application is the policy objective, will the Scottish Government explain why that cannot be achieved through primary legislation on its own? The DPM explains that the present policy intention is to enable the restriction of the sale of alcohol at off-sales premises to persons under 21. If such a restricted policy objective is in view, why is a broad discretionary power required? No justification for the breadth of the power is provided in the DPM; will the Scottish Government provide such justification to the committee?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          We move to:

          "Section 140(1) – Power to make provision for the imposition on relevant licence-holders of a social responsibility levy".

          Do we agree to ask the Scottish Government the following question? Given the fact that the power in section 140 is a significant revenue-raising measure, why is it not considered appropriate for the general principles of the proposal—including the way in which the levy is to be calculated and by whom it is proposed to be administered—to be set out in primary legislation, leaving only administrative detail for subordinate legislation?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          That brings us to ancillary provision in sections 146 and 147. Do we agree to ask the Scottish Government for the following additional information? First, why does the DPM provide justification for the powers in section 146 on the basis that a test of "necessity or expediency" is to be applied to their exercise when the bill provides for a test of what is "appropriate"? Secondly, does the Scottish Government consider the "appropriate" standard to be less onerous, and why has it chosen that standard in the case of the broader ancillary powers contained in section 146 instead of "necessity or expediency"? Do we also agree to ask the Scottish Government to give its reasons for considering negative procedure a sufficient level of parliamentary control in respect of modifications of the statute book using these powers where there is no textual amendment, particularly in the context of the subject matter of the bill, which impacts on individual rights and liberty?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          We move to paragraphs 10(3) and 10(4) of schedule 2, which deal with the power to prescribe the length of periods of detention for those under 21 years of age for the purpose of determining whether they are serving

          "Short-term custody and community sentences"

          or "custody and community sentences". Do we agree to ask for an explanation of the width of the delegated power in paragraphs 10(3) and 10(4) of schedule 2? Do we agree to ask why the power is required to be taken to prescribe any new period whatever instead of 15 days and why the parameters of any new period could not be drawn within a minimum and maximum set out in primary legislation? Do we also agree to ask the Government to explain the "potentially significant" effects of the use of this power in relation to the sentencing of offenders, given that the period could be prescribed at less than 15 days or substantially more than 15 days, as the DPM notes?

          Members indicated agreement.

        • The Convener: Share | Copy Link Copied
          We will ask all of those questions and will consider the Government's responses on 26 May.

        • Ian McKee (Lothians) (SNP): Share | Copy Link Copied
          I have a question, convener. The proposed legislative reform bill will aim to enable us to produce legislation that more particularly suits the Scottish Parliament instead of copying what comes from Westminster as a temporary measure. I wonder, therefore, whether we could find a different name for the Henry VIII power, as it refers to a king who was never a king of Scotland. Judging by the television programme presented by Dr David Starkey, I think that he was a pretty unpleasant character anyway. I think that we should use a Scottish expression rather than "Henry VIII power", and I wonder whether the clerks and the legal team could think up one that we could present to the Government as a suitable alternative.

        • The Convener: Share | Copy Link Copied
          When you say that he was pretty unpleasant, you are referring to Henry VIII, not Dr Starkey.

        • Ian McKee: Share | Copy Link Copied
          Both. [Laughter.]

        • The Convener: Share | Copy Link Copied
          I see. Perhaps we could have a Malcolm Canmore power.

        • Malcolm Chisholm (Edinburgh North and Leith) (Lab): Share | Copy Link Copied
          I do not know about that.

        • The Convener: Share | Copy Link Copied
          In Gaelic, it means big head. That is something that we might consider. Given your political stance, Ian, I take it that you would rather see any odious personality as being from south of the border. We will look into that—it is a good point.

        • Ian McKee: Share | Copy Link Copied
          And it has broken the duck of comments on the bill.

        • The Convener: Share | Copy Link Copied
          It has also given me the chance to have a sip of water, for which I am grateful.

      • Draft Instruments subject to Approval Share | Copy Link Copied
        • Community Right to Buy (Definition of Excluded Land) (Scotland) Order 2009 (Draft)
          Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) (No 2) Order 2009 (Draft)
          Share | Copy Link Copied
        • Local Government and Housing Act 1989 Amendment (Scotland) Order 2009 (Draft) Share | Copy Link Copied
          • The Convener: Share | Copy Link Copied
            The fifth item is draft instruments subject to approval. They are the Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) (No 2) Order 2009; the Community Right to Buy (Definition of Extended Land) (Scotland) Order 2009; and the Local Government and Housing Act 1989 Amendment (Scotland) Order 2009.

          • Helen Eadie: Share | Copy Link Copied
            Are you testing us, convener? The draft instrument refers to "Excluded Land" rather than "Extended Land". I am sure that it was a deliberate mistake on your part.

          • The Convener: Share | Copy Link Copied
            Did I say that?

          • Helen Eadie: Share | Copy Link Copied
            Yes. It was just to ensure that we were not asleep, wasn't it?

          • The Convener: Share | Copy Link Copied
            Yes, thank you. I will speak to you later. [Laughter.]

            The draft instrument is the Community Right to Buy (Definition of Excluded Land) (Scotland) Order 2009.

          • The committee agreed that no points arose on the instruments.

      • Instruments subject to Annulment Share | Copy Link Copied
        • Community Right to Buy (Prescribed Form of Application and Notices) (Scotland) Regulations 2009 (SSI 2009/156)
          Crofting Community Body (Prescribed Form of Application and Notice) (Scotland) Regulations 2009 (SSI 2009/160)
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          • The committee agreed that no points arose on the instruments.

      • Instrument not laid before the Parliament Share | Copy Link Copied
        • Act of Sederunt (Sheriff Court Rules Amendment) (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) 2009 (SSI 2009/164) Share | Copy Link Copied
          • The committee agreed that no points arose on the instrument.

          • Meeting continued in private until 15:00.