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Delegated Powers and Law Reform Committee (BSL) – Scottish Parliament: 3rd March 2015

February 14, 2020


The Convener Nigel Don: I welcome members
to the eighth meeting in 2015 of the Delegated Powers and Law Reform Committee, and I welcome
the British Sign Language interpreters, who are here especially for one of the items on
this morning’s agenda. As always, I ask members to turn off mobile phones please. Agenda item one is instruments subject to affirmative procedure. No points have been raised by our legal advisers on the Continuing Care (Scotland) Order 2015 [Draft] Aftercare (Eligible Needs) (Scotland) Order 2015 [Draft] the Post-16 Education (Scotland) Act 2013 (Modification of Legislation) Order 2015 [Draft] Common Financial Tool etc (Scotland)
Amendment Regulations 2015 [Draft] The Advice and Assistance (Assistance by Way of Representation)
(Scotland) Amendment (No 2) Regulations [Draft] 2015 Courts Reform (Scotland) Act 2014
(Consequential Provisions) Order 2015 [Draft] Single Use Carrier Bags Charge (Fixed Penalty
Notices and Amendment) (Scotland) Regulations 2015 [Draft] but the committee may wish to note a matter
that has been raised in relation to their laying. As each of the above instruments is
subject to the affirmative procedure, under standing orders the lead committee has a period
of 40 days from the instrument being laid to report on whether it is recommending that
it be approved. The 40th day for these instruments is 30 March; they are not intended to come
into force on either 31 March or 1 April, let me correct that. They are then intended to come into force on either the 31st of March or 1 April Therefore, little or no time has been allowed
by the Government for obtaining a parliamentary resolution if the lead committee were to take
the full time that is permitted by standing orders. As a result, the lead committee will
be required to report sooner than the period that is allowed by standing orders in order
for the Government’s planned timetable to be capable of being fulfilled. The Convener: A similar
issue has arisen in relation to the draft Scottish Landfill Tax (Exemption Certificates)
Order 2015 [draft]. Although no formal points have been raised by our legal advisers, the committee
may wish to note that, in this case, the 40th day postdates the date on which the order
comes into force. In this case, therefore, less time has been allowed by the Government
for the lead committee to report, prior to the order coming into force, than standing
orders permit. The lead committee will be required to report sooner than the period
that is allowed by standing orders in order for the Government’s planned timetable to
be capable of being fulfilled. It is of course possible for the Government
to seek a parliamentary resolution more quickly than standing orders allow, but the committee
may consider that it would at least have been courteous for the Government to have informed
the Parliament that that was the case and to have explained why it was the case. Do members have any comments? Members: No. The Convener: The committee may also wish
to note that the Single Use Carrier Bags Charge (Fixed Penalty Notices and Amendment) (Scotland)
Regulations 2015 were initially laid on 19 February 2015 and were subsequently withdrawn
and relaid on 24 February to correct a typographical error that was highlighted by our legal advisers. The laying issue that I have highlighted aside,
is the committee content with all the aforementioned instruments? Members indicated agreement. No points have been raised by our legal advisers on General Medical Council (Fitness to Practise
and Overarching Objective) and the Professional Standards Authority for Health and Social
Care (References to Court) Order 2015 [Draft] or on the Health Care and Associated Professions (Knowledge
of English) Order 2015 [Draft] Health and Care Professions (Public Health Specialists
and Miscellaneous Amendments) Order 2015 [Draft] The Convener: Howver the Committee may wish to note No points have been raised by
our legal advisers on the orders. Is the committee content with them? Members indicated agreement. The Convener: The committee may wish to note
that the draft General Medical Council (Fitness to Practise and Overarching Objective) and
the Professional Standards Authority for Health and Social Care (References to Court) Order
2015 was first considered by the committee on 17 February and no points were drawn to
the attention of Parliament. However, following comment from the Joint Committee on Statutory
Instruments at Westminster, the order was withdrawn and relaid on 23 February 2015 to
adjust a minor matter. The committee may further wish to note that
the draft Health Care and Associated Professions (Knowledge of English) Order 2015 replaces
an earlier draft that was laid before the Scottish Parliament on 4 February, but which
was withdrawn by the Scottish Government following correspondence with the committee’s legal
advisers. Similarly, the order was withdrawn from Westminster by the Department of Health.
The relaid version corrects those errors, as well as a few minor points that were also
identified by the committee’s legal advisers. Is the Committee content with these instruments? Members indicated agreement. Agenda item 2 Instruments subject to Negative Procedure. No points have been raised by our legal advisers Public Bodies (Joint Working) (Integration Joint Boards and Integration Joint Monitoring
Committees) (Amendment) (Scotland) Order 2015 (SSI 2015/66) Land and Buildings Transaction
Tax (Transitional Provisions) (Scotland) Amendment Order 2015 (SSI 2015/71) The committee may wish to note
that SSI 2015/66 corrects a number of drafting errors and inconsistencies to which the committee
drew the Parliament’s attention when it considered SSI 2014/285 and SSI 2014/281. Is the Committee content with these instruments? Members indicated agreement. Agenda item 3 Instruments
not subject to Parliamentary Procedure. No points have been raised by our legal advisers Children
and Young People (Scotland) Act 2014 (Commencement No 7) Order 2015 (SSI 2015/61) or on the Environmental
Protection Act 1990 (Commencement No 20) (Scotland) Order 2015 (SSI 2015/72) or on the Environment Act 1995
(Commencement No 24) (Scotland) Order 2015 (SSI 2015/73) The Convener: No points have
been raised by our legal advisers on the orders. Is the committee content with them? Members indicated agreement. The Convener: Agenda item 4 is consideration
of the British Sign Language (Scotland) Bill. In examining a bill, the Delegated Powers
and Law Reform Committee considers matters such as whether in the bill overall the right
balance has been struck between primary legislation and delegated powers; whether the delegated
powers are properly drafted; and whether a delegated power is subject to the appropriate
form of parliamentary procedure. The committee also considers provisions in
the bill that provide the power to do something purely administratively, for example by direction
or guidance, and assesses whether they should be subject to parliamentary procedure. It
is not within the committee’s remit to consider the policy merits of a bill or the policy
merits of the powers that it delegates. The committee is asked to agree any questions
that it may wish to ask the member in charge of the bill, Mark Griffin MSP, on the delegated
powers in the bill. It is suggested that those questions be put to the member in writing.
The responses that are received will be used to help inform the committee’s report on
the bill, which we will consider at a later date. The member in charge of the bill has produced
a delegated powers memorandum, which provides information on the subordinate legislation
in the bill. The memorandum is available in both English and British Sign Language on
the Parliament’s website. Section 3 of the bill sets out the responsibilities
of local authorities in relation to the preparation of authority plans and gives details of what
authority plans must contain. Section 3(4)(b) sets out several matters to which an authority
is to have regard in preparing its plan. They include, in section 3(4)(b)(v), “such guidance, relevant to the preparation
(or revision) of Authority Plans, as may be issued by the Scottish Ministers.” The power to issue guidance is not explained
in the delegated powers memorandum, as it is not a power to make subordinate legislation. Does the committee agree to ask the member
in charge of the bill to explain why the power to issue guidance is being taken; to provide
examples of the provision that is likely to be made in any guidance that is issued; to
explain why it is appropriate for the power to be exercised by way of guidance rather
than subordinate legislation; and to indicate the form in which the guidance is likely to
be issued and the manner of its publication? Stewart Stevenson: I think that it is clear
that the power to issue guidance that is taken in the bill is a consequence of the bill providing
that bodies must take account of guidance from Governments rather than a directly expressed
intent. On that basis, we should perhaps simplify what we ask for by way of explanation by not
asking why the power is being taken. Instead, we should focus on the use that is likely
to be made of any such power and how it might be exercised. The bill is welcome. Our interest in it is
in how guidance may influence the way in which, if the bill is passed by Parliament, it will
be implemented. The Convener: Do members have any other comments? John Mason: Will it be possible for the member
in charge of the bill to answer all the questions, or will some of them have to be referred on
to the Government? The Convener: I am sure that the answer to
that is that some of them will have to be referred on to the Government, which will
be much more familiar with what ministers can and should do. In the context of Stewart Stevenson’s comment,
I am wondering whether we might simply ask why the power to issue guidance is being taken
and how it is expected to be used. Margaret McCulloch: Why do we not ask Mark
Griffin to appear before the committee to explain matters instead of writing to him? The Convener: We normally ask people to write
to us in the first instance. That is the simplest way forward. If there were to be an issue
once we have a written response, we could ask the member in charge of the bill to appear
before us. John Scott: I am quite happy with the form
of words that our legal advisers have provided. Stewart Stevenson: If it is helpful to say
so, I certainly do not intend to push the point that I raised. I have made it on the
record, so it can be read by the member. The Convener: On that basis, we will stick
with the original form of words. Thank you. Section 4 sets out the responsibilities of
listed authorities with regard to the publication of authority plans, including the timescales
for such publication. Broadly speaking, authority plans are to be published as soon as reasonably
practicable after publication of the corresponding national plan. The national plan and authority
plans are to be prepared in each session of the Parliament. Section 4(6) provides that, in publishing
an authority plan or a revised plan, a listed authority is to have regard to any guidance
that is issued by the Scottish ministers concerning publication. Again, an explanation of that
power has not been included in the delegated powers memorandum. Does the committee therefore agree to ask
the member in charge to explain why the power to issue guidance is being taken; to give
examples of the provision that is likely to be made in any guidance that is issued; to
explain why it is appropriate for the power to be exercised by way of guidance rather
than subordinate legislation; and to indicate the form in which the guidance is likely to
be issued and the manner of its publication? I suggest to the committee that the previous
discussion probably applies. Members indicated agreement. “Report on
instruments considered in 2013-14” The Convener: Agenda item 5 gives us the opportunity
to consider the Scottish Government’s response to our report on the instruments that the
committee considered during 2013-14. The correspondence also responds to further issues that were
raised in the committee’s oral evidence session with the Minister for Parliamentary
Business that took place on 16 December last year. Members will have seen the correspondence
from the Minister for Parliamentary Business. Are there any comments? Stewart Stevenson: The part of the minister’s
response that I particularly welcome is the part that relates to consolidation. He draws
to our attention the fact that there were 10 consolidations in the reporting year and
that “more would be laid in the current year.” I encourage the minister to keep up the good
work and to find additional resources to do even more, should that be possible. John Scott: Having only just seen the letter,
which I have read very quickly, I support what Stewart Stevenson said. I note the minister’s
positive tone in endeavouring to address the sensible and reasonable points that the committee
made, and I welcome that approach. The Convener: Thank you for those welcoming
words. Any further comments? Does the committee agree to note the correspondence? Members indicated agreement. The Convener: I am much obliged—thank you
very much. That brings us to the end of the agenda. Our
next meeting will be next Tuesday.

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