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Subordinate Legislation Committee

1st Report 2003

Commissioner for Children and Young People (Scotland) Bill
Delegated Powers Scrutiny
Stage 1 Report

 

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SP Paper 733

Session 1 (2003)

 

Remit and Membership

Remit:

The remit of the Committee is to consider and report on-

(a) (i) subordinate legislation which is laid before the Parliament;

(ii) any Scottish Statutory Instrument not laid before the Parliament but classified as general according to its subject matter;

and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation; and

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation.

(Standing Orders of the Scottish Parliament Rule 6.11)

Membership:

Bill Butler

Colin Campbell

Brian Fitzpatrick

Murdo Fraser

Gordon Jackson QC

Ian Jenkins (Deputy Convener)

Margo MacDonald (Convener)

Committee Clerks:

Alasdair Rankin

Steve Farrell

Alistair Fleming

Joanne Clinton

Subordinate Legislation Committee

1st Report 2003

Commissioner for Children and Young People (Scotland) Bill

Delegated Powers Scrutiny

Stage 1 Report

1. The Subordinate Legislation Committee considered the delegated powers provision in the Commissioner for Children and Young People (Scotland) Bill at its meeting on 17th December 2002. The Committee reports to the Parliament on such provisions in committee Bills under Rule 9.15.8 of Standing Orders.

COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE (SCOTLAND) BILL

Report of the Subordinate Legislation Committee

On Delegated Powers Provisions

Stage 1

Committee remit

1. Under the terms of its remit, the Committee considers and reports on proposed powers to make subordinate legislation in particular Bills or other proposed legislation and on whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation.

2. The term "subordinate legislation" carries the same definition in the Standing Orders as in the Interpretation Act 1978. Section 21(1) of that Act defines subordinate legislation as meaning "Orders in Council, orders, rules, regulations, schemes, warrants, bye-laws and other instruments made or to be made under any Act". "Act" for this purpose includes an Act of the Scottish Parliament. The Committee therefore considers not only powers to make statutory instruments as such contained in a Bill but also all other proposed provisions conferring delegated powers of a legislative nature.

Introduction

3. The Bill arises from an inquiry by the Education, Culture and Sport Committee of the Parliament and its subsequent report entitled The Need for a Children's Commissioner in Scotland1 (SP Paper 508). That report was followed by a second: Report on Proposed Commissioner for Children and Young People Bill2 (SP Paper 617).

4. The objective of the Bill is to establish the Commissioner for Children and Young People with the general function of promoting and safeguarding the rights of children and young people.

5. Further background to the Bill and details of its content are set out in the Bill's Accompanying Documents and the Memorandum on the delegated powers in the Bill. The latter has been prepared by the Education, Culture and Sport Committee with the assistance of the Non-Executive Bills Unit (NEBU) of the Parliament for the assistance of this Committee. It is reproduced at the Appendix to this report.

Delegated Powers

6. The Bill contains only one delegated power.

Schedule 1, paragraph 6(3) Power to specify chargeable services

7. The Bill gives power to the Scottish Ministers to specify, by order, services for which the Commissioner may charge. This might include such services as carrying out research, assessing standards of best practice in individual organisations, or giving seminars.

8. The Memorandum explains that the main purpose of the provision is to allow for flexibility, since it will not be until the Commissioner is well established in post that a decision can be made on the services that should be chargeable services. This will depend on the expertise and capacity of the Commissioner and his or her staff. The power will allow Ministers to add or remove services from the chargeable list, which may also be useful in the light of future circumstances.

9. The Commissioner will, however, set the level of charges for those chargeable services. The Bill's sponsors consider that is appropriate since the office of Commissioner will be publicly funded. The sponsors do not think it appropriate that the Scottish Ministers should be able somehow to supplement the Commissioner's budget by setting the level of charges. Moreover, the Commissioner will be in a unique position, based on his or her experience, to decide an appropriate level of charge.

10. The Bill provides for the order to be subject to negative resolution procedure since the power does not enable the Scottish Ministers to affect substantially the impact of the Bill's provisions.

Report

11. The Committee considers that there is nothing in this delegated power that gives rise to any concern and therefore approves it and the negative procedure chosen as appropriate.

Appendix

MEMORANDUM TO THE SUBORDINATE LEGISLATION COMMITTEE

BY THE EDUCATION, CULTURE AND SPORT COMMITTEE

COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE (SCOTLAND) BILL

Purpose

1. This memorandum has been prepared by the Non-Executive Bills Unit on behalf of Karen Gillon MSP, the convener in charge of this Committee Bill. It has been prepared to assist the Subordinate Legislation Committee with their consideration, in accordance with Rule 9.6.2 of the Parliament's Standing Orders, of the provision in the Commissioner for Children and Young People (Scotland) Bill conferring power to make subordinate legislation. It describes the purpose of the provision and explains why the matter is to be left to subordinate legislation.

Policy Context

2. The Bill arises from an inquiry and report published on 14 February 2002, [Report on Inquiry into the Need for a Children's Commissioner in Scotland (2nd report 2002, SP paper 508)] by the Education, Culture and Sport Committee which was followed by a further report published on 3 July 2002 [Report on Proposed Commissioner for Children and Young People Bill (11th Report 2002, SP paper 617)].

3. The objective of the Bill is to establish the Commissioner for Children and Young People with the general function of promoting and safeguarding the rights of children and young people. In carrying out his or her work the Commissioner is to involve children and young people to ensure this work is informed by their views. In addition, the work of the Commissioner will be underpinned by the relevant provisions of the United Nations Convention on the Rights of the Child, in particular those relating to the views and best interests of children and young people and equal opportunities.

4. The Commissioner will also have power to carry out investigations. These investigations will consider how service providers take rights, interests and views into account in decisions or actions affecting children and young people. The Commissioner cannot undertake an investigation that only concerns the case of an individual child or young person i.e. he or she will not act as some sort of appeal mechanism. In an investigation, the Commissioner will have the power to call witnesses to attend and require the production of documents. It is anticipated, however, that investigations will form only a small part of the overall work of the Commissioner.

Content of the Bill

The specific provisions of the Bill include:

• the procedural requirements allowing for the establishment, appointment and removal of the Commissioner for Children and Young People (sections 1 - 3 and schedule 1). Any nomination for appointment will be made by the Parliament and the Commissioner will be appointed and removed by the Queen;

• the functions of the Commissioner (sections 4 - 9 and schedule 2). In carrying out his or her functions the Commissioner is to:

• have regard to the relevant provisions of the United Nations Convention on the Rights of the Child; and

• encourage the involvement of children and young people in his or her work;

• the reporting requirements on the Commissioner (sections 10 -14). The Commissioner must provide reports to Parliament on the exercise of his or her functions and has the power to lay any other reports which he or she considers necessary or appropriate;

• protection from actions of defamation (section 15). The Commissioner and his or her staff will have absolute privilege and any person who makes a statement to the Commissioner or his or her staff has qualified privilege.

Delegated Powers

5. The Bill contains only one delegated power:

Schedule 1, paragraph 6(3) Power to specify chargeable services

Power conferred on: The Scottish Ministers

Power exercisable by: Order made by Statutory Instrument

Parliamentary procedure: Negative resolution of the Scottish Parliament

6. The Bill gives power to the Scottish Ministers to specify, by order, services for which the Commissioner may charge. This might include such services as carrying out research, assessing standards of best practice in individual organisations, or giving seminars.

7. The main purpose of the provision is to allow for flexibility, since it will not be until the Commissioner is well in post that a decision can be made on the services that should be chargeable services. This will be dependent on the expertise and capacity of the Commissioner and his or her staff. The power will allow Ministers to add or remove services from the chargeable list, which may also be useful in the light of future circumstances.

8. It will then be for the Commissioner to set the level of charges (for those chargeable services). This is appropriate since the office of Commissioner will be publicly funded. It is thought that the Scottish Ministers should not be able somehow to supplement the Commissioner's budget by setting the level of charges. Moreover, the Commissioner will be in a unique position, based on his or her experience, to decide an appropriate level of charge.

9. It is felt that negative resolution procedure is appropriate, as this power does not enable the Scottish Ministers to affect substantially the impact of the Bill's provisions.

Convener

Education, Culture and Sport Committee

November 2002

 

FOOTNOTES

1 Published on 14th February 2002 and available on the Parliament's website at:

/official_report/cttee/educ-02/edr02-02-01.htm

2 Published on 3rd July 2002 and available on the website at:

/official_report/cttee/educ-02/edr02-11-01.htm

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