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Local Government

6th Report 2000

Stage 1 Report on the Ethical Standards in Public Life etc. (Scotland) Bill

  
    
SP Paper 89

Session 1 (2000)

 

Subordinate Legislation Committee

Delegated Powers Scrutiny Report

Ethical Standards in Public Life etc. (Scotland) Bill

 

  1. The Subordinate Legislation Committee met on 4th April and considered delegated powers provisions in the Ethical Standards in Public Life etc. (Scotland) Bill.

  2. The Committee submits this report under Rule 9.6.2 of Standing Orders to the Local Government Committee as the lead committee for the Bill.


ETHICAL STANDARDS IN PUBLIC LIFE ETC. (SCOTLAND) BILL

Report of the Subordinate Legislation Committee

On Delegated Powers

General

  1. Under Rule 9.6.2 of Standing Orders the Parliamentary Bureau refers any provision of a Bill conferring powers to make subordinate legislation to the Subordinate Legislation Committee. The Committee considers and reports on those provisions to the lead committee.
  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 relevant delegated powers of a legislative nature.
  3. The following sections of the Bill contain powers to make subordinate legislation: Sections 1,2,3,4, 6(2) & 7(2)(b), 16 (1), 20, 22, 23 and 28.

Introduction

  1. The Bill introduces a statutory framework for ethical standards in public life. It provides for the introduction of new codes of conduct for councillors and members of public bodies and establishes a Standards Commission for Scotland. It also repeals section 2A of the Local Government Act 1986.
  2. The Bill delegates a number of powers to the Scottish Ministers. Some of these powers, paragraphs 5(1), 6, 7(2) and (4), 8(1) and (2) of Schedule 1 and paragraph 1(1) of Schedule 2 are of an administrative nature relating to the establishment affairs of the Standards Commission and the Chief Investigating Officer. They are, therefore, not matters within the remit of the Committee.
  3. Section 5 of the Bill provides for guidance to be issued by the Standards Commission on the codes provided for in the Bill. Councils and other public bodies must, in accordance with the guidance, promote the observance of high standards of conduct by councillors and members as appropriate and assist them to observe the codes. This guidance is not however subject to any form of procedure although it has a certain legislative character. The Committee, however, takes no point on this, as there seems no need for such guidance to take any particular form.
  4. Some of the ten sections in the Bill containing delegated powers of a legislative nature are of a technical or procedural nature and are not subject to any parliamentary procedure. Others are subject either to negative or affirmative procedure according to the importance of the subject matter.
  5. The Committee had the benefit of written memoranda from the Executive and of hearing of oral evidence from members of the Executive Bill team.
  6. Sections 1 and 2: Codes of Conduct

  7. As the Executive states in its memorandum, reprinted at Appendix A, Section 1 makes provision for the issue of a code of conduct for councillors by the Scottish Ministers. This will set out the rules for councillors’ conduct and for the registration of councillors’ interests. Although the issue of the code is a matter for the Ministers, the Ministers will be able to invite representatives of local government to prepare a draft.
  8. The Executive envisages that the code will be a fairly detailed document that may need to be revised in the light of experience. The Executive feels that the level of detail and probability that the amendment will be needed indicates that the code is most appropriately dealt with in subordinate legislation. The Committee regards this as a sensible approach.
  9. Section 2 requires the Scottish Ministers to issue a model code of conduct for members of devolved public bodies. This code will be on similar lines to the councillors’ code. The model code differs from the councillors’ code in that it will not have direct effect but will be a model to be adapted to the individual circumstances of each body.
  10. The Executive does, however, recognise the importance of both the codes and accordingly proposes that the codes and any amendment should be subject to approval by resolution of the Parliament. This, again, seems to the Committee appropriate both as regards the codes and any amendment. In this instance the amendments can be considered of sufficient importance to merit the same procedure as the principal code.
  11. The draft provisions allow for some input by an appropriate association of local authorities in the case of the councillors’ code but there is no formal requirement on the Ministers to consult with such an association. The duty appears to be entirely discretionary. Ministers may decide whether or not to invite the association to prepare the draft code. There are no other provisions for prior consultation.
  12. In the Committee’s view, however, no such provision is necessary in the circumstances. The code must be formally approved by the Parliament, therefore if COSLA, or any local authority had problems with the code, they could make their views known in the usual way via MSPs.
  13. There is no provision for prior consultation in the case of the members’ model code but again the requirement for affirmative procedure could be considered sufficient in the circumstances.
  14. In relation to Sections1 and 2, the Committee observed that it is usual to provide that any instrument or other document to be approved by the Parliament must first be laid before the Parliament. Though in view of Rule 14.1.4 of Standing Orders, the Executive might consider that it is not necessary to state this explicitly, in the Committee’s view, clear provision in the Bill would put the matter beyond doubt. The Committee therefore asked the Executive why such provisions are absent from these sections.
  15. In its response, reprinted at Appendix B, the Executive states its view that the Bill as drafted is sufficient but recognises that, for the purpose of clarity, it would be desirable to make specific laying provision. The Executive undertakes to bring forward amendments to the Bill to that effect. The Committee notes, with approval, the Executive’s proposed amendments and draws to the attention of the lead committee the stated intention of the Executive.
  16. Section 3: Codes of conduct for members of devolved public bodies

    Section 4: Revision etc. of members’ codes

  17. These sections make provision for the issue and revision of codes of conduct for each devolved public body. The sections envisage that each public body will have its own code although it would, presumably, be possible for one code to cover more than one body. It is the duty of each body to prepare a draft, within the time limit prescribed in the Bill, that it must then submit to the Ministers for approval. The code must be based on the model code. If a body fails to submit a draft code the Ministers must devise a code therefor.
  18. Similarly in the case of revisals to a code, the onus is on the public body to prepare the draft and submit it to the Ministers for approval.
  19. The Executive takes the view that given the large number of public bodies that will be required to prepare a draft members’ code, it would serve no useful purpose and be impractical for each code to be subject to Parliamentary scrutiny. The Committee can readily agree with the point. The Executive also feels that in the light of the specific nature and application of individual codes, formal publication is neither necessary nor desirable. Although as mentioned above, it would be, in theory, possible for a code to cover more than one public body, the Committee accepts the force of the Executive’s view. The Committee therefore approves the use of delegated powers in these sections for the reasons given by the Executive.
  20. Section 6(2): Register of interests

  21. This section requires every council and public body to establish, maintain and make available a public register of its members’ interests. The Standards Commission can issue guidance about the registers. The section also empowers the Scottish Ministers to make regulations providing detailed rules for the carrying out by councils and public bodies of their duties under this section. The regulations will be made by statutory instrument subject to negative procedure.
  22. The Executive considers that subordinate legislation is appropriate in this context, as the rules will be detailed. The Executive also considers that the negative procedure will provide adequate parliamentary control. The Committee agrees with the Executive and approves both the use of delegated powers and the choice of procedure as entirely appropriate.
  23.  

    Section 7

  24. This section establishes the Standards Commission for Scotland. It further provides for the Commission to have the functions given to it by the Bill and such other functions related to the conduct of councillors and members of devolved public bodies given to it by direction made by the Ministers. The Committee noted that there is no formal procedure for the giving of directions established in section 7(2)(b). Nor does the Executive, in its memorandum, give an indication of the reasoning for the way in which powers would be exercised under this section. The Committee also noted that it is inconsistent with similar provisions in other recent legislation.
  25. For example, the Committee recently considered a similar power in the Standards in Scotland’s Schools Bill to extend the statutory functions of the General Teaching Council for Scotland (GTC). In that instance, the relevant section provided for the power to be exercised by Order made by statutory instrument subject to negative procedure.
  26. The Committee therefore asked the Executive why a similar procedure was not thought appropriate in this case.
  27. In its written response to the Committee, the Executive stated that it accepts in principle that there should be greater scrutiny by Parliament of the direction-making power. The Executive undertook to give further consideration as to whether all the kinds of additional duties which it might from time to time wish the Commission to carry out could readily and sensibly be conferred only by statutory instrument.
  28. At the Committee’s meeting on 4th April, witnesses from the Executive’s bill team gave evidence to the Committee on this and other points arising from the Committee’s letter. The Committee asked Ms Trudi Sharp, leader of the Bill team, to indicate options under consideration to raise the level of Parliamentary scrutiny where the Executive adds duties under the section to the functions of the Commission as set out in the Bill. Ms Sharp responded that the Executive envisages that the power will confer additional functions relating to the conduct of members of councils and devolved public bodies. The Executive envisages that the functions would be at the margin. Ms Sharp also stated that the Executive had not considered options beyond the Committee’s suggestion that the Executive’s addition of any duties under the section be exercised by statutory instrument.
  29. Ms Sharp and John Paterson, Legal Adviser also of the Bill team, expressed the view that the power under section 7(2)(b) is not broad, as it relates to "conduct of councillors and members of devolved public bodies". The power is intended to be used only where any lacuna is identified, to grant an additional function to the Commission. The Committee nonetheless remains of the view that the power in section 7(2)(b) is widely drawn stating:

7 (1) There shall be a Standards Commission for Scotland ("the Commission")

(2) Its functions shall be-

(a) those functions given to it by this Act; and

(b) any others relating to the conduct of councillors and members of devolved public bodies given to it by directions made by Ministers.

The Executive has undertaken to consider again whether a statutory instrument would be appropriate.

The Committee therefore draws the attention of the lead committee to this provision of the Bill and the Executive’s undertaking to now consider the use of subordinate legislation in this instance.

Section 16(1)

  1. Part 2 of the Bill makes provision for the enforcement of the codes and in particular provides for the investigation of alleged contravention of the codes and for the hearing by the Standards Commission following receipt of a report by the Chief Investigating Officer.
  2. Section 16 provides for the procedure to be followed at hearings before the Commission and in particular subsection (1) provides that subject to the other provisions of that section, the Commission may determine its own procedure. There is no provision for that procedure to be set out in any formal rules although presumably it would be open to the Commission to do so if it so wished.
  3. In its memorandum, the Executive states that the power provides for the Commission to establish proceedings at hearings appropriate to the circumstances of the generality of hearings and to the individual circumstances of specific cases. In the opinion of the Executive, without the delegation of such a power the Commission would require long and detailed rules of procedure failing which it would be unable to function effectively.
  4. The Committee found the reasoning of the Executive difficult to follow. Presumably, the Commission will require detailed rules if the problem identified by the Executive is not to arise. It is quite acceptable that the rules should be contained in delegated legislation but the choice of procedure is not clear. The Executive may envisage that the rules will be decided on an ad hoc basis but this seems less than appropriate. The Committee therefore asked for further explanation of the use of delegated powers in this section.
  5. The Executive responded that rules of procedure that made provision in advance for all possible contingencies would be difficult to draft and would need to be long and detailed. In addition, circumstances might arise for which such procedural rules would not provide. The provision in section 16 (1) was designed to provide necessary flexibility to the Standards Commission in determining its rules of procedure. The Executive points to similar powers in section 103 of the Local Government (Scotland) Act 1973 in relation to the Accounts Commission.
  6. The Committee observes that the comments of the Executive could be applied to almost any rules of procedure. Moreover, although the provision is precedented, the Act in question was passed nearly 30 years ago and there have been many developments in this area of administrative law in the intervening period. What might have been acceptable in 1973 is not necessarily so today. On the other hand, as the law stands at present, the Committee accepts that it is unlikely that any ECHR considerations would arise in relation to the deliberations of the Commission though the Commission would have to comply with the ordinary rules of administrative law.
  7. At its meeting on 4th April, Mr Paterson, responding to questions from the Committee stated that the Commission would be expected to draw up broad rules for hearings. In section 16, subsections (2) to (9) set out the fundamental rules that would apply to hearings of the Commission and subsection (1) allows for a degree of flexibility. The Executive feels that it would not be appropriate for the Commission to draw up detailed rules seeking to provide for every possible circumstance.
  8. Whilst appreciating that the Commission may not hear a great volume of disciplinary cases, the Committee remains of the view that, in fairness to anyone brought before a hearing, it would be better that the Executive put procedural rules in place. Ms Sharp stated that the Executive would further consider the Committee’s views. The Committee therefore draws the attention of the lead committee to this provision and the undertaking of the Executive further to consider the views of the Committee.
  9. Section 20: Special Provision for the Water Industry Commissioner

  10. This section makes provision for a code of conduct for the Water Industry’s Commissioner similar to that proposed in the Bill for members of public bodies. The members’ model code will be applicable and the powers relating to the making of regulations regarding the registers of councillors’ and members interests will also apply. The use of delegated powers and the procedures selected by the Executive seem appropriate for the reasons given by the Executive. The Committee therefore approves the delegation of powers and the procedure chosen as appropriate.
  11. Section 22: Definitions

  12. Schedule 3 lists the devolved public bodies subject to the Bill. Section 22(2) allows Ministers to modify that schedule by Order adding or deleting bodies to and from the list. Subsection (3) goes on to provide that an Order under subsection (2) may contain such provisions as appear to the Ministers to be necessary or expedient in connection with the addition or deletion of bodies to or from the list. This may include provisions modifying the application of the Bill or any other enactment to the body to which the Order relates.
  13. The Executive explains that amendment of the list may be necessary from time to time for obvious reasons. The power is to be exercised by statutory instrument subject to negative procedure.

  14. The Committee felt that this power is very wide and asked for further justification of the power and of the negative procedure chosen. In its response, the Executive states that an order can only make amendments to legislation if they appear necessary or expedient in connection with the exercise of the power conferred by section 22(2). The Executive acknowledges that the power conferred by section 22(3) of the Bill is potentially wide but envisages that, in practice, the amendments made under section 22(3) will be minor and insignificant. Negative procedure would, therefore, be appropriate.
  15. It nevertheless remains the Committee’s view that, in this instance, affirmative procedure is to be preferred because of the potentially wide scope of the power, acknowledged by the Executive. The Committee therefore draws the attention of the lead committee to this provision, and to the use of negative procedure as envisaged by the Executive.
  16. Section 23: Effect of the Act on existing members of devolved public bodies

  17. This power enables Ministers, where necessary or expedient, to modify enactments or instruments regulating the conduct of members of a devolved public body to make that enactment or instrument consistent with the Bill and the members’ code. The power extends to both primary and secondary legislation and is to be exercised by statutory instrument subject to affirmative procedure.
  18. The Executive explains in its memorandum that, in its view, the power is necessary because to carry out the necessary review of all relevant legislation to identify and modify provisions relating to the conduct of the members of different devolved public bodies would considerably lengthen the preparation of primary legislation.
  19. In the Committee’s view, it is usually a pre-condition of preparing any primary legislation that there should be a review of the existing law. The Committee therefore asked the Executive why none of the relevant primary legislation has been identified and modified in the Bill and for further justification of the use of the powers in this instance. The Committee also observed that proposals under this section also extend not only to modifications of legislation in consequence of the Bill but also in consequence of the members’ code. The Committee asked to which members’ code the provisions in subsection (2) and (3) relate – the code under section 2 or the code under section 3.
  20. Section 23(1) concerns provisions in any enactment or instrument that regulate the conduct of members of devolved bodies at the date of the Bill coming into force. Section 23(3) confers a power to amend such provisions so as to make them consistent with the Bill. The Executive, in its response, explains that the power is to an extent transitory in nature allowing the Scottish Ministers to disapply rules of conduct which presently apply to existing members of devolved public bodies and instead to apply the scheme under the Bill.
  21. The Executive further explains that officials have not yet had time for a comprehensive review of existing legislation and will give consideration to the possibility of making all amendments to primary legislation which are identified as necessary by way of amendment to the Bill. The Executive explains that the members’ code referred to is the code as defined in sections 3(5) and (6) and not the model code referred to in section 2(1).
  22. The Committee has some sympathy with the Executive in terms of the workload implied in identifying all the relevant primary legislation and providing for appropriate modifications in the Bill and welcomes the intention to make as many amendments that can be identified as necessary by way of amendment to the Bill. The Committee appreciates the explanations offered by the Executive as frank and understandable.
  23. There remains however in the view of the Commitee a slight ambiguity in the section as a whole. Subsection (1) states that whenever a members’ code is made, any provision in any other enactment that makes similar provision or is inconsistent with the code or would, apart from the section, continue to regulate the conduct of the member of the relevant devolved public body would "thereupon" cease to have effect. This seems to suggest that no further legislation is necessary. Subsection (3) however empowers Ministers by order to make modifications to existing legislation.
  24. On the one hand, an affirmative instrument will be needed to make modifications to primary legislation. On the other hand, subsection (1) appears to suggest that any inconsistent legislation will cease to have effect as soon as the members’ code is promulgated.
  25. The Committee had difficulty in seeing what effect modifying an enactment can have in relation to a body if it has, by virtue of the Bill, ceased to have effect in relation to that body. Sub-section (3) relates back to subsection (1)(a) and both subsections relate to enactments that regulate the conduct of existing members of devolved bodies. The Committee appreciated the need to amend existing legislation to take account of the Act but if the provision has already ceased to have effect wondered what was left to modify. It may be that the use of the word modify should be reconsidered. The Executive wrote further on the points raised but the Committee had insufficient time to consider their response. The Committee therefore draws the attention of the lead committee to its reservations about this section as a result of the apparent internal inconsistency.
  26. Section 28: Commencement etc.

  27. This is a normal commencement provision, allowing for the making of transitional and saving provisions and also for different commencement dates for different sections. The Committee approves the provision as unexceptionable.

 

 

MEMORANDUM TO SUBORDINATE LEGISLATION COMMITTEE BY THE SCOTTISH EXECUTIVE

ETHICAL STANDARDS IN PUBLIC LIFE ETC (SCOTLAND) BILL: PROVISIONS CONFERRING POWER TO MAKE SUBORDINATE LEGISLATION

Purpose

  1. This Memorandum has been prepared by the Scottish Executive to assist consideration by the Subordinate Legislation Committee, in accordance with Rule 9.6.2 of the Parliament’s Standing Orders, of provisions in the Ethical Standards in Public Life etc (Scotland) Bill conferring power to make subordinate legislation. It describes the purpose of each such provision, explains why the matter is to be left to subordinate legislation and the reasons for seeking the proposed powers.
  2. Outline and scope of the Bill

  3. The objectives of this Bill are to introduce a statutory framework for ethical standards in Scottish public life; to repeal section 2A of the Local Government Act 1986 and to make provision as to how councils are to exercise functions which relate principally to children. As part of the framework for ethical standards the Bill will provide for the introduction of new codes of conduct for local authority councillors and members of relevant public bodies; impose on councils and relevant public bodies a duty to help their members to comply with the relevant code; and establish a Standards Commission for Scotland to oversee the new framework and deal with alleged breaches of the code.
  4. Delegated Powers

  5. The Bill has 10 sections which contain powers to make subordinate legislation (including commencement powers). Certain of the powers delegated by the Bill are of a technical and procedural nature. It is for this reason that it was felt appropriate that these be dealt with by subordinate legislation which is subject to parliamentary procedure. The exceptions are the powers referred to in sections 1 and 2 and sections 6(2), 22 and 23 of the Bill. Section 1 and 2 deal with the issuing of Codes of Conduct which are considered to be sufficiently important to merit approval by resolution of the Scottish Parliament. Sections 6(2), 22 and 23 provide less significant powers which are subject to negative resolution procedure.
  6. Section 1 Code of conduct for councillors

    Power conferred on: The Scottish Ministers

    Power exercisable by: Issuing (revising or re-issuing) the Councillors’ code

    Parliamentary procedure: Approval by resolution of the Scottish Parliament

  7. Section 1 requires the Scottish Ministers to issue a code of conduct for councillors, to be known as the "councillors’ code". The code will set out the principles and rules for councillors’ conduct; it will also set out rules for the registration and declaration of councillors’ interests and their eligibility to vote on council business affecting those interests. Ministers will be able to invite representatives of local government to prepare a suggested draft. The code must be approved by resolution of the Scottish Parliament before it is issued.
  8. It is considered that the councillors’ code will be a fairly detailed document which will be subject to revision as experience of its application develops. In light of the level of detail involved and the practical value of being able to amend the code without the need for primary legislation, the Executive considers that the code is most appropriately dealt with by secondary legislation. Nevertheless, in view of the importance of the rules and principles which the code establishes, the Executive recognises that the code should be subject to Parliamentary procedure. In recognition of the importance of the code, it will require to be approved by resolution of the Scottish Parliament before being issued.
  9. Ministers will be able to revise or re-issue the code, and to invite representatives of local government to assist with this. For the reasons previously noted, any revised or re-issued code will be subject to approval by resolution of the Scottish Parliament before it is issued.
  10. Section 2 Model code of conduct for members of devolved public bodies

    Power conferred on: The Scottish Ministers

    Power exercisable by: Issuing (revising or re-issuing) members’ model code

    Parliamentary procedure: Approval by resolution of the Scottish Parliament

  11. Section 2 requires Scottish Ministers to issue a model code, to be known as the "members’ model code" for members of relevant devolved public bodies (listed in schedule 3). Unlike the councillors’ code, the members’ model code does not have direct effect but provides a model to be adapted to the individual circumstances of different NDPBs.
  12. The code will set out the principles and rules for members’ conduct and will also set out rules on the treatment of members’ interests. The model code must be approved by the Scottish Parliament before it is issued. Ministers will be able to revise or re-issue the code. Any revised or re-issued code would also need to be approved by resolution of the Scottish Parliament before it is issued.
  13. As in the case of the councillors’ code, this power has been taken to allow for amendments and revisions to be made to the code without the need for primary legislation. Nevertheless, the procedure adopted recognises the importance of the code.
  14. Section 3 Codes of conduct for members of devolved public bodies

    Power conferred on: The Scottish Ministers

    Power exercisable by: Approval, with or without modification, of a draft members’ code for a devolved public body;

    Substitution of Ministers’ own code for a draft members’ code submitted by a devolved public body;

    Devising a members’ code for a devolved public body which has failed to submit a draft members’ code.

    Parliamentary procedure: None

  15. Section 3 requires each devolved public body (as listed in schedule 3) to draw up a draft members’ code for its own members and to submit it to the Scottish Ministers within three months of the first issue of the members’ model code [see section 2]. Each draft members’ code will incorporate those provisions of the model code which are mandatory for that body, and may also include optional provisions from the model code and/or other provisions that are consistent with it. Ministers may approve a draft members’ code, with or without modification, or may substitute a code of their devising. If a body fails to submit a draft code within the due time Ministers may devise a code themselves. If Ministers approve, substitute or devise a draft members’ code, they must do so having regard to the members’ model code.
  16. Once a code has been approved, substituted or devised it is referred to as a "members’ code". The members’ code will come into effect on a date fixed by Ministers.
  17. This power allows a members’ code for each devolved public body to be prepared following the issue of the members’ model code. It also allows Ministers to bring members’ codes into effect. The provisions of the draft members’ codes are governed by the terms of the members model code which, itself, is subject to Parliamentary approval. Further, Schedule 3 lists over 30 different types of devolved public body which will be required to prepare a draft members’ code. In consequence, it would serve no useful purpose and be impractical for approval of each draft members’ code to be subject to Parliamentary scrutiny. Given the specific nature and application of individual members’ codes, the Executive does not consider that formal publication is necessary or desirable.
  18. Section 4 Revisal etc of members’ codes

    Power conferred on: The Scottish Ministers

    Power exercisable by: Revisal or re-issue of a members’ code

    Parliamentary procedure: None

  19. This section provides for the revisal of members’ codes. A public body may submit or be required by Scottish Ministers to submit, within such time as they direct, a draft revisal or re-issue of the members’ code. Ministers may approve the revisal or re-issue, with or without modification; or substitute a revisal or re-issue of their own devising; or revise or re-issue the members’ code themselves if the body has failed to submit its revisal or re-issue as required by Ministers. Any revisal or re-issue of a members’ code shall come into effect on a date fixed by Ministers.
  20. This power allows a members’ code for each devolved public body to be revised or re-issued subject to the approval of Ministers. Revisals or re-issuing may be made following revisal of the members’ model code, or at any other time. Provision is also made to allow Ministers to specify when revised or re-issued members’ codes will come into effect.
  21. As in the case of approval of the members’ code, it would serve no useful purpose and be impractical for revisal or re-issuing of each members’ code to be subject to Parliamentary scrutiny. Given the specific nature and application of individual members’ codes, revisals and re-issues, the Executive does not consider that formal publication is necessary or desirable.
  22. Section 6(2) Register of interests

    Power conferred on: The Scottish Ministers

    Power exercisable by: Statutory instrument

    Parliamentary procedure: Negative resolution of Scottish Parliament

  23. Each council and devolved public body will be required to establish, maintain and make available, a public register of its members’ interests. The Standards Commission may issue guidance about registers of interests and Ministers may also issue regulations on this matter. Councils and public bodies must exercise their duty under this section in line with any such guidance and regulations.
  24. This power allows Ministers to make regulations by statutory instrument to provide detailed rules to councils and devolved public bodies as to the carrying out of their functions relating to the establishment, maintenance and public availability for inspection of registers of interests under section 6(1). Such regulations will also govern the establishment, maintenance and public availability for inspection of the Water Industry Commissioner’s register [see section 20].
  25. The Executive considers that subordinate legislation is appropriate in this context as the rules to be established will be detailed in nature and closely governed by the primary provision. Given the nature of the power delegated, the Executive considers that negative resolution procedure will provide adequate Parliamentary control.
  26. Section 16(1) Hearings before the Commission

    Power conferred on: The Standards Commission for Scotland

    Power exercisable by: Establishing general rules of procedure at hearings of the Standards Commission

    Parliamentary procedure: none

  27. Section 16 makes provision as to the procedure to be followed at hearings held by the Commission. Subsections (2) to (9) provide specific procedural requirements with which the Commission must comply. Insofar as the procedure at a hearing of the Commission is not so governed, section 16(1) provides the Commission with power to determine its own procedure.
  28. This power provides for the Commission to establish proceedings at hearings that are appropriate to the circumstances of the generality of hearings and to the individual circumstances of specific cases. Without the delegation of such a power, the Commission would require long and detailed rules of procedure, failing which it would be unable to function effectively.
  29. Section 20 Special Provision for the Water Industry Commissioner

    Power conferred on: The Scottish Ministers

    Power exercisable by: Issue, revise or re-issue a code of conduct for the

    Water Industry Commissioner

    Parliamentary procedure: None

  30. This section requires Scottish Ministers to issue a code of conduct for the Water Industry’s Commissioner. In doing so Ministers are required to have regard to the members’ model code (section 2). This section also provides for Ministers to revise or re-issue the Water Industry Commissioner’s code.
  31. The provisions of the Water Industry Commissioner’s code will be detailed and drawn up having regard to the terms of the members’ model code which, itself, is subject to Parliamentary approval. The same considerations apply in relation to the Water Industry Commissioner’s code as in relation to the members’ codes. Given the specific nature and application of the Water Industry Commissioner’s code, the Executive does not consider that formal publication is necessary or desirable.
  32. Section 22 Definitions

    Power conferred on: The Scottish Ministers

    Power exercisable by: Statutory Instrument

    Parliamentary procedure: Negative resolution of the Scottish Parliament

  33. This section provides for Ministers to modify Schedule 3 to the Bill by adding to the bodies listed there or by deleting the entry relating to any body. In connection with this, Ministers may vary the application of this Act or any other enactment to the body to which the amendment relates.
  34. This power allows Ministers to amend the list of devolved public bodies that are subject to the Bill. This may be necessary if a body listed in Schedule 3 ceased to exist, or to add newly created bodies to the list. Amendment of Schedule 3 may require to be undertaken on a fairly frequent basis and it is therefore appropriate that this be done by subordinate legislation.
  35. Section 23 Effect of this Act on existing members of devolved public bodies

    Power conferred on: The Scottish Ministers

    Power exercisable by: Statutory Instrument

    Parliamentary procedure: Affirmative resolution of the Scottish Parliament

  36. Subsection (3) provides that Ministers may, where necessary or expedient, modify enactments or instruments which regulate the conduct of members of a devolved public body in order to make that enactment or instrument consistent with the Bill and the members’ code.
  37. The power allows Ministers to amend previous legislation (primary and secondary) regulating the conduct of members of public bodies to ensure consistency with the Bill.
  38. To carry out the necessary review of all relevant legislation to identify and modify provisions relating to the conduct of the members of different devolved public bodies would considerably lengthen the preparation of primary legislation. Parliamentary control is ensured by requiring affirmative resolution procedure in relation to an order under this section.
  39. Section 28 Citation, commencement and transitional provision

    Power conferred on: The Scottish Ministers

    Power exercisable by: Statutory Instrument

    Parliamentary procedure: None

  40. This section provides that Scottish Ministers will fix the day or days on which most of the provisions of the Bill will come into force, and that an order under this section may include such transitional and savings provisions as are considered necessary or expedient.
  41. In accordance with normal practice, no parliamentary procedure is provided for this provision.

 

The Scottish Executive
Development Department
March 2000

 

Appendix B

THE ETHICAL STANDARDS IN PUBLIC LIFE ETC (SCOTLAND) BILL

I refer to your letter of 23 March to the Parliamentary Clerk in which you raise a number of issues relating to the Ethical Standards in Public Life etc (Scotland) Bill.

Sections 1 and 2 (Codes of conduct)

In relation to sections 1 and 2, the Executive agrees with the Committee that in view of Rule 14.1.4 of Standing Orders, it is not necessary to make specific provision within the Bill for the councillors' code or the members' model code to be laid before the Parliament. The Executive therefore takes the view that the Bill as drafted is sufficient. However, the Executive recognises that, for the purposes of clarity, it would be desirable to make specific provision as to laying. Accordingly, the Executive will bring forward amendments to that effect.

Section 7 (Standards Commission for Scotland)

In relation to section 7 of the Bill, the Executive notes the Committee’s comments and accepts in principle that there should be greater scrutiny by Parliament of the direction making power. However, the Executive would wish to give further consideration to whether all the sorts of additional duties which it might from time to time conceivably wish the Commission to carry out (perhaps sometime on an ad hoc basis) can readily and sensibly be conferred only by statutory instrument.

Section 16 (Hearings before Commission)

In relation to the power conferred by section 16(1) of the Bill, the Executive considers that rules of procedure which make provision in advance for all possible contingencies would be difficult to draft and would require to be long and detailed. Furthermore, circumstances might yet arise for which such procedural rules would not provide. The provision in section 16(1) is designed to provide necessary flexibility to the Standards Commission in determining its rules of procedure.

There is precedent for provision of the type made in section 6(1) of the Bill in relation to other statutory bodies which require to hold hearings. For example, the Accounts Commission, which presently has similar functions, has power to hold hearings under section 103 of the Local Government (Scotland) Act 1973. Except insofar as specific provision is made as to procedure in that section and Schedule 8 paragraph 4 to the 1973 Act, Schedule 8 paragraph 4(4) provides that the Accounts Commission shall have power to regulate their own procedure.

Section 22 (Definitions)

Amendments may only be made by an order under section 22(3) if they appear to be necessary or expedient in connection with the exercise of the power under section 22(2). Whilst the power conferred by section 22(3) of the Bill is potentially wide, in practice, the Executive envisages that the amendments made under section 22(3) will be minor and insignificant.

Section 23 (Effect of Act on existing members of devolved public bodies)

Section 23(1) concerns provisions in any enactment or instrument which regulate the conduct of members of devolved public bodies at the date of the proposed Act coming into force . Section 23(3) confers a power to amend such provisions so as to make them consistent with the Act. It is a power which is to some extent transitory in nature, allowing the Scottish Ministers to dis-apply rules of conduct which presently apply to existing members of devolved public bodies and instead to apply the scheme under the Bill.

Officials’ time has not as yet allowed for a comprehensive review of existing legislation. Potentially, a number of such amendments will require to be made and it is therefore necessary to have a wide ranging power. The Executive will give consideration to the possibility of making all amendments to primary legislation which are identified as necessary by way of amendment to the Bill.

The "members’ code" referred to in section 23(3) of the Bill is the "members’ code" as defined in sections 3(5) and (6), and not the "members’ model code" referred to in section 2(1).

I hope that this reply is helpful to the Committee.

Date: 30 March 2000
TRUDI SHARP

for Scottish Executive
  

 
 
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