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SP 489

SL/S2/06/R2

2nd Report, 2006 (Session 2)

Remit and membership

Remit:

1. The remit of the Subordinate Legislation Committee is to consider and report on-

(a) any-

(i) subordinate legislation laid before the Parliament;

(ii) 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:

Dr Sylvia Jackson (Convener)
Mr Adam Ingram
Gordon Jackson (Deputy Convener)
Mr Kenneth Macintosh
Mr Stewart Maxwell
Murray Tosh

Committee Clerking Team:

Clerk to the Committee
Ruth Cooper

Senior Assistant Clerk
David McLaren

Assistant Clerk
Jake Thomas

Support Manager
Catherine Fergusson

Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill
as amended at Stage 2

The Committee reports to the Parliament as follows—

Introduction

1. At its meeting on 17 January 2006, the Committee considered the inserted or substantially amended delegated powers provisions in the Joint Inspection of Children’s Services and Inspection of Social Work Services (Scotland) Bill as amended at stage 2.  The Committee reports to the Parliament on such provisions under Rule 9.7.9 of Standing Orders.

2. Under Rule 9.7.10, the Executive provided a supplementary delegated powers memorandum (“DPM”) to the Committee, which is published at Annex A to this report.

Delegated powers

3. The Committee considered and is content with the amendments made as set out in the DPM.  The Committee, in particular, welcomed the Executive’s responses to its concerns in relation to the provisions at section 3(1), 5(3) and section 7.

4. The Committee had also expressed concern that the Bill did not include provision for consequential or transitional arrangements as a result of repeals under section 8. The Committee notes that, while the Executive was content that it does not need to provide for transitional arrangements, it has brought forward an amendment which allows for further supplementary, incidental or consequential provision. The Committee is also content with this response.

ANNEX A

supplementary memorandum on delegated powers

LICENSING (SCOTLAND) BILL

Provisions Conferring Power to Make Subordinate Legislation

Purpose

This Memorandum has been prepared by the Scottish Executive to assist the Subordinate Legislation Committee in its consideration, of the Joint Inspection of Children’s Services and Inspection of Social Work Services (Scotland) Bill.  Stage 2 of the Bill was on 21st December 2005 when a number of amendments were made.  This Memorandum describes provisions in the Bill conferring power to make subordinate legislation which were either introduced to the Bill or amended at Stage 2.  The Memorandum supplements the Executive’s Memorandum to the Subordinate Legislation Committee on the Bill as introduced.  Reference may also be made to the correspondence from the Committee to the Executive dated 8th and 15th November 2005 and the Scottish Executive’s responses dated 11th November and 1st December 2005.

Background to the Bill

Part 1 of the Bill makes provision to enable inspection of children’s services jointly by any two or more persons or bodies listed in section 1(6) of the Bill or directed to participate under section 2(1).

Part 2 of the Bill makes provision to enable inspection of social work services.

Part 3 of the Bill makes provision in relation to regulations and orders made under the Bill, interpretation and other general matters.

A fuller description of the background to the Bill and the policy considerations is given in paragraphs 2 to 10 of the Memorandum on the Bill as introduced.

Provisions conferring power to make subordinate legislation introduced or amended at Stage 2

Part 1 – Children’s Services; and Part 2 – Social Work Services

Section 3(1) - power to make regulations for the purpose of a joint inspection

Section 5(3) – power to make regulations for the exercise of functions under section 5(1) of the Bill

Power conferred on:         the Scottish Ministers
Power exercisable by:      regulations made by statutory instrument
Parliamentary procedure:draft regulations to be laid and approved by affirmative resolution of the Scottish Parliament.

Following correspondence with the Committee the Executive undertook to introduce amendments at Stage 2 to specify on the face of the Bill the maximum possible penalty applicable to an offence created under regulations made under section 3(1) or 5(3). 

The Bill was duly amended at stage 2 so that section 3(1)(f) and 5(3)(g) now provide that only offences punishable on summary conviction by a fine not exceeding level 4 on the standard scale may be created in the regulations made under these sections.

Part 3 – General

Section 7 – Interpretation

Section 7 of the Bill as introduced defined “social work services functions” as such functions of a local authority as are prescribed by regulations.

In correspondence with the Executive the Committee expressed its concern that this provision had been left to subordinate legislation.  In response, the Executive undertook to bring forward an amendment at Stage 2 to include the definition on the face of the Bill.

The Bill was duly amended at stage 2 and the definition of social work services functions is now stated to be the functions under the enactments specified in section 7(2).

Section 7(3) – power to amend list of enactments in section 7(2)

Power conferred on:         the Scottish Ministers
Power exercisable by:      regulations made by statutory instrument
Parliamentary procedure:draft regulations to be laid and approved by affirmative resolution of the Scottish Parliament

As indicated in correspondence with the Committee the amendment at Stage 2 putting the definition of social work services functions on the face of the Bill also included a power to amend the list of enactments by subordinate legislation. 

Reason for taking power

It is considered that the statutory basis for relevant local authority functions will develop in the future and this power will allow the definition of “social work services functions” to be kept in line with such developments.  This will ensure that the coverage of Part 2 inspections can be readily kept in line with developments in the social work services field.

Reason for choice of procedure

It is considered that since amendment of the list of enactments in section 7(2) will involve amendment of primary legislation the power should be subject to affirmative resolution procedure.

New Section 8A – Ancillary Provision

Power conferred on:         The Scottish Ministers
Power exercisable by:      order made by statutory instrument
Parliamentary procedure:negative resolution of the Scottish Parliament except where the order adds to, replaces or omits any part of the text of an Act in which case draft order to be laid and approved by affirmative resolution of the Scottish Parliament.

In correspondence with the Executive, the Committee queried the lack of provision for transitional and consequential provision to be made by subordinate legislation.

The Executive considered this further and concluded that there was no need for a power to make transitional provision but that it may be necessary to make further supplementary, incidental or consequential provision.

The Bill was therefore amended at stage 2 to include a power to make such provision by subordinate legislation.

Reason for taking power

This power allows the Scottish Ministers to make provision for purely ancillary matters which may arise following the enactment of the Bill without having to have recourse to primary legislation.  The scope of the power is restricted in two respects.  Firstly, it can only be used to make provisions which are incidental, supplemental or consequential. In addition those provisions must be for the purposes of, in consequence of or for giving fuller effect to the existing provisions of the Bill.

The Bill contains in section 8 some consequential amendments and repeals which have been identified as necessary.  Since introduction two further consequential amendments have been identified and these were included in the Bill by amendment at Stage 2.   It is considered that there may be further such amendments and the inclusion of this new provision will allow these to be made without having to have recourse to primary legislation.

Reason for choice of procedure

It is considered that given the inherent limits on the scope of the power negative resolution procedure is appropriate for orders which do not alter the text of primary legislation.  Affirmative procedure is considered appropriate where the provision is altering primary legislation.

Section 6 – regulations and orders

This section makes provision in relation to regulations and orders made under the Bill.  It was amended at stage 2 to take account of the amendments to the Bill which provide in relation to order and regulation making powers.

The amendments to section 6 are as follows:-

  • Section 6(3) is amended to provided that all orders under the Bill are subject to negative resolution procedure.  The exception is orders made under the new ancillary provision which add to, replace or omit any part of the text of an Act.

  • Section 6(4) is amended to provide that all regulations and ancillary provision orders which add to, replace or omit any part of the text of an Act are subject to draft affirmative procedure.