Back to the Scottish Parliament Subordinate Legislation Committee Report
Archive Home

Business Bulletin 1999-2011

Minutes of Proceedings 1999-2011

Journal of Parliamentary Proceedings Sessions 1 & 2

Committees Sessions 1, 2 & 3

Annual reports

SP Paper 539 Web Only

SL/S3/10/R66

66th Report, 2010 (Session 3)

Certification of Death (Scotland) Bill

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

(iii) Pension or grants motion as described in Rule 8.11A.1

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:

Bob Doris
Helen Eadie
Rhoda Grant
Alex Johnstone
Ian McKee (Deputy Convener)
Elaine Smith
Jamie Stone (Convener)

Committee Clerking Team:

Clerk to the Committee
Irene Fleming

Assistant Clerk
Jake Thomas

Support Manager
Lori Gray

Certification of Death (Scotland) Bill

The Committee reports to the Parliament as follows—

introduction

1. At its meetings on 23 November and 7 December 2010, the Subordinate Legislation Committee considered the delegated powers provisions in the Certification of Death (Scotland) Bill at Stage 1. The Committee submits this report to the Health and Sport Committee as the lead committee for the Bill under Rule 9.6.2 of Standing Orders.

overview of the bill

2. The Certification of Death (Scotland) Bill (“the Bill”) was introduced in the Parliament on 7 October 2010 by the Cabinet Secretary for Health and Wellbeing, Nicola Sturgeon MSP.

3. The Scottish Government provided the Parliament with a memorandum on the delegated powers provisions in the Bill (“the DPM”).1

4. Correspondence between the Committee and the Scottish Government is reproduced in the Annexe.

5. The Committee determined that it did not need to draw the attention of the Parliament to the delegated powers in sections: 2 (Power of Scottish Ministers to give directions to the Registrar General), 4(5)(e), 4(8), 8(5), 17(4), 18(4), 22(3), 24, 25(1), 25(2), 27 and 31(3) and the power to be inserted in paragraph 7A of Schedule 5A to the National Health Service (Scotland) Act 1978 by paragraph 2 of schedule 1 to the Bill.

Delegated powers provisions

Section 2: Suspension of referral of certificates for review during emergencies

Power conferred on: Scottish Ministers

Power exercisable by: Order

Parliamentary procedure: Negative resolution

6. Section 2 inserts section 24A(7) into the 1965 Act. This allows the Scottish Ministers to suspend by order the referral to medical reviewers of medical certificates of cause of death during an epidemic, or when it is considered on reasonable grounds that it is necessary to do so to prevent (or to prevent the spread of) infectious diseases or contamination. Such orders can also make ancillary provisions, as necessary or expedient.

7. The DPM explains that it may be necessary to suspend the referral of the certificates to medical reviewers during an epidemic, or other situation where an infectious disease or contamination is spreading rapidly, if there are large numbers of deaths. This could place a significant burden on the registration system and doctors. In some circumstances funerals may need to take place straightaway to prevent the development of a danger to public health. This power is designed to allow these rare but extreme circumstances to be catered for.

8. On the choice of procedure, the DPM states that negative procedure has been chosen “as this power will be required in emergency situations where there is a serious risk to public health that has to be addressed urgently. Negative procedure will allow such an order to be brought into force almost immediately, whereas if the emergency took place at the beginning of a long parliamentary recess, it would be impossible for the order to be made quickly enough to deal with the situation using affirmative procedure.”

9. The Committee accepts that it may be necessary to suspend the operation of the proposed scheme for review of medical certificates for the reasons given in the DPM. It therefore accepts the need for this order-making power in principle. On the choice of procedure, the Committee notes that there is a specific form of affirmative procedure which is designed for emergencies. This would allow the instrument to be made and brought into force immediately, but for the order to remain in force beyond a specified period (whatever period the Parliament considers appropriate) it must be approved by resolution of the Parliament.

10. The choice of negative procedure here would mean that it would be likely that the “21 day rule” would be breached in every case, given the circumstances in which the power is to be used. The Committee does not consider it sensible to select a form of procedure which it is clear the Government would find it difficult to comply with in practice. It therefore suggested to the Government that emergency affirmative procedure would be more appropriate.

11. The Government’s reply indicates that it did not initially select emergency affirmative procedure since it thought that the intervention of a long period of recess would be problematic. However, the Committee notes that periods of recess need not count for the purposes of calculating the specified period. The Government has indicated that it intends to amend the power to adopt emergency affirmative procedure discounting periods of recess. The Committee is content with this.

Section 4(7): Suspension of applications under section 4 during emergencies

Power conferred on: the Scottish Ministers

Power exercisable by: Order

Parliamentary procedure: Negative resolution

12. Section 4(7) contains a power to suspend applications under section 4, just as section 24A(7) of the 1965 Act (added by section 2) contains a power to suspend the referral of certificates under that section. That is, during an epidemic or when it is necessary to do so to prevent the spread of infectious diseases or contamination.

13. The DPM explains that this power, and the choice of procedure, are taken for the same reasons as for the power taken under section 24A(7) of the 1965 Act (inserted by section 2).

14. The Committee considered that the same arguments against adoption of negative procedure applied here as are described in relation to section 2. The Government has agreed to amend the procedure for this power to emergency affirmative and the Committee is content with this approach for the reasons given above.

Section 23(3): Fees

Power conferred on: the Scottish Ministers

Power exercisable by: Regulations made by statutory instrument

Parliamentary procedure: Affirmative resolution

15. Section 23(3) permits the Scottish Ministers to make regulations about the charging of a fee (a) in respect of the review functions of medical reviewers and (b) for an application to cremate a person who has died outwith Scotland. The regulations can set out the amount of fees, arrangements for fee collection, including who will collect them for the Scottish Ministers, and the circumstances where there may be no fee.

16. Section 23(2) provides that the cost of medical reviewers is to be shared universally by a new separate fee payable in respect of every death registered (whether the cause of death is reviewed or not). The personal representatives of the deceased are liable to pay the fee which is to be treated as an administrative expense of the deceased’s estate.

17. By section 23(5), in setting the amount of fees, Ministers must have regard to the reasonable costs of the exercise of the functions in respect of which the fee is charged. They must consult such persons as they consider appropriate.

18. The Committee is content that a power to specify different fee levels over time is appropriate in principle, and that subordinate legislation is also appropriate for the specification of more detail on the collection arrangements.

19. However, the Committee queried whether draft affirmative procedure was the appropriate level of scrutiny for the setting of application fees, and arrangements for collection. Such arrangements would more usually be subject to negative resolution procedure. The DPM does not expand on why draft affirmative procedure rather than negative was adopted. The Committee therefore asked for clarification of this, particularly since the power cannot modify the basis of liability for the fee.

20. The Scottish Government responded that it had originally considered that the subject matter of the manner of collection of the fee could be rather sensitive. However it proposes to amend the Bill to apply negative procedure in light of the Committee’s comments. The Committee is content with this and notes that the principle that a new fee is to be payable in respect of the registration of every death, and liability for it, are both matters set out on the face of the Bill and therefore subject to full scrutiny by the Parliament.

ANNEXE

Correspondence with the Scottish Government

Section 2: Suspension of referral of certificates for review during emergencies

The Committee asks:

  • Q – Given that this power is designed for an emergency situation, why has it been considered appropriate to propose negative procedure in place of the “Class 3” emergency affirmative procedure?

The Scottish Government notes the Committee’s comment that the “Class 3” procedure could be used to bring an order into force immediately without breaching the 21 day rule, allowing it to remain in force for a sufficiently long period (including that of a long Parliamentary recess) before requiring approval.

Whilst the Scottish Government had considered the application of “Class 3” emergency procedure, it understood that it would be an unusual use of that procedure to allow an order to remain in force for longer than 28 to 40 days without being approved by the Scottish Parliament (indeed it is understood that orders using this procedure are often referred to as “28 day orders” because, in most cases, they stipulate a period of 28 days).

As the objective here was to ensure that an order could be made and come into force at any time without requiring Parliamentary approval, including during a long period of recess, the Scottish Government considered that Class 3 procedure might not be suitable as the order might have to be made at the beginning of the summer Parliamentary recess (it is noted, for example, that the most recent summer recess lasted 62 days).

However, it appears that the Committee would consider the use of Class 3 procedure appropriate in these circumstances and the Scottish Government therefore plans to amend subsection (9) of section 24A (as inserted by section 2 of the Bill) accordingly (discounting periods of recess from the period before approval).

Section 4(7): Suspension of applications under section 4 during emergencies

The Committee asks:

  • Q – Given that this power is designed for an emergency situation, why has it been considered appropriate to propose negative procedure in place of the “Class 3” emergency affirmative procedure?

For the same reasons as set out above in relation to section 2, the Scottish Government intends to amend the procedure applicable to the exercise of the power in section 4(7) from negative to “Class 3” emergency procedure.

Section 23(3): Fees

The Committee asks:

  • Q - Why has affirmative procedure been applied to the power to make regulations to set the amount of fees and prescribe arrangements for collection of those fees, rather than negative procedure?

The Scottish Government had considered that affirmative procedure might be appropriate here as there may be particular sensitivities for bereaved families regarding the manner in which the fee is to be collected (for example, one of the options is for registrars to collect the fee from the person seeking to register a death; but the Association of Registrars of Scotland has commented that the recently bereaved may find it difficult to take on board the necessary information relating to payment of the fee at the point of registration).

However, the Scottish Government notes the Committee’s comment that the prescription of fee levels and collection arrangements are more usually subject to negative procedure and in the light of this, it intends to amend section 28 of the Bill accordingly.


Footnotes: