Fifth Standing Committee on Delegated Legislation
Thursday 24 June 2004
[Mr. Peter Pike in the Chair]
Draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2004
2.30 pm
The Parliamentary Under-Secretary of State for Scotland (Mrs. Anne McGuire): I beg to move,
That the Committee has considered the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2004.
The Chairman: With this it will be convenient to consider the draft Scottish Public Services Ombudsman Act 2002 (Consequential Provisions and Modifications) Order 2004 and the draft Water Industry (Scotland) Act 2002 (Consequential Modifications) Order 2004.
Mrs. McGuire: I am delighted, Mr. Pike, that you will chair our proceedings, which I hope will be swift. I am also delighted that the hon. Member for Bridgwater (Mr. Liddell-Grainger) is the Opposition spokesman today in the absence of the one official Opposition Member who represents a Scottish constituency. I have just found out that the hon. Member for Bridgwater owns considerably more of Scotland than I do.
As is usual with Scotland Act orders, we have batched several together to maximise the efficient use of the Committee's time. The orders are technical, as hon. Members will gather from the titles. The first is made under section 63 of the Scotland Act. The other two are made under section 104 of that Act. Hon. Members will doubtless be grateful for an explanation of their subject matter and how they accord with the settlement as outlined in the Act.
The order has been made under powers provided by sections 30(3) and 63. I remind hon. Members of the content and scope of those powers. Section 63 allows functions, so far as they are exercisable in or as regards Scotland, to be exercisable by the Scottish Ministers instead of, concurrently with or in consultation with a Minister of the Crown. It allows functions to be carried out by a Minister of the Crown with the agreement of, or after consulting, Scottish Ministers. This is a process known as executive devolution. It should be noted, however, that executive, not legislative, competence is transferred under this process. In other words, the legislative competence is not varied where Scottish Ministers are given the power to carry out the function.
Orders made under section 63 are also considered by the Scottish Parliament. This order was considered and agreed by the Scottish Parliament's Communities Committee on 9 June. Section 30(3) provides that the
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instrument may specify functions that are to be treated as functions exercisable in or as regards Scotland. This power, which is referred to as a paving provision, can therefore be used to assist a transfer of functions to the Scottish Ministers by specifying the extent to which the functions are to be treated as exercisable in or as regards Scotland.
The order executively devolves functions in two distinct areas. The first relates to the approval of a co-operative housing association, whose registered office is in Scotland, in connection with its claim for tax relief under section 488 of the Income and Corporation Taxes Act 1988. Secondly, Scottish Ministers are given concurrent powers to make regulations for Scotland under sections 4 and 6 of the Fireworks Act 2003. I shall further set out the content of those two parts of the order, although there is more detail in the explanatory memorandum, copies of which are available in the Room and the Vote Office.
Section 488 of the 1988 Act provides that a co-operative housing association that meets the criteria set down in the Act can make a claim to the Inland Revenue for certain tax reliefs and exemptions. In Scotland, a Minister of the Crown carries out the function of approving an association for the purposes of section 488. Before devolution, the Secretary of State delegated authority to officials in the former Scottish Office to confirm such approvals to housing co-operatives and their accountants. However, that function is not within the competence of Scottish Executive Ministers. The need for such approvals does not arise frequently in Scotland, but it is expedient and sensible for them to be issued by Scottish Ministers. Following devolution, the relevant expertise and resources lie with the Scottish Executive, and particularly Community Scotland, which some hon. Members may know better through its previous incarnation as Scottish Homes. The Government and the Scottish Executive therefore agreed that it was appropriate for the function of approving an association to be executively devolved.
The paving provision in the order means that the function transfers to Scottish Ministers only where the association's registered office is in Scotland. For the remainder of Great Britain, the function will continue to reside with UK Ministers. The order executively devolves the function of approving an association for the purposes of section 488 of the 1988 Act. Once approved, the association will need to make its claim to the Inland Revenue in the usual way. The order does not executively devolve the function of setting out the criteria against which a housing co-operative's eligibility is to be tested. That function will continue to be discharged by UK Ministers.
I turn to the second area covered by this section 63 order—the Fireworks Act. Hon. Members will recall that that is an enabling Act, which allows a Minister of the Crown to make regulations on a range of issues relating to fireworks. The order will allow functions that could concurrently be exercised by a Minister of the Crown to be discharged by Scottish Ministers.
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Section 4 of the Act provides for regulations to be made, including a provision prohibiting the supply, purchase, possession or use of fireworks during specified hours of the day or in specified circumstances. It also provides for exceptions or dispensations from such prohibitions to be made in the regulations.
Section 6 of the Act provides that fireworks regulations may include provision prohibiting the operation of public fireworks displays, unless specified conditions are complied with. Those include giving notice and other information, paying fees, the provision of training and prohibiting persons below a specified age from operating or assisting in the operation of displays. Section 6 also provides for exemptions from those conditions, and defines the term ''public fireworks display''.
The order enables the function of making such regulations to be exercisable by Scottish Ministers. It also confers on them certain powers under the Consumer Protection Act 1987. The Fireworks Act applied those powers to fireworks regulations in relation to offences and enforcement. As stated in the explanatory memorandum, those powers are executively devolved only in relation to sections 4 and 6 of that Act.
Mr. Alan Reid (Argyll and Bute) (LD): The Minister has explained that we are devolving powers only under sections 4 and 6. Why not devolve powers under the whole Act? Will it not lead to a bit of a muddle if only some powers are devolved? Why are others not being devolved?
Mrs. McGuire: If the hon. Gentleman followed closely the progress of the Fireworks Act through the House, and some debates in the Scottish Parliament, he will appreciate that the Act covers a mixture of devolved and reserved matters. In agreement with the Scottish Executive, it was decided that responsibilities under sections 4 and 6 should be transferred to Scottish Ministers. However, I may return to the issue in my winding-up speech, if the hon. Gentleman wants further information.
I turn to the two orders being made in respect of section 104 of the Scotland Act. Section 104 allows for orders considered necessary or expedient in consequence of any provision in an Act of the Scottish Parliament. Such orders are therefore usually concerned with amending the law of England and Wales, and, in some cases, of Northern Ireland, or with modifying areas of law that have been reserved to the UK Parliament in consequence of an Act of the Scottish Parliament. By definition, therefore, it would be outside the competence of the Scottish Parliament to legislate in such areas. As a result, section 104 orders are considered only at Westminster. In this case, the Scotland Act requires the orders to be subject to affirmative resolution, as they amend primary legislation.
The first order is a consequence of the Scottish Public Services Ombudsman Act 2002. That Act of the Scottish Parliament was designed to streamline and improve the public sector complaints system in
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Scotland. It transferred to the Scottish public services ombudsman powers previously exercised by the health service commissioner for Scotland, the commissioner for local administration in Scotland and the Scottish Parliamentary Commissioner for Administration.
A number of articles in the order remove references to those commissioners abolished by the 2002 Act and replace them with references to the ombudsman where necessary. Furthermore, the 2002 Act provides for the ombudsman to co-operate with ombudsmen and commissioners operating elsewhere in the UK in the areas relevant to those office holders' interests. Thus, the draft order makes reciprocal arrangements with other commissioners and ombudsmen.
The order also makes provision in respect of the Government. The 2002 Act provides that no person is, or may be, required to supply the ombudsman information relevant to, or answer questions relating to, the proceedings of the Scottish Cabinet. The draft order makes similar provisions in relation to the UK Cabinet. While it is difficult to envisage a scenario in which the ombudsman might wish to have sight of UK Cabinet papers, the Government and the Executive are of the view that statutory protection should be in place.
I would like to add that that is not a new policy proposal. The statutory frameworks that supported the former Scottish Parliamentary Commissioner and health service commissioner contained similar provision. Precedent therefore exists for recognising that circumstances might arise whereby either of those officers' work could require access to UK Cabinet papers in pursuance of their functions. The responsibilities of both those office holders have transferred to the SPSO. Although it is anticipated that, in practice, the SPSO will very rarely have cause to seek sight of UK Cabinet papers, it is sensible that such material should benefit from the protection given by previous ombudsman-related legislation.
Furthermore, the 2002 Act provides that a member of the Scottish Executive may give notice in writing to the SPSO that documents and information of which the ombudsman has sought disclosure should not be disclosed, since to do so would be contrary to the public interest. The draft order makes similar provision in relation to Ministers of the Crown. The order therefore addresses issues where the framework provided by the 2002 Act has a read-across to matters outwith the legislative competence of the Scottish Parliament.
Hon. Members may be delighted to know that I shall now deal with the last order before us today, which is made under section 104 of the Scotland Act, in consequence of the Water Industry (Scotland) Act 2002. The main purpose of that Act was to provide for the establishment of Scottish Water as a successor to the three water and sewage authorities in Scotland. The effect of the order is to remove any references to predecessor water and sewage authorities in the enactment and subordinate legislation and to put references to Scottish Water in their place.
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It would be outwith the competence of the Scottish Parliament to make the vast majority of modifications needed under the draft order. Thus, the order is an exercise in ensuring that the new devolved body is appropriately represented in the statute book. It also makes amendments to reflect the creation of the water customer consultation panels by the 2002 Act.
Eagle-eyed hon. Members will have noticed in paragraph 5 of the explanatory memorandum that the draft order includes two modifications. Those are to the Transport Acts of 1962 and 1968. It would be in the legislative competence of the Scottish Parliament to make those amendments. It is not our usual practice to include any modification in respect of orders made under section 104 to matters within the competence of the Scottish Parliament. However, those two modifications have been included because there is no other suitable vehicle before the Scottish Parliament in which they could be included and because we wish the statute book to be as tidy as possible to assist the user. I hope that hon. Members agree that that is an example of sensible and pragmatic partnership between the Government and the Scottish Executive.
In conclusion, the orders are textbook uses of the powers under sections 63 and 104 of the Scotland Act, and I commend them to the Committee.
2.45 pm
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