House of Commons Amendments

Session 2015 - 16
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Other Bills before Parliament

Notices of Amendments: 19 June 2015
8

Scotland Bill, continued

Mr Alistair Carmichael

34

Clause  45,  page  47,  line  36,  at end add—

“( )
In Section C1 in Part 2 of Schedule 5 to the Scotland Act 1998 (Business

Associations) at the end of the exceptions insert—

““3(c)
the law on partnerships and unincorporated associations,

“(c)
the creation of new forms of cooperative enterprise,

“(c)
the creation of new forms of mutual enterprise,

“(c)
the creation of economic interest groups where the European

Economic Interest Group under regulation EEC 2137/85 is not

available because the members do not come from more than one

member state.””

Mr Alistair Carmichael

35

Clause  45,  page  47,  line  36,  at end add—

“( )
In Part 2 of Schedule 5 to the Scotland Act 1998 (Employment) leave out

“Section H2 (Health and Safety)””

CLAUSES 46 TO 55, NEW CLAUSES RELATING TO PART 5, NEW SCHEDULES RELATING TO

PART 5, CLAUSES 56 TO 58, NEW CLAUSES RELATING TO PART 6, NEW SCHEDULES

RELATING TO PART 6, CLAUSES 59 TO 64, NEW CLAUSES RELATING TO PART 7,

NEW SCHEDULES RELATING TO PART 7, REMAINING PROCEEDINGS ON THE BILL

Mr Graham Allen

NC12


To move the following Clause—


“Local authority’s power of general competence

(1)
A local authority has power to do anything that individuals generally may do.

(2)
Subsection (1) applies to things that an individual may do even though they are

in nature, extent or otherwise—

(a)
unlike anything the authority may do apart from subsection (1), or

(b)
unlike anything that other public bodies may do.

(3)
In this section “individual” means an individual with full capacity.

(4)
Where subsection (1) confers power on the authority to do something, it confers

power (subject to sections (Boundaries of the general power) to (Limits on doing

things for commercial purposes in exercise of general power) to do it in any way

whatever, including—

(a)
power to do it anywhere in the United Kingdom or elsewhere,

(b)
power to do it for a commercial purpose or otherwise for a charge, or

without charge, and

(c)
power to do it for, or otherwise than for, the benefit of the authority, its

area or persons resident or present in its area.

Notices of Amendments: 19 June 2015
9

Scotland Bill, continued

(5)
The generality of the power conferred by subsection (1) (“the general power”) is

not limited by the existence of any other power of the authority which (to any

extent) overlaps the general power.

(6)
Any such other power is not limited by the existence of the general power (but

see section (Powers to make supplemental provision)(2)).”

Member’s explanatory statement

This series of new Clauses seeks to introduce a general power of competence for Scottish local

authorities, putting it beyond doubt that they may do anything that is not expressly prohibited by

law. It seeks to go further than the power of wellbeing already afforded to Scottish local

authorities. The proposals seek to give councils the capacity to do anything that an individual can

do. Therefore, this would not enable a local authority to introduce a tax or wage war, but it would

ensure that local government has the ability to use the power of general competence in the most

sensible and constructive way for the benefit of the people and communities whom they serve.

Mr Graham Allen

NC13


To move the following Clause—


“Boundaries of the general power

(1)
If exercise of a pre-commencement power of a local authority is subject to

restrictions, those restrictions apply also to exercise of the general power so far as

it is overlapped by the pre-commencement power.

(2)
The general power does not enable a local authority to do—

(a)
anything which the authority is unable to do by virtue of a pre-

commencement limitation, or

(b)
anything which the authority is unable to do by virtue of a post-

commencement limitation which is expressed to apply—

(i)
to the general power,

(ii)
to all of the authority’s powers, or

(iii)
to all of the authority’s powers but with exceptions that do not

include the general power.

(3)
The general power does not confer power to make or alter—

(a)
arrangements of a kind which may be made under sections 56

(arrangements for discharge of authority’s functions by committees, joint

committees, officers etc.) or 62B (establishment of joint boards) of the

Local Government (Scotland) Act 1973,

(b)
any other arrangements that authorise a person to exercise a function of

a local authority.

(4)
In this section—

“post-commencement limitation” means a prohibition, restriction or other

limitation expressly imposed by a statutory provision that—

(a)
is contained in an Act passed after the day on which this Act is passed or

(b)
is contained in an instrument made under an Act and comes into force on

or after the commencement of section (Local authority’s general power

of competence),

“pre-commencement limitation” means a prohibition, restriction or other

limitation expressly imposed by a statutory provision that—

(a)
is contained in this Act, or in any other Act passed no later than the day

on which this Act is passed, or

Notices of Amendments: 19 June 2015
10

Scotland Bill, continued

(b)
is contained in an instrument made under an Act and comes into force

before the commencement of section (Local authority’s general power of

competence),

“pre-commencement power” means power conferred by a statutory

provision that—

(a)
is contained in this Act, or in any other Act passed no later than the day

on which this Act is passed, or

(b)
is contained in an instrument made under an Act and comes into force

before the commencement of section (Local authority’s general power of

competence).’

Member’s explanatory statement

This new Clause is linked to the new Clause on a local authority power of general competence

(NC12).

Mr Graham Allen

NC14


To move the following Clause—


“Limits on charging in exercise of general power

(1)
Subsection (2) applies where—

(a)
a local authority provides a service to a person otherwise than for a

commercial purpose, and

(b)
its providing the service to the person is done, or could be done, in

exercise of the general power.

(2)
The general power confers power to charge the person for providing the service

to the person only if—

(a)
the service is not one that a statutory provision requires the authority to

provide to the person,

(b)
the person has agreed to its being provided, and

(c)
ignoring this section and section 1 of the Local Authorities (Goods and

Services) Act 1970 (supply of goods and services by local authorities),

the authority does not have power to charge for providing the service.

(3)
The general power is subject to a duty to secure that, taking one financial year

with another, the income from charges allowed by subsection (2) does not exceed

the costs of provision.

(4)
The duty under subsection (3) applies separately in relation to each kind of

service.”

Member’s explanatory statement

This new Clause is linked to the new Clause on a local authority power of general competence

(NC12).

Mr Graham Allen

NC15


To move the following Clause—

Notices of Amendments: 19 June 2015
11

Scotland Bill, continued


“Limits on doing things for commercial purpose in exercise of general power

(1)
The general power confers power on a local authority to do things for a

commercial purpose only if they are things which the authority may, in exercise

of the general power, do otherwise than for a commercial purpose.

(2)
Where, in exercise of the general power, a local authority does things for a

commercial purpose, the authority must do them through a company.

(3)
A local authority may not, in exercise of the general power, do things for a

commercial purpose in relation to a person if a statutory provision requires the

authority to do those things in relation to the person.

(4)
In this section “company” means—

(a)
a company within the meaning given by section 1(1) of the Companies

Act 2006, or

(b)
a registered society within the meaning the Co-operative and Community

Benefit Societies Act 2014 or a society registered or deemed to be

registered under the Industrial and Provident Societies Act (Northern

Ireland) 1969.”

Member’s explanatory statement

This new Clause is linked to the new Clause on a local authority power of general competence

(NC12).

Mr Graham Allen

NC16


To move the following Clause—


“Powers to make supplement provision

(1)
If the Scottish Ministers think that a statutory provision (whenever passed or

made) prevents or restricts local authorities from exercising the general power,

the Scottish Ministers may by regulations amend, repeal, revoke or disapply that

provision.

(2)
If the Scottish Ministers think that the general power is overlapped (to any extent)

by another power then, for the purpose of removing or reducing that overlap, the

Scottish Minister may by regulations amend, repeal, revoke or disapply any

statutory provision (whenever passed or made).

(3)
The Scottish Ministers may by regulations make provision preventing local

authorities from doing, in exercise of the general power, anything which is

specified, or is of a description specified, in the regulations.

(4)
The Scottish Ministers may by regulations provide for the exercise of the general

power by local authorities to be subject to conditions, whether generally or in

relation to doing anything specified, or of a description specified, in the

regulations.

(5)
The power under subsection (1), (2), (3) or (4) may be exercised in relation to—

(a)
all local authorities,

(b)
particular local authorities, or

(c)
particular descriptions of local authority.

(6)
The power under subsection (1) or (2) to amend or disapply a statutory provision

includes power to amend or disapply a statutory provision for a particular period.

(7)
Before making regulations under subsection (1), (2), (3) or (4) the Scottish

Ministers must consult—

(a)
such local authorities,

Notices of Amendments: 19 June 2015
12

Scotland Bill, continued

(b)
such representatives of local government, and

(c)
such other persons (if any),

as the Scottish Ministers consider appropriate.”

Member’s explanatory statement

This new Clause is linked to the new Clause on a local authority power of general competence

(NC12).

Mr Graham Allen

NC17


To move the following Clause—


“Limits on power under section (Powers to make supplemental provision)(1)

(1)
The Scottish Ministers may not make provision under section (Powers to make

supplemental provision)(1) unless the Scottish Ministers consider that the

conditions in subsection (2), where relevant, are satisfied in relation to that

provision.

(2)
Those conditions are that—

(a)
the effect of the provision is proportionate to the policy objective

intended to be secured by the provision,

(b)
the provision, taken as a whole, strikes a fair balance between the public

interest and the interests of any person adversely affected by it,

(c)
the provision does not remove any necessary protection,

(d)
the provision does not prevent any person from continuing to exercise

any right or freedom which that person might reasonably expect to

continue to exercise,

(e)
the provision is not of constitutional significance.

(3)
Regulations under section (Powers to make supplemental provision)(1) may not

make provision for the delegation or transfer of any function of legislating.

(4)
For the purposes of subsection (3) a function of legislating is a function of

legislating by order, rules, regulations or other subordinate instrument.

(5)
Regulations under section (Powers to make supplemental provision)(1) may not

make provision to abolish or vary any tax.”

Member’s explanatory statement

This new Clause is linked to the new Clause on a local authority power of general competence

(NC12).

Mr Graham Allen

NC18


To move the following Clause—


“Procedure for regulations under section (Powers to make supplemental

provision)

(1)
If, as a result of any consultation required by section (Powers to make

supplemental provision)(7) with respect to proposed regulations under section

(Powers to make supplemental provision)(1), it appears to the Scottish Ministers

Notices of Amendments: 19 June 2015
13

Scotland Bill, continued

that it is appropriate to change the whole or any part of the Scottish Ministers’

proposals, the Scottish Ministers must undertake such further consultation with

respect to the changes as the Scottish Ministers consider appropriate.

(2)
If, after the conclusion of the consultation required by section (Powers to make

supplemental provision)(7) and subsection (1), the Scottish Ministers consider it

appropriate to proceed with the making of regulations under section (Powers to

make supplemental provision)(1), the Scottish Ministers must, when laying a

draft of the regulations, also lay before the Scottish Parliament an explanatory

document explaining the proposals and giving details of—

(a)
the Scottish Ministers’ reasons for considering that the conditions in

section (Limits on power under section (Powers to make supplemental

provision)(1))(2), where relevant, are satisfied in relation to the

proposals,

(b)
any consultation undertaken under section (Powers to make

supplemental provision)(7) and subsection (1),

(c)
any representations received as a result of the consultation, and

(d)
the changes (if any) made as a result of those representations.

(3)
If provision under section (Powers to make supplemental provision)(2) is

included in draft regulations under section (Powers to make supplemental

provision)(1) laid in the circumstances described in subsection (2), the

explanatory document laid with the draft regulations must also explain the

proposals under section (Powers to make supplemental provision)(2) and give

details of any consultation undertaken under section (Powers to make

supplemental provision)(7) with respect to those proposals.

(4)
Section (Powers to make supplemental provision)(7) does not apply to

regulations under section (Powers to make supplemental provision)(3) or (4)

which are made only for the purpose of amending earlier such regulations—

(a)
so as to extend the earlier regulations, or any provision of the earlier

regulations, to a particular authority or to authorities of a particular

description, or

(b)
so that the earlier regulations, or any provision of the earlier regulations,

ceases to apply to a particular authority or to authorities of a particular

description.”

Member’s explanatory statement

This new Clause is linked to the new Clause on a local authority power of general competence

(NC12).

Mr Graham Allen

NC19


To move the following Clause—


“Local authority’s general power of competence: interpretation

In this Part—

“the general power” means the power conferred by section (Local

authority’s general power of competence)(1),

Notices of Amendments: 19 June 2015
14

Scotland Bill, continued

“statutory provision” means a provision of an Act or of an instrument made

under an Act.”

Member’s explanatory statement

This new Clause is linked to the new Clause on a local authority power of general competence

(NC12).

Ian Murray

Wayne David

1

Clause  63,  page  67,  line  24,  leave out paragraph (a)

Member’s explanatory statement

This amendment provides that section 1 will not come into force on the day on which the Act is

passed, in order to link the commencement of Part 1 of the Act (Constitutional arrangements) with

the work of the Constitutional Convention, outlined in New Clause NC2 which would be required

to report by 31 March 2016.

Ian Murray

Wayne David

2

Clause  63,  page  67,  line  26,  at end insert—

“(1A)
Part 1 comes into force within one month of the publication of the report of the

Constitutional Convention appointed under section (Constitutional

Convention).”

Member’s explanatory statement

This amendment provides that Part 1 of the Act (Constitutional arrangements) comes into force

after publication of the report of the Constitutional Convention, as outlined in New Clause NC2,

which would be required to report by 31 March 2016.

Ian Murray

Wayne David

3

Clause  63,  page  67,  line  30,  leave out subsection (3) and insert—

“(3)
Part 2 of the Bill comes into force at the end of 2 months beginning with the

publication of the report of the Independent Commission on Full Fiscal

Autonomy appointed under section (Independent Commission on Full Fiscal

Autonomy).”

Member’s explanatory statement

This amendment provides that Part 2 (Tax) will not come into force at the end of two months

beginning with the day on which the Act is passed, in order to link the commencement of the tax

provisions of the Act with the work of the Independent Commission on Full Fiscal Autonomy,

appointed under New Clause NC1, which would be required to report by 31 March 2016.

Ian Murray

Wayne David

NC4

To move the following Clause—



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