Session 2015 - 16
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Other Bills before Parliament


 
 

Notices of Amendments: 24 June 2015                     

26

 

Scotland Bill, continued

 
 

         

“Health and safety

 

(1)    

In Part 2 of Schedule 5 to the Scotland Act 1998 (“the 1998 Act”), omit Section

 

H2 (health and safety).

 

(2)    

The Health and Safety Executive is a cross-border public authority for the

 

purposes of the 1998 Act.

 

(3)    

The 1998 Act applies in relation to the Health and Safety Executive in the same

 

way as it applies in relation to cross-border public authorities specified in an

 

Order in Council under section 88(5) of the 1998 Act.”

 

Member’s explanatory statement

 

This new clause would devolve health and safety to the Scottish Parliament and designates the

 

Health and Safety Executive as a cross-border public authority.

 


 

Angus Robertson

 

Mike Weir

 

Dr Eilidh Whiteford

 

Stewart Hosie

 

Michelle Thomson

 

Natalie McGarry

 

NC49

 

Parliamentary Star - white    

To move the following Clause—

 

         

“Equal opportunities

 

In Part 2 of Schedule 5 to the Scotland Act 1998, omit Section L2 (equal

 

opportunities).”

 

Member’s explanatory statement

 

This new clause would devolve equal opportunities to the Scottish Parliament.

 


 

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


 
 

Notices of Amendments: 24 June 2015                     

27

 

Scotland Bill, continued

 
 

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.

 

(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


 
 

Notices of Amendments: 24 June 2015                     

28

 

Scotland Bill, continued

 
 

(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

 

(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.


 
 

Notices of Amendments: 24 June 2015                     

29

 

Scotland Bill, continued

 
 

(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—

 

         

“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 supplementary 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.


 
 

Notices of Amendments: 24 June 2015                     

30

 

Scotland Bill, continued

 
 

(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,

 

(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.


 
 

Notices of Amendments: 24 June 2015                     

31

 

Scotland Bill, continued

 
 

(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

 

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


 
 

Notices of Amendments: 24 June 2015                     

32

 

Scotland Bill, continued

 
 

(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),

 

“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).

 


 

Mr Graham Allen

 

NC29

 

Parliamentary Star - white    

To move the following Clause—

 

         

“Competences of local government in Scotland

 

(1)    

The First Minster must, after consultation with representatives from local

 

government in Scotland, publish a list of competences of local government in

 

Scotland.

 

(2)    

After the list has been published, the First Minster may not publish any amended

 

list of competences of local government in Scotland without first obtaining

 

approval of the revised list consent from

 

(a)    

the Scottish Parliament, with two-thirds of its membership voting in

 

favour of the amended list, and

 

(b)    

the Convention of Scottish Local Authorities.”

 

Member’s explanatory statement

 

This new clause entrenches the independence of local government in Scotland from interference

 

by national government in Scotland.

 



 
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