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Session 2005 - 06
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Standing Committee Debates

Thirteenth Standing Committee on Delegated Legislation

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Thirteenth Standing Committee on Delegated Legislation

The Committee consisted of the following Members:


†Mr. Greg Pope

†Bellingham, Mr. Henry (North-West Norfolk) (Con)
†Browning, Angela (Tiverton and Honiton) (Con)
†Brown, Mr. Russell (Dumfries and Galloway) (Lab)
†Cairns, David (Parliamentary Under-Secretary of State for Scotland)
Heald, Mr. Oliver (North-East Hertfordshire) (Con)
†McGovern, Mr. Jim (Dundee, West) (Lab)
†McKechin, Ann (Glasgow, North) (Lab)
†Osborne, Sandra (Ayr, Carrick and Cumnock) (Lab)
†Roy, Mr. Frank (Motherwell and Wishaw) (Lab)
†Smith, Ms Angela C. (Sheffield, Hillsborough) (Lab)
†Thurso, John (Caithness, Sutherland and Easter Ross) (LD)
†Truswell, Mr. Paul (Pudsey) (Lab)
Tyrie, Mr. Andrew (Chichester) (Con)
†Waltho, Lynda (Stourbridge) (Lab)
Wishart, Pete (Perth and North Perthshire) (SNP)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Frank Cranmer, Committee Clerk

† attended the Committee

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Wednesday 13 July 2005

[Mr. Greg Pope in the Chair]

Draft Fire (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005

2.30 pm

The Parliamentary Under-Secretary of State for Scotland (David Cairns): I beg to move,

    That the Committee has considered the draft Fire (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005.

The Chairman: With this it will be convenient to consider the draft Further and Higher Education (Scotland) Act 2005 (Consequential Modifications) Order 2005 and the draft Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005.

David Cairns: First, I welcome you to the Chair, Mr. Pope. I understand that this is your second outing in this capacity and your first involving orders made under section 104 of the Scotland Act 1998. I am sure that you will find it one of the most scintillating and fascinating of the Committees that you chair.

The instruments are being made under section 104 of the Scotland Act. The first one is made in consequence of the Fire (Scotland) Act 2005, which I shall refer to as the 2005 Act. It may help the Committee if, in dealing with the first order, I outline what section 104 orders are and when it is appropriate to use them. Section 104 orders are used when changes must be made to the law of England and Wales or Northern Ireland, or when modifications of reserved law are required as a consequence of legislation in the Scottish Parliament. Such changes would be outside the legislative competence of the Scottish Parliament. Section 104 orders can also be used to amend an Act of the Scottish Parliament, as in the case of the first order. Section 104 provides for subordinate legislation to be made in this Parliament only. When section 104 orders amend primary legislation, the Scotland Act requires them to be subject to affirmative resolution in both Houses. That is why we are here this afternoon.

I hope that hon. Members have had an opportunity to read the explanatory memorandum that accompanies the orders, but it will be helpful if I outline briefly what each of the orders does. The Fire (Scotland) Act 2005 was passed by the Scottish Parliament on 23 February 2005 and received Royal Assent on 1 April. It replaces the Fire Services Act 1947 in Scotland and makes provision for the reform of fire services. It also reforms fire safety law in Scotland. It might be useful for the Committee to
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know that similar changes are under way in England and Wales. The Fire and Rescue Services Act 2004, which replaced the 1947 Act, provides for the modernisation of the fire service. The Regulatory Reform (Fire Safety) Order 2005 introduces a new fire safety regime based on ongoing risk assessment. That order completed its passage through this House last month.

The purpose of the order is to ensure consistency throughout the UK in respect of fire safety on premises that are not domestic premises. It confers power on fire and rescue authorities and joint fire and rescue boards to fight fires in the territorial sea not adjacent to Scotland and beyond the territorial sea, and allows them to recoup the costs associated with doing so. The order also updates reserved legislation to reflect the 2005 Act by applying the new fire safety regime for Scotland laid out in the Act to ships and hovercraft in certain circumstances, for example when in dry dock, and to certain defence premises, for example those occupied by armed forces of the Crown. The order confers the functions of an enforcing authority on the Health and Safety Executive and, for the purpose of premises occupied by armed forces of the Crown, on the fire service maintained by the Secretary of State for Defence. It also enables fire and rescue authorities and joint fire and rescue boards in Scotland to exercise their powers beyond the territorial sea. Finally, it makes consequential modifications of reserved legislation to reflect the existence of the 2005 Act.

The detail of the new fire safety regime in Scotland, which is basically about the carrying out of risk assessments and the provision of fire safety measures, will be set out in regulations made by Scottish Executive Ministers under sections 57 and 58 of the 2005 Act. Draft regulations will be the subject of consultation by the Scottish Executive during the summer. Guidance will be made available next year to accompany the new legislation.

Extensive consultation on the terms of the order was carried out with the Ministry of Defence, the Department for Transport, the Office of the Deputy Prime Minister, the Health and Safety Executive and the Scottish Executive. The Department for Work and Pensions and the Department for Culture, Media and Sport have also been consulted and have agreed to the order, as it makes consequential modifications to legislation for which they are responsible.

The second order, the draft Further and Higher Education (Scotland) Act 2005 (Consequential Modifications) Order 2005, is also made under section 104 of the Scotland Act. As hon. Members might expect, this order is made in consequence of the Further and Higher Education (Scotland) Act 2005, which merges two bodies—the Scottish Further Education Funding Council and the Scottish Higher Education Funding Council—to create what has imaginatively been titled the Scottish Further and Higher Education Funding Council. The Scottish
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FEFC and the Scottish HEFC are responsible respectively for the allocation to and monitoring of Government funding in the further education and higher education sectors in Scotland; purpose of the measure is to create a single funding council responsible for the allocation and monitoring of public funds in both sectors.

The order amends four UK Acts that would be outwith the legislative competence of the Scottish Parliament to amend: the Superannuation Act 1972, the House of Commons Disqualification Act 1975, the Sex Discrimination Act 1975 and the Race Relations Act 1976. All those Acts contain references to the Scottish FEFC and the Scottish HEFC. The order will amend the Acts so that they refer to the new body: the Scottish Further and Higher Education Funding Council. That will ensure that the provisions of the Acts that apply to the existing councils will apply to the new council once the Further and Higher Education (Scotland) Act comes into force. The provisions in the Act that merge the councils will come into force on 3 October 2005. I hope that hon. Members agree that this is a straightforward and sensible use of the powers in the Scotland Act.

The final Order before us is the draft Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005. This order, too, is made under the powers of section 104 of the Scotland Act. It is made in consequence of the Mental Health (Care and Treatment) (Scotland) Act 2003, the broad aims of which are: to provide greater clarity in respect of criteria to be met before a person with a mental disorder can be made subject to compulsory measures; to create a new forum—the Mental Health Tribunal for Scotland—to carry out many of the functions currently carried out by the sheriff courts; and to expand the role of the Mental Welfare Commission for Scotland, placing a duty on it to monitor the Act and promote best practice.

The order amends current references in UK primary and secondary legislation to the Mental Health (Scotland) Act 1984 to reflect the repeal of the 1984 Act and the coming into effect of the 2003 Act. It also makes regulations establishing a framework for the cross-border transfer of detained patients. I think that those regulations are of more substantive concern to the Committee, so I shall focus my comments on that aspect.

The order will ensure that there will be a regime that operates in essentially the same way as the present regime—set out in the 1984 Act—to allow transfers of patients both in and out of Scotland. Articles 2 to 12 reflect the provisions of the 1984 Act on the cross-border transfer of patients, which have been updated in light of the provisions of the 2003 Act. In some instances that will involve only a change of terminology; in others it will involve practical changes to the way in which the cross-border transfer of patients is handled. The Scottish Executive have
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recently introduced regulations under the 2003 Act that provide a framework in Scots law for handling the cross-border transfer of patients. The order makes similar provisions for English, Welsh and Northern Irish law, so that patients being transferred across borders are subject to very similar regimes. There have always been arrangements in place for the transfer of patients from one jurisdiction to another, even under the legislation predating the establishment of the Scottish Parliament, and the order ensures that proper arrangements are put in place following the passage of the 2003 Act. More details are set out in the explanatory memorandum.

I hope that hon. Members have found that explanation helpful. The final order, like the other two we are considering, is a sensible use of the order-making powers at section 104 of the Scotland Act and I commend it to the Committee.

2.40 pm

Mr. Henry Bellingham (North-West Norfolk) (Con): I would also like to extend my welcome to you, Mr. Pope. It is the second day running that I have had the pleasure of serving under your chairmanship. I hope that during the rest of this Parliament you will have many happy times chairing Committees such as this.

The statutory instruments are sensible and straightforward and I am grateful to the Minister for having explained them so succinctly. I have only one or two quick points to make. First, will he tell the Committee when the guidance notes for the new fire safety regime will be published? I gather that there will be a charging regime for the recovery of costs which will be applicable in some circumstances. Will that regime be exactly the same throughout England, Wales and Scotland and outside the territorial waters?

Turning to the draft order on further and higher education, it makes sense that the two bodies will be merged into one. Perhaps mine is a question that should be addressed to the Scottish Parliament, but can the Minister tell the Committee whether there will be any staff reductions as a result of the consolidation of two organisations into one? It seems quite possible that there will be. I appreciate that it would have been best to make that point when the Further and Higher Education (Scotland) Act 2005 was going through the Scottish Parliament, but, on the other hand, that Act cannot commence until this statutory instrument has been considered by the Committee, because there are consequential amendments that are essential under section 104 of the 1998 Act. Will the hon. Gentleman say whether there are any implications of the merger that might lead to a reduction in staff and whether any savings will be made as a result of the consolidation process?

I have discussed these matters in some detail with my colleagues who follow these matters more closely than I, as a mere Whip, do. Apart from the points that I have made, we are satisfied and content with the work being done by the Minister in this area.

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2.42 pm

John Thurso (Caithness, Sutherland and Easter Ross) (LD): I, too, welcome you to the Chair, Mr. Pope. I also welcome the hon. Member for North-West Norfolk (Mr. Bellingham). It is a pleasure to see him in a Committee that is discussing Scottish business. I hope that it will not be the last time.

As has already been said, these are straightforward and relatively simple orders, but I am grateful to the Minister for the fairly comprehensive explanation that he has given. I welcome the modest pieces of devolution that the orders contain because I have always believed that what can be devolved should be.

I am a little surprised that there is no mechanism whereby the provisions of the order on further and higher education could be dealt with in primary legislation in Scotland. When we come to review the Scotland Act, perhaps that is something that we can have another look at. What scrutiny, if any, does the Scottish Parliament give to statutory instruments of this kind, which obviously receive proper scrutiny in this House and in another place? I heard the Minister say that consultation took place, and I think that he referred to the Scottish Executive, but I would be interested to know whether there is any mechanism—rather like a reverse-Sewel—that might enable the Scottish Parliament to consider the orders.

I have one or two straightforward questions. Article 2(4) of the fire and rescue services order refers to new section 61(9)(za)(i) of the 2005 Act, which relates to a premises

    “for which a licence is required by virtue of section 1 of the Nuclear Installations Act 1965”.

Will the Minister clarify why that has been included? The explanatory notes refer specifically to defence premises, but although Dounreay is probably still owned by the Ministry of Defence, many of the other nuclear installations are not.

With regard to the creation of one body for further and higher education, I declare an interest in that I am a patron of the university of the Highlands and Islands millennium institute, which is mentioned in the explanatory notes. The institute is broadly welcomed by people in Scotland, as is Thurso college, which is one of the colleges at the university. Although the order will modify several UK Acts, the modification is fairly technical as it simply removes one or two names and inserts one name. Should we not find some way to perform this highly technical administrative detail without the requirement for a statutory instrument?

I have only one question about the mental health care and treatment order. The Act has been passed by the Scottish Parliament and broadly welcomed, but what would happen if somebody domiciled in England or Wales who was on holiday for a short time in Scotland became subject to the provisions of the 2003 Act and was then returned to a hospital or other institution close to their home in their normal country of domicile? Under the order, as I understand it, the law of Scotland would apply. Is that correct, or would the person, having been out of their normal country of domicile only temporarily, come under that country’s jurisdiction?

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Other than those small queries, we have no concerns about the orders and we wish them Godspeed.

2.47 pm

Angela Browning (Tiverton and Honiton) (Con): Mr. Pope, I am pleased also to serve under your chairmanship. I have for the Minister just one question also. It is about the mental health legislation and cross-border discharges from Scotland into England or Wales. The Scottish law on mental health has been updated, but the English law has not.

I served for six months on the Joint Committee on the draft Mental Health Bill, the report of which is before the Government, and to which we await, I hope any day, their response. It may be thought appropriate on discharge from a Scottish mental health hospital to suggest a home treatment order. That system is not in place in England and Wales, and the Joint Committee and I had grave reservations about it. What discussions has the Minister had with representatives of the Department of Health serving England and Wales about such issues, in which there is no genuine like-for-like comparison of the appropriate treatment orders? I should like an update from him about how such matters would be handled.

2.48 pm

David Cairns: I thank all hon. Members for their questions and for their obvious scrutiny of the orders before us.

I shall begin by addressing the hon. Member for North-West Norfolk. He asked a couple of questions, beginning with when the guidance notes for the fire regime would be published. I was rather vague in my speech, as I said, “over the summer”. I understand that they will be published—it says in my notes—in the next few months. I do not know whether that is any less vague, but they will be published soon.

Some 13 guidance notes will be drafted for the different sectors, but the Scottish Executive has a commendable reputation for the rigour with which and the extent to which it consults. I have no doubt that the guidance notes will be subject to the same consultation procedures that have characterised the Scottish Parliament since its inception.

The hon. Gentleman asked whether the charging regime for recouping charges when fires have been fought will be the same in Scotland as in England and Wales. It will be the same. The Maritime and Coastguard Agency will set the regime on a UK basis. He also referred to issues about hovercrafts and ships. I can confirm that there have not been any discrepancies with the way in which such matters have been dealt with, because the new regime in Scotland has not yet been put in place. The point about discussing the order today is that when the new regime in Scotland is in place, it will apply equally across those areas; for example, when ships are in dry dock or at sea. If the order is not accepted today, there would be different regimes, which could be confusing.

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The hon. Gentleman asked about staffing levels in the new joint council. As he correctly surmised, that is a matter for the Scottish Executive. We are ensuring that staff who transfer across will have the same pension entitlement and protection under sex and race discrimination legislation. It may be too early to say what the numbers will be because board and executive level members are still being appointed. I undertake to keep him informed about that, but it is probably too early to say exactly what the staffing levels will be when the new council comes into operation.

The hon. Member for Caithness, Sutherland and Easter Ross (John Thurso) asked about the Scottish Parliament’s scrutiny. It is fair to say that since taking up my post, I have become aware that there is a higher level of awareness of Sewels. There is obviously more political awareness of the issues in Scotland than in here, but that is not to say that we treat these matters lightly, because we do not. The hon. Gentleman correctly referred to the extensive consultation throughout Whitehall. The House makes the decision on whether to legislate and whether the orders are a consequence of the Scotland Act 1998.

In reply to the hon. Gentleman’s specific question about the consultation by the Scottish Executive, I understand that the Scottish Minister for Health and Community Care wrote to the convener of the Scottish Parliament Health Committee about the order, attended the Committee and took questions from it on 21 June. It has obviously had some scrutiny. The Executive also commonly writes with a copy of the order to the relevant Committee and, although they do not always attend the Committee to be questioned, that happened with the order.

The hon. Gentleman also asked why this Committee is sitting today. It is a question of whether the order amends primary legislation and because the four Acts that are being amended under the further and higher education funding council order are primary legislation they cannot be amended except by the affirmative resolution procedure, which we are following today. We must always reflect on the way in which orders are used to see whether they are commensurate with what was envisaged when the Scotland Act 1998 was considered. My guess is that it would have been difficult to predict how many orders would be needed, on what occasions they would be needed and whether other mechanisms exist. Section 104 orders are not the only mechanism in the 1998 Act by which to make changes as we go along, but we thought that that was the most appropriate mechanism.

We are amending primary legislation today. Those amendments are technical and small, but if we did not implement them there would be difficulties—for example, with pension provision for people in the new body and whether the new body was subject to the race relations legislation. The amendment may be technical
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in changing the name, but the significance could be major, which is why we are scrutinising it in Parliament here.

The hon. Gentleman properly asked about the mental health order and an individual from England who is on holiday in Scotland, or the other way round. The order seeks to ensure that anyone who is in Scotland for whatever reason and who falls within the conditions that would bring them within the terms of the Act, they are treated according to the terms of the Scottish Act and the Scottish legislation while in Scotland. When they were transferred back to England, they would be treated under the nearest equivalent order in English and Welsh legislation. I shall come to that when responding to the hon. Member for Tiverton and Honiton (Angela Browning). They would be detained under the Scottish legislation, but would be transferred under the equivalent English legislation.

The hon. Gentleman also asked about nuclear installations. I understand that matters relating to the Nuclear Installations Act 1965 are still reserved to the House, which is why we must include them specifically when we make changes to the fire safety regime. Such installations include nuclear reactor installations, sites that produce or use atomic energy, sites that carry out work ancillary to the production and use of atomic energy and that can emit ionising radiation, and sites that store, process or dispose of nuclear fuel or bulk quantities of other radioactive material as by-products of the production or use of nuclear fuel. In essence, these matters are outwith the legislative competence of the Scottish Parliament. I hope that that answers the hon. Gentleman’s questions.

The hon. Member for Tiverton and Honiton mentioned that she was awaiting the Government’s response to the Committee’s consideration of the draft Mental Health Bill. I believe that that has been issued today, so she need hold her breath no longer. She can dash from the Committee to read the Government’s response, which I am sure she will welcome will open arms.

The hon. Lady also asked about the situation in which there was no like-for-like comparison. She made the point that the provisions in the legislation in England and Wales are evolving, and that the Bill will be subject to amendments when it is laid before Parliament. I agree. I cannot say with any certainty what will come out at the other end when the Bill becomes an Act, so I cannot answer her question with any exactitude.

Patients under compulsory treatment orders in the community do not fall under these arrangements, as they apply only to patients detained in hospitals, but the hon. Lady is correct that we might have to reconsider that position if the orders are introduced in
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England. As I said, we must wait to see what happens to the draft Mental Health Bill when it is laid before Parliament and becomes an Act.

Angela Browning: Home treatment orders are particularly controversial because they rely on someone who has been an in-patient and who is discharged into the community, but under care. In England and Wales, the great debate is who will take responsibility for that, and whether there is the infrastructure to support that person in the community. Does that responsibility fall on professionals or, as is often the case, on families? In such cases, there seems to be an imbalance between what is provided in Scotland and what is provided in England or Wales.

David Cairns: I understand the hon. Lady’s concern, but as she well knows, the legislation in England and Wales is in the process of being updated, and it would be prudent to wait to see what happens before we make any comparisons along the lines that she suggests.

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Question put and agreed to.


    That the Committee has considered the draft Fire (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005.



    That the Committee has considered the draft Further and Higher Education (Scotland) Act 2005 (Consequential Modifications) Order 2005—[Mr. Cairns.]



    That the Committee has considered the draft Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005—[Mr. Cairns.]

Committee rose at one minute to Three o’clock.


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