Draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2006

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Third Standing Committee on Delegated Legislation

The Committee consisted of the following Members:

Chairman:

Derek Conway

†Cairns, David (Parliamentary Under-Secretary of State for Scotland)
†Cooper, Rosie (West Lancashire) (Lab)
†Crausby, Mr. David (Bolton, North-East) (Lab)
†Dorries, Mrs. Nadine (Mid-Bedfordshire) (Con)
†Ellwood, Mr. Tobias (Bournemouth, East) (Con)
†Fraser, Mr. Christopher (South-West Norfolk) (Con)
†Hurd, Mr. Nick (Ruislip-Northwood) (Con)
†Liddell-Grainger, Mr. Ian (Bridgwater) (Con)
†Mackinlay, Andrew (Thurrock) (Lab)
†MacNeil, Mr. Angus (Na h-Eileanan an Iar) (SNP)
†Morden, Jessica (Newport, East) (Lab)
†Southworth, Helen (Warrington, South) (Lab)
†Stoate, Dr. Howard (Dartford) (Lab)
†Thurso, John (Caithness, Sutherland and Easter Ross) (LD)
†Watts, Mr. Dave (Lord Commissioner of Her Majesty’s Treasury)
†Wood, Mike (Batley and Spen) (Lab)
†Wright, Mr. Anthony (Great Yarmouth) (Lab)
Frank Cranmer, Eliot Wilson, Committee Clerks

† attended the Committee

 
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Tuesday 31 January 2006

[Mr. Derek Conway in the Chair]

Draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2006

4.30 pm

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

That the Committee has considered the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2006.

The Chairman: With this, it will be convenient to consider the draft Gaelic Language (Scotland) Act 2005 (Consequential Modifications) Order 2006 and the draft Charities and Trustee Investment (Scotland) Act 2005 (Consequential Provisions and Modification) Order 2006.

David Cairns: I welcome you to the Chair, Mr. Conway. I know of your keen interest in these matters, so we are in safe hands this afternoon.

The first order is being made under section 63 of the Scotland Act 1998. That section gives the power to Her Majesty by Order in Council to provide for any functions of a Minister of the Crown, so far as they are exercisable in or as regards Scotland, to be exercisable by the Scottish Ministers instead of, or concurrently with, the Minister of the Crown, or by the Ministers of the Crown after consultation with the Scottish Ministers. That is commonly known as executive devolution.

The order executively devolves functions to the Scottish Executive Ministers in two areas. First, in relation to firefighters’ pensions, it transfers to the Scottish Ministers functions that are exercisable in or as regards Scotland under section 26 of the Fire Services Act 1947, as amended by the Civil Partnership Act 2004. Section 26 of the 1947 Act provides for the provision of benefits for widows, children and dependants and firefighters. It was amended by the Civil Partnership Act 2004 to include references to civil partners in the list of potential beneficiaries. However, powers to amend the firefighters’ pension scheme with regard to benefits for civil partners were not transferred to Scottish Ministers by the 2004 Act. They need to be to ensure that changes to pension arrangements, which come into force in April, can be made for all firefighters in Scotland. Powers to amend the scheme for all other beneficiaries were transferred to Scottish Executive Ministers in 1999 by a transfer of functions order exactly like this one, obviously predating the Civil Partnership Act.

 
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The second part of the order seeks to ensure that the Scottish Executive Ministers have power to legislate for all non-medicinal animal feedstuffs and feed additives in Scotland, which are generally devolved. I shall refer to all these substances today as animal feed. The order supplements the Veterinary Medicines Regulations 2005 which, when they come into force, will mean that some substances known as zoo-technical additives will no longer be defined as animal feed. Zoo-technical additives include digestibility enhancers, gut flora stabilisers and other substances which, as my brief euphemistically puts it, have a favourable effect on the environment. I can explain these substances in much more detail, should the Committee so wish. [Interruption.] I will not repeat what the hon. Member for Bridgwater (Mr. Liddell-Grainger) said from a sedentary position.

These substances will not be dealt with by the 2005 regulations because they do not have any medicinal effect. The additives are, however, defined as “medicinal products” in the Medicines Act 1968, which is reserved. This order simply transfers to the Scottish Ministers the regulatory functions under the Agriculture Act 1970 in respect of this feed. The order also provides that the Scottish Ministers, concurrently with the Minister of the Crown, can exercise functions in relation to these zoo-technical additives under section 2(2) of the European Communities Act 1972.

I turn now to the draft Gaelic Language (Scotland) Act 2005 (Consequential Modifications) Order 2006. I am sure that hon. Members are by now familiar with section 104 orders. They are essentially used when changes require to 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. The Gaelic Language (Scotland) Act 2005 was passed by the Scottish Parliament on 21 April 2005. It establishes a body—Bòrd na Gàidhlig—to promote the use and understanding of the Gaelic language. The new board’s functions are similar to the existing body—the Bòrd Gàidhlig na h-Alba—which will be wound up following the establishment of the new board. One of the powers vested in the old board was to nominate a member to be appointed to the Gaelic Media Service. The purpose of the order is to amend the Broadcasting Act 1990 to ensure that the nomination can be made by the new board. The Scottish Parliament does not have the legislative competence to make the necessary change, as the Broadcasting Act is reserved. It is a simple and straightforward use of a section 104 provision.

The final order in the batch of three is also made under the powers in section 104 of the Scotland Act. The Charities and Trustee Investment (Scotland) Act received Royal Assent on 14 July 2005. Among other things, it creates an office to be known as the Office of the Scottish Charity Regulator, and establishes a body corporate to be the holder of that office, which will be known by the acronym OSCR. The 2005 Act consolidates all charity legislation in Scotland; it defines charities in a new way and provides for a new regulatory framework.

 
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The order establishes the Office of the Scottish Charity Regulator as what is known as a non-ministerial office in the Scottish Administration. Powers exist in section 126 of the Scotland Act specifically to allow for the creation of non-ministerial offices, but they are designed to deal with appointments held by individuals rather than bodies corporate. It is therefore appropriate to use section 104 powers because OSCR is intended to be a body corporate. It is not within the powers of the Scottish Parliament to establish such an office in the Scottish Administration as the Scottish Parliament does not have the power to amend the Scotland Act.

The Scottish Executive considered independence from government to be among the most important characteristics for such a charities regulator, consistent with the key recommendations of the Better Regulation Task Force report on independent regulators. In consultation with the charities, the charity sector expressed the strong view that neither an executive agency nor a non-departmental public body would provide the required levels of independence from Scottish Ministers. That is why the Executive decided that a non-ministerial body was the most appropriate form for the new regulator. The order gives Her Majesty’s Revenue and Customs commissioners power to share information with OSCR. It also amends other legislation in the light of the new definitions of Scottish charities in the Acts of the Scottish Parliament.

I hope that hon. Members found that explanation and the fuller explanatory notes helpful. The proposals are a sensible and necessary use of the order-making powers in sections 63 and 104 of the Scotland Act, and I commend them to the House.

4.38 pm

Mr. Ian Liddell-Grainger (Bridgwater) (Con): It is delightful to serve under you again, Mr. Conway. We last served 25 years ago as fusiliers in the same regiment. We have not changed at all, except that we are perhaps a little thinner. I hope that we will not be drafted.

I am delighted to be a member of the Committee as I have sat on several statutory instruments on the issue and it is nice to continue to be able to do so. I am glad that the orders are being taken together. The first, on the Fire Services Act 1947, is fairly straightforward; it is good to see the proposal, albeit that we have waited a long time for it. The Minister rightly said that the issue needed to be sorted out and I am delighted that it deals with section 26 of the 1947 Act. The Civil Partnership Act 2004 is interesting insofar as we have had to take new legislation into consideration. I do not think there is any difference whatever in the English and Scottish civil partnerships, but the Minister will let us know if there is.

On veterinary medicine, the Minister and I had a quick chat before the sitting and decided that we would stay away from a discussion of flatulent cows as that might get us into the realms of hysteria. Two or three parts of the proposal are important: first, the United Kingdom has the most stringent rules in Europe on the
 
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husbandry of animals. We are extremely careful about what we do, as the lessons of Creutzfeldt-Jakob disease, bovine spongiform encephalopathy, foot and mouth and many other things have come home to haunt us. I ask the Minister to ensure, through his officials, that the controls in this case are applied as stringently north of the border as they are south of the border. There is a change in the European legislation. All antibiotic feed supplements are banned from 2006, and changes have to be made. There are promising alternatives, including probiotics, as we are aware. Will the Minister say whether they are being incorporated into what we are discussing? I ask that because we are changing what we can and cannot give to animals in this country. That is sensible and there is no problem with it, but I would be interested to know the answer to my question.

As the Minister rightly pointed out, zoo-technology, or zoo-tech, is the new watchword for all this, and it is important to see that the frameworks in which the measure is being set up cross the border. Let me put my cards on the table and refer to my family farm, which is on the Scottish border. If, for instance, a drug that was available in England could not be used in Scotland, would we be accused of drug smuggling were we to use it? As my family has been there for some years, I hope that that would not be the case, as it would be a somewhat farcical situation, but I would like confirmation, if possible, from the Minister of what would happen.

Moving on to the draft Gaelic Language (Scotland) Act 2005 (Consequential Modifications) Order 2005, I have tried, like the Minister, to pronounce the new name of the agency. Unfortunately, I failed dismally and I do not intend to try again. I cannot see anything wrong with the order, but I would like to ask why the change is being made. I am sure that there is a straightforward reason. What is the difference, other than the change in the title?

The board is to promote the use and understanding of the Gaelic language and to advise Scottish Ministers and other bodies and persons on matters relating to the Gaelic language, culture and education. That is laudable in the extreme. What changes are being made, and will the control by Scottish Ministers be able to be exercised on the board in the same way as it has been in the past? I am always slightly wary when names are changed, especially ones that I cannot even begin to pronounce and especially when we do not know why they are being changed. It is marvellous that so many people now speak Gaelic in Scotland; I believe that the figure is 90,000. That is excellent and long may it continue to be the case.

We need to examine the draft Charities and Trustee Investment (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 slightly more closely—with your indulgence, Mr. Conway. The measure is a major step for charities. Charities are one of those things in this country about which the public and many other bodies feel extremely strongly, simply because they are what they say they are—charities.

 
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I have some questions on the order. The move to the OSCR is good and makes sense, but I have questions about the monitoring of accounts. I will come on to the difference between Scotland and England in this regard in a moment. The charities that we are considering are administered by the Inland Revenue under an accountancy system that is UK-wide. Will the accountancy still be done in the same way? Will reporting still take place in the same way?

Let us imagine that the OSCR decides that a charity has broken its remit and is therefore unable to do the job that it was set up to do, or that a charity has done something—dare I say it?— unpardonably wrong and its operations are suspended. If it has an English arm, how will that be affected? Or, if the English arm does something unspeakable, can the Scottish arm be suspended? One presumes that they would be doing the same thing in the same sphere, albeit probably with the word “Scotland” tacked on to one in brackets and “England” tacked on to the other.

What can the OSCR do to regulate fundraising bodies that are not charities? We all have such bodies in our constituencies throughout the United Kingdom whereby people can, under licence or whatever, raise money for extremely laudable causes. If the OSCR will be able to regulate such bodies, what regulation will it be able to use, and will it be enshrined in any devolved power, or will it come under mainstream legislation from this place?

I also want to explore the way in which the OSCR will operate. It is being set up and championed as being outside the control of Scottish Ministers, which is fine. I have no great problem with that, but when things go wrong, charities or others turn first to this place or, in Scotland, to the Scottish Parliament to find out what is going on. The OSCR will be treated as part of the Scottish Administration. What is the subtle difference? If the Scottish Administration are the administrator and something goes wrong, who is ultimately responsible? Would it not be the Scottish Minister who was approached through questions or a debate—

4.45 pm

Sitting suspended for a Division in the House.

5 pm

On resuming—

Mr. Liddell-Grainger: If the vote that never was is a cunning plot to stop our deliberations, it will not work.

I will finish off exploring the tie up between the administration of charities and the role of the Scottish Ministers. I would like to continue that thesis: there could be an insurmountable problem if the Minister did not want to be involved and the administration said that it needed to do something, but could not. There will have to be an arbitrary organisation to decide what is going to happen.

There have been instances over the years—I am sure that we can all think of some—in which there were major collapses or changes in charities, or charities
 
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have done things that, to say the least, broke their guidelines. Somebody has to decide what happens. In England, it is straightforward; the Charity Commission makes that decision, but who would be ultimately responsible in Scotland? Furthermore, what is the mechanism for achieving that responsibility? If a decision cannot be made, to whom is it ultimately referred?

I have another point to make with regard to the interpretation of guidelines. We all know that charities need guidelines, interpretations of those guidelines and rules. One of the great failings of the idea is that often the guidelines are written up after the charities are established. So if anything goes wrong in the meantime, any awkward questions are asked or there are any problems, OSCRs’ guidance and interpretation of the practices might not be ready. I have some questions for the Minister: are the guidances and interpretations ready? Is there a modus operandi for working within the current constraints? Obviously that may not be up and running yet, but will things be launched at the same time?

If there is a problem, it will be necessary to go back to the rulebook. I am not a great fan of rules, but this is a highly contentious issue, whereby people’s savings could be affected. I would be interested to find out whether the Government have covered that matter and will therefore be publishing the rules at the time of the launch. If not, how long will the delay be?

Lastly, I return to charities across the border. I would like a firm assurance from the Minister that there will be a clear demarcation of problems. In good times that will be irrelevant because there will be no problems. If there is a problem, however, what will the procedure be with a Scottish and English charity? Will that mechanism be clearly understood? A problem in England will transmit to Scotland where there are different ways of doing things and there could be a delay. Sometimes charities need an enormous amount of administration, and who would be responsible if something went wrong and a charity collapsed because of the knock-on effect from one country or the other?

We have gone through these issues fairly quickly; the orders are common sense and, with a little guidance from the Minister, I hope that we will be having tea sooner than we thought.

5.3 pm

John Thurso (Caithness, Sutherland and Easter Ross) (LD): May I, too, say what a pleasure it is to serve under your chairmanship once again, Mr. Conway?

These are largely uncontroversial and technical orders. However, there are one or two points that I would like to touch on. I thank the Minister for the excellent way in which he set out the orders and the brilliance with which his language followed that of his noble Friend Lord Evans in another place—a remarkable similarity that is extremely helpful.

The transfer of functions order deals with two points. The first is in relation to civil partnerships for firefighters, and I am glad that the matter is being tidied up. That is eminently sensible and I have no real
 
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comment on that. With regard to the second part, the zoo-technical additives, which I understand will do much to improve climate change through a reduction in bovine flatulence, I compliment the Government: anything that they can do to reduce bovine flatulence is entirely welcome.

The next order, in respect of the Gaelic language, comes to us through a section 104 order, which we have come to know and love. I always go back and re-read section 104, the first part of which I understand and the second part of which I have never understood. I say that purely as an aside; I certainly do not seek clarification here.

Let me say to the hon. Member for Bridgwater (Mr. Liddell-Grainger) that the exposition given on the Gaelic language by his noble friend the Duke of Montrose was extremely good. I was particularly interested to see that he is recorded at column 1266 of the House of Lords Hansard of 25 January as having commented that in 1992, the Government of the time provided £9.5 million for the broadcasting service in Gaelic, but that that body is currently receiving only £8.5 million, and it has been estimated by none other than Deloitte that a sustained service would cost somewhere in the region of £16.8 million. We cannot discuss those matters, because they are the purview of the Scottish Parliament and the Scottish Executive. However, I would say in passing that I hope that that Parliament ensures that there is sufficient funding to enable the new bòrd to undertake all that is required of it.

Finally, we come to the charities and trustee investment measure. That, too, is consequential on legislation to be passed in the Scottish Parliament, and is designed to amend reserved UK legislation. If I might make a similar point to that of the hon. Member for Bridgwater, paragraph 7.3 of the explanatory notes—which states that OSCR is to be independent of Scottish Ministers—says:

“This concept means that although the staff of OSCR are civil servants, the office holder does not report to Scottish Ministers and is not answerable to the Scottish Executive. However, OSCR is to be treated as part of the Scottish Administration.”

In that case, to whom is the head of OSCR responsible? Am I presumptuous to assume that it is the Scottish Parliament, and that, therefore, the distinction that is being made is to the effect that the body is responsible to Parliament, but not controlled by Ministers? I think that that would be entirely appropriate, given the nature of the beast. Apart from that, the orders seem extremely sensible, and I am delighted to support them.

5.8 pm

Andrew Mackinlay (Thurrock) (Lab): Later today, I shall deal with the large postbag that I have received in respect of the draft Charities and Trustee Investment (Scotland) Act 2005 (Consequential Provisions and Modification) Order 2006. I shall say that I was pleased to support the Government on the occasion of its approval by the Committee. I hope to be able to do so in respect of the Gaelic language order as well. However, I would like to ask the Minister a question.

 
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As I understand the order, it does just one thing: it inserts the name of the new bòrd into the Broadcasting Act 1990. I can see the compelling case for us to approve that. However, it occurs to me that there must be other pieces of Westminster legislation in respect of which the Minister or his successors will have to come back to this Committee in order to insert the name of this new bòrd. Have the Government considered whether there is a case to have one, all-embracing order that will deal with the matter once and for all? It cannot be rocket science for civil servants to go through the appropriate legislation to identify where the bòrd would make nominations and where it is mentioned in other legislation. That would be both logical and tidy.

Alternatively, the UK Parliament could have its own Bill to deal with the ancient languages of the British Isles. Although the matter is a competence for the Scottish Parliament, the Welsh Assembly, the Northern Ireland Assembly, which we hope will return, and the devolved overseas territory of the Isle of Man—English Members retain, I suppose, a competence with respect to the related Cornish language—there is perhaps a case for Westminster legislation to cover the all-United Kingdom aspects of the relevant languages, of which Scots Gaelic is one. We could perhaps pass a measure that would avoid the need for repeated consideration of orders such as the one we are considering today.

I think that there is a powerful case for that approach, because things have moved on since the last time that an hon. Member spoke in Irish in the Chamber of the House of Commons, interrupted twice by the Speaker, 95 years ago. However, there is a case, supported by trends in the European Union and human rights legislation, for some Westminster recognition of Scots Gaelic and the other United Kingdom languages to which I have referred. Therefore, my questions for the Minister are, first, whether there is a case for an order that will cover the bòrd for all future Westminster legislation; alternatively, should we, as I would want, pass a Westminster Bill to ensure that, to the extent that the United Kingdom Parliament and Government have some relevant competences and obligations—and clearly they do—they should use them for the promotion, protection and preservation of what are in some cases fragile, but important, historical and cultural languages of these islands?

I say that because the one other language that I have not mentioned is Ulster Scots, which is now recognised internationally, by statute at Westminster and under various recent Irish treaties, as a separate language. There is thus much relevant business for us to undertake at Westminster, and the order gives me a legitimate opportunity to ask the Minister whether he will give any thought to such an approach. I should like to serve on the Committee that would deal with that important measure.

 
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5.13 pmMr. Angus MacNeil (Na h-Eileanan an Iar) (SNP): I can tell the hon. Member for Thurrock (Andrew Mackinlay) that things have indeed come on in the past 95 years. When I made my maiden speech, rather than being stopped by Mr. Speaker I was aided and abetted. Hon. Members may want to know that his mother was a McNeil, with Barra connections, which may have helped.

I shall confine my remarks mainly to the Gaelic aspect of the matter. What interests me particularly is the change from the name “Bòrd Gàidhlig na h-Alba” to “Bòrd na Gàidhlig”. I wonder if there are any international aspirations in that dropping of Scotland, for the Gaelic language to go worldwide.

I note Lord Evans’s remarks about Gaelic in another place, which were alluded to by the hon. Member for Caithness, Sutherland and Easter Ross (John Thurso), in particular about continuing discussions about a new Gaelic television channel. I wonder if the Scotland Office has been involved in that or whether the Minister can shed any light on it. Also, are we likely to get any money from the Department for Culture, Media and Sport? Will there be a Gaelic channel in the next 12 months? The hon. Member for Thurrock mentioned historic languages and I am pleased that we are taking cognisance of the matter. I support his suggestion of an all-encompassing mechanism for dealing with such matters in future, rather than having to deal with each instance by returning to Committee.

5.14 pm

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Prepared 1 February 2006