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Session 2005 - 06
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Standing Committee Debates

Fifth Standing Committee on Delegated Legislation

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Fifth Standing Committee on Delegated Legislation

The Committee consisted of the following Members:


Mr. Joe Benton

†Alexander, Danny (Inverness, Nairn, Badenoch and Strathspey) (LD)
†Blizzard, Mr. Bob (Waveney) (Lab)
†Brown, Mr. Russell (Dumfries and Galloway) (Lab)
†Cairns, David (Parliamentary Under-Secretary of State for Scotland)
†Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
†Clark, Ms Katy (North Ayrshire and Arran) (Lab)
†Doran, Mr. Frank (Aberdeen, North) (Lab)
†Farrelly, Paul (Newcastle-under-Lyme) (Lab)
†Griffith, Nia (Llanelli) (Lab)
†Jones, Lynne (Birmingham, Selly Oak) (Lab)
†Laing, Mrs. Eleanor (Epping Forest) (Con)
†Liddell-Grainger, Mr. Ian (Bridgwater) (Con)
†Lilley, Mr. Peter (Hitchin and Harpenden) (Con)
†Mundell, David (Dumfriesshire, Clydesdale and Tweeddale) (Con)
†Roy, Mr. Frank (Motherwell and Wishaw) (Lab)
Selous, Andrew (South-West Bedfordshire) (Con)
Susan Griffiths, Committee Clerk

† attended the Committee

The following also attended, pursuant to Standing Order No. 118(2):Robinson, Mrs. Iris (Strangford) (DUP)

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Wednesday 22 June 2005

[Mr. Joe Benton in the Chair]

Draft Adults with Incapacity (Scotland) Act 2000 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2005

2.30 pm

The Chairman: Is it the wish of the Committee that the two orders be taken together?

Mrs. Eleanor Laing (Epping Forest) (Con): May I suggest that on this occasion it would be appropriate to take them separately?

The Chairman: If there is an objection to the orders being taken together, we have to take them separately.

2.31 pm

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

    That the Committee has considered the draft Adults with Incapacity (Scotland) Act 2000 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2005.

I welcome you to the Chair, Mr. Benton, and look forward to serving under your stewardship today.

The beginning of my brief says that I should thank the Committee for agreeing to take the two orders together, but I shall pass over that. Both orders were laid before the House on 25 January, but there was insufficient parliamentary time to debate them before Dissolution. The orders were considered together and approved in the other place on 7 June.

I shall give some background on what section 104 orders are and what they do, and I shall not repeat myself when I come to address the second order. Both orders are made under section 104 of the Scotland Act 1998. As the Committee knows, section 104 orders are used when change is required to the law of England, Wales or Northern Ireland or when modification of reserved law is required, both as a consequence of legislation in the Scottish Parliament. Such changes would obviously be outside the legislative competence of the Scottish Parliament.

Section 104 of the Scotland Act 1998 provides for subordinate legislation to be made in this Parliament only. When section 104 orders amend primary legislation, as those before us do, the 1998 Act requires them to be subject to affirmative resolutions in both Houses. As I have said, both orders have been subject to, and approved by, the affirmative resolution procedure in the other place.

I hope that hon. Members will have had the opportunity to read the explanatory material that accompanies the orders, but it will be helpful briefly to outline what the first order will do. As its name
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suggests, the draft Adults with Incapacity (Scotland) Act 2000 (Consequential Modifications) (England Wales and Northern Ireland) Order 2005 is consequential on the Adults with Incapacity (Scotland) Act 2000, an Act of the Scottish Parliament. The order amends references in the Child Support Act 1991, the Social Security Administration Act 1992 and the Social Security Administration (Northern Ireland) Act 1992. All contain references to the “appropriate person” for various purposes relating to disclosure of information. All such references include a definition of a Scottish mental health custodian, but changes in the Adults with Incapacity (Scotland) Act 2000 mean that the definition requires updating.

The Scottish Act amended the definitions of the first two of the three Acts that I mentioned, but limits on the legislative competence of the Scottish Parliament mean that the amendments could have effect only under Scots law, so the old definitions in those two Acts still exist in the rest of the UK. This order amends the references for England and Wales. The definition in the Social Security Administration (Northern Ireland) Act 1992 is also amended, as such a change would clearly be outside the limits of the Scottish Parliament’s legislative competence.

That was by way of introduction to this order; I shall happily answer any questions that Committee members may have.

2.34 pm

Mrs. Laing: I concur with the Minister in welcoming you to the Chair, Mr. Benton. I thank you for your forbearance in chairing this Committee this afternoon.

We broadly accept what the Government want to do in the two orders. I note that they passed through the other place quickly and without much questioning. Whenever a statutory instrument of this kind comes before this House and requires an affirmative resolution, it is our duty to give the Minister an opportunity to create an affirmative resolution by putting forward the negative in order that he might put the affirmative case. I am grateful to him for explaining why this legislation is necessary.

I do not suggest that there is anything particularly controversial in the substance of the motion, but will the Minister explain why the order is considered desirable rather than considered as an anomaly being dealt with administratively? For example, the explanatory memorandum says that the anomaly of having one definition in Scotland and another in the other parts of the United Kingdom

    “initially . . . was not thought problematic.”

I well recall, as will some Members present, the many hours that we spent debating in the Chamber when we passed the devolution legislation. Will the Minister explain what the substantive differences between the definitions are? Have specific problems arisen since the original legislation to warrant the order? If so, what have they been? How many cases are involved?

The explanatory memorandum cites “potential legal problems” as a reason for the desirability of harmonising definitions. I entirely accept that
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harmonisation is necessary, but I wonder what the legal problems are and why they are deemed sufficiently serious to warrant a change in legislation.

I look forward to the Minister’s response and I am grateful for the opportunity to examine this matter in a little more detail.

2.38 pm

Mr. Alistair Carmichael (Orkney and Shetland) (LD): I welcome you to the Chair, Mr. Benton. I had the pleasure of serving under your chairmanship on many occasions in the previous Parliament and I look forward to doing so again in this one.

For the first time, I welcome the Minister to his position and congratulate him on a well deserved appointment. In the interests of balance, because as a Liberal I like to be nice to everyone, I commiserate with the hon. Member for Epping Forest (Mrs. Laing) on her appointment. She had the misfortune to be left holding the parcel when the music stopped. However, I am confident that she will acquit herself in that position with the grace to which we have all become accustomed over the years.

What we have here is a huge example of devolution working; the Adults with Incapacity (Scotland) Act 2000 is one of the best examples of the sort of legislation that was never properly addressed prior to devolution. Devolution happened and that Act was passed. It was given proper time and we are now considering minor consequential amendments to be made to reserved legislation

The hon. Member for Epping Forest asked why the order was necessary. It would appear from the terms of the explanatory memorandum that it might not strictly speaking be necessary. The matter has clearly been dealt with by an administrative rather than legislative procedure. The procedure that we are going through today is, for all intents and purposes, not a million miles removed from an administrative procedure in its effect, if not necessarily in its process. Considering the matter as a lawyer, it seems eminently sensible that where there has been a change in the terminology—the terms of art—that are to be employed, that should be reflected consistently through legislation. The section 104 procedure by which that can be effected is streamlined, and I do not see that there are any criticisms to be made of the Scotland Office or the Scottish Executive for our having to consider the issue.

2.40 pm

Mr. Ian Liddell-Grainger (Bridgwater) (Con): I have two questions for the Minister.

First, the order refers to the Child Support Act 1991. The explanatory memorandum says that all

    “references include a definition of Scottish mental health custodian”

but it also refers also to an “appropriate person”. Will the Minister define an appropriate person? That is
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important to what we are discussing today. The memorandum also refers to the Adults with Incapacity (Scotland) Act 2000, and I was wondering what the background is.

My second question relates to the definition in the two Acts that that are being brought together, which will still exist in the UK as a whole. If the references are amended in Scotland, what will the definition be? Are we are saying that the Scottish Parliament means that amendments can have an effect only as a matter of Scottish law? Is the Minister looking to introduce other amendments that will bring the provisions in line with Scottish law, or is he covering everything in the order today? If not, will we be under your careful tutelage again, Mr. Benton, some time in the near future? As far as I can see, the Child Support Act 1991, the Social Security Administration Act 1992 and the Social Security Administration (Northern Ireland) Act 1992 are not completely covered. I may be wrong, and I am more that happy to take the Minister’s advice. I will be interested to hear what he has to say.

2.42 pm

David Cairns: I am happy to have this opportunity to clarify some of the important questions that have been asked about what is a welcome and essentially technical instrument. It might help if I give a “for instance” to explain about the order.

If I want to be appointed as a guardian or appropriate person to act on behalf of an adult with mental incapacity in Scotland, I apply at the sheriff court. If appointed, I am at liberty to act on behalf of that person and discharge the duties covered by the relevant Acts. A problem might arise if I moved to England but the person whom I represented stayed in Scotland because the definitions in the Adults with Incapacity (Scotland) Act 2000 have changed and are slightly out of kilter with those that apply in England. If I presented myself at a Jobcentre Plus or other social security office in England and attempted to conduct a transaction on behalf of the person whom I represented, it would be theoretically possible for staff to refuse to recognise me, because the legal definition of whom they can deal with in England is slightly different.

The hon. Member for Orkney and Shetland (Mr. Carmichael) rightly points out that this is a judgment call, because the differences are not massive and the definitions have the same effect. Indeed, it was thought initially that the differences could be dealt with administratively, and, as the Committee knows, the Government do not wish to introduce any more regulations or laws than are absolutely necessary. Section 104 is clear: we shall introduce such orders only when we believe that they are necessary and consequential on an Act of the Scottish Parliament.

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When the law came into force fully at the end of 2003, the examination of its consequences led to the belief that it would probably be best to put the matter beyond any doubt as a matter of law so that no one could be disadvantaged by the technical discrepancy. To answer the second question of the hon. Member for Epping Forest, we have not been aware of any specific problems or of anyone being disadvantaged.

That takes us to the third question about legal problems. If a member of staff of the Department for Work and Pensions in England were to disclose information to someone who had been awarded guardianship in the Scottish courts but who fell outwith the definitions used in England, it could be argued that that member of staff had acted outside the law. Clearly, nobody would want to prosecute or take action against someone who was trying to do their best for an individual. However, it has been recommended that we make changes to put the matter beyond dispute.

The hon. Member for Orkney and Shetland said that the order is a good example of devolution working, and I agree. It is a minor and technical matter.

Turning to the point raised by the hon. Member for Bridgwater (Mr. Liddell-Grainger), Scots law in this regard is devolved to the Scottish Parliament, so if I am designated as a custodian of someone in Scotland, I am completely covered. The problem arises only because the Scottish Parliament does not have the legislative authority to change the law as it applies in England, Wales and Northern Ireland. That is what this House does and is what we are doing today. We do not anticipate that we shall have to introduce further orders, but we want to ensure that, in this fairly narrow range of circumstances, it is absolutely clear that an individual appointed by a court in Scotland is at liberty to operate in England and that no one will be disadvantaged by a minor discrepancy in terminology. I hope that has clarified things.

2.47 pm

Mrs. Laing: May I congratulate the Minister on, unusually—not for him, but for Ministers in general—approaching the matter with utter clarity and explaining it so well? I mean that without any side to it.

The Minister said that the difference is not massive. That is what I thought and I am grateful for that clarification. I am also pleased to learn that there have not been any specific problems. I find myself in the unusual position of congratulating the Minister and his Government on anticipating problems and—if I may mix my metaphors—cutting the red tape before it raises its ugly head.

Mr. Frank Roy (Motherwell and Wishaw) (Lab): Cross the Floor.

Mrs. Laing: No, this is a narrow set of congratulations.

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One can imagine that an individual in need of help and support might have been considerably disadvantaged simply because of differences between the Scottish and English legal systems. I uphold and respect those differences—I cannot help it being a Scottish lawyer schooled in the ways of Scots law rather than law south of the border. Therefore, I appreciate that it is important to pass this measure, however small it may be, because to do otherwise could have a detrimental effect on an individual in need of help. I congratulate the Minister on his perspicacity in introducing it, and I am happy to support it.

2.49 pm

Mr. Peter Lilley (Hitchin and Harpenden) (Con): Before my hon. Friend gets carried away in the effusion of her support for the Minister, may I say that I was less happy with his explanation? Although he was undoubtedly well-meaning and frank, he said that there were very small differences and that they had led to no problems. However, he was unable to tell us what the differences were—or was very coy about it. We should know the differences between the definitions so that we can judge whether it is necessary to make any changes, whether those changes would have a substantive effect, or whether failure to make changes would cause more serious problems than he implied. It is odd that we are being told that we must make changes but we are not being told what the differences are. Will the Minister spell them out?

2.50 pm

Mr. Frank Doran (Aberdeen, North) (Lab): Perhaps I can respond to the points raised by the right hon. Gentleman. I am one of at least three people in the Room who has practised as a Scottish solicitor and I have been appointed by the courts as a curator—that is what we used to call it when I was a lad.

I do not believe that this is a trifling matter. My experience is that if one is involved in dealing with the day-to-day problems of someone who requires a curator, one is often asked, usually by hospital or social care staff, for very quick decisions about issues affecting the person for whom one is responsible. Removing this piece of bureaucracy is extremely helpful and is not, as the right hon. Gentleman suggested, totally unnecessary. It is important legislation, even if it relates to a small and very specialised area.

David Cairns: There is no attempt by the Government to be less than forthcoming about the provisions. The Act of the Scottish Parliament has been in existence for some time, and the definitions are contained within it. I am sure that the right hon. Member for Hitchin and Harpenden (Mr. Lilley) is entirely conversant with the Acts of the UK Parliament that we are amending—as a former Secretary of State he probably put them through.

Mr. Lilley: They were just before my time.

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David Cairns: The right hon. Gentleman says that they were just before his time. The explanatory memorandum refers to the wording of the two Acts. The current UK legislation contains the phrase that my hon. Friend the Member for Aberdeen, North (Mr. Doran) mentioned—the curator bonis. That phrase has changed in the Act of the Scottish Parliament—it has been removed—and the changes that we are discussing reflect that.

2.51 pm

David Mundell (Dumfriesshire, Clydesdale and Tweeddale) (Con): I was involved in the passing of the original Act, and at that point the requirement for consequential legislation was not highlighted. Will the Minister comment on a general point—a constitutional point—that in effect we are seeking to amend the law in England, Wales and Northern Ireland? To what extent is there an obligation to do that, when laws legitimately passed by the Scottish Parliament within its powers have consequential effects? Is there an absolute obligation to make changes if they have an impact in England and Wales, and where does the Minister see the constitutional balance lying in that circumstance?

David Cairns: There is an obligation to introduce measures in this place that this place believes are necessary as a consequence of an Act of the Scottish Parliament. The decision rests with us. If we believe that the changes are necessary for the smooth working of the law across the different devolved areas—not just Scotland, because similar situations apply elsewhere—we take action. It is not, however, axiomatic—it does not follow automatically—because sometimes the changes do not alter primary legislation. The original Acts that we are amending are primary legislation, which is why we are doing it in this forum, but changes to secondary legislation are not required to go down this route. I think that there have been 15 section 104 orders since the Scottish Parliament came into being, so they are not an everyday occurrence. They are introduced only when we judge that it is necessary to align the law in the rest of the UK as a consequence of an Act of the Scottish Parliament.

Mr. Lilley: I am sorry if I am being pedantic, but I have a long-running campaign for explanatory memorandums that explain. This is an explanatory memorandum that does not explain. It refers to changes in the definition, but it does not tell us what the first definition was, and what the changed definition was. It just asks us to take it on trust that there has been a change from a definition that we do not know to another definition that we do not know. That is not an explanation. An explanatory memorandum ought to spell out what the change is, so that we can see what it is and judge it. I have no doubt, in my heart of hearts, that the measure is necessary—it would not have been introduced if it was not—but an explanatory memorandum should explain what is going on, and this one does not. I hope that, in future, the Minister will ensure that his explanatory memorandums are explanations rather than
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assertions. I would also be grateful if he could tell us what the two definitions are, and how they differ.

David Cairns: I will reflect on the right hon. Gentleman’s comments on the explanatory memorandum. I return to the notion that we have absolutely no idea about the definitions. The Act of the Scottish Parliament has been in existence for some years. It is not a secret, it is a public document and anyone can look it up to find out the definition. The Acts that we are amending have been in existence for 14 or 15 years, and we are not hiding them. We may not have served up the explanatory memorandum on a plate, saying “Here is the extract from this lot. Here is the extract from that lot”, and we will reflect on that to see whether it would be helpful to do so in future.

I take issue with the right hon. Gentleman’s idea that we have absolutely no idea what the definitions are. They are a matter of public record; they are on the statute books and have been for many years. However, I take his point that for the smooth running of the Committee we might need to see whether we can extract them. In this particular instance, it would probably not be difficult, because the definitions are not that long; but in other statutory instruments, swathes of different legislation are being amended in different places, and an explanatory memorandum that covers everything may not always be possible. The heart of the matter is the phrase “curator bonis” that my hon. Friend the Member for Aberdeen, North mentioned, which is still in the UK legislation. The Scottish Act has removed that.

Mr. Liddell-Grainger: I wonder whether I can help the Minister. There seems to be three different definitions: first, there is the appropriate person; secondly, there is the mental health custodian; and, thirdly, there is the

    “guardian or other person entitled to act on behalf of the person under the Adults with Incapacity (Scotland) Act 2000”.

Will the Minister tell us whether all three are still current definitions, or is just one still current? My right hon. Friend is trying to seek guidance on that matter, and it would be interesting to know whether the Minister feels that all three are still relevant, or whether he feels that they have been superseded in the past 14 years and that there is now a new wording. Perhaps a guardian or other person entitled to act on behalf of the person is the new wording. I would be interested if the Minister could tell us.

David Cairns: The mental health custodian has been replaced by “guardian”. That is the definition of the appropriate person. The appropriate person refers specifically to the Child Support Act 1991, but in direct response to the hon. Gentleman’s direct question, if it helps to clarify the situation, the mental health custodian has been replaced by the term “guardian”.

Mr. Liddell-Grainger: I accept what the Minister says, but that is not quite the same, is it? Has he replaced appropriate person and mental health custodian with

    “a guardian or other person entitled to act on behalf of the person under the Adults with Incapacity (Scotland) Act 2000”

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as detailed in section 2 of that Act? Is that the wording that the Minister has incorporated completely? Have we therefore dropped the other two definitions completely?

David Cairns: The hon. Gentleman is slightly losing me. I thought that I had answered his question. The mental health custodian has been replaced by “guardian”. The term “appropriate person” still appears in the legislation, but I am not aware that we are amending that in this Committee.

Question put and agreed to.


    That the Committee has considered the draft Adults with Incapacity (Scotland) Act 2000 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2005.

ORDER 2005

2.59 pm

David Cairns: I beg to move,

    That the Committee has considered the draft Education (Additional Support for Learning) (Scotland) Act 2004 (Consequential Modifications) Order 2005

The Education (Additional Support for Learning) (Scotland) Act 2004 was passed in the Scottish Parliament last year. It replaces the system for assessment and recording of children and young people in Scotland with special educational needs with a framework based on additional support needs. The order simply adds the new Scottish Act to a list of education-related legislation already in the Disability Discrimination Act 1995.

Specifically, it amends section 28F of the DDA to ensure that when education authorities carry out their functions under the 2004 Act, the prohibition against discrimination in section 28F will apply.

The 2004 Act places new duties on education authorities to provide additional support to assist with the school education of children and young persons who need it. Additional support needs are defined more broadly than special educational needs. There are also other new duties—for example, in relation to planning for children with enduring, complex or multiple needs who require support from outside education services; the provision of independent mediation services; and exchanging information with agencies responsible for supporting such children after they leave school. Education authorities also have a power to help children with additional support needs who are not in the public education system.

The order is being introduced so that it is in place when the relevant part of the 2004 Act is brought into force in November. Like the previous order, this legislation makes sensible use of the powers provided by section 104 of the Scotland Act 1998, and I commend it to the Committee.

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3.1 pm

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