Committee
Subordinate Legislation Committee, 30 May 2006
30 May 2006 · S2 · Subordinate Legislation Committee
Item of business
Draft Instruments Subject <br />to Approval
Management of Offenders etc (Scotland) Act 2005 (Supplementary Provisions) Order 2006 (draft)
I refer members to what the legal brief says about section 22(1) and section 22(2) of the Management of Offenders etc (Scotland) Act 2005. Paragraphs 35 and 36 of the legal brief outline our previous concerns. Members will remember our concerns about the Bankruptcy and Diligence etc (Scotland) Bill. Paragraph 38 of the legal brief states:"In our view the provisions of this Order exceed what might reasonably be considered consequential on the provisions in the Act for the purposes of section 22(1) and introduce new substantive material which seems to us to go far beyond a defensible use of the powers."Paragraph 40 says a little bit more. Paragraph 41 states:"It is settled law that an order under a ‘sweeper' power cannot alter the provisions of the enabling statute in the way proposed by this Order. And therefore it appears to us that there are doubts as to whether the Order is intra vires for this reason also."That is pretty strong stuff.The other issue relates to the previous article 7, which is the new article 6. Paragraph 45 of the legal brief analyses the matter, and paragraph 46 states:"the policy purpose of article 6 at least"—that is, the new article—"could be achieved by an order under section 104 of the Scotland Act which would remove any doubts about competence. A similar observation is made regarding article 2."I will give members time to read the legal brief because it is lengthy and complex.
In the same item of business
The Convener:
Lab
I refer members to what the legal brief says about section 22(1) and section 22(2) of the Management of Offenders etc (Scotland) Act 2005. Paragraphs 35 and ...
Mr Macintosh:
Lab
The Executive has used powers that are supposed to allow it to make"any supplementary, incidental or consequential provision"in order to make more substantiv...
The Convener:
Lab
You are referring to paragraph 46 of the legal brief, which states that an order could be laid—
Mr Macintosh:
Lab
—under section 104 of the Scotland Act 1998. We should go back to the Executive, because the points that have been raised are important and we should report ...
The Convener:
Lab
The 40-day period starts again.
Mr Macintosh:
Lab
In that case, we can go back to the Executive.
The Convener:
Lab
I tend to think that that is how to proceed.
Gordon Jackson:
Lab
There are obviously real concerns. I do not have the expertise to know what to make of it all, but I certainly want to ask the Executive questions.My only re...
Mr Maxwell:
SNP
In a sense, that is not the point.
Gordon Jackson:
Lab
I know. It is not our business whether the result is good or bad.
Mr Maxwell:
SNP
In every previous case on which we have corresponded on the matter with the Executive, it said that the powers would be interpreted in a limited way, that th...
Gordon Jackson:
Lab
For the avoidance of doubt, I totally agree. I did say that the result is irrelevant. The Executive's purposes could be rotten, but we would still say that t...
Murray Tosh:
Con
As in the old saying, the ends do not justify the means, especially as there are competent ways in which the Executive could achieve the same ends. It is imp...
The Convener:
Lab
Absolutely.
Gordon Jackson:
Lab
Agreed.
The Convener:
Lab
I think that we should write quite a strong letter because the order would create a precedent.
Gordon Jackson:
Lab
I say this tentatively. In the past—although not so much in your time, convener—we have asked officials to come to the committee when we thought that an inst...
The Convener:
Lab
I wonder whether we should do that in this case.
Gordon Jackson:
Lab
Normally, we ask for a response, we get the response, and we are all snookered. I am open to other members' views, but in this case we should perhaps say to ...
Murray Tosh:
Con
We do that so seldom, but it is a legitimate exercise and it will signal to the Executive how concerned we are about the issue.
The Convener:
Lab
We will send a letter outlining our concerns and asking the officials to come and explain. Is that agreed?Members indicated agreement.
The Convener:
Lab
We will try to do that for next week.
Mr Macintosh:
Lab
I agree with the gist of what Murray Tosh said but, for clarification, I do not think that the provision in the order is a Henry VIII power. The Executive is...
Murray Tosh:
Con
It is not exactly a Henry VIII power.
The Convener:
Lab
No.
Murray Tosh:
Con
It is more like a Henry VII-and-a-half power with more or less equal status. The legal advisers are on my side—I am sure that they take on Ken Macintosh on t...
Gordon Jackson:
Lab
Do the officials have to come next week? I ask because I will have to send my apologies—I have to go to something else next Tuesday morning. As I suggested t...
The Convener:
Lab
We will look at the timetable. It depends how it impacts on the lead committee. If we can fit it in so that it is on the agenda in two weeks' time when we ca...
Gordon Jackson:
Lab
It does not matter, but I am quite interested in the issue.
The Convener:
Lab
Okay. Is that agreed?Members indicated agreement.