Public Services Reform (Scotland) Act 2010 (Consequential Modifications of Enactments) Order 2011

Lord Maclennan of Rogart Excerpts

Monday 17th October 2011 Grand Committee

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the draft order was laid before the House on 14 July 2011. Perhaps I may provide a brief explanation of what the order seeks to achieve.

The order is made under Section 104 of the Scotland Act 1998—with which Members of the Grand Committee have become familiar—and allows for necessary or expedient changes to UK legislation in consequence of an Act of the Scottish Parliament. This order is made in consequence of the Public Services Reform (Scotland) Act 2010—which I shall refer to as the 2010 Act—and secondary legislation made under it.

The Merits Committee of your Lordships’ House reviewed this order and has not noted it as being of special interest. The 2010 Act made provision for the reduction and simplification of public bodies in Scotland. The overarching purpose of the Act was to simplify and streamline the public bodies landscape in Scotland with the aim of delivering improved public services and better outcomes for the people of Scotland.

The 2010 Act dissolved the Deer Commission for Scotland and transferred its functions to Scottish Natural Heritage. It also dissolved the Scottish Arts Council, transferring its functions, and those of Scottish Screen, to a new public body called Creative Scotland. The Act dissolved the Scottish Commission for the Regulation of Care. Its functions in care service scrutiny, the functions of the Social Work Inspection Agency, and the child protection functions of Her Majesty’s Inspectorate of Education in Scotland were transferred to a new public body called Social Care and Social Work Improvement Scotland.

The functions of the Scottish Commission for the Regulation of Care concerning independent health care scrutiny and NHS scrutiny functions that were previously exercised by the special health board, Quality Improvement Scotland, were transferred to a new public body called Healthcare Improvement Scotland.

The 2010 Act also made provision to dissolve the water customer consultation panels and abolish the position of convener of those panels. This order will ensure that United Kingdom legislation is updated to reflect the changes made in the 2010 Act. It will ensure that United Kingdom legislation can continue to operate when it interacts with the new devolved legislation and makes provision, as necessary, in relative enactments for the newly established bodies and procedures. For example, the order ensures that the Health and Social Care Act 2008 is updated to ensure that obligations on care home providers to comply with certain provisions of the Human Rights Act 1998 continue to apply where the care home is in Scotland. The order also ensures that the Representation of the People (Scotland) Regulations 2001 are updated so that a care home manager who is providing care to a resident in respect of that resident’s disability can continue to attest to and sign that resident’s application to vote by proxy.

The modifications made to existing legislation by the order are of a technical nature. However, by the very fact that they are United Kingdom pieces of legislation, it is not within the competence of the Scottish Parliament to amend them. The modifications are required to ensure that existing legislation continues to operate effectively, by recognising the modifications that have been made to various pieces of legislation by the 2010 Act and subordinate legislation made under it. The order demonstrates this Government’s commitment to working with the Scottish Government to make the devolution settlement work. I hope the Grand Committee will agree that this order is a sensible use of the powers in the Scotland Act and that the practical result is to be welcomed. I commend the order to the Committee.

[Lord Maclennan of Rogart]

My Lords, this order appears to be uncontroversial and is before this Committee only because it is required to have an affirmative resolution. The only question I wish to ask is whether in the case of orders of this kind, which are not designed to amend the legislation, save—as my noble friend, the Minister, has said—to reflect, in a technical sense, the consequences of legislation by the Scottish Parliament, it might make sense, for reasons of expedition, to amend the Scotland Act to enable the measures to be incorporated in negative resolutions rather than affirmative resolutions. The Minister clearly explained that there is no issue of policy at stake here other than the maintenance of the status quo. As the Joint Committee on Statutory Instruments has not raised any matter about drafting or anything else, there is every reason to believe that this is an acceptable instrument. We now frequently see consequential legislation brought forward for extensive debates and this does not seem to be strictly necessary, bearing in mind the pressures on the United Kingdom Parliament.

[Lord McAvoy]

My Lords, I thank the noble and learned Lord, Lord Wallace, for his clear exposition of what is in the order. This will save some time. I will start by disagreeing totally with the noble Lord, Lord Maclennan of Rogart, about helping Governments to be expeditious in getting legislation through. There is always somebody paranoid, suspicious and hostile to government—probably me—and I like to see things coming in front of me. I also thank the office staff of the noble and learned Lord, Lord Wallace, for offering assistance and guidance, as usual. This is extremely helpful for those such as me who are still adjusting to this place. The noble Lord, Lord Maclennan of Rogart, also says that the measure is uncontroversial. I take the view that very little is uncontroversial in Scottish politics at the moment that cannot be made controversial by the behaviour of the First Minister, Alex Salmond.

On the extension of the Scottish Executive over those bodies included in the order, I wonder whether they will be exhorted by the leader of the Civil Service in Scotland to go to watch “Braveheart” so that the Scottish public can see how Scotland lived under English occupation 700 or 800 years ago. That is the sort of nonsense we are getting in Scotland at the moment, so I do not accept that there is anything uncontroversial in Scotland. Everything will be seized on as we lead up at some point to a Scottish independence referendum.

[Lord Maclennan of Rogart]

For the avoidance of doubt, I would not say that there was nothing uncontroversial in the Scottish legislation of 2010. What I see as uncontroversial is the response of the United Kingdom Government, which is that this is a devolved matter and not a matter over which we have control. Nothing that has been done has, as I see it, required the United Kingdom Government to do more than preserve those things that have not been affected by the Scottish legislation.

[Lord McAvoy]

My response to that would be: not yet, because you never know what will happen. I am not called Thomas for nothing. What raises my suspicion is reading the words Representation of the People Act—although I know that this order is about care homes and such things.

The serious question I have for the noble and learned Lord, Lord Wallace of Tankerness, in agreeing to these bodies understandably and logically coming under the remit of the Scottish Executive, is: are any of them in any way involved with elections or referendums? I know that this might seem wild, but you never know. In the order is a whole host of regulations, so I want to clarify just to make sure. Are any of them involved in the staffing of stations, administration or anything to do with the practical running of referendums? I should like to know to be sure that that is not the case.

In addition, the memorandum states:

“Part 1 makes provision for the purpose of simplifying public bodies”,

but ends up by stating,

“and provision in relation to the regulation of officers of court”.

Again, would any of those officers of the court be involved in ruling on disputes about referendums or voting in any way?

I have no intention of repeating the explanation of the order by the noble and learned Lord, Lord Wallace of Tankerness, which was absolutely fine. I am very grateful to the noble Lord, Lord Maclennan of Rogart, for getting involved. Those are my only serious questions. I know that folk may dismiss them as scaremongering or fantasising, but in Scotland at the moment we need to keep a very firm check on everything that comes through.