21st Report, 2015 (Session 4): British Sign Language (Scotland) Bill at stage 1

SP Paper 707 (Web Only)

Remit and membership

Remit:

1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—

(a) any—

(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;

(ii) [deleted]

(iii) pension or grants motion as described in Rule 8.11A.1; and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation;

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;

(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and

(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.

(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and

(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule.

Membership:

Nigel Don (Convener)
John Mason (Deputy Convener)
Margaret McCulloch
John Scott
Stewart Stevenson

Contents

Introduction

Overview of the Bill

Delegated Powers Provisions

Annexe

British Sign Language (Scotland) Bill at stage 1

Introduction

1. At its meetings on 3, 24 and 31 March 2015 the Delegated Powers and Law Reform Committee considered the delegated powers provisions in the British Sign Language (Scotland) Bill at stage 1 (“the Bill”)1. The Committee submits this report to the lead committee for the Bill under Rule 9.6.2 of Standing Orders.

2. The member in charge of the Bill, Mark Griffin MSP, provided the Parliament with a memorandum on the delegated powers provisions in the Bill (“the DPM”)2.

3. The Bill provides for the promotion of the sign language known as British Sign Language “BSL”, by means of plans. These are to take the form of a BSL National Plan for Scotland (a ‘National Plan’) prepared by the Scottish Ministers and BSL Plans (‘Authority Plans’) prepared by relevant public authorities. These plans are to be published, following consultation, within specified timescales during each session of the Parliament.

Overview of the Bill

4. Under section 1 of the Bill, the Scottish Ministers are to promote the use and understanding of BSL by means of a National Plan, in which they are to set out their strategy for such promotion.

5. Section 2 provides for a Minister to be assigned special responsibility for taking forward the functions of the Scottish Ministers under the bill.

6. Section 3 requires each listed authority under the bill (as further detailed at section 8 and schedule 2) to prepare an Authority Plan. Such plans are to set out measures to be taken by listed authorities in relation to the use of BSL, with timescales for any such measures taken. In preparing an Authority Plan, a listed authority is to try to achieve consistency with the most recently published National Plan. The authority is also to have regard to a number of matters (specified at section 3(4)), including the potential for developing BSL in connection with exercise of the local authority’s functions.

7. Publication arrangements for Authority Plans are set out at section 4, and new plans are to be published each session.

8. A review mechanism is provided for at section 5. A BSL Performance Review is to be prepared by and laid before the Parliament by the Scottish Ministers, and published, within specified timescales during each Parliamentary session. This is to cover what has been done both under the National Plan and under Authority Plans. There is provision for examples of best practice and, if there are any, of poor performance to be included within the Performance Review.

9. Section 6 introduces schedule 1, which makes special provision for circumstances in which Parliament is dissolved early. In such circumstances, the normal timescales for producing plans and reviews do not apply.

10. Section 7 enables the Scottish Ministers, by order, to alter the date of publication of plans or reviews in other, exceptional, circumstances.

11. Section 8 provides that any reference to a ‘listed authority’ in the bill is to one of the public authorities detailed within schedule 2. The Scottish Ministers can modify the schedule 2 list by means of order subject to the affirmative procedure.

12. With regard to the list of authorities with responsibilities under the Bill to produce BSL plans, all of those detailed within schedule 2 are of a ‘public’ nature, with service-orientated functions covering areas such as education, health, justice, and government. Private and voluntary sector organisations are not affected.

Delegated Powers Provisions

13. The Committee considered each of the delegated powers in the Bill. At its first consideration of the Bill on 3 March, the Committee determined that it did not need to draw the attention of the Parliament to the delegated powers in the following provisions:

  • Section 3(3)(d) – Information contained within Listed Authorities’ Plans
  • Section 7(1) – Alteration of date of publication of plan or review in exceptional circumstances
  • Section 8(3) – Modification of schedule 2 (list of public authorities)

14. At that meeting, the Committee agreed to write to Mark Griffin MSP to raise questions on the remaining delegated powers in the Bill. This correspondence is reproduced at the Annex.

15. Having considered the member’s response, the Committee reports that it finds the following delegated powers to be acceptable in principle and is content that the powers are not subject to Parliamentary procedure.

  • Section 3(4)(b)(v) – Guidance relevant to preparation of an Authority Plan
  • Section 4(6) – Guidance relevant to publication of an Authority Plan

16. The Committee therefore reports that it is content with the delegated powers provisions contained in the Bill. 

Annexe

Correspondence with the Member in Charge

On 3 March 2015, the Delegated Powers and Law Reform Committee wrote to the Member in Charge as follows:

Section 3(4)(b)(v) – Guidance relevant to preparation of an Authority Plan

Power conferred on: the Scottish Ministers
Power exercisable by: guidance
Parliamentary procedure: none

1. Section 3 of the Bill sets out the responsibilities of local authorities in relation to the preparation of Authority Plans, and gives details of what Authority Plans must contain. Section 3(4)(b) sets out several matters to which an authority is to have regard in preparing its plan. These include, at section 3(4)(b)(v), any guidance – relevant either to the preparation or revision of Authority Plans – as may be issued by the Scottish Ministers.

2. The power to issue guidance is not explained in the Delegated Powers Memorandum as it is not a power to make subordinate legislation.

3. The Committee therefore asks the member in charge of the Bill for an explanation of:

(a) why the power to issue guidance is being taken;

(b) examples of the provision likely to be made in any guidance issued;

(c) why it is appropriate for the power to be exercised by way of guidance rather than subordinate legislation; and

(d) the form in which the guidance is likely to be issued and the manner of its publication.

Section 4(6) – Guidance relevant to publication of an Authority Plan

Power conferred on: the Scottish Ministers
Power exercisable by: guidance
Parliamentary procedure: none

4. Section 4 sets out the responsibilities of listed authorities with regard to the publication of Authority Plans, including the timescales for such publication. Broadly speaking, Authority Plans are to be published as soon as reasonably practicable after publication of the corresponding National Plan. The National Plan and Authority Plans are to be prepared in each session of the Parliament. Subsection (6) provides that in publishing an Authority Plan (or a revised Plan) a listed authority is to have regard to any guidance issued by the Scottish Ministers concerning publication.

5. The Committee asks the member in charge for an explanation of:

(a) why the power to issue guidance is being taken;

(b) examples of the provision likely to be made in any guidance issued;

(c) why it is appropriate for the power to be exercised by way of guidance rather than subordinate legislation; and

(d) the form in which the guidance is likely to be issued and the manner of its publication.

On 5 March 2015, the Member responded as follows:

Section 3(4)(b)(v) – Guidance relevant to preparation of an Authority Plan

Power conferred on: the Scottish Ministers
Power exercisable by: guidance
Parliamentary procedure: none

(a) why the power to issue guidance is being taken:

  • It is envisaged that the Scottish Ministers may wish to issue guidance, from time to time, on matters relevant to the preparation (or indeed revision) of Authority Plans, which plans represent a central element of the Bill. Section 3(4)(b)(v) makes legislative provision in that regard, and a listed authority is obliged to have regard to such guidance, along with the range of other matters which are referred to within paragraph (b) of subsection (4).
  • The wider BSL structure which the Bill creates is a collaborative one, driven by the National Plan in which the Scottish Ministers set out their strategy for promoting British Sign Language. A listed authority in then preparing its plan is to try to achieve consistency with the National Plan. Against that background, it is likely that the Scottish Ministers may wish to have some further input so far as the preparation of Authority Plans is concerned, and this provision affords that opportunity. Given the Scottish Ministers’ broader responsibilities with respect to such matters as budgetary considerations, it is considered useful to provide some flexibility within the legislation, enabling the Scottish Ministers to issue guidance about the preparation (or revision) of plans.

(b) examples of the provision likely to be made in any guidance issued:

  • This might be with respect to the matters already referred to within sub-paragraphs (i) to (iv) of paragraph (b), or on other matters which they may wish to be taken into account by listed authorities when preparing plans. Examples might be guidance to listed authorities to include certain specific initiatives relating to BSL in their plans or to ensure that particular steps are taken with regard to consultation over the plan aside from the requirements already within the Bill.

(c) why it is appropriate for the power to be exercised by way of guidance rather than subordinate legislation:

  • The issuing of guidance does not attract any Parliamentary scrutiny. That is considered appropriate here. Such guidance will require to be relevant to the particular subject area of the preparation (or revision) of Authority Plans, only. Section 3(4) lists a number of matters to which a listed authority is to have regard in preparing a plan. It is considered appropriate that the list set out there should not however be unduly prescriptive, and the Bill affords some flexibility for the Scottish Ministers to make further provision in this area by way of guidance. This could be particularly valuable over time, as the new legislation establishes itself, and guidance is considered to be a suitable vehicle for dealing with this.

(d) the form in which the guidance is likely to be issued and the manner of its publication:

  • The form in which such guidance is issued will be a matter for the Scottish Ministers, but it is anticipated that they will wish to ensure that it is readily accessible to BSL users, given the subject matter and purpose of the legislation. They will of course wish to ensure also that any guidance is immediately brought to the attention of listed authorities themselves, by suitable means. It is anticipated that the National Plans and the Performance Review will be one means of issuing guidance on the preparation of plans. The Scottish Ministers might also wish to issue separate, stand-alone, guidance, from time to time.

Section 4(6) – Guidance relevant to publication of an Authority Plan

Power conferred on: the Scottish Ministers
Power exercisable by: guidance
Parliamentary procedure: none

(a) why the power to issue guidance is being taken:

  • It is envisaged that as the new legislation establishes itself the Scottish Ministers may wish, from time to time, to provide guidance to listed authorities on publication matters, in relation to Authority Plans. The Bill itself provides a certain level of detail in regard to what publication of an Authority Plan is to entail. It is not however considered appropriate to set this out in highly prescriptive terms, but to provide some flexibility for the Scottish Ministers to issue guidance on this aspect as they see fit, to which listed authorities would be obliged to have regard.

(b) examples of the provision likely to be made in any guidance issued:

  • The content of such guidance will be a matter for the Scottish Ministers, of course. By way of example, however, the Scottish Ministers might wish within guidance to say something about the translation of plans into BSL, when they are being published.

(c) why it is appropriate for the power to be exercised by way of guidance rather than subordinate legislation:

  • The issuing of guidance does not attract any Parliamentary scrutiny. That is considered appropriate here. Such guidance would require to be relevant to the particular subject matter of the publication of Authority Plans, only. Guidance is considered to be an appropriate means of making further provision with respect to publication arrangements.

(d) the form in which the guidance is likely to be issued and the manner of its publication:

  • The form in which such guidance is issued will be a matter for the Scottish Ministers, but they will wish to ensure that any guidance is immediately brought to the attention of listed authorities themselves, by suitable means. It is anticipated that the National Plans and the Performance Review will be one of the means of issuing guidance on the publication of plans. The Scottish Ministers might also wish to issue separate, stand-alone, guidance, from time to time

Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites

Footnotes:

1 British Sign Language (Scotland) Bill [as introduced] available here: http://www.scottish.parliament.uk/S4_Bills/British%20Sign%20Language%20(Scotland)%20Bill/b55s4-introd.pdf

2 British Sign Language(Scotland) Bill Delegated Powers Memorandum available here: http://www.scottish.parliament.uk/S4_Bills/BSL_DPM.pdf

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