- The Convener:
Item 2 is delegated powers scrutiny of the Emergency Workers (Scotland) Bill at stage 1. Committee members have received the bill and associated information.
The bill, which is part of the antisocial behaviour agenda, creates a new offence of assaulting or impeding persons who provide emergency services. The bill also contains powers to make delegated legislation in section 6, which concerns powers to modify. However, paragraph 6 of the memorandum on the bill that the Executive has submitted to the committee mentions that, in addition to introducing the power to add a person to, or remove them from, the list of emergency workers covered by the bill,
"Section 6(1) also allows the Scottish ministers to make provision connected with modification as they think fit."
Our legal advice suggests that it is possible that that further power might be used to adjust the penalties contained in section 4, for example, which would be a significant and possibly controversial change. The delegated powers are simply subject to annulment, and the question is whether that is sufficient, particularly for the further power.
- Alasdair Morgan:
The provisions to alter the bill are far too widely drawn to be subject to the negative procedure, and we need to write to the Executive on that point.
- The Convener:
Should we be a bit more specific on the point that arises from paragraph 6 in the Executive's memorandum to us?
- Christine May:
We should, because if the Executive were to confine ministers' powers to modify the bill to making changes to the list of emergency workers alone, that might—I use the word "might" advisedly—be sufficient to allay the committee's fears. We have time to ask the Executive whether it would be prepared to amend the bill to restrict the powers to modification of the list only, after which we could examine the provisions and determine whether that restriction and the associated scrutiny powers were sufficient.
- The Convener:
Is that agreed?
Members indicated agreement.
- Murray Tosh (West of Scotland) (Con):
As the legal briefing points out, the exercise of Henry VIII powers is ordinarily subject to the affirmative procedure rather than the negative procedure. I recall that, several meetings ago, we agreed to let something go on the basis that it did not seem terribly significant. However, at some stage, perhaps we should have a paper on the matter that we could discuss in isolation from any statutory instruments, so that we do not make decisions on the basis of the importance of provisions, because that could be the thin end of a substantial wedge. We should at least consider the principle that we should always ask for the affirmative procedure to be used for Henry VIII powers. It may be that, if we consider the matter, we will decide that that is an extreme view to take, but I would not mind having that discussion at some stage.
- The Convener:
That is a good point. We could perhaps go further than having that debate ourselves; we could have it at our next meeting with the Executive. Is that what you mean?
- Murray Tosh:
Absolutely.
- The Convener:
Do the clerks have a note of the wording that Christine May suggested?
- Alasdair Rankin (Clerk):
Yes, I have taken a note of that point.
- The Convener:
Are we agreed on what we will say about section 6?
Members indicated agreement.
- The Convener:
No points arise on section 7, which concerns the short title and commencement.