Tag: scrutiny

Draft legislation should generally set out a high degree of detail to ensure proper democratic engagement, Committee finds

A framework approach to legislation should only be used in very limited circumstances, according to Holyrood’s Delegated Powers and Law Reform Committee.

In a new report, the Committee said that draft legislation in the Scottish Parliament should generally set out a high degree of detail on the face of a bill to allow for proper democratic engagement by both stakeholders and parliamentarians.

The report comes as the Committee concludes an inquiry into how framework legislation and so-called Henry VIII powers are used in Scotland and elsewhere.

There is not a single, precise definition for framework legislation. The Committee described it as legislation which sets out the principles for a policy, but without substantial detail as to how it will be given practical effect. Instead, broad powers are given to ministers or others to fill in this detail at a later stage.

While there was a lot of consensus around what this sort of legislation is in practice, the Committee recognised that, within this description, there will be a spectrum of framework provision, grey areas, and scope for reasonable disagreement.

The Committee recognised the need for framework legislation in appropriate and very limited circumstances, mainly to allow for flexibility. Although each bill needs to be considered on its own merits, flexibility is more likely to be needed in areas which need to be updated frequently, in ways which cannot reasonably be foreseen.

The Committee found that any framework provisions should be as clear and as narrow in scope as possible. Where a bill proposes the delegation of a broad power, the Scottish Government should think about using an appropriate super-affirmative procedure to improve parliamentary scrutiny of how the power is used.

Considering the balance of evidence across jurisdictions, the Committee concluded it is likely the occurrence of framework legislation has increased since 1932 when the Report of the Donoughmore Committee on Ministers’ Powers was published, and that the trend seems to be accelerating.

Framework powers that allow flexibility “just in case” are unlikely to be considered appropriate, the Committee also found, and consultation and “co-design” on a bill’s provisions should take place before it is introduced to enable sufficient policy detail to be provided.

Stuart McMillan MSP, Convener of the Delegated Powers and Law Reform Committee, said: “Proper scrutiny is vital to the work of the Scottish Parliament to improve the quality of legislation and ensure that laws are well considered and effective.

“Our Committee agreed that, where possible, parliamentarians and stakeholders should be able to engage with solid proposals to make it easier for them to consider the impact of legislation, set out views or advocate for a particular outcome.

“Where a framework approach is being taken, we see it as essential that a full justification is given at the bill’s introduction as to why the framework provision is appropriate in the circumstances.

“We hope our report is useful, by sharing our views on how to strengthen the scrutiny of primary legislation that delegates framework powers, and the secondary legislation made under them.

“We are keen to hear the Scottish Government’s response to our report.”

As part of its inquiry, the Committee was also interested in hearing views of how Henry VIII powers are used. These powers allow Ministers to amend primary legislation by secondary legislation

The Committee concluded that Henry VIII powers can be a necessary, efficient tool when used suitably but should be appropriately limited in scope.

Residential Outdoor Education Bill backed by Holyrood Committee

A Bill that would allow all pupils in state and grant-aided schools to have at least four nights and five days of residential outdoor education during their school career has been supported by a Holyrood committee.

Following a vote, members of the Education, Children and Young People Committee agreed with the general principles of the Schools (Residential Outdoor Education) (Scotland) Bill. However, the Committee unanimously agreed that concerns related to the costs, provision for pupils with additional support needs and the impact on teachers need to be resolved if the Bill is to become law.

The Bill was introduced by Liz Smith MSP against a backdrop of declining provision of residential outdoor education, with only a quarter of Scotland’s primary pupils and a third of secondary pupils having the chance to attend.

During evidence the Committee heard strong arguments for the Bill based on the “life-changing benefits” residentials have on pupils’ confidence and resilience. Several witnesses also spoke about the positive impact this can have on pupil-teacher relationships and attainment.

The Committee heard that residential outdoor education could be particularly beneficial to pupils from more deprived areas, however these pupils were often not able to go on trips as they were unaffordable for many parents.

The Committee identified several practical concerns that would need to be overcome though for the Bill to be delivered, with costs proving a significant barrier.

Estimates suggest delivering the Bill would cost the Scottish Government between £20 million and just over £40 million a year. However, in its report, the Committee says that national funding of residential outdoor education is a good example of preventative spend where the benefits are well documented.

The report also raises concerns about staffing, which currently is provided by teachers on a voluntary basis. While teachers were positive about their experiences, if residential education became statutory it might lead to a renegotiating of teachers’ terms and conditions, adding further barriers to delivering the Bill.

Douglas Ross MSP, Convener of the Education, Children and Young People Committee: “Throughout this inquiry we heard about the hugely positive impact that outdoor residential education can have on the development and attainment of children and young people.

“While we agree with the general principles of the Bill, there are financial challenges attached to the delivery of outdoor residential education that need to be overcome for it to become law.

“We want to see the Scottish Government and the Member who introduced the Bill, Liz Smith MSP, work together to resolve these.”

Child Poverty Act focused minds, but greater collaboration needed, finds Holyrood Committee

A law passed by the Scottish Parliament in 2017, has focused minds on work to reduce child poverty, but more collaboration is needed for the Scottish Government to continue to make progress, according to a report from Holyrood’s Social Justice and Social Security Committee.

The Child Poverty (Scotland) Act was passed by the Parliament in 2017 and aimed to tackle, report on and measure child poverty. It also established targets relating to the eradication of child poverty by 2030. The Scottish Government will publish statistics that will outline whether it has met its interim targets in March.

The Committee wanted to understand the impact of the Act, and in particular the difference that has been made by having a framework for reducing child poverty set in law.

In its report on post-legislative scrutiny of the Act, the Committee has found that, while the Act has instilled an appetite and motivation to tackle child poverty, something most clearly demonstrated in the establishment of the Scottish Child Payment, it has not led to sustained progress towards reaching the Scottish Government’s 2030 targets.

The report outlines a series of recommendations that could help the Government make further progress, including encouraging a culture of collaborative working across portfolios and engaging with local authorities to understand whether they can reach the targets and what further resources they might need.

The Committee also calls on the Government to share details on how its own research into child poverty in rural areas and in the islands has impacted on the Scottish Government’s approach.

Collette Stevenson MSP, Convener of the Social Justice and Social Security Committee, said: “Our scrutiny has shown that the Child Poverty Act has helped ensure the Scottish Government keeps its aim of eradicating child poverty focused in people’s minds.

“However, it looks as though more progress can be made towards achieving the targets that were set out in the act, so we are calling for change on a bigger scale to happen.

“We’re keen to hear more from the Scottish Government about how it intends to do this so that it can meet its targets and make a real difference to the daily life of children and families in Scotland.”

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Committee seek views on proposed amendments to the National Care Service Bill

A Holyrood Committee is seeking views on substantial amendments the Scottish Government is proposing to make to the National Care Service (Scotland) Bill.

The Health, Social Care and Sport Committee backed the Bill at Stage 1 (by a majority) but made clear they would seek to carry out detailed further scrutiny of the proposals at Stage 2. This followed the conclusion of a consensus agreement between COSLA and the Scottish Government on shared legal accountability for governance of the proposed National Care Service, which the Scottish Government had indicated would require the Bill to be substantially amended.

Maree Todd, Minister for Social Care, Mental Wellbeing and Sport, has now provided the Committee with draft Scottish Government amendments to the Bill and the Committee is keen to find out views on these proposed amendments, ahead of formal Stage 2 proceedings.

One of the key proposed changes to the Bill which the Committee is seeking views on is the creation of a National Care Service Board which would be responsible for national oversight and improvement of social care and social work services.

The Committee is also seeking views on a newly proposed ‘National Care Service strategy’ and substantial reform of integration authorities via amendment of the Public Bodies (Joint Working) (Scotland) Act 2014.

In a letter to the Committee, the Minister outlines four areas where she says, ‘further work is needed to confirm which legislative approach would best deliver the intended changes.’ These include direct funding, the inclusion of children’s services, the inclusion of justice social work and Anne’s Law, and the Committee is asking for views on each of these areas.

Clare Haughey MSP, Convener of the Health, Social Care and Sport Committee, said: “When a majority of our Committee backed the general principles of this Bill, we made clear we would need to carry out detailed further scrutiny at Stage 2.

“Now the Government has provided a package of proposed draft amendments, we are determined to make sure stakeholder organisations and the public are given an opportunity to comment on these proposed changes.

“Since this Bill was first introduced as a ‘framework Bill’, many of the original proposals have changed. These amendments represent some quite fundamental changes, including the introduction of a National Care Service Board and far-reaching reforms to integration authorities through amendment of the 2014 Public Bodies Act.

“That’s why it’s essential our Committee takes the time to scrutinise these proposals effectively. After we have considered the views received, we intend to take further oral evidence before formal Stage 2 proceedings.

“The evidence we gather will be vital to aid our Committee’s scrutiny of these proposals, and to inform individual Members as they prepare their own Stage 2 amendments to the Bill. We look forward to hearing your views.”

The call for views is open until Friday 30 August 2024.

 Let the Committee know your views

Regulator intervenes to strengthen governance at international aid charity

Penny Appeal has been subject to extensive regulatory scrutiny resulting in an Official Warning

The Charity Commission has closed its regulatory compliance case into Penny Appeal, and set out its findings and ongoing expectations of the charity’s trustees.

Penny Appeal was set up in 2008 to provide poverty relief, emergency aid and healthcare across Asia and Africa. The charity also works in the UK to help homeless people and women who have experienced domestic abuse.   

The Charity Commission opened a compliance case into Penny Appeal in June 2020 following several complaints and concerns raised about how the charity was being managed. Concerns included failure to manage perceived conflicts of interest, poor record keeping and inadequate management of major supplier contracts. 

The Charity Commission has reviewed evidence supplied by the charity’s trustees and is satisfied that progress has been made to improve the charity’s governance and management. However, it has been made clear to the charity’s trustees that there is still further work to do.  

The Commission’s announcement follows last week’s publication by the Fundraising Regulator, which detailed findings of its investigation into Penny Appeal’s compliance with the Fundraising Code of Practice.

Earlier this year, the Information Commissioner’s Office issued the charity with an Enforcement Order over its marketing activities.

The Charity Commission has now closed its case, setting out its expectation that the charity’s trustees act upon recommendations by all three bodies. 

Official Warning  

The Charity Commission issued an Official Warning on 29 September 2023 after several meetings with the charity’s trustees and an inspection of the charity’s records and financial accounts. It found that the charity failed to maintain proper trustee meeting minutes to record decisions in relation to the purchase of a property, consideration of an unsolicited offer received to buy a property as well as decisions around retaining and redeveloping a property.

The charity failed to review a contract with its major supplier, thereby failing to act in the charity’s best interests. The regulator also found that the charity had failed to manage a perceived conflict of interest relating to its relationship with its major supplier.  

Impact of regulatory intervention 

Through its intervention, the regulator has secured several improvements to the charity’s governance. This includes advising the trustees to appoint a minute taker and to record conflicts of interest, which they have evidenced. The trustees have set dates to review third party contracts, and have appointed an external consultant to review the charity’s existing contracts and advise it on best practice. The charity will also terminate its contract with the major supplier that caused a perceived conflict of interest. 

The trustees have mainly complied with the actions required of them and the Commission notes and welcomes their commitment to complete the outstanding actions promptly. 

The trustees have been advised to make further improvements to the quality of meeting minutes. They must also promptly complete an outstanding review of governance and contractual relationships and arrangements with third party organisations established overseas, which forms part of an internal action plan set by the charity’s solicitors.   

The Commission has now closed its compliance case and is monitoring the charity’s progress. It has informed the charity that any failure to complete the outstanding actions or failure to comply with any action required by the Information Commissioner’s Office and/or the Fundraising Regulator may also result in further regulatory action. 

Tracy Howarth, Assistant Director for Casework at the Charity Commission, said: “Improvements have been made at Penny Appeal after several years of engagement about a series of weaknesses and shortcomings in the charity’s governance.  

“This is a charity which receives significant support and donations from the public – it is extremely important that its governance is fit for purpose.  

“The actions already taken have strengthened how the charity is run, and we are following up on the outstanding actions, which the trustees have assured us will be promptly addressed.”

Holyrood Committee to scrutinise amendment to Gender Representation on Public Boards Act

A change to the Gender Representation on Public Boards Act 2018 will be scrutinised by Holyrood’s Equalities, Human Rights and Civil Justice Committee.

The Gender Representation on Public Boards Amendment (Scotland) (Bill) was introduced by the Scottish Government to amend the 2018 Act. The new Bill will remove the definition of “woman” in section 2 the 2018 Act, following a decision of the Court of Session made on 18 February 2023.

The specific definition that this short Bill will remove is: ““woman” includes a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female”.

The change will be scrutinised by the Committee, before it reports its findings to the Parliament as a whole.

The Committee has today opened a call for views to ensure people can share their views on the proposed change.

Kaukab Stewart MSP, Convener of the Equalities, Human Rights and Civil Justice Committee, said: “This Bill aims to make change the Gender Representation on Public Boards act, ensuring that the Parliament’s statute book is in compliance with recent rulings of the Court of Session.

“We want to ensure that the Government’s approach in this Bill does what it intends to do.

“If you have views on the proposal in the Bill, please share them with us in our call for views.”

The call for views is open today, Monday 8 January 2024, and will close on Monday 29 January 2024: 

https://yourviews.parliament.scot/ehrcj/gender-representation-public-boards-bill

Holyrood Committee ‘concerns’ over Circular Economy Bill

The Scottish Government’s Circular Economy Bill has been criticised for a lack of financial transparency and accurate costings, in a report out today.

The Finance and Public Administration Committee (FPAC) doubts that the Bill complies with the Parliament’s rules on setting out “best estimates” of costs likely to arise.

FPAC Convener Kenneth Gibson MSP said: “Scrutiny of this Bill reinforces our concern that affordability does not appear to be a key factor in Scottish Government decision-making.

“The Minister, Lorna Slater MSP, has committed to consult on the cost of secondary legislation, but that should not replace an assessment of affordability at the point of a Bill’s introduction.

“Our committee is not convinced that this Bill’s financial memorandum meets the requirements set out in Parliament’s Standing Orders to provide: “best estimates of the costs, savings, and changes to revenues to which the provisions of the Bill would give rise”.

Mr Gibson continued: “We’ve seen an increasing use of ‘framework’ bills that provide government with future enabling powers. These do not, however, provide best estimates of all likely costs, and undermine parliamentary scrutiny. 

“It also risks the Parliament passing legislation which may in the end – once outcomes are fully understood – lead to significant cost increases.

“The increased use of framework bills with no clear implementation costs, poses a long-term risk to the Scottish Budget, both now and for successive governments.

“The FPAC is disappointed that Scottish Ministers have still to meet our previous recommendations or expectations around the level of financial data, clarity and transparency required.

“In the end, it will be for Parliament to decide when voting on the general principles of this framework bill, whether the outcomes it seeks to deliver outweigh any financial or affordability considerations.”

On income from fly-tipping and litter fines, the report said:

  • The assumption in this financial memorandum (FM) of a 100% payment rate for fixed penalty notices is entirely unrealistic. Therefore, given that the level of income from fines assumed in the FM is not attainable, it should not be used to ‘off set’ some of the costs of enforcement, such as in relation to fly tipping. We consider this approach to identifying potential savings to be unsatisfactory.

Updates every six months:

  • We request that the updates, committed to by the Minister in her letter of 20 November be provided to the Committee every six months. These updates should include updated information on the expenditure incurred to date, any changes in forecast costs and any savings arising from the Bill and the subsequent Act (subject to the Bill being passed) and relevant secondary legislation, until all provisions are operational.

Disability Bill will not fully achieve it’s aims, says Holyrood Committee

A Bill that seeks to improve disabled children and young people’s transition to adulthood would not fully achieve its aims, according to report from Holyrood’s Education, Children and Young People Committee.

The Committee has been scrutinising the Disabled, Children and Young People (Transitions to Adulthood) (Scotland) Bill.

While the Committee is supportive of the aims of the Bill, it is not convinced that it will resolve the issues being experienced by disabled young people. 

During its inquiry, the Committee repeatedly heard about the challenges faced by disabled young people and their families. They said they often did not feel they were listened to by professionals, found there was nobody to take the lead on transitions and felt there was a disconnect between children’s and adult services.

Furthermore, many witnesses, including professionals working to support disabled young people, characterised the current legislative landscape as complex, cluttered and difficult to navigate.

The Committee heard that whilst the Bill sought to address this, several aspects of the Bill risked inadvertently complicating this landscape further. 

The Committee recognises, however, that doing nothing is not an option and makes a series of recommendations setting out which changes to current practice are urgently required.

During its inquiry, the Committee was also told that existing legislation and policies suffered from an ‘implementation gap’ due to limitations in resources, inconsistent practices, organisational cultures and difficulties with information sharing.


Commenting on the publication of the report, Sue Webber MSP, Convener of the Education, Children and Young People Committee, said: “We want to see the support available for disabled children and young people’s transition to adulthood improve and commend the Member for her work in bringing forward this legislation.

“This Bill has shone a light on the challenges faced by disabled young people and their families.

“However, the views we heard during our inquiry were clear. The Bill is unlikely to resolve the substantial issues that families with disabled young people are facing. The Scottish Government must urgently act to fix these issues.”

Martin Whitfield MSP dissented from the following sentence within the report:
“However, for the reasons set out in this report, the Committee is not convinced that the general principles should be agreed.”

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Cost of living crisis: Holyrood’s Finance Committee launches inquiry

How will the rising cost of living affect the Scottish Budget in 2023-24? Will the Scottish Government’s proposals for reforming the public service deliver the efficiencies expected?

These and other key questions are the focus of the Finance and Public Administration Committee’s inquiry that begins today.

The committee is seeking views from organisations and the public to inform its pre-budget scrutiny work, prior to the Scottish Government publishing its 2023/24 budget later this year. 

Committee Convener Kenneth Gibson MSP said: “The next Scottish Budget will be challenging as the current cost-of-living crisis impacts on Scotland.

The Committee is therefore keen to hear from organisations and individuals how the Scottish Government’s Budget in 2023-24 should respond to this crisis.  

“We also want to hear views on how the government’s proposed reform of the public service will support its future spending plans.” 

Mr Gibson concluded: “Using the government’s resource spending review announced in May, we will focus our pre-budget scrutiny on the proposals for reforming the public service, the impact of the cost of living crisis on the Scottish Budget, and how spending priorities might affect the delivery of national outcomes.”

Evading scrutiny?

Government blocks evidence session with Cabinet Secretary

The Government have blocked the Cabinet Secretary, Simon Case, and Government ethics chief, Darren Tierney, from appearing before the Public Administration and Constitutional Affairs Committee on Tuesday 24 May.

The session was confirmed several weeks ago as part of the Committee’s inquiry into the propriety of governance in light of Greensill. It was due to discuss the management of conflicts of interest and unregulated appointments in the Civil Service, the Downing Street parties and the recent announcement on the Government’s intention to reduce the size of the Civil Service by almost 100,000 jobs.

The Committee has been told by officials that ministerial approval for the Cabinet Secretary to give evidence on Tuesday has been pulled. The session will not take place on 24 May and has been rescheduled for the 28 June.

Chair of PACAC William Wragg MP said: “The session with the Cabinet Secretary was an important one considering the number of propriety and ethics issues on the agenda. We had also hoped to get clarity on the Government’s plans for civil service reform, public scrutiny of which was much needed after they were briefed to the press last weekend.

“The intervention to pull the session at such short notice evades timely parliamentary scrutiny of these plans and puts government transparency in a poor light.”