Gaelic Language (Scotland) Bill

Bill Number: SP Bill 25
Introduced on: 27 September 2004
Introduced by: Peter Peacock (Executive Bill)
Passed: 21 April 2005
Royal Assent: 1 June 2005

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Passage of the Bill

The Gaelic Language (Scotland) Bill was introduced on 27 September 2004. At Stage 1, Members of the Education Committee attended a public meeting at the Royal National Mòd on 14 October 2004, and held five oral evidence sessions during November and December 2004, hearing evidence from Clì Gàidhlig, Comann nam Pàrant, Sabhal Mòr Ostaig, Comunn na Gàidhlig, Comhairle nan Eilean Siar, Bòrd na Gàidhlig, Highland Council, Glasgow City Council, the Welsh Language Board and the Minister for Education and Young People. The evidence given by the first 6 organisations was given in Gaelic and interpreted simultaneously. In addition, the Committee visited Portree Primary School and Portree High School on 29 November 2004. The Committee received 140 responses from individuals, 102 individual responses in three standard forms and 42 from organisations.

The Committee’s Stage 1 report was published on 26 January 2005 in Gaelic and English. Stage 2 was held on 2 March 2005 and Stage 3 on 21 April 2005 and the Bill was passed.

Purpose and objectives of the Bill

The Bill provides for the establishment of Bòrd na Gàidhlig to develop the use of Gaelic with the aim of securing it as an official language of Scotland which commands equal respect with English. The aim is to increase the number of people able to use and speak Gaelic, to encourage the use of the language and make the language and culture more accessible.

Provisions of the Bill

The Bòrd’s Committee of between five and eleven members will, within a year of commencement of the Act, produce a national plan for Gaelic and can, on at least six months notice, require any Scottish or cross border public authority to produce a plan with regard to its devolved functions.

The national plan must be consulted on and approved by Scottish Ministers. Public authority plans must also be consulted on and approved by Bòrd na Gàidhlig. Plans must include deadlines for the measures set out in them, be reviewed every five years, and the Bòrd can report on implementation. Where a plan is not implemented, Scottish Ministers can, after consultation with the authority, direct the authority to implement the plan.

Where there is a dispute between public authorities and the Bòrd there is an appeal to Ministers – both on the fact of being asked to produce a plan and on the content of the plan. Where Ministers decide that a notice ought not to have been issued the Bòrd must wait two years before issuing another notice for a plan.

The Bòrd must also produce guidance on developing Gaelic and can produce guidance on Gaelic education. Where it does so, education authorities must have regard to it.

The Bòrd will advise on Gaelic issues generally, and report to Ministers on the implementation with regard to Gaelic of the European Charter for Regional and Minority Languages 1992.

The bill provides for the following documents to be laid before Parliament.

• National Gaelic Plan – to be produced in the first year, and every five years thereafter.
• a report by the Bòrd on a public authority’s failure to implement a plan
• Bòrd’s annual report

The Bord must also consult the Parliament on the National Gaelic Plan.

Parliamentary consideration

Two key themes throughout the consideration were the importance of Gaelic education and the difference between a ‘rights based’ approach and a ‘planning’ approach. The Bill takes a planning approach. Related to this was a call for the Bill to state that Gaelic had ‘equal validity’ with English and an amendment to this effect was proposed by Alex Neil MSP at Stage 2 and 3. This was opposed by the Executive on the ground that: ‘there would be a real danger that certain constructions could give rise to unintended and undeliverable consequences on a Scotland-wide basis’ (SP E OR 2 March 2005 col 2235). The bill was amended to include reference to Gaelic having ‘equal respect’ to English.

Other amendments during the passage of the bill included:

• that the national plan is updated every five years, that the Parliament is consulted on it and the final plan laid before parliament.
• that in preparing guidance or advice, the Bòrd will seek to give effect to the principle that Gaelic and English should be accorded equal respect.
• that public authority plans take account of the potential to develop the use of Gaelic.
• inclusion of an education strategy in the national Gaelic plan
• that the Bòrd reports on the Charter for Regional and Minority Languages
• that the Bòrd can vary or revoke guidance it has published in relation to public authority Gaelic plans
• that the Bòrd must submit its guidance on Gaelic education to Scottish Ministers. The process involved mirrors that for guidance on public authority Gaelic plans.
• In setting its annual statement of improvement objectives, an Education Authority must have regard to its own Gaelic language plan.
• that specific reference is made to the Food Standards Agency as a cross border public authority.

Further and Higher Education (Scotland) Bill

Bill Number: SP Bill 26
Introduced on: 30 September 2004
Introduced by: Jim Wallace (Executive Bill)
Passed: 20 April 2005
Royal Assent: 1 June 2005

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Passage of the Bill

The Further and Higher Education (Scotland) Bill [SP Bill 26] was introduced in the Parliament on 30 September 2004. The Enterprise and Culture Committee, as lead committee, published its Stage 1 Report on 20 December 2004. The Stage 1 debate on the general principles of the Bill took place on 20 January 2005 and the Bill was passed following the Stage 3 parliamentary debate on 20 April 2005.

Purpose and objectives of the Bill

The Bill’s purpose is to dissolve the Scottish Further Education Council and the Scottish Higher Education Council and create a new body to be called the Scottish Further and Higher Education Council.

Provisions of the Bill

The Billmakes provision as to the functions and duties of the new body, as well as the duties on Ministers. It also makes provisions for support for further and higher education, provisions relating to bodies which provide further and higher education and provisions for connected purposes. The Bill also makes provisions to bring colleges and higher education institutions (the fundable bodies) within the remit of the Scottish Public Services Ombudsman. The Bill amends the Further and Higher Education (Scotland) Act 1992 and also contains new provisions to do this, following 2 rounds of consultation. The first consisted of a discussion paper and discussions with key stakeholders, followed by a full public consultation paper entitled A Changing Landscape for Tertiary Education and Research in Scotland.

Parliamentary consideration

The most contentious issue was section 8 of the Bill, which makes provisions for allowing variable fees by type of course. An amendment lodged and agreed at Stage 3 created a statutory duty to consult in advance of using the power to vary fees.

Baird Trust Reorganisation Bill

Bill Number: SP Bill 27
Introduced on: 27 October 2004
Introduced by: The Trustees of the Baird Trust (Private Bill)
Passed: 15 June 2005
Royal Assent: 19 July 2005

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Passage of the Bill

The Baird Trust Reorganisation Bill [SP Bill 27] was introduced in the Parliament on 27 October 2004. The 60-day Objection Period ended on 7 January 2005 without any objections having been lodged. A private bill committee, the Baird Trust Reorganisation Bill Committee, was set up to consider and report to the Parliament on the Bill. It first met on 26 April 2005 and went on to publish its Preliminary Stage Report on 3 May 2005.

The Preliminary Stage debate took place on 2 June 2005. It was agreed that the Consideration Stage should be omitted (see below). Thus, parliamentary scrutiny of the Bill moved directly to the Final Stage where it was passed without amendment following the Final Stage parliamentary debate on 15 June 2005.

Objective of the Bill

James Baird established a charitable trust by a deed of trust in 1873. The trust became a body corporate, under the name of ‘The Baird Trust’, by virtue of the Baird Trust Order Confirmation Act 1939. The 1939 Act was amended in 1957 and again in 1971. Currently, the trust supports the building and repairing of Church of Scotland churches and halls, endows parishes and generally helps the work of the Church of Scotland.

The Promoter’s Memorandum, published with the Bill, reports that the trustees believe that there is currently a need to update some of the objectives of the trust (e.g. allowing trust funds to be used to support churches other than the Church of Scotland) and powers of the trustees. The current statutory basis of the trust means that private legislation is required to make such changes. The trustees also predict that similar changes may be required in the future. In order to facilitate these changes, without the continuing need to resort to private legislation, the Bill seeks to transfer the whole property, rights, interests and liabilities of The Baird Trust to a new charitable company limited by guarantee.

Provisions of the Bill

As noted above, the Bill provides for the transfer of the property, rights, interests and liabilities of The Baird Trust to a new company limited by guarantee. When the transfer has been completed, the current trust will be dissolved and the Acts of Parliament under which it was established and its constitution amended will be repealed.

Parliamentary consideration

The Preliminary Stage Report stated that:

“The Committee is satisfied that the transfer of the Current Trust to a company limited by guarantee is based on a reasonable expectation that this will simplify the operation of the Trust and improve its operation in terms of widening the scope for funding and support it offers. The Committee is also satisfied that the choice of legal structure is in keeping with modern public trust administration and charity law and is sensible for the future operation of the Trust. The Committee approved the removal of the need to promote further Bills to effect change.” (para 27)

In light of this, the Committee recommended that the general principles of the Bill be agreed to. It also recommended that the Bill should proceed as a private bill. Both these points were agreed by the Parliament following the Preliminary Stage debate.

The Committee’s Preliminary Stage Report also included a recommendation relating to the remaining parliamentary stages of the Bill:

“Given that no member of the Committee wishes to lodge an amendment to the Bill, and that no objections have been submitted, the Committee recommends that the Parliamentary Bureau consider suspending the relevant Standing Orders to omit Consideration Stage of the Bill process.” (para 41)

The Parliamentary Bureau decided to follow the Committee’s recommendation and the Parliament agreed this course of action on 8 June 2005.

The Bill was generally considered to be a worthwhile and uncontroversial piece of legislation and was passed, following the Final Stage debate on 15 June 2005, without amendment.

Transport (Scotland) Bill

Bill Number: SP Bill 28
Introduced on: 27 October 2004
Introduced by: Nicol Stephen (Executive Bill)
Passed: 29 June 2005
Royal Assent: 5 August 2005

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Passage of the Bill

The Transport (Scotland) Bill [SP Bill 28] was introduced in the Parliament on 27 October 2004. The Local Government and Transport Committee was appointed lead committee while the Enterprise and Culture Committee, Finance Committee and Subordinate Legislation Committee as secondary committees also considered the Bill at Stage 1. Stage 1 consideration ran from 2 November 2004 until 8 February 2005. The Local Government and Transport Committee published its Stage 1 report on 22 February 2004. The general principles of the Bill were agreed at the meeting of the Parliament on 2 March 2005. The Local Government and Transport Committee’s Stage 2 consideration of the Bill ran across three meetings 19 April 2005, 26 April 2005 and 10 May 2005. The Bill was passed following the Stage 3 debate held on 29 June 2005.

Purpose and objectives of the Bill

The Bill allows Scottish Ministers to set up of a network of regional transport partnerships, covering the whole of Scotland, which will co-ordinate certain local authority transport functions across authority boundaries. The boundaries and functions of each authority will be established by secondary legislation. The Bill also defines certain transport functions of Scottish Ministers, allowing for the establishment of a national transport agency and the wind up of Strathclyde Passenger Transport. The Bill allows for the creation of a Scottish road-works commissioner, alongside the introduction of additional local authority controls over road works. It also paves the way for the introduction of national concessionary fares schemes and makes several other miscellaneous modifications to transport law.

Parliamentary consideration

The Local Government and Transport Committee, while approving the general principles of the Bill, raised a series of concerns in its Stage 1 report including issues around the proposed boundaries of the regional transport partnerships, relative voting rights of councillors and other members of on partnership boards, the role and resourcing of the proposed road-works commissioner, the impact of restrictions on road works on utility provision and the financing of the proposed national concessionary fares scheme.

The Bill was subject to a series of amendments during Stage 2 consideration, the major changes included; the creation of a Public Transport Users Committee for Scotland, an increase the maximum number of councillors from each authority represented on a regional transport partnership board to four, giving only councillor board members a vote, allowing a partnership to consist of a single council and imposing a series of additional functions on a regional transport partnership.

The Bill was again subject to amendment at Stage 3, the major changes including a cap of 20 councillor members on each regional transport partnership board, with a maximum of five councillor members from each authority plus the reintroduction of limited voting rights for non-councillor members. In addition the development and content of regional transport plans was further spelled out on the face of the Bill. Local authorities will also be required to ensure that they enter details of road works they carry out in the Scottish Roadworks Register.

Prohibition of Female Genital Mutilation (Scotland) Bill

Bill Number: SP Bill 29
Introduced on: 29 October 2004
Introduced by: Cathy Jamieson (Executive Bill)
Passed: 26 May 2005
Royal Assent: 1 July 2005

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Passage of the Bill

The Prohibition of Female Genital Mutilation (Scotland) Bill [SP Bill 29] was introduced in the Parliament on 29 October 2004. Stage 1 commenced on 30 November 2004 and the Equal Opportunities Committee was designated as lead committee. The Stage 1 debate took place on 3 March 2005 and the Bill was passed following the Stage 3 parliamentary debate on 26 May 2005.

Purpose and objectives of the Bill

Female Genital Mutilation (FGM) has been unlawful in Scotland since 1985 by virtue of the Prohibition of Female Circumcision Act 1985. Following the re-enactment of this Act in the UK, with new provisions (see below), the intention of the Bill was to ensure that equal legal protection be afforded in Scotland as in the rest of the UK.

Provisions of the Bill

The provisions of the Bill were based on the Female Genital Mutilation Act 2003, which re-enacted and extended the provisions in the Prohibition of Female Circumcision Act 1985 in England and Wales, but not in Scotland.

The Bill proposed to extend protection by giving the offence of FGM extra-territorial effect in order to protect those being sent abroad to have FGM carried out. The Bill also proposed an increase in the penalty on conviction from indictment from 5 to 14 years imprisonment.

Parliamentary consideration

The Committee received evidence from a range of witnesses at Stage 1 including representatives from the fields of midwifery, obstetrics and gynaecology; international organisations and charities; and women with direct experience of FGM.

The Equal Opportunities Committee had concerns that the definition of FGM did not capture the offence accurately and suggested that a definition closer to the World Health Organisation classification would be more appropriate. At Stage 2 the Minister proposed an amendment to extend the definition to other parts of the female genitalia which was agreed by the Committee along with a similar amendment proposed by the Committee.

In addition, at Stage 3 the Minister proposed an amendment to allow the revision of the offence of FGM by statutory instrument to update the definition in the future.

The Committee was also concerned that certain elective cosmetic surgical procedures, as well as procedures such as genital piercing or genital tattooing may be covered by the provisions of the Bill. In response to amendments lodged at Stage 2, the Minister explained that the Bill covered any procedure which had some mutilating effect, i.e. where it would permanently damage or disfigure the genitalia and that this was not the intention of cosmetic surgery, piercing or tattooing. The Committee accepted this.

A major concern for the Committee was the extra-territorial provisions of the Bill. The provisions are there to ensure that it would be an offence to take a girl abroad for the purpose of FGM, but an offence would only be committed if the person who carries out FGM or the victim is a UK national or a permanent UK resident. The Committee heard strong evidence that asylum seeker children and students from overseas should also be covered by the law. Elaine Smith MSP lodged an amendment at Stage 2 to ensure coverage for this group where the offence was committed by a UK national or permanent UK resident, which was accepted by the Minister.

Another amendment agreed to at Stage 2 came from the Minister. This related to concerns the Committee had about the protection of young girls who would be most at risk from FGM, and how different agencies respond to cases of FGM. The amendment adds offences under the Bill committed against children under the age of 17 to the list of offences in Schedule 1 to the Criminal Procedure (Scotland) Act 1995. This allows a convicting court to refer a child to the children’s panel. The reporter could then refer the child to a children’s hearing which is then able to impose measures to protect the child.

The major amendments to the Bill as passed therefore relate to the protection of non-UK national abroad when offences are committee by UK nationals; the increased protection for children under the age of 17; and the provision to allow revision of the definition of FGM in the future.

Protection of Children and Prevention of Sexual Offences (Scotland) Bill

Bill Number: SP Bill 30
Introduced on: 29 October 2004
Introduced by: Cathy Jamieson (Executive Bill)
Passed: 2 June 2005
Royal Assent: 12 July 2005

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Passage of the Bill

The Protection of Children and Prevention of Sexual Offences (Scotland) Bill [SP Bill 30] was introduced in the Parliament on 29 October 2004. The Justice 1 Committee, as lead committee, commenced taking Stage 1 oral evidence on the general principles of the Bill at its meeting on 8 December 2004. The Stage 1 debate took place on 17 March 2005 and the Bill was passed following the Stage 3 parliamentary debate on 2 June 2005.

Objectives of the Bill

The Policy Memorandum stated that the “primary objective of this Bill is to better protect children from sex offenders” (para 2). Although the main provisions of the Bill reflect this primary objective, it also contains provisions with the objective of better protecting both children and adults from sex offenders.

Provisions of the Bill as introduced

Two elements of the Bill as introduced focused on the primary objective of better protecting children from sex offenders:

1. ‘Meeting a child following certain preliminary contact’ – a new criminal offence aimed at preventing an adult sexually abusing a child, following some earlier communication between the two (e.g. via the internet or through telephone conversations), during which the adult seeks to gain the child’s trust. The offence is concerned with the problem of sexual abuse following what is sometimes described as ‘grooming’. Although the offence is structured in a way which seeks to catch an offender before sexual abuse takes place, it does not criminalise communications amounting to grooming without some further action.

2. Risk of Sexual Harm Orders (RSHOs) – a new type of civil preventative order which the police could seek from a court to restrict the activities of an adult who is believed to present a risk of sexual harm to children. The RSHO, and the specific restrictions which it imposes, must be necessary to protect a specific child or children generally from harm. There does not have to be evidence of behaviour amounting to a criminal offence, although an RSHO might be used where there has been behaviour which might be criminal but where there is insufficient evidence for criminal proceedings.

A third element of the Bill as introduced sought to further protect both children and adults from convicted sex offenders by extending the availability of existing measures:

3. Sexual Offences Prevention Orders (SOPOs) – a type of civil preventative order which the courts are already able to impose to restrict the movements of sex offenders. Currently, SOPOs may be imposed where there is evidence of threatening behaviour post conviction (e.g. after release from a custodial sentence) leading to an application by the police. The Bill extends the availability of SOPOs by allowing the courts to impose an order on conviction.

Parliamentary consideration

The Justice 1 Committee’s Stage 1 Report stated that, overall, the Committee considered that the Bill “has the potential to be a useful addition to the current law to protect children and to prevent sexual offences” (para 213). It did, however, highlight a number of areas where the Committee had reservations.

A number of amendments agreed at Stage 2 reflected concerns or recommendations expressed in the Stage 1 Report. For example, in relation to the new criminal offence of ‘meeting a child following certain preliminary contact’, the Stage 1 Report recommended that, in order to ensure the widest possible application of the offence, no minimum age should be specified for the offender. Instead, it should be left to the Crown Office, social work and other agencies to determine the correct intervention in the case of a young person accused of committing an offence. As a result of amendments agreed at Stage 2, the need for the offender to be an adult (aged 18 or over) was removed. A similar change was made in relation to the application of RSHOs.

In addition to amending existing provisions of the Bill, a number of significant new provisions (contained in Executive amendments) were added at Stage 2 and further amended at Stage 3. In particular: (a) new offences aimed at people who buy sexual services from those under the age of 18, or who encourage, control and arrange such services; and (b) provisions extending existing laws relating to the making and distribution of indecent images of children and young people.

The new provisions, by extending protection to young people under the age of 18, are intended to bring Scots law into line with: (a) the Optional Protocol to the UN Convention on the Rights of the Child dealing with the sale of children, child prostitution and child pornography; and (b) the EU Council Framework Decision on combating the sexual exploitation of children and child pornography. The definition of a ‘child’ in both documents includes persons under the age of 18. Generally speaking, Scots law allows young people aged 16 or over to engage in consensual sexual activity without the threat of criminal sanctions. Thus, the fact that the new provisions apply to those under the age of 18 extends the scope of the criminal law.

Council Tax Abolition and Service Tax Introduction (Scotland) Bill

Bill Number: SP Bill 31
Introduced on: 11 November 2004
Introduced by: Tommy Sheridan (Member’s Bill)
Fell: 1 February 2006

Passage of the Bill

The Council Tax Abolition and Service Tax Introduction (Scotland) Bill [SP Bill 31] was introduced in the Parliament on 11 November 2004. Stage One commenced on 25 January 2005 with the lead committee, the Local Government and Transport Committee, agreeing its approach on the Bill. The Bill was also considered by the Finance and Subordinate Legislation committees. The Stage One report of the Local Government and Transport Committee was published on 23 January 2006 and the Bill fell on 1 February 2006 with 12 MSPs voting ‘For’ the Bill, 94 ‘Against’ and 6 ‘Abstentions’.

Purpose and objectives of the Bill

The Bill sought to abolish the council tax and to replace the existing system of local taxation with a form of income tax which would be collected either by the Inland Revenue or local authorities with funds accruing being pooled nationally and then redistributed to local authorities by the Scottish Executive. The overall policy objective of the Bill was to:

“effect a significant redistribution of income in favour of low income citizens and families across Scotland thus reducing poverty through the replacement of the current council tax with a personal income based alternative applied in a progressive fashion to various levels of income” (Policy Memorandum to the Bill, p.1)

The Bill proposed the following rates of taxation:

• Band A – Below £10,000 – 0%
• Band B - £10,000 to £29,999.99 – 4.5%
• Band C - £30,000 to £49,999.99 – 15%
• Band D - £50,000 to £89,999.99 – 18%
• Band E - £90,000 and over – 20%

Local Government and Transport Committee Stage One Report

The Local Government and Transport Committee report reached the following conclusion:

“The Committee concluded that as a result of the previous detailed conclusions and recommendations reached, that the Council Tax Abolition and Service Tax Introduction (Scotland) Bill is a flawed proposal, which would not have the impact on poverty that is claimed, would damage the Scottish economy and undermine local democracy, and as a result recommends that the Bill should be rejected by Parliament at Stage 1” (Local Government and Transport Committee, Stage One report on the Bill, Paragraph 10).

It is important to note that Tommy Sheridan MSP dissented from this conclusion and that Bruce Crawford MSP and Fergus Ewing MSP proposed an alternative paragraph which was not agreed to by the Committee.

The Stage 1 report expressed a number of concerns regarding the provisions in the Bill including that the Bill would not have the effect on poverty intended, no overall economic impact had been conducted, that no significant research had been undertaken on the potential impact of fiscal flight on public services and the economy. In addition the Committee noted that the Bill would result in local authorities losing financial autonomy over council tax setting. The report also concluded that the Parliament should await the report of the Independent Local Government Finance Review Committee before embarking on a fundamental change to the system of local taxation.

Charities and Trustee Investment (Scotland) Bill

Bill Number: SP Bill 32
Introduced on: 15 November 2004
Introduced by: Malcolm Chisholm (Executive Bill)
Passed: 9 June 2005
Royal Assent: 14 July 2005

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Passage of the Bill

The Charities and Trustee Investment (Scotland) Bill [SP Bill 32] was introduced in the Parliament by Malcolm Chisholm on 15 November 2004 with the Communities Committee designated the lead committee. The Stage 1 debate took place on 9 March 2005 and the Bill was passed following the Stage 3 parliamentary debate on 9 June 2005.

Purpose and objectives of the Bill

The primary objective of the Bill was to establish a new regulatory framework for the charitable sector in Scotland, which would help promote public confidence in charities and meet the needs of the Scottish charity sector.

Provisions of the Bill

The Bill makes provision for a new regulatory regime for charities in Scotland. It establishes the Office of Scottish Charity Regulator (OSCR) as a statutory body corporate. The general functions of the OSCR are to:

• determine charitable status
• keep a public register of charities
• encourage facilitate and monitor compliance with charity legislation
• investigate misconduct
• take remedial or protective action if necessary
• advise or make proposals to the Scottish Ministers on matters relating to its functions

The Bill removes the presumption of public benefit for all charities and introduces the two-part ‘charity-test’ where an organisation must prove that it:

• has one or more of the sixteen charitable purposes, including the advancement of religion and the prevention or relief of poverty.
• is able to demonstrate that it provides public benefit.

The Bill also includes provisions for a new legal form for charities to take on corporate status and limit liability for their members.

Parliamentary consideration

Prior to the introduction of the Bill the Communities Committee consulted with a number of voluntary and charitable organisations in Aberdeen, Perth and Glasgow on the Scottish Executive’s draft Charities and Trustee Investment (Scotland) Bill. They also met with several independent schools. In June 2004 the Committee held an informal video-conference with the Joint Committee at Westminster which was considering the draft Charities Bill for England and Wales. The Communities Committee received evidence from a wide range of organisations including a number of charities, independent schools, Universities Scotland and the National Galleries, Museum and Library as part of its Stage 1 inquiry.

There were several amendments to the Bill as it underwent its passage through Parliament.

There was debate concerning whether private schools would or should retain their charitable status under the requirement that all charities have to demonstrate that they provide public benefit. At Stage 2, John Home Robertson MSP introduced an amendment, subsequently agreed to, which inserted specific reference to charges and fees being considered in relation to whether any condition on obtaining a benefit is unduly restrictive. Ultimately provisions in the Bill mean that it will be OSCR that will decide if organisations can be recognised as charities on a case by case basis. There was debate surrounding whether private schools would lose tax relief if they lost their charitable status. This is because tax relief is a matter for HM Revenue & Customs, which makes decisions on relief, based on the definition of what is charitable for tax purposes in UK legislation.

There were also changes to the definition of charitable purposes including the addition of the advancement of health, the provision of recreational facilities or the organisation of recreational activities, the promotion of religious or racial harmony and the promotion of equality and diversity.

The Bill as introduced sought to prevent bodies whose constitution allows control by a third party from passing the charity test. Concerns were identified during committee Stage 1 evidence, especially in relation to the status of national collection non-departmental public bodies, e.g. National Galleries of Scotland, as charities. The Minister for Communities introduced an amendment at Stage 2, subsequently agreed to, which meant that any body that has a ministerial power of direction in its constitution will not be eligible for charitable status, unless Ministers seek specific exemptions from that requirement and that other bodies that are under some form of control will continue to be eligible.

Smoking, Health, and Social Care (Scotland) Bill

Bill Number: SP Bill 33
Introduced on: 16 December 2004
Introduced by: Andy Kerr (Executive Bill)
Passed: 30 June 2005
Royal Assent: 5 August 2005

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Passage of the Bill

The Smoking, Health and Social Care (Scotland) Bill [SP Bill 33] was introduced in the Parliament on 16 December 2004. Stage 1 commenced on 11 January 2005, with the Health Committee as the lead committee. The Stage 1 debate took place on 28 April 2005 and the Bill was passed following the Stage 3 parliamentary debate on 30 June 2005.

Purpose and objectives of the Bill

The Bill is required to:

• prohibit smoking in certain wholly or substantially enclosed places; to enable the Scottish Ministers by order to vary the minimum age limit of those to whom tobacco may be sold, following the consultation ‘Smoking in Public Places: A Consultation’
• make provision in relation to general dental services, general ophthalmic services, personal dental services, pharmaceutical care services and detection of vision problems in children. This follows the consultations ‘Modernising NHS Dental Services in Scotland’ and ‘Modernising NHS Community Pharmacy in Scotland: Consultation Paper’, together with the commitments made in ‘A Partnership for a Better Scotland: Partnership Agreement’
• make provision in relation to disqualification by the NHS Tribunal, following the consultation ‘Further Measures to Improve the Provision of Primary Care Services: A Consultation’
• make provision for payments to certain persons infected with hepatitis C
• make provision for amendment of the Regulation of Care (Scotland) Act 2001
• make provision for registration of child care agencies and housing support services
• amend the Adults with Incapacity (Scotland) Act 2000
• make provision for appeals against certain orders under the Public Health (Scotland) Act 1897
• make provision for the ability of Scottish Ministers and health bodies to enter into joint ventures
• make provision for the Scottish Hospital Endowments Research Trust

Provisions of the Bill

The main provisions in the Bill are contained in several parts:

Part 1 - Smoking: Prohibition and Control

This makes provision for a ban on smoking in certain wholly or substantially enclosed places:

• creating an offence of permitting others to smoke in and on no-smoking premises
• creating an offence of smoking in no-smoking premises
• creating an offence of failing to display warning notices in no-smoking premises
• setting out the powers of enforcement officers to enter no-smoking premises
• creating an offence of failing without reasonable excuse to give one’s name and address on request by an authorised officer
• enabling Scottish Ministers to vary the age for the purchase of tobacco

Part 2 - General Dental Services, General Ophthalmic Services, Personal Dental Services etc

This provides for various matters concerning general dental services, personal dental services and general ophthalmic services:

• free oral health assessments and dental examinations
• free eye examinations and sight tests
• assistance and support in the provision of general dental services
• NHS provision of certain dental services
• listing of those persons undertaking to provide or approved to assist in the provision of general ophthalmic services
• listing of those persons undertaking to provide or approved to assist in the provision of general dental services and those persons performing personal dental services

Part 3 - Pharmaceutical Care services etc.

This makes a series of provisions regarding pharmaceutical care services:

• requirements on Health Boards to plan provision of pharmaceutical care services
• contracts for provision of pharmaceutical care services
• listing of persons performing pharmaceutical care services
• provision of assistance and support for pharmaceutical care services

Part 4 - Discipline

Amends the disciplinary powers and duties of the NHS Tribunal and NHS Boards, concerning family health service practitioners (ie general medical practitioners, general dental practitioners, pharmacists, optometrists and general ophthalmic practitioners).

Part 5 – Miscellaneous

This makes provisions on a number of issues:

• enables Scottish Ministers to establish a scheme for the making of payments to certain persons infected with hepatitis C as a result of NHS treatment and to certain persons infected with the virus by transmission of it from a person infected with it as a result of such treatment
• amends the Regulation of Care (Scotland) Act 2001 as regards: what constitutes an independent health care service; implementation of certain decisions by the Scottish Commission for the Regulation of Care or the Scottish Social Services Council; the provision of information to the Council; and the minimum frequency of inspection of care services by the Commission
• provides further time for applications to be made for registration of child care agencies and housing support services under the Regulation of Care (Scotland) Act 2001 and provides authorisation for the payment of certain grants to such services while not registered under that Act
• amends the Adults with Incapacity (Scotland) Act 2000 as respects authorisation of medical treatment
• amends the Public Health (Scotland) Act 1897 to introduce a right of appeal in certain cases under that Act
• enables Scottish Ministers to form, participate in and provide assistance to companies for the purpose of providing facilities or services for persons exercising functions under the National Health Service (Scotland) Act 1978 or of making money available to the health service in Scotland (joint ventures)
• amends the rules as to membership of and other matters relating to the Scottish Hospital Endowments Research Trust

Parliamentary consideration

In its Stage 1 Report the Health Committee noted that it had some concerns that the diverse nature of the Bill made it more difficult to carry out effective scrutiny. It recommended that the Executive bring forward bills that are more discrete in nature to avoid the difficulty of having to deal with very different subject matter.

In general terms the Committee was satisfied with the provisions in the Bill, though this was by majority decision when considering the smoking provisions. There was some concern with the proposals for joint ventures, though this mainly concerned that the legislation was based on the use of one model of joint venture, the performance of which could not be properly assessed due to the short period it had been in operation.

During Stages 2 and 3, the most significant amendments were:

• an Executive amendment which sought to give Ministers the power to amend section 25(5) of the Regulation of Care (Scotland) Act 2001, and, after consultation, bring forward regulations that could lengthen the time within which the Care Commission inspections take place (though not shorten it). The Health Committee took evidence on this amendment from the Care Commission, the care sector and service user groups, and following assurances from the Executive agreed to the amendment.
• An amendment proposed by Duncan McNeil MSP at Stage 2, which sought to give Ministers the power to introduce regulations, following consultation, to vary the age for the purchase of tobacco. This received support from the Health Committee at Stage 2, and was further amended by the Executive at Stage 3 to ensure that any regulations would be dealt with by affirmative procedure in Parliament.
• An amendment at Stage 3 proposed by Duncan McNeil MSP, which placed a duty on Scottish Ministers to ensure that they take all reasonable steps to provide for the detection of vision problems in children. This was agreed to by Parliament.

Budget (Scotland) (No 2) Bill

Bill Number: SP Bill 34
Introduced on: 19 January 2005
Introduced by: Tom McCabe (Budget Bill)
Passed: 9 February 2005
Royal Assent: 17 March 2005

2005 asp 4

Passage of the Bill

The Budget (Scotland) (No 2) Bill [SP Bill 34] was introduced on 19 January 2005. The Stage 1 debate took place on 27 January 2005. The Finance Committee considered the Bill at Stage 2 on 1 February 2005 and it was passed on 9 February 2005.

Purpose and objectives of the Bill

The passage of the Bill is the final stage in the annual budget process and gives parliamentary authority for spending in Scotland for financial year 2005/6. The budget process is intended to allow the Parliament’s subject committees the opportunity to comment on the Executive’s spending plans at several points during the year prior to the annual budget being agreed. The expectation is that the subject committees should have an active role in scrutinising and making recommendations on spending priorities.

Provisions of the Bill

The Bill will authorise over £23.45 billion of cash expenditure by the Scottish Executive and its associated bodies, other organisations whose core funding is centrally provided (e.g. local authorities and health boards), the Forestry Commissioners, the Food Standards Agency the Scottish Parliament Corporate Body and Audit Scotland.

For more details of the Scottish Budget process see the summary for the Budget (Scotland) Bill [SP Bill 16].

Abolition of NHS Prescription Charges (Scotland) Bill

Bill Number: SP Bill 35
Introduced on: 19 January 2005
Introduced by: Colin Fox (Member’s Bill)
Fell: 25 January 2006

Passage of the Bill

The Abolition of NHS Prescription Charges (Scotland) Bill (SP Bill 35) was introduced by Colin Fox MSP on 19 January 2005. Stage 1 commenced on 1 February 2005 with the Health Committee as the lead committee. In its Stage 1 report the Health Committee, by a narrow majority, recommended that Parliament support the general principles of the Bill. The stage 1 debate took place on 25 January 2006 when the Bill fell with 40 votes in favour, 77 against and 1 abstention.

Purpose and objectives of the Bill

The Bill sought to abolish all charges for Scottish NHS prescriptions and so, by removing this barrier, improve access to prescription medicines and improve public health. The existing system of prescription charges is perceived to be anomalous and is not based on either need or ability to pay.

Provisions of the Bill

The Bill sought to amend section 69 of the National Health Service (Scotland) Act 1978. This amendment would remove the power of Scottish Ministers to set charges for Scottish prescriptions and would revoke the regulations which set out the current level of charge (National Health Service (Charges for Drugs and Appliances) Amendment Regulations 2005 (SSI 2005/124)).

Parliamentary consideration

The Health Committee’s consideration of the Bill centred on the public health and economic impact of abolishing prescription charges.

The Health Committee sought evidence that prescription charges act as a barrier to accessing medicines and as a consequence have a detrimental impact on health. Some evidence received by the Committee suggested that this was the case. However the Committee also felt that removing charges would financially benefit those who can afford to pay and remove revenue from the NHS. In relation to the assertion that removing charges would reduce hospital admissions, neither the Health Committee nor the Finance Committee were convinced that these savings would be at a level sufficient to offset the total cost of the Bill.

Both the Health Committee and the Finance Committee were of the opinion that the cost of the Bill could be significantly higher than estimated in the financial memorandum. Both Committees believed that abolishing charges would lead to an increase in demand for health services and prescription medicines. This increase was not quantified in the memorandum.

Nevertheless, when considering the Bill, the Health Committee was aware that as part of the Partnership Agreement, the Scottish Executive was committed to reviewing the prescription charging system. Some Members of the Committee expressed their disquiet that two and a half years later the Scottish Executive had not issued a consultation on proposed changes. Having heard evidence of the anomalies in the system, all Members of the Committee were of the opinion that the status quo was not an option and in the absence of alternative proposals from the Scottish Executive, the Committee narrowly voted in favour of the Bill.

Despite the Health Committee’s support, the Bill fell at the Stage 1 debate. Much of the opposition in the debate centred on the cost of the Bill as it was felt that it would not only remove revenue from the NHS but would increase demand for services.

Family Law (Scotland) Bill

Bill Number: SP Bill 36
Introduced on: 7 February 2005
Introduced by: Cathy Jamieson (Executive Bill)
Passed: 15 December 2005
Royal Assent: 20 January 2006

2006 asp 2

Passage of the Bill

The Family Law (Scotland) Bill [SP Bill 36] was introduced in the Parliament on 7 February 2005. Stage 1 commenced on 15 March 2005 with the Justice 1 Committee as the lead committee. The Stage 1 debate took place on 15 September 2005 and the Bill was passed following the Stage 3 parliamentary debate on 15 December 2005.

Purpose and objectives of the Bill

The Bill makes a number of significant changes to Scottish family law including changes to the periods of separation prior to divorce, new legal rights for cohabiting couples and new parental rights and responsibilities for unmarried fathers.

At the time of the Bill’s introduction, the Scottish Executive also announced a range of non-legislative measures designed to complement the legislation. These included the Grandparent’s Charter (which was ultimately renamed the Grandchildren’s Charter), intended to improve the relationships of children with their grandparents, and the Parenting Agreement, a tool that parents could use to resolve conflicts over time spent with children after separation.

Provisions of the Bill

There are currently two grounds of divorce in Scots law based on periods of separation by the parties concerned. The Bill reduces the relevant separation periods. Specifically, in relation to the ground of divorce where both parties consent to the divorce, the change to the relevant period provided for by the Bill is from two years to one year. In relation to the ground of divorce where one party does not consent to the divorce the change to the relevant period is from five years to two years.

In relation to cohabiting couples, the Bill creates a range of new legal rights and responsibilities applicable to them. Most notably it provides that where one party dies intestate (i.e. without having a will) it will be possible for his or her cohabitant to apply to the court for financial provision out of his or her deceased partner’s estate. Furthermore, where the relationship ends other than by death it will be possible for a cohabitant to apply to the court for financial provision to be made by his or her partner. In deciding whether to grant such applications on death and separation the court takes a range of factors into account. The provisions in the Bill on cohabitants also apply to same sex couples.

The Bill also makes it easier for unmarried fathers to acquire a range of parental rights and responsibilities (PRRs) in respect of their children. At present, unmarried fathers do not have PRRs automatically (contrasting with the position for mothers and fathers who are, or have been, married to the child’s mother). Unmarried fathers can acquire PRRs by court application or by entering into a formal agreement with the child’s mother. The Bill provides that joint registration of the birth with the child’s mother will in future result in the acquisition of PRRs by an unmarried father.

In addition to the major changes describes above, the Bill also makes a series of minor changes to Scottish family law in relation to areas such as matrimonial homes, court orders intended to protect individuals from domestic abuse and private international law (the law covering situations between private individuals with an international element).

Parliamentary consideration

In relation to the divorce proposals the majority view of the Justice 1 Committee at Stage 1 was that insufficient social research evidence had been received by the Committee to justify the Executive’s specific proposals to reduce the separation periods. At Stage 2 a non-executive amendment was passed by the Committee to shorten the relevant periods to three years (where one party did not consent to the divorce) and eighteen months (where both parties consented to the divorce). At Stage 3 the Executive’s original proposals were reinstated by a parliamentary majority.

Another concern of the Justice 1 Committee at Stage 1 was that there were problems relating to the enforceability of ‘contact orders’ (court orders permitting the parent that does not live with the child to see him or her) and that these problems were not dealt with by the Bill. Various amendments were tabled at Stages 2 and 3 aimed at addressing this issue. Notably, at Stage 2 an amendment was passed which required courts to warn parties of the consequences of a breach of a contact order at the time when it was imposed. At Stage 3 this requirement was removed. However, the Executive did give various non-legislative commitments relating to contact orders, including that it would undertake further research in this area.

In relation to the non-legislative measures which accompanied the legislation the Justice 1 Committee concluded at Stage 1 that the structure of family support services should be reviewed and that the Scottish Court Service should consider creating specialist family courts across Scotland. At Stage 3 the Executive announced extra funding for family support services in 2006– 2007.

Licensing (Scotland) Bill

Bill Number: SP Bill 37
Introduced on: 28 February 2005
Introduced by: Tom McCabe (Executive Bill)
Passed: 16 November 2005
Royal Assent: 21 December 2005

2005 asp 16

Passage of the Bill

The Licensing (Scotland) Bill [SP Bill 37] was introduced in the Parliament on 28 February 2005. Stage 1 commenced on 1 March 2005 with the Local Government and Transport Committee as the lead committee and the Justice 2 Committee and Subordinate Legislation Committee acting as secondary committees on the Bill. The Stage 1 debate took place on 22 June 2005 and the Bill was passed following the Stage 3 debate on 16 November 2005.

Purpose and objectives of the Bill

The policy intention of the Bill is to modernise the existing legislation in relation to licensing in order to introduce a simpler and more flexible licensing system. This allows for the interests of key stakeholders to be articulated within the licensing process as well as introducing a range of monitoring and enforcement mechanisms. Specifically the Bill seeks to reduce underage drinking, reduce binge drinking, provide a voice for communities in relation to licensing, and modernise the licensing regime.

The Bill is the product of an extensive process of policy development and consultation. In particular, the Bill follows on from the report of the Nicholson Committee (‘Review of Liquor Licensing in Scotland’) and of the Daniels Working Group (‘Off Sales in the Community’). In addition the Scottish Executive established an ‘Expert Reference Group’ which assisted in the development of the Bill and provided a framework for the development of regulations associated with the Bill.

Provisions of the Bill

The Bill:

• Establishes a national framework for licensing based around 5 ‘licensing objectives’. These are: preventing crime and disorder, securing public safety, preventing public nuisance, protecting and improving public health, and protecting children from harm.
• Contains a range of provisions in relation to the remit, functions and membership of Licensing Boards
• Establishes Local Licensing Forums on a statutory basis
• Establishes the roles and functions of Licensing Standards Officers
• Replaces the current system of licenses with two main forms of licence: premises licences and personal licences
• Allows for the granting of occasional licences
• Allows licensing boards to agree opening hours of premises with the holders of premises licences, albeit that opening for a continuous period of 24 hours will only be allowed in exceptional circumstances.
• Provides, in relation to off-sales hours, that alcohol may not be sold for consumption off the premises on any day before 10 am or after 10 pm.
• Establishes mandatory training requirements for staff employed in the licensed trade
• Contains provisions to outlaw ‘irresponsible drinking promotions’ including what are commonly termed ‘happy hours’
• Contains measures to address under age drinking including requiring all licence holders to operate on a ‘no proof, no sale’ basis and the introduction of test purchasing

Environmental Assessment (Scotland) Bill

Bill Number: SP Bill 38
Introduced on: 2 March 2005
Introduced by: Ross Finnie (Executive Bill)
Passed: 9 November 2005
Royal Assent: 14 December 2005

2005 asp 15

Passage of the Bill

The Environmental Assessment (Scotland) Bill [SP Bill 38] was introduced in the Parliament on 2 March 2005. Stage 1 began on 20 April 2005 with the Environment and Rural Development Committee as the lead committee. The Stage 1 debate took place on 16 June 2005, and the Bill was passed following the Stage 3 parliamentary debate on 9 November 2005.

Purpose and objectives of the Bill

The Bill makes provision for the assessment of the environmental effects of certain plans and programmes. EU Directive 2001/42/EC (the SEA Directive) was initially transposed into Scots law by the Environmental Assessment of Plans and Programmes (Scotland) Regulations 2004 (SSI 2004/258) (SEA Regulations) which require an environmental assessment of certain plans and programmes to be undertaken. The Bill is the new transposition vehicle for the SEA Directive.

The Bill aims to improve protection of the environment and to improve decision making. It extends on the provisions of the SEA Regulations by specifically stating that plans and programmes include “strategies” and by requiring certain authorities and bodies to carry out an SEA on all their plans and programmes, as opposed to just certain plans and programmes as required by the Regulations.

Provisions of the Bill

Part 1 of the Bill establishes a requirement for environmental assessment of plans and programmes by Responsible Authorities. A Responsible Authority is any person, body or office holder that exercises functions of a public character. It also:

• describes the plans and programmes which qualify for SEA, and includes provisions for exemptions for certain plans and programmes
• defines the Scottish Ministers (Historic Scotland), Scottish Environment Protection Agency, and Scottish Natural Heritage as Consultation Authorities for environmental assessment
• allows for a pre-screening process to exempt plans or programmes that have no or minimal environmental effects
• allows for a screening process to ensure that SEA is only targeted at plans or programmes that are likely to have significant environmental effects

Part 1 establishes that the Bill applies to plans and programmes subject to preparation and/or adoption by a Responsible Authority at a national, regional or local level (or prepared by a Responsible Authority for adoption through a legislative procedure). The Bill only applies to plans and programmes that relate solely to the whole or any part of Scotland. There are plans and programmes to which the Bill does not apply. It does not apply to those solely concerned with national defence or civil emergency, finance or budget proposals. The Bill does apply to plans and programmes in areas such as agriculture, forestry, fisheries, water management and telecommunications.

Part 2 of the Bill introduces four Sections concerning the process of carrying out an SEA; preparation of environmental reports, scoping, and consultation procedures. Importantly, there is also a requirement for Responsible Authorities to take account of the environmental report during the decision-making process.

Parliamentary consideration

The Environment and Rural Development Committee took evidence on the Bill between April and May 2005. Based on the evidence taken, the committee raised concerns regarding the following issues:

• the applicability of the Bill to private companies carrying out public functions
• the relationship between environmental impact assessment of projects, and strategic environmental assessment of plans and programmes
• the provision of adequate training for Responsible Authorities to successfully implement the Bill
• the exclusion of financial plans
• the use of the term ‘minimal effect’, and a lack of clarity over the term ‘significant effect’
• the lack of a public register to effectively monitor plans and programmes that have been exempted under pre-screening
• a lack of monitoring provisions to ensure the effectiveness and quality of SEAs

The main changes made to the Bill during its progress through Parliament are:

• the inclusion of a pre-screening register
• provision for an annual report to be laid before Parliament up to and including 2010

Management of Offenders etc. (Scotland) Bill

Bill Number: SP Bill 39
Introduced: 4 March 2005
Introduced by: Cathy Jamieson (Executive Bill)
Passed: 3 November 2005
Royal Assent: 8 December 2005

2005 asp 14

Passage of the Bill

The Management of Offenders etc. (Scotland) Bill [SP Bill 39] was introduced in the Scottish Parliament on 4 March 2005 by the Minister for Justice. The Justice 2 committee was designated as lead committee for the Bill. Stage 1 consideration of the Bill commenced on 12 April 2005 and the Justice 2 Committee report on Stage 1 was published on 8 June 2005. The Stage 1 debate took place on 16 June 2005. The Stage 3 debate took place on 3 November 2005. Following the Stage 3 debate the Bill was passed.

Purpose and objectives of the Bill

The Bill takes forward a number of policy commitments from the Scottish Executive’s, Supporting Safer, Stronger Communities: Scotland's Criminal Justice Plan, which was launched in December 2004. The Bill aims to reduce levels of re-offending in Scotland by improving the management of offenders through greater integration of the work undertaken by the various criminal justice agencies in Scotland. In 2004, the Scottish Executive issued its consultation on re-offending, Reduce, Rehabilitate, Reform. From responses received, there appeared to the Executive to be weaknesses in the way that offenders were being managed which in themselves were contributing to the levels of re-offending in Scotland. In December 2004, by way of response, the Scottish Executive published its Criminal Justice Plan Supporting Safer, Stronger, Communitiessetting out its proposals for addressing those weaknesses.

Provisions of the Bill

Among the key provisions are plans to:

• establish new Community Justice Authorities which will co-ordinate and improve the delivery of services for offenders;
• require the police, local authorities and the Scottish Prison Service to establish joint arrangements for assessing and managing the risk posed by sexual and violent offenders;
• end unconditional early release for sex offenders sentenced to between six months and four years in prison, who will instead be released on licence and may be subject to additional conditions, relating to their offending behaviour;
• enable the Criminal Injuries Compensation Authority to recover sums paid to victims from the perpetrators of crime; and
• establish a Home Detention Curfew scheme that will enable selected low risk prisoners nearing the end of their sentences to serve the remainder of their term in the community, subject to an electronically monitored curfew.

Parliamentary consideration

A number of changes were made to the Bill on its passage through Parliament and the following section outlines the major changes which took place. An Executive amendment at Stage 3 sought to provide courts with the necessary statutory powers to conduct progress review hearings of offenders who are subject to a probation order. This enabling power would allow courts to hold review hearings in instances in which they are felt likely to be of positive benefit to the offender's progress on the order. The amendment was agreed to and a new section, 10ZA was added to the Bill.

At Stage 2 of the Bill, the Executive also took action to end the unconditional release of short-term sex offenders. Such offenders will now be supervised and subject to licence conditions until the end of their sentences. Bill Butler MSP asked whether the Executive could extend the classes of offender to whom the new measures would apply to include not only those who were convicted on or after the new provisions come into force but also those who were already serving their sentence at the time. After considering this proposal, the Executive brought forward amendments at Stage 3 which extend the new measures to include those in custody at the time of commencement. These amendments amend Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.

Section 11ZA was added to the Bill at Stage 3 and was a result of an Executive amendment which sought to add flexibility to the Scottish Prison Service’s (SPS) drug-testing regime. This provision will allow the SPS to obtain and test saliva samples from prisoners for the purpose of detecting drugs in their system. The Deputy Justice Minister, Hugh Henry argued that Amendment 21 would allow the Scottish Prison Service to develop simplified and more cost-effective processes that take advantage of scientific advances in drug testing. A consequential amendment added this provision to the long title of the Bill.

Housing (Scotland) Bill

Bill Number: SP Bill 40
Introduced on: 7 March 2005
Introduced by: Malcolm Chisholm (Executive Bill)
Passed: 24 November 2005
Royal Assent: 5 January 2006

2006 asp 1

Passage of the Bill

The Housing (Scotland) Bill [SP Bill 40] was introduced in the Parliament on 7 March 2005. The Communities Committee, as the lead committee, commenced taking Stage 1 oral evidence on the general principles of the Bill at its meeting on 16 March 2005. The Stage 1 debate took place on 29 June 2005 and the Bill was passed following the Stage 3 parliamentary debate on 24 November 2005.

Purpose and Objectives of the Bill

The primary objective of the Bill is to improve the condition and quality of private sector housing. It does this by a variety of methods:

• Local authority powers to deal with disrepair and lack of maintenance in privately owned housing are modernised and extended.
• The provisions for local authority advice and assistance to home owners are also amended.
• The Bill introduces measures to allow potential buyers of houses to receive more information about the condition of houses for sale.
• In the private rented sector, the Repairing Standard that landlords are required to meet is set out and tenants are given the power to enforce this standard through a new Private Rented Housing Panel.
• Tenants of private rented sector property will also have a right to adapt the property to meet the needs of their disabilities.

Provisions of the Bill

The Bill is in 10 Parts. Part 1 relates to housing standards. It cover housing renewal areas, which replace existing housing action areas, amends the Tolerable Standard, and gives local authorities the power to serve maintenance orders. Tenants of private rented accommodation are given the right to adapt properties to meet any needs arising from a disability. The Bill sets out the private rented repairing standard and sets up the Private Rented Housing Panel to allow tenants to enforce the standard.

Part 2 sets out the details of the scheme of assistance for housing purposes. The assistance can take the form of grants, loans, subsidised loans, practical assistance, information or advice. In certain circumstances local authorities must provide assistance.

Part 3 gives the Scottish Ministers powers to require sellers of houses or their agents to provide specified information to potential buyers. Part 3A gives the Scottish Ministers powers to establish and to approve a scheme a tenancy deposits in the private rented sector. In Part 4 the system of licensing of houses in multiple occupation, which is presently founded in secondary legislation under the Civic Government (Scotland) Act 1982, is re-enacted in primary legislation, with some changes to its details.

Part 5 amends legislation relating to occupiers of mobile homes who let stances. Part 5 A contains provisions relating to the repayment of charges incurred by local authority expenditure

Part 6 contains a number of miscellaneous provisions and introduces a duty on ministers to prepare a strategy for the improvement and energy efficiency of living accommodation. Part 7 deals with rights of local authorities, Private Rented Housing Committees, house owners, landlords and the police to enter houses for specified purposes, such as carrying out work. Part 8 deals with various technical matters.

Parliamentary Consideration

Given the proposals largely stemmed from the work of the Housing Improvement Task force there was general consensus of the broad aims of the bill. The most contentious parts related to the single seller survey and disabled adaptations. On the issue of the single seller survey a number of witnesses claimed that it would prove to be too expensive and would lead to some owners not putting their property on the market. The Committee’s Stage 1 report recommended that further consideration should be given to some issues in order to inform the preparation of regulations.

Groups representing disabled persons claimed that the proposals for advice and assistance were not sufficient. Stage 2 amendments introduced by the Executive allow Ministers to extend the arrangements for assistance for disabled adaptations following assessment of the level of need that disabled people have for various types of adaptations in various circumstances. In relation to the right to adapt private rented properties to meet the needs of disabled occupants another Stage 2 amendment provides for landlords or the court to have regard to codes of practice and guidance issued by the Disability Rights Commission when considering whether it is reasonable to refuse, or apply conditions to, a tenant's application for consent to make such adaptations.

At Stage 2 the Executive also introduced amendments allowing the establishment of a tenancy deposit scheme.

At Stage 3 amendments were introduced to raise the penalties for non-compliance with HMO regulations from £5,000 to £20,000. In addition another amendment requires Scottish Ministers to produce a domestic energy efficiency strategy.

St Andrew’s Day Bank Holiday (Scotland) Bill

Bill Number: SP Bill 41
Introduced on: 19 May 2005
Introduced by: Dennis Canavan (Member’s Bill)
Passed: 29 November 2006
Royal Assent: 15 January 2007

2007 asp 2

Passage of the Bill

The St Andrew’s Day Bank Holiday (Scotland) Bill [SP Bill 41] was introduced in the Parliament by Dennis Canavan MSP on 19 May 2005. Stage 1 commenced on 8 September with the Enterprise and Culture Committee designated as the lead committee. The first of two Stage 1 debates was held on 6 October 2005, after which the Bill was referred back to the Committee for further consideration of the general principles. The Committee took further evidence and recommended a second time that the Parliament agree to the general principles of the Bill. A second Stage 1 parliamentary debate was held on 28 September 2006. Following approval of the general principles the Bill was passed without amendment following the Stage 3 parliamentary debate on 29 November 2006. The Bill received Royal Assent on 15 January 2007.

Purpose and objectives of the Bill

The Bill aims to facilitate the creation of a “national day” on St Andrew’s Day (or the following Monday if St Andrew’s Day falls at a weekend) in order to celebrate Scotland and its people in terms of culture, diversity, history, tradition, contemporary society, arts, sport, enterprise and international standing. An underlying aim of the Bill is to bring Scotland closer into line with Northern Ireland and other European countries that enjoy more public holidays.

Provisions of the Bill

The Bill amends the Banking and Financial Dealings Act 1971 which identifies designated days on which banking transactions can be suspended without penalty. Although these provisions do not actually require banks or any other organisations to close on these days, the intention of the Bill is that inclusion of St Andrews Day in the 1971 Act will help ensure the day becomes widely recognised as one of national celebration.

Parliamentary consideration

Dennis Canavan launched a consultation on the proposal in July 2004. A summary of the consultation responses indicated that 75% of the 142 responses were supportive, with another 10% partially or conditionally supportive. Nine per cent were unsure or made no comment whilst 6% disagreed fully with the proposals. Responses from individuals tended to be supportive, whilst the business community was more divided.

Two Member’s debates were held on the subject of St Andrew’s Day in 2004. One followed a motion from Donald Gorrie MSP, debated on 17 March 2004 another on a motion lodged by Dennis Canavan, debated on 1 December 2004.

The Bill was introduced in the Parliament on 19 May 2005. The lead committee (Enterprise and Culture) began its Stage 1 consideration on 8 September 2005. Representatives of Scottish retailers, visitor attractions and trade unions were supportive whilst the Confederation of British Industry, the Federation of Small Businesses and the Committee of Scottish Clearing Bankers expressed opposition or reservations. A key issue for the business community was whether the holiday would be seen as a replacement or as an additional holiday.

The Committee recommended support of the general principles of the Bill. The Committee also stated its view that whether the Bill was passed or not, the Scottish Executive should bring forward a comprehensive set of proposals to enhance the celebration of St Andrew’s Day both domestically and internationally.

The Executive however was not persuaded of the case for the proposed legislation to achieve the aims of celebrating St Andrew’s Day. The Bill did not fall at Stage 1 however but was referred back to the Enterprise and Culture Committee for further consideration of the general principles and to consider options for improving the way in which St Andrew’s day is celebrated. The Committee took further evidence which included commissioning research into the economic, social and cultural costs and benefits of a St Andrew’s Day holiday. In the second Stage 1 debate on 28 September 2006 the Executive supported the Bill. A joint statement by the First Minister and the Member in charge indicated that the intention was to encourage employers and employees to substitute an existing holiday in favour of a national St Andrew’s Day holiday.

Stage 2 of the Bill took place on 7 November 2006, though there were no amendments. The Stage 3 debate took place on 29 November 2006. The motion to pass the Bill was agreed to without division.

Human Tissue (Scotland) Bill

Bill Number: SP Bill 42
Introduced on: 3 June 2005
Introduced by: Andy Kerr MSP (Executive Bill)
Passed: 2 February 2006
Royal Assent: 16 March 2006

2006 asp 4

Passage of the Bill

The Human Tissue (Scotland) Bill [SP Bill 42] was introduced in the Parliament on 3 June 2005. Stage 1 commenced on 8 September 2005 with the Health Committee as the lead committee. The Stage 1 debate took place on 30 November 2005 and the Bill was passed following the Stage 3 parliamentary debate on 2 February 2006.

Purpose and objectives of the Bill

The Bill provides a new framework for organ donation and transplantation, hospital post-mortems, the removal, retention and use of body parts, anatomical examination and the public display of bodies.

The Bill follows on from the work of the Independent Review Group on Retention of Organs at Post-Mortem, which was announced following the interim report of the Bristol Royal Infirmary Inquiry into the retention of organs following post-mortem examinations. The Bill also takes forward a number of the recommendations in the report of the Scottish Transplant Group, ‘An Organ Donation Strategy for Scotland’.

Provisions of the Bill

The Bill repeals and replaces the Human Tissue Act 1961, which governs organ and tissue donation and transplantation from deceased donors, hospital post-mortem examinations, and the removal of organs and tissue for the purposes of audit, research, education and training.

The Bill introduces a new concept of ‘authorisation’ for obtaining permission for organ donation, hospital post-mortem examinations and the removal and retention of body parts at post-mortem for the purposes of audit, research, education and training. This allows an individual adult or mature child (aged 12 and over) to give authorisation for the use of parts of their body after their death. However, if a person’s wishes are not made clear before death the Bill allows the person highest on the nearest relative hierarchy (if an adult) or the person with parental rights and responsibilities (if a mature child) to give authorisation. In the event of the death of a child under 12 only the person with parental rights and responsibilities can give authorisation. In the case of a hospital post-mortem an adult or mature child can also nominate a person to act on their behalf following their death. The Bill also makes provision for the use of organs following a procurator fiscal post-mortem, which again is based on the concept of authorisation.

The authorisation process in the Bill for organ donation and transplantation can be referred to as one of ‘opting in’, where an individual takes a positive decision in favour of donating organs and tissue after death for the purposes of transplantation. This is in contrast to an ‘opting out’ or ‘presumed consent’ system where the onus is on the individual to make it known that they are not in favour of organ donation whilst they are alive.

The Bill makes it a criminal offence for medical professionals not to have appropriate authorisation before proceeding with organ donation, hospital post-mortem or the removal of organs and tissue for the purposes of audit, research, education and training. It is important to note that there are different schemes of authorisation for organ donation and transplantation, hospital post-mortem and other parts of the Bill.

The Bill also clarifies the purposes of a post-mortem examination and what parts of the body can be removed and retained at post-mortem for the use of audit, research, education and training. In addition, it repeals the Human Organ Transplants Act 1989, which deals with the transplantation of whole organs from living people and the trafficking of organs for transplantation, replacing it with a new framework for living donation. This carries forward the existing arrangements governing donation of organs and tissue from living donors, but also extend them to cover cases where the donor and recipient are related as well as unrelated. Finally, it amends the Anatomy Act 1984, as respects Scotland, to broaden the definition of ‘anatomical examinations’ and address public concerns about the use of bodies and body parts in public displays.

Parliamentary consideration

Much of the parliamentary consideration of the Bill centred round the concept of authorisation and how the different schemes would work in practice. The Committee made a number of legislative and non-legislative recommendations in this regard, many of which were accepted by the Executive, with some leading to successful amendments at Stages 2 and 3.

The Health Committee supported the new concept of ‘authorisation’, though was concerned that the different schemes for the various parts of the Bill could lead to confusion. It found merit in the use of specific authorisation forms but also called for a public awareness campaign and appropriate training for professionals. This was accepted by the Executive.

The Committee was particularly concerned that there was an absence of fail-safe mechanisms which would allow individuals to record their wishes, whether positive or negative, across the range of circumstances dealt with in the Bill. The Executive said this would be covered in guidance and that it was looking at the potential of the electronic health record as a vehicle for recording people’s wishes. There were a number of proposed amendments from individual Committee Members at Stage 2, which sought to clarify this, but they were defeated. As part of this debate the Committee sought to have the NHS Organ Donation Register referred to on the face of the Bill to ensure it was clear that it was a suitable method for authorisation as regards organ donation and transplantation, not only for those who were already registered but also for those registering in the future. Whilst the Executive brought forward an amendment, which was subsequently passed, to make it clear that those already registered would be taken to have given authorisation under the terms of the Bill, it did not agree that the Register should be referred to specifically in the Bill as it could potentially be too restrictive and run the risk of implying that other methods of authorisation would be invalid.

The Bill allows for the withdrawal of authorisation. When the Bill was introduced it proposed that should the nearest relative or person with parental rights and responsibilities authorise the use of organs for transplantation then it could be subsequently be withdrawn. The Committee received evidence that there could be serious consequences for the recipient if authorisation was withdrawn at a certain stage in the proceedings. The Committee recommended that this issue be clarified. This led the Executive to lodge amendments at Stage 2, which removed the possibility of withdrawing authorisation once given in such circumstances.

The Committee did receive some evidence in favour of the concept of presumed consent for organ donation and transplantation, though was unconvinced of the merits of such a change. Amendments were lodged at Stage 2 to introduce such a system but were withdrawn. Amendments were then lodged again at Stage 3 but were defeated, though the Executive did note it was not averse to considering a system of presumed consent in the future once the new system had time to become established and evaluated.

As discussed above the Bill creates a new framework for live organ donation. It prohibits living donation from children under 16 years in relation to regenerative tissue. Whilst the Committee accepted this approach it was concerned this could prevent the use of organs involved in a domino transplant. The Executive accepted this and brought forward amendments at Stage 2 to ensure that domino transplants (This tends to refer to domino heart and lung transplants where the donor heart and lungs are taken from a patient receiving a complete heart-lung transplant, but because either the heart or lungs are still viable they are used for transplant in another patient) should be possible subject to independent scrutiny.

During the passage of the Bill it became clear that amendments were required to cater for adults with incapacity and live donation. This led to a brief consultation being launched by the Executive, the Committee taking specific evidence on the issue and amendments being lodged at Stage 2, all of which were passed by the Committee.

Finally, during Stage 1 consideration of the Bill, the Committee received evidence from museum representatives that the new licensing regime proposed for the public display of human remains could put at risk the longstanding arrangements for public access to historical displays in museums. The Executive noted that it had not intended that museums should be covered by the new licensing regime and lodged amendments at Stage 2 to make specific provisions for bone fide museums. These amendments were agreed by the Committee.

Environmental Levy on Plastic Bags (Scotland) Bill

Bill Number: SP Bill 43
Introduced on: 17 June 2005
Introduced by: Mike Pringle (Member’s Bill)
Withdrawn: 25 October 2006

Passage of the Bill

The Environmental Levy on Plastic Bags (Scotland) Bill [SP Bill 43] was introduced in the Parliament by Mike Pringle MSP on 17 June 2005. Stage 1 commenced on 28 September 2005 with the Environment and Rural Development Committee as the lead committee. The Committee published its Stage 1 report on 6 December 2005. It published a Supplementary Stage 1 Report on the 27 September 2006. The Bill was withdrawn by Mike Pringle MSP on 25 October 2006.

Purpose and objectives of the Bill

The Environmental Levy on Plastic Bags (Scotland) Bill aimed to reduce the number of plastic bags in circulation, to reuse them wherever possible and to recycle them after use. The policy intention behind the Bill was not to eradicate plastic bags or to promote any particular alternatives, and plastic bags would still have been available for those customers who wished to pay the levy for them.

The Bill had three key objectives:

• protecting the environment both by the reduction in the number of plastic bags and by investing the money raised by the levy in local environmental projects;
• assisting local authorities towards meeting their Scottish National Waste Plan targets by encouraging the reduction and reuse of plastic bags that are in circulation; and
• raising awareness of environmental issues such as recycling and litter.

Provisions of the Bill

Sections 1 and 2 of the Bill set the proposed levy at ten pence per bag, and defined what types of bag would be included in the scheme. Sections 3 to 6 set out what would be required of suppliers of plastic bags including rules around charging and registering with local authorities. Sections 7 to 10 set out what local authorities would be required to do, including collecting the levy and appointing at least one member of staff to administer the scheme.

Sections 11 to 14 set out what offences could be prosecuted under the legislation, and what penalties may be applied. Sections 15 to 16 allow for local authorities to estimate how many bags had been supplied if a retailer had not submitted the relevant information and enable a right of appeal against penalties and estimates.

The intention behind the Bill was to use the monies raised by the levy to fund local environmental projects.

Parliamentary consideration

The Bill was considered at Stage 1 by the Environment and Rural Development Committee. Evidence was taken in late 2005, with the Committee, unusually, recommending to Parliament that both Mike Pringle and the Scottish Executive be given the opportunity to clarify their respective views on what they proposed to do about some specific issues highlighted by the Committee.

Further written evidence was forthcoming and further oral evidence was taken in September 2006. While remaining supportive of the stated aims of the Bill, the Committee could not agree to the proposals as stated in the Bill:

“...the Committee urges the Executive to include ambitious measures to address plastic bag use in its waste prevention strategy. The Committee is not persuaded that the levy as currently proposed in this Bill is an effective means to achieve these objectives. The Committee, therefore, recommends that the Parliament does not agree to the general principles of the Bill”.

Mike Pringle MSP subsequently withdrew the Bill on 25 October 2006.

Interests of Members of the Scottish Parliament Bill

Bill Number: SP Bill 44
Introduced on: 12 September 2005
Introduced by: Brian Adam on behalf of the Standards and Public
Appointments Committee (Committee Bill)
Passed: 8 June 2006
Royal Assent: 13 July 2006

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Passage of the Bill

The Interests of Members of the Scottish Parliament Bill [SP Bill 44] was introduced in the Parliament on 12 September 2005. As it was a Committee

Bill, Stage 1 Committee consideration was effectively completed by the work which the Standards and Public Appointments Committee did prior to introduction of the Bill. The Stage 1 debate took place on 14 December 2005. Stage 2 consideration was undertaken by the specially convened Interests of Members of the Scottish Parliament Bill Committee. The Bill was passed on 8 June 2006 following the Stage 3 parliamentary debate.

Purpose and objectives of the Bill

The Bill replaces the transitional Members Interests Order (SI 1999/1350).

Provision is made for the creation, maintenance and amendment of a public register of Members’ interests. The Bill sets out the definition of both

registrable and declarable interests and existing provisions prohibiting paid advocacy are clarified. Certain offences and sanctions are set out in the Bill

The Bill makes use of a ‘prejudice test’ to determine whether particular interests require to be registered. In certain parts of the Bill, use is made of tests expressed as a percentage of Members’ salaries in order to protect its provisions from inflation.

Provisions of the Bill

The Bill provides for the existence of a public register of Interests of Members of the Scottish Parliament, to be maintained and kept by the Clerk of the Parliament. The Register must contain information on those financial interests deemed registrable by virtue of the Schedule to the Bill, that are held by a

Member on the date he or she became a Member of the Scottish Parliament - and prior to that date where certain interests meet the prejudice test. This test applies to some interests, such as gifts and overseas visits, discussed below.

“An interest meets the prejudice test if, after taking into account of the circumstances, that interest is reasonably considered to prejudice, or to give the appearance of prejudicing, the ability of the member to participate in a disinterested manner in any proceedings of the Parliament.” (s3(2)) The

Schedule requires Members to register the following interests (it is possible for the Parliament to amend the Schedule by resolution):

• Remuneration and related undertakings
• Donations to election expenses in excess of 25% of total expenses
• Sponsorship comprising more than 1% of a member’s salary
• Gifts of a value in excess of 1% of a Member’s salary and overseas visits that also meet the prejudice test
• Heritable property with a market value of more than 50% of a Member’s salary
• Interests in shares with a nominal value greater than 1% of the total nominal value of the issued share capital of the company or where the market value of the shares exceeds 50% of a Member’s salary.

An interest in a matter is declarable if it is a registrable interest. Members must declare that they hold such an interest before taking part in proceedings in a matter to which that interest applies.

The provision on paid advocacy prohibits members from advocating or initiating any matter or urging another to do so in consideration of any payment or benefit in kind.

Two forms of sanction are set out in the Bill: parliamentary and criminal. A

Member may be prevented or restricted from participating in parliamentary proceedings or excluded from parliament in certain circumstances. Breach of some provisions (such as s14 on paid advocacy) may attract criminal charges.

Parliamentary consideration

The Bill was initially drafted by the Standards Committee of the first parliamentary session, and redrafted in similar terms by that of the second session. Stages 2 and 3 of the passage of the Bill were undertaken by the Interests of Members of the Scottish Parliament Bill Committee, although many of the amendments were proposed by the conveners of the Standards committees in both sessions.

Several amendments which were disagreed to, not moved or withdrawn at

Stage 2, were brought again at Stage 3, for example the requirement to register election expenses and a raised threshold for registration of sponsorship and gifts. In relation to the latter, this was initially set at 0.5% of a

Member’s salary, and while an amendment to raise the threshold to 1% was defeated at Stage 2, it was carried at Stage 3.

A Stage 2 amendment to remove the prejudice test from the requirement to register overseas visits was withdrawn and an amendment to extend the requirement to include hospitality was not moved. The prejudice test applied to heritable property and to interest in shares in the Bill as Introduced, and in the Bill as amended at Stage 2. This provision was removed from the Bill as amended at Stage 3 and is not contained in the Bill as passed.

The most substantive and debated amendment agreed to at Stage 2 was the successful deletion of Schedule 2 to the Bill as introduced, so removing the requirement to register non-financial interests. An amendment to reintroduce Schedule 2 was brought at Stage 3, but was defeated, meaning that there is no requirement to register non-financial interests.

Further substantive amendments brought at Stage 3 include the power of the Parliament to amend the Schedule. This amendment was successful following redrafting and further clarification in the Chamber on the meaning of ‘determination’ and ‘resolution’ (see Official Report for 26 April 2006 and 8 June 2006).

Scottish Schools (Parental Involvement) Bill

Bill Number: SP Bill 45
Introduced on: 28 September 2005
Introduced by: Peter Peacock (Executive Bill)
Passed: 10 May 2006
Royal Assent: 14 June 2006

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Passage of the Bill

The Scottish Schools (Parental Involvement) Bill [SP Bill 45] was introduced in the Parliament on 28 September 2005. Stage 1 commenced on 30 November 2005 with the Education Committee as the lead committee. The Stage 1 debate took place on 22 February 2