Date lodged: 24 February 2017
To ask the Scottish Government when it received information relating to the Digital Economy Bill from the UK Government to allow it to bring forward a legislative consent memorandum.
Answered by: Fergus Ewing 14 March 2017
As I said in the debate on the Legislative Consent Motion in Parliament on 22 February 2017, the Digital Economy Bill is complex and there have been a range of amendments to it.
The Scottish Government considered that there were a number of issues in relation to the Bill at introduction which stopped us from lodging a Legislative Consent Memorandum at that time.
First of all, chapters three and four of part five of the Bill contain powers on the disclosure of information to reduce debt owed to the public sector and to combat fraud against the public sector. The Bill also imposes a duty on UK Ministers to review the operation of these provisions and gives UK Ministers powers to amend or repeal the provisions by regulations.
In the Bill as introduced, there was no requirement for UK Ministers to obtain the consent of the Scottish Ministers if any such regulations should impact on devolved matters. As a result, we considered that we could not lodge a Legislative Consent Memorandum. The UK Government agreed to amend the Bill accordingly. The first set of such amendments were withdrawn by the UK Government as having “technical flaws” at Commons Committee stage on 27 October 2016:
https://hansard.parliament.uk/commons/2016-10-27/debates/7cc7d1c3-866b-4685-907f-c4c51fa73ec7/DigitalEconomyBill(NinthSitting) [see column 361]. The amendments were eventually agreed at Commons report stage on 28 November 2016 https://hansard.parliament.uk/commons/2016-11-28/debates/CF0A21DE-0B55-4A02-8B9F-824ADFDE7C02/DigitalEconomyBill [see column 1358].
Secondly, chapter five of part five of the Bill contains powers on public authorities disclosing information for the purposes of research. The Bill provides that this power does not extend to the disclosure of information held by public authorities with health or adult social care functions in connection with those functions. This exclusion follows a report by Dame Fiona Caldicott on information governance in the health and social care sector in England. The Scottish Government discussed with the UK Government whether it was appropriate for Scottish health and care bodies to be excluded in this way. The UK Government confirmed on 9 December 2016 that the exclusion for health and social care bodies would remain in the Bill.
Thirdly, paragraph 44 of the Legislative Consent Memorandum refers to planned amendments in relation to Revenue Scotland. What is now clause 65 of the Bill (information disclosed by Revenue Scotland) was added by amendment at Lords Committee stage on 6 February 2017: https://hansard.parliament.uk/lords/2017-02-06/debates/A615B47A-7186-4518-BA56-DC2D834F3ED9/DigitalEconomyBill [see column 1581]. We understand the UK Government plan to table a further amendment to the Bill, in line with paragraph 44 of the Legislative Consent Memorandum, to provide an equivalent for Revenue Scotland of clause 70 of the Bill (disclosure of non-identifying information by HMRC).
The Scottish Government also had to consider whether any other aspects of the Bill needed to be covered by the Legislative Consent Memorandum. In particular, we considered whether part three of the Bill, on online pornography, needed to be included in the Legislative Consent Memorandum but concluded that this is reserved.
We also had to consider the implications for Scotland of some of the amendments tabled to the Bill after introduction. For example, clause 92 of the Bill (prevention or restriction of use of communication devices for drug dealing) was added following an amendment at Lords Committee on 8 February 2017:
https://hansard.parliament.uk/lords/2017-02-08/debates/6EFC892A-F1A8-4156-B838-E8952E0908BA/DigitalEconomyBill [see column 1788]. The Scottish Government concluded that this is a reserved matter, and so did not need to be covered by the Legislative Consent Memorandum, and that it would be useful for the clause to extend to Scotland.
In another area, clause 34 (disclosure of information to water and sewerage undertakers) and clause 35 (disclosure of information by water and sewerage undertakers) were added to the Bill following an amendment at Lords Committee on 6 February 2017:
https://hansard.parliament.uk/lords/2017-02-06/debates/1233BC9A-AA77-423F-B263-FE551F9B9A2A/DigitalEconomyBill [see column 1537]. In this case, the Scottish Government said to the UK Government that these clauses should not extend to Scotland, given the very different nature of the water sector in Scotland. As a result, clauses 34 and 35 extend to England and Wales only.
Finally, the Legislative Consent Motion covers the Scottish Ministers laying down fees and rules for the Lands Tribunal for Scotland in cases concerning the Electronic Communications Code and provisions in part five of the Bill, on data sharing. The Scottish Government has received representations about the level of consideration payable to land-owners by mobile network operators under the new Electronic Communications Code contained in the Bill. This is, though, a reserved matter and not covered by the Legislative Consent Motion.