Legislative Consent Memorandum
Statistics and Registration Service Bill
Draft Legislative Consent Motion
1. The draft motion, which will be lodged by the Minister for Finance and Public Service Reform, is:
"That the Parliament agrees that the provisions of the Statistics and Registration Service Bill, introduced in the House of Commons on 21 November 2006, which relate to statistics in Scotland and which are within the legislative competence of the Scottish Parliament or which confer functions on the Scottish Ministers, should be considered by the UK Parliament."
Background
2. This memorandum has been lodged by Tom McCabe, Minister for Finance and Public Service Reform, under Rule 9B.3.1a of the Parliament's standing orders. The Statistics and Registration Service Bill was introduced at Westminster on 21 November 2006. The Bill can be found at
http://www.publications.parliament.uk/pa/pabills/200607/statistics_and_registration_service.htm
3. The principal aim of the Bill is to establish a new statutory body - the Statistics Board - operating as a non-Ministerial department at arms' length from Ministers, with a statutory responsibility for promoting and safeguarding the quality and comprehensiveness of official statistics. It will assume functions currently exercised by the Office for National Statistics (ONS) and the Statistics Commission. The Board's functions will include:
• Standards and scrutiny. The Board will develop and maintain definitions, methodologies, classifications and standards for official statistics, and will have a power to monitor the production and publication of official statistics, and report any concerns it has about the quality and comprehensiveness of official statistics. The Board can also, at the request of the appropriate authority (which for Scottish devolved statistics will be Scottish Ministers), assess whether specific official statistics have been produced in accordance with a Code of Practice, and if so the Board will designate the statistics as "National Statistics" (and reassess the statistic in the future to determine whether production of the statistic is still compliant with the Code). Scottish Ministers propose that these functions of the Board should extend to official statistics on devolved matters in Scotland, subject to specific provisions in the Bill to take account of Scottish circumstances.
• Production of statistics. The Board will have power to produce and publish statistics relating to any matter, as the ONS does now. This allows the Board, for example, to run UK or GB-wide surveys collecting information on reserved and devolved functions and to publish compendia of UK statistics. The consent of Scottish Ministers is required before it exercises these powers in relation to devolved matters, and the Board will not have a general role in the production of statistics on Scottish devolved matters.
• Statistical services and statistical research. The Board will have power to provide statistical services to any person and to promote and assist statistical research. This form of co-operation will be important, for instance to ensure that the data held by the Board are available to researchers working for devolved purposes.
• Information sharing. The Bill provides for orders permitting disclosure of information to or from the Board, which would otherwise be prohibited (except where the prohibition is due to the Data Protection Act 1998 or Human Rights Act 1998). This is intended to remove legal barriers to data sharing (for statistical purposes only), to improve the comprehensiveness and accuracy of official statistics. The Bill provides specifically for the provision of information by and to Scottish public authorities and in these cases the orders would be made by Scottish Ministers and considered by the Scottish Parliament.
• Reports and directions. The Board will be required to submit a report annually to the Scottish Parliament and is empowered to submit a separate annual report to the Parliament and to submit other reports as necessary. Scottish Ministers are given a power of direction to the Board, with the consent of the Chancellor of the Exchequer, if there has been a serious failure by the Board to comply with its objectives or to perform any of its functions on Scottish devolved statistics.
4. The Bill also makes changes to the registration service in England and Wales. These are not required in Scotland, where the registration system is slightly different and was the subject of recent legislation (the Local Electoral Administration and Registration Services (Scotland) Act 2006). Also included in the Bill are provisions on reserved matters (such as the Retail Prices Index) and on matters which concern only England and Wales, such as NHS registration information. These do not require the consent of the Scottish Parliament and are not covered by this Memorandum.
Advantages of using this Bill
5. Extending the role of the Statistics Board in setting and monitoring the standards of statistics produced by Scottish Executive departments (and other bodies responsible to Scottish Ministers) will demonstrate that these statistics are produced to a common UK standard, are produced independently and are subject to independent scrutiny. This approach will provide reassurance about Scottish statistics to international bodies and users of UK-wide statistics in government, academia, industry and commerce. A UK body will give access to a wider range of top-level expertise in the subject than would a separate Scottish body. This can only be achieved by extending the UK Bill to Scotland for devolved statistics. Similarly, only a UK Bill could provide for fully joined-up and reciprocal sharing of information, statistical services and statistical research between Scottish public bodies and the Board, which is essential for improvement in the comprehensiveness and accuracy of statistics on both sides of the border. For similar reasons, the Bill applies also to Wales and Northern Ireland. The Bill would achieve these aims while providing suitable safeguards for the role of the Scottish Executive and the Scottish Parliament in devolved areas.
Consultation
6. The UK government's proposals were the subject of a consultation document "Independence for Statistics" in March 2006, available at
http://www.hm-treasury.gov.uk/budget/budget_06/other_documents/bud_bud06_odstatistics.cfm
Proposals in Scotland will be the subject of a Scottish Executive consultation document. It is intended that the responses to the consultation document should be available to the Parliament during its consideration of this Legislative Consent Memorandum.
Financial Implications
7. It is not expected that the Bill will have financial implications in Scotland. The ONS and the Statistics Commission, which are superseded by the new Statistics Board, are funded by the Treasury, which will continue to fund the new Board.
Provisions in the Bill for which Consent is sought
8. The details of the specific provisions for which the consent of the Scottish Parliament is sought are at Annex A. The main areas are:
• The structure and objective of the Board (Clauses 1 - 7)
• The monitoring of official statistics (Clauses 8-9)
• The production and use of a Code of Practice for National Statistics (Clauses 10 -17)
• The Board's power to produce statistics in devolved areas, subject to Scottish Ministers' approval (Clause 18)
• Provision of statistical services, promotion of research, and data sharing (Clauses 20-21, 35-38, 45 and 49)
• The process for making an order in relation to Scottish devolved statistics, the definition of Scottish devolved statistics and other definitions (Clauses 62-64).
9. There are also a number of consequential, supplementary and general provisions that will also need to be extended to Scotland to make the Bill effective.
Scottish Executive
December 2006
ANNEX A
DETAIL OF PROVISIONS PROPOSED TO EXTEND TO SCOTLAND
1. This Annex describes the specific provisions for which the consent of the Scottish Parliament is sought, and provides background on their application in Scotland.
Clauses 1 to 5 Statistics Board: establishment, status, membership and staffing
2. Policy Intent To establish the Statistics Board as a non-Ministerial department and to provide for its membership and staffing. The members will include one person appointed by the Treasury after consulting the Scottish Ministers.
3. Background The Statistics Board will be established as a non-Ministerial department, with a non-executive chairman who, along with the National Statistician, will be appointed by Her Majesty. Unlike the ONS and the Statistics Commission, whose responsibilities will be taken on by the new Board, it will be a statutory body, with transparent arrangements for appointing its members. The Board itself will be composed of at least six non-executive members, including the chairman, and three executive members, one of whom is the National Statistician. One member of the Board will be appointed by the Treasury after consulting the Scottish Ministers.
Clause 6 Official statistics
4. Policy Intent To include statistics on devolved matters in Scotland as 'official statistics' for the purpose of the Bill.
5. Background Scottish statistics on devolved matters are mainly produced by the Scottish Executive on behalf of Scottish Ministers. But a range of other bodies, notably the General Register Office for Scotland and the Information and Statistics Division of NHS National Services, also produce statistics which Scottish Ministers can notify to the Board for inclusion in the statutory definition of official statistics, by means of an order.
Clause 7 Objective
6. Policy Intent To allow the objective of the Board to apply to official statistics on devolved matters in Scotland.
7. Background The Board's objective of promoting and safeguarding quality, good practice and comprehensiveness of official statistics needs to extend to Scotland if it is to have a role in relation to Scottish statistics on devolved matters.
Clauses 8 and 9 Monitoring and reporting of official statistics and definitions
8. Policy Intent To apply to statistics on devolved matters the Board's role of monitoring the production and publication of official statistics, and reporting any concerns, as well as developing, maintaining and promoting definitions, methodologies, classifications and standards for official statistics.
9. Background These powers of the Board must fully extend to Scotland if it is to play its planned role in safeguarding the quality of Scottish statistics.
Clause 10 Code of Practice for National Statistics
10. Policy Intent To apply to statistics on devolved matters the power of the Board to draw up a Code of Practice for National Statistics. The Scottish Ministers are to be consulted when the Board draws up or revises the Code.
11. Background The Board has the key role of drawing up a Code of Practice and this clause allows that work to cover official statistics on matters devolved in Scotland.
Clause 11 Pre-release access
12. Policy Intent To extend to statistics on devolved matters the arrangements for access to official statistics before they are published.
13. Background At present, access to official statistics in their final form before they are published is governed by non-statutory rules. The Bill puts these arrangements on to a statutory basis. The new rules, contained (for statistics published as Scottish devolved statistics) in an order made by Scottish Ministers, cover the circumstances under which pre-release access may be given, the people to whom pre-release access may be given and the period and conditions for access. These rules will become part of the Code of Practice, alongside pre-release rules for reserved statistics, and Northern Irish and Welsh devolved statistics.
Clauses 12-16 National Statistics: designation, principles of assessment and list
14. Policy Intent To extend to statistics on devolved matters the power of the Board to consider, when requested in relation to particular statistics, whether the Code of Practice has been complied with and designate them as 'National Statistics' if they comply - as well as reassessing existing National Statistics periodically and confirming or cancelling their designation. This assessment process will apply to all existing National Statistics including those produced by the Scottish Executive, and to other Scottish devolved statistics at the request of the Scottish Ministers. The Bill also provides for the principles and procedures which the Board will use (developed following consultation with the Scottish Ministers and others) in assessing whether official statistics meet the National Statistics standards and requires the Board to publish a list of National Statistics.
15. Background For the assessment of whether specified devolved statistics comply with the Code, the Board's powers of assessment and designation, as well as the statement of principles and procedures must cover Scotland. It is also important that the list of current National Statistics is comprehensive, including devolved Scottish statistics.
Clause 17 Code: transitional
16. Policy Intent To apply to Scotland the transitional arrangements for National Statistics after the Statistics Board is established.
17. Background The existing non-statutory National Statistics Code of Practice applies to Scotland under an agreement between Scottish Ministers and the UK Government. This clause provides for the existing code to continue (amended if necessary) after the Statistics Board is set up, but before it has adopted and published its own Code under Clause 10. Similarly, existing National Statistics will continue to carry the National Statistics designation and will be subject to assessment by the Board.
Clause 18 Production of statistics
18. Policy Intent To extend to Scotland the Board's power to produce and publish statistics relating to any matter, subject to the consent of Scottish Ministers where it produces or publishes Scottish devolved statistics.
19. Background At present, the ONS runs surveys (for instance the Labour Force Survey) which cover the whole of the UK and collect information on reserved and devolved matters. It also prepares and publishes statistics for the whole of the UK or Great Britain which incorporate Scottish information on devolved matters. That UK-wide role is the most efficient and effective way of making UK data available. The clause allows the Board to continue that work, with the consent of Scottish Ministers if Scottish devolved statistics are involved. The statistics on devolved matters which the Board will incorporate into UK/GB statistics will continue to be prepared by devolved Scottish bodies (principally the Scottish Executive): it is not intended that the Board should take over that work.
Clauses 20 and 21 Statistical services and research
20. Policy Intent To empower the Board to provide statistical services and promote and assist statistical research on matters devolved to Scotland.
21. Background Research cooperation between the ONS and the Scottish Executive is very important - particularly ensuring that ONS data are available for research carried out for devolved purposes. These clauses allow that co-operation to continue, as well as allowing the Scottish Executive and other devolved public bodies to pay the Board to do work where that is the most cost-effective solution.
Clause 23 Census etc
22. Policy Intent To ensure that the Registrar General for Scotland retains clear statutory powers to carry out the Census in Scotland.
23. Background Since 1861, the Registrar General for Scotland has been responsible for carrying out the Census in Scotland, latterly under the Census Act 1920 which also gives parallel powers for the Registrar General for England & Wales. The Bill transfers the Census powers in England & Wales from the Registrar General to the Board. The Clause gives effect to Schedule 1, which makes the necessary amendments to the Census Act 1920 in a way which ensures the continuation of the Registrar General for Scotland's powers to carry
Clauses 24-27 Supplementary functions
24. Policy Intent To ensure that the Board's ancillary powers and its efficiency duty extend to its devolved Scottish work, to require it to report appropriately to the Scottish Parliament and to give Scottish Ministers power to give it directions (and exercise its functions) in certain circumstances.
25. Background As a statutory body, the Board requires ancillary powers, which must apply equally to its devolved Scottish work. It should be obliged to do its Scottish work efficiently and cost effectively, seeking to minimise the burdens it imposes on others. The Board must also report to the Scottish Parliament on its work on devolved matters in Scotland: it will be required to do so annually (in a report also directed to the Westminster Parliament, or in a separate report, or both) and it may also submit additional reports. This clause would enable the Board, if it thought it appropriate, to lay reports which are wholly on devolved matters only before the relevant devolved legislature. Scottish Ministers, with the consent of the Chancellor of the Exchequer, will have powers to give directions to the Board if it has seriously failed to comply with its objectives or to perform any of its functions on Scottish devolved matters. If the Board fails to comply with such a direction, Scottish Ministers may (with the consent of the Chancellor of the Exchequer) exercise the relevant function of the Board.
Clauses 28-34 Organisation and administration
26. Policy Intent To ensure that provisions dealing with the Board's organisational and administration powers extend to its work on devolved matters in Scotland.
27. Background These clauses set out in more detail the internal workings of the Board - notably the distinction between, and separation of, the roles of the National Statistician (its chief executive and principal adviser on statistical quality) and of the Head of Assessment (its principal adviser on the assessment of official statistics against the National Statistics criteria).
Clauses 35-38 Use and disclosure of information by the Board
28. Policy Intent To extend provisions about the use and safeguarding of information to the Board's work on devolved matters in Scotland.
29. Background The Board needs to act within strict rules on use and disclosure of information, which would apply to its work on Scottish devolved statistics. Clause 36, which safeguards against disclosure of personal information held by the Board, is particularly important and applies criminal sanctions on individual employees for unlawful disclosure of personal information.
Clause 45 Power to authorise disclosure to the Board: Scotland
30. Policy Intent To allow Scottish Ministers to authorise disclosure to the Board, for its work on devolved statistics, of information held by a Scottish public authority - where the authority would not otherwise have power to make the disclosure or where the disclosure may otherwise be prohibited (except where the prohibition is due to the Data Protection Act 1998 or Human Rights Act 1998 - see Clause 51)
31. Background It is important for the accuracy and comprehensiveness of statistics produced by the Board that it has access, for statistical purposes alone, to information held by other public bodies. This clause allows the Scottish Ministers to make regulations (subject to the consent of the Treasury, and the approval of the Scottish Parliament) to remove legal obstacles to the flow of data from Scottish public authorities - defined, in line with the Scotland Act 1998, as any public body (except the Parliamentary Corporation), public office or holder of such office whose functions are exercisable only in or as regards Scotland - in so far as the public authority is exercising functions which relate to devolved matters. Clause 45(8) applies necessity and public interest tests before disclosure may be authorised.
Clause 47 Power to authorise use of information by the Board
32. Policy Intent To authorise the Board, through regulations made by the Treasury, to use information received from a public authority which would otherwise be prohibited (unless the prohibition on use is due to the Data Protection Act 1998 or Human Rights Act 1998).
33. Background This clause removes prohibitions on use of information already flowing to the Board through an existing legal gateway. It can only amend existing legislation, and no example of a prohibition on the use of information has been identified which relates to devolved matters in Scotland. It is extremely unlikely that new examples will arise and therefore a mirror image of this power, for Scottish Ministers in relation to information received from Scottish public authorities, is not provided for. This power will not be used to permit the further use of information related to devolved matters received by the Board.
Clause 49 Power to authorise disclosure by the Board: Scotland
34. Policy Intent To allow Scottish Ministers to make regulations authorising the Board to disclose information to a Scottish public authority where that would otherwise be prohibited (except if the prohibition is due to the Data Protection Act 1998 or Human Rights Act 1998 - see Clause 51).
35. Background This authorises the disclosure of information reciprocal to Clause 45 - from the Board to a Scottish public authority. It is subject to the same safeguards.
Clauses 52-55 Consequential
36. Policy Intent To apply to devolved matters in Scotland the clauses which provide for the transition from the present bodies (the ONS and the Statistics Commission) to the new Board.
37. Background The Statistics Board in part takes on the responsibilities of two existing - the ONS and the Statistics Commission. Both have a role in Scotland as regards devolved matters. The ONS produces and publishes statistics on devolved matters in the way explained on Clause 18. The Statistics Commission acts as a non-statutory external commentator on all matters concerning the quality of official statistics. Clause 52 terminates the work of the ONS and the Statistics Commission. Clauses 53 and 54 transfer to the Board the property, rights and liabilities of the ONS, the National Statistician and the Registrar General for England & Wales; it ispossible, though unlikely, that some of these rights and liabilities relate to devolved matters in Scotland. Clause 55 allows the Treasury to transfer property, rights and liabilities from a Minister of the Crown to the Board; again, it is possible (though unlikely) that these might relate to devolved matters.
Clauses 62-64 General
38. Policy Intent To apply to Scotland the order making powers under the Bill, subject to the normal procedures in the Scottish Parliament, and to interpret the Bill in a way relevant to Scotland.
39. Background Scottish Ministers have power under Clauses 6(1)(b), 11, 45 and 49 to make orders or regulations. Clause 62 ensures that these are subject to the normal order-making process in the Scottish Parliament under the affirmative procedure. Clause 63 defines "devolved statistics" for each of the devolved administrations. For Scotland, in order to accord closely with the devolved/reserved distinction, the definition includes statistics about reserved matters where the function under which the statistics are produced is devolved, but not statistics about devolved matters produced for reserved functions. The definition excludes statistics produced by cross-border public authorities (which have a combination of devolved and reserved functions, such as the Forestry Commission) and authorities treated as such, unless the statistics relate wholly to Scotland. But the definition will include any statistics produced under functions executively devolved to the Scottish Ministers by order under section 63 of the Scotland Act, although no current examples can be identified. Clause 64 defines terms used in the Bill - including 'Scottish public authority' and 'Scottish devolved statistics'.
Clauses 70-73 General
40. Policy Intent These clauses apply to Scotland the arrangements for repeals, commencement, extent and short title of the Bill.
41. Background The only specifically Scottish provisions are in Clause 72 (Extent). The Bill extends to Scotland, with the exception of Part 2 (about the registration service in England and Wales) and Clause 59 (containing provisions about evidence under the law of England and Wales). The remaining clauses, except those which clearly relate only to England and/or Wales such as Clauses 40 and 41, need to extend to Scotland in relation to the work of the Statistics Board north of the border. This Memorandum gives information on all the clauses which affect devolved matters.
Scottish Executive
December 2006