Subordinate Legislation Committee, 07 Dec 1999

Meeting date: Tuesday, December 7, 1999

Official Report 83KB pdf

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Minister for Parliament (Letter)

The final matter on the agenda is the letter from the Minister for Parliament, which we held over from the previous matter regarding consolidations. We had a fair kick at the ball in our legal briefing. Do members wish to make any comments?

We have had helpful advice from the clerks. The starting point is that the advice that the rule on no more than five amendments of any substance being considered is not new. We are not asking for something that we have dreamed up since this Parliament was conceived. The Speaker's Counsel confirmed at a recent joint meeting that this had been the rule-of-thumb adopted for many years by Whitehall departments, following official guidance of at least 30 years' standing.

If that is the backdrop, I would have thought that there is a precedent for what we are trying to achieve. As a legal practitioner, I can say that it is difficult for professional users to find out what the law is if there is a plethora of documents. The danger is that practitioners might fail to notice the most recently enacted one—that can have drastic consequences.

We must consider in what circumstances there should be consolidation. The Executive suggests, in paragraph 6 of the note, that there is merit in developing what it calls a convention on the matter. What locus does this committee have to develop conventions? Does the Parliament yet have any conventions? If it does, what are they and should this committee be the body that focuses on them?

As a matter of common sense, we might be able to deal best with consideration of the merit of statutory instruments by recommending to the lead committee—or committees—that they might not want to consider in detail consolidatory measures, because they have been considered before. That would enable the committee to decide whether it should spend time debating the merits of statutory instruments.

We do not want to regiment things too much. There is not that much difference between what we want and what the Minister for Parliament wants. We will develop practical working guidelines for the operation of the Executive. As you said, convener, we are trying to streamline the work of the committee so that, if what the Executive wants differs from what we want in terms of presentation of statutory instruments and consolidations, the Executive has an explanation. I would be happy to flesh out our ideas into a guideline, or whatever we want to call it.

I do not think that it is practical to ask subject committees not to debate the merits of consolidation issues, as a committee could raise those issues in any case. I would be happy for you to respond to the letter from the Minister for Parliament to try to work out the way this committee works.

I agree with that. We will have to have some guidelines. I agree with Fergus that we do not want to become bound, as Westminster might be, by something that happened in 1946 or by some foible of Henry VIII.

The benefits of consolidation are significant and I see reference to that in the "Parliament House Book". In my legal days, I went to update a copy of the "Parliament House Book" without having the previous book. I realised those benefits only when I tried to update it. There is the possibility that two or three statutory instruments might be missed out, which is not satisfactory. We want to stick to our pro-consolidation position.

I agree as well. The word "convention" worries me a bit. I might be wrong, but it seems to imply that something has gone before but, in this Parliament, nothing has. On the other hand, there is a wealth of experience in Westminster on this matter—more than 30 years.

We need some sort of guidelines and, as Bristow says, other committees can use those as they see fit.

Can I suggest that we write back to the minister, thanking him for his attempts to focus matters. We are also grateful for Alasdair Rankin's meeting with representatives of the Executive. However, we do not think that we can bind any parliamentary committee—we are charged with considering the vires aspects, not policy. We would like guidelines—not necessarily conventions, as Trish Godman pointed out—or some memorandum of understanding between our advisers and the Executive's legal advisers as to how matters should be progressed. If the Executive is not following that memorandum, perhaps it could assist us by telling us why not—that would reduce the need for such meetings.

We have some sympathy with the cut-and-paste approach; in the age of information technology, matters should be accessible and readable. I have been in offices where information that has not been updated litters the floor and where it is impossible to resolve matters, so the point about updating along the lines of the "Parliament House Book" is clear.

In our earlier deliberations, we did not get as far as discussing paragraph 7 of the Executive letter of 3 November and the extensive comments and advice that we received from Margaret Macdonald. The Executive says that it is concerned by the view expressed in our 5th report that

"where it is proposed to amend an instrument made before devolution it is appropriate that the instrument should be remade as a Scottish subordinate instrument rather than amended".

We have been advised that, for various reasons, we should stick with what we said in our report. The advice also indicates that, as long ago as 1970, the approach that we took was recommended by a Westminster legislation committee. At the time, that approach was widely welcomed by lawyers and the public. They wanted the Scottish corpus of law to be clear—not dependent on scrutiny of UK statutory instruments that could be deleted for England but that could remain extant for Scotland. Since accession to the European Union, the situation is further complicated.

I am sorry that I did not raise the matter earlier. I hope that there will be a re-think about the approach, given the strong arguments for our side of the case.

It would be helpful for us to raise that. We also welcome Fergus Ewing's recognition of the wisdom of Westminster on the matter.

In paragraph 7 of the letter, Tom McCabe says that the instruments will be available through "bookshops and the website" for some time. That is relative—it could mean 25 years, but we do not know. We need to hang on to that point.

From a petitioner's point of view—or for anyone involved in legislation—such matters are in the domain of the Scottish Parliament, regardless of whether the legislation was made by Westminster. If we amend legislation, that should be recorded—to ease the paper-chase, if nothing else. Perhaps we could go back to the Minister for Parliament to say that we are not satisfied.

I was a bit slow to respond to Bristow Muldoon's low blow. I am sure that the excellent recommendation from the Westminster committee came from the highly intelligent and distinguished clerks. The Scottish National party has never had any quarrel with the clerks at Westminster.

I thought that Fergus was going to say that he had no objection because the recommendation came from a time when Dr Ewing was a member at Westminster.

Thank you, everybody. That ends today's meeting.

Meeting closed at 11:34.