Regulatory Framework Inquiry
Item 3 is about the Subordinate Legislation Committee's inquiry into the regulatory framework in Scotland, on which it seeks the views of other committees. The deadline for committee responses is Friday 14 October, which means that, if we want to make any comments, we will need to conclude them at today's meeting. Members have not submitted views to the clerks in advance, but if they wish to make any comments at this stage, those comments can be submitted on behalf of the committee, provided that we can reach agreement on them today. If we cannot reach agreement, members may make individual submissions to the Subordinate Legislation Committee.
The timescale is interesting. The paper came out on 31 August and is date-stamped 1 September by the committee clerks. However, it did not come before the Local Government and Transport Committee until today, although there may be good reasons for that. I did not receive the paper in the post until Saturday morning. The Subordinate Legislation Committee is undertaking an important inquiry. I recognise that we have no option now but to deal with the paper in the timescale that we have been given, but I have not had the time that I would have liked to have contributed my comments through the committee, although I recognise that I can comment as an individual MSP. The comments that I am about to make are in the context of my point about the timescale.
I have consulted the committee clerks about the matter and it is accepted that in retrospect it might have been better if we had circulated the paper earlier. I apologise for that, Bruce. You make a fair point. Attention was perhaps focused on the legislation that was going through.
I understand that. I was not seeking to be too critical of the timescale; I just wanted the committee to recognise that that is the context for my comments.
Transparency and scrutiny are the two words that come to mind when we think about the regulatory framework, particularly in relation to statutory instruments. We have all now had a fair bit of experience in dealing with statutory instruments and I am glad that the paper has come before us.
There are two areas about which I have had concerns for some time, the first of which is the negative procedure for instruments. It is incongruous that the effect of a committee rejecting a statutory instrument—which is the only real option that we have if we are unhappy with it—is to undo a piece of secondary legislation that is already in place.
Negative procedure operates after the fact. That is daft in a democracy. It is effectively putting a gun to MSPs' heads and saying, "Vote this down if you dare." That is the system that the Executive has inherited—that is where we are. I am not making a criticism in any shape or form. It just seems daft that we are in a situation in which, with the negative procedure, a piece of legislation is put in place and our only option if we are unhappy with any aspect of it is to reject it and cause it to be withdrawn. Any Parliament that gets itself into that situation is putting its head in a noose. We should not have any procedures along those lines. Unless we improve the negative procedure, we are in danger of bringing ourselves into disrepute if at any time an important piece of legislation, which was already part of the legal framework, is rescinded.
The second aspect that I would like us to consider is whether rejection and approval on their own are sufficient and whether, in order to improve the process of government, we should have a process through which statutory instruments can be amended. With bills, the Executive can introduce amendments that are legitimate, correct and going in the right direction. However, it can also—and it often does—introduce amendments at stage 2 that need further refinement at stage 3. A process through which we could amend secondary legislation would be an essential addition.
I do not like the negative procedure—it is contrary to democracy. We should have an affirmative procedure only and instruments should be subject to amendment. I say that for the sake of the Parliament, regardless of what has gone before or of what the Executive has said. Such a system would improve the institution, make the process more transparent and improve the scrutiny, which should make us do business a bit better.
Bruce Crawford is right in saying that we have all now had quite a lot of experience of dealing with statutory instruments. We have all participated in debates in which SIs have been opposed. I feel strongly that there is room for improvement and I congratulate the Subordinate Legislation Committee and the clerks on their paper, which is a useful basis for discussion.
The power to amend secondary legislation would be of great benefit to democracy. It would allow opportunities to improve and to vary statutory instruments. Given the substantial use of the conferral of powers on ministers to create regulations, one could argue that statutory instruments contain some of the most important work of the Scottish Executive.
Many bills have consisted almost entirely of a series of powers to create statutory instruments. Some of the worst that we have had are in that category—the legislation on individual learning accounts, for example. I remember that I objected to the competence of the Education and Training (Scotland) Act 2000 on the basis that it was nothing more than an act that allowed regulations to be introduced and I recall how that act came to grief with the incidence of fraud in ILAs. Perhaps if there had been more scrutiny at the beginning, we could have done better.
I feel strongly that powers to amend should exist. I do not accept that the arguments in paragraphs 1.6 and 1.7 are necessarily correct in saying that to give the Parliament or MSPs powers to lodge amendments would subrogate the power of the Executive. I do not think that that is the case. We would lodge amendments and they would either be passed or rejected, just like amendments at stage 2. I do not think that that would impinge on the distinction between the Executive and the Parliament in any way.
If we go down the line of allowing amendments, the concomitant reform would be to allow more time, because there would have to be some period within which to consult to allow the people involved to give their views on specific amendments. That process would take more time, which comes at a cost. Time is usually short, but I think that an amendment process would be necessary, beneficial and in keeping with the principles of participation, transparency and improved government. It might also help us to make better laws. I have increasingly heard people—and not just solicitors—commenting on the poor output of some of the laws that have been passed and on their ambiguity and lack of clarity. One way of addressing that problem is by allowing more flexibility in our systems, particularly when it comes to lodging amendments.
Finally, the super-affirmative procedure always seems to commend itself, for the same reasons as I have argued the power to lodge amendments commends itself. That procedure should not be used sparingly but it certainly should not be used routinely. There are major pieces of subordinate legislation that have huge impacts on people's lives, particularly in rural development, fishing and farming. I have felt frustrated, as have people coming to watch our proceedings, at the lack of opportunity to have a say on those issues and at the lack of time for full debate. People have felt general dissatisfaction with the nature of the proceedings that they have witnessed, so I hope that the committee can agree that the power to amend subordinate legislation would be a step forward and that the super-affirmative procedure should be used not routinely but in cases where the importance of the statutory instrument merits it.
I remember the day when the Health Committee insisted that a bill would not progress until the minister published his regulations. That decision was made unanimously by all members of the committee. It caused some anxiety for the British Medical Association, but that was not the point. The point was that we were being asked to agree to something without knowing to what we were being asked to agree. For that reason, I am keen on the affirmative procedure, not the negative one. The Parliament has a duty to ensure that legislation is properly thought out, properly consulted on and properly discussed. That will only make the system better and give a better impression of the Parliament.
I certainly agree with what has been said about amendments. Paragraph 4.6 of the paper talks about extending the 21-day rule for negative instruments to come into force. Anything that we can do to improve the scrutiny of what we are about has to be a good thing. Regardless of the timescale, an awful lot of stuff that we deal with in the Parliament seems to be padding to fill in time. I am sure that, with minor tweaks to our hours, it would be well worth the investment for us to conduct further scrutiny.
I agree to an extent with what Fergus Ewing said about allowing people outside the Parliament to comment. If there is early publication of instruments, there will be a chance for the public to deal with them, provided that they have a decent period in which to come together, form a view and feed that information back. If we are to continue talking about quality legislation with good, democratic input, we must make such means of commenting available to all and not just to those of us who sit on committees or in the Parliament. Public bodies and others should be able to make timeous comments and to understand what we are seeking to do. The Subordinate Legislation Committee has done a good job in producing its paper.
I do not agree with Bruce Crawford that we should have no negative procedure at all. It seems to me that the negative procedure is perfectly appropriate for minor and technical pieces of legislation on which there is not likely to be political debate. For many instruments that are considered under the negative procedure, there is no opposition or motion to annul and members do not ask questions to dispute them.
If we were to get rid of the negative procedure altogether, we would merely add to the workload of the Parliament without any benefit in improved scrutiny. If a negative instrument is introduced to considerable controversy, members can move a motion to annul, which will provoke a full debate on it. That seems to be fine, provided that we strike the right balance in considering, on the one hand, legislation that confers significant powers, which could involve considerable debate and would therefore be more appropriate for the affirmative procedure, and, on the other, legislation whose effect is likely to be technical. For example, a bill may allow for fees to be amended regularly. I accept that in some cases that could have political significance; in others, only a minor technical amendment might be needed. Provided that the Parliament, when passing a bill, gets the balance right between affirmative and negative procedures, I do not think that we need to get rid of negative instruments altogether.
I have more sympathy with the argument that we should have the opportunity to amend instruments rather than just rejecting them. I would be sympathetic to our making comments on that and asking the Subordinate Legislation Committee to look in further detail at the implications for the Parliament's proceedings and at how we would implement such a change. In principle, however, I would be content if the committee were to say that it was open to the idea of the Parliament being able to amend instruments as they are passed.
To respond to David Davidson's point, we should recognise that many statutory instruments are consulted on extensively before being introduced. Questions that are often asked when we are debating an instrument are what consultation has there been and who has been involved in it. Sylvia Jackson, who is the convener of the Subordinate Legislation Committee, will be aware that many instruments already involve a fair amount of consultation.
My experience is that the system is not always perfect. Sometimes the consultation is wide enough to give all the interested parties in society an opportunity to contribute; on other occasions, there have probably been question marks over the level of consultation. We should recognise that consultation is already part of the process of legislation, but perhaps we should ask the Subordinate Legislation Committee to make recommendations to ensure that the consultation is robust in every circumstance.
Being intimately involved with the legislative procedure, I would like to make a few comments to clarify what has been happening. In phase 1 of our inquiry, we looked at the point that Fergus Ewing raised about clarity. I guess that what he meant was the use of English and related matters. That has been looked at already, as has the issue of consultation. Essentially, in phase 2, we are looking at the procedures whereby subordinate legislation goes through the Parliament as opposed to other issues that were considered earlier in our inquiry. The comments are, nevertheless, very useful.
The 21-day rule for negative instruments can mean that, by the time an instrument gets to the subject committee, it is already in force. That is a problem. However, the convener made a good point about negative instruments. After all, we would not want to have to go through the affirmative procedure to make what might well be a minor change. Fergus Ewing and the convener were also correct to point out that we must strike the right balance in considering whether to have an amending procedure and what such an approach would cost.
Fergus Ewing also noted that significant aspects of legislation are increasingly being dealt with in statutory instruments. As a result, subject committees—and the Subordinate Legislation Committee, which is concerned with balance in legislation—are demanding that draft instruments be seen and discussed before a bill is passed. In fact, David Davidson said as much in relation to contracts for general practitioners. I think that all members have made useful points.
Do members have any other comments?
I was going to mention the 21-day rule, but Sylvia Jackson has dealt adequately with it.
Members appear to agree on a number of points. I ask the clerk to draw up a paper on the basis of members' comments, which we will send off to the Subordinate Legislation Committee. If members are content, I will sign off the covering letter.
I wonder whether Sylvia Jackson can tell us whether the national parks boundary issue was dealt with in an affirmative or negative instrument.
If I remember correctly, the designation order had to be agreed to by everyone or not agreed to.
Was it a negative instrument?
I think that it was an affirmative instrument.
I thought that it was negative.
I have a feeling—
Alastair Macfie is nodding. He thinks that it was an affirmative instrument.
So provided that we could have amended it—
But you could not have amended that order. It had to be agreed to by everyone or not agreed to.
That is useful.
Sylvia Jackson's comments have helped to clarify my understanding of the issues. There seems to be a consensus on the need for some power to amend instruments or draft instruments, although we acknowledge that that would cost us time. Would we be able to make such a recommendation?
I was taking that recommendation as read, because no one has disagreed with the proposal. We will include it in our submission to the Subordinate Legislation Committee.
Some of my colleagues and I are concerned about the gold-plating of European regulations that are introduced as Scottish statutory instruments. The Parliament must have an opportunity to examine that activity.
That is probably tangential to the issue that we are discussing. I do not want to get into a debate about whether we should mention the European Union in our submission to the Subordinate Legislation Committee.
It is not about the EU, convener.
Tell that to the Tory by-election candidate.
Or the UK Independence Party candidate.