Procedures Committee, 03 Oct 2006

Meeting date: Tuesday, October 3, 2006

Official Report 136KB pdf

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Standing Orders (20-day Rule)

Item 2 concerns a paper from the Subordinate Legislation Committee. At present, it has to report to the lead committee not later than 20 days after an instrument has been laid; it wants rule 10.3.2 of standing orders to be changed so that it becomes only normal that it do so, rather than mandatory. The suggested new form of words is:

"The Committee shall report its decision with its reasons in any particular case to the Parliament and the lead committee. It shall normally do so no later than 20 days after the instrument or draft instrument is laid."

The committee tells us that, on occasions, it cannot manage to report to the lead committee in 20 days because of the pressure of business, so the suggestion seems sensible to me. It would be reasonable to write to subject committees that the change might affect to ensure that they would be satisfied with the change. There is an overall 40-day limit, so if the Subordinate Legislation Committee takes more than 20 days, that will leave the lead committee with less time to consider the instrument.

I am inclined to agree with the convener. We are all in favour of flexibility where it is conducive to the work of Parliament, but the success of the secondary legislation procedures—both affirmative and negative—is dependent on strict time limits. Some committees suffer under the burden of a great torrent of secondary legislation and find themselves struggling to deal with it within existing timescales.

I would not favour any loosening of the overall timescales that apply to instruments because any increase in the time allowed to the Subordinate Legislation Committee would shorten the time for which an instrument would be in the hands of the lead committee. For that reason, it is important that we consult in particular the one or two committees that deal with huge volumes of subordinate legislation so that we know the views of conveners and clerking teams that have sometimes to struggle with such burdens.

That suggestion is absolutely fair, given that we might find that the timescale for the Subordinate Legislation Committee suddenly increased to 30 days, so the lead committee would be left with the balance of the 40-day limit. The proposed change would cure the problem for the Subordinate Legislation Committee, but it would also simply push it further down the pipeline. We have to ask why the committee cannot make the 20-day deadline—I do not see a reason in the paper. Is there another problem that we have to address, rather than simply altering the timescales, which could have a detrimental effect on the lead committee?

In principle, I take a similar position to Alex Johnstone and Bruce McFee. If we are to make a change, there still has to be a cut-off date. I do not think that we want a timescale that could drift to 30 or 35 days. For a committee that meets fortnightly, if the 20-day deadline was not met, the timescale could drift to 30 days—10 working days later. We should say at least that the committee would normally report no later than 20 days after the instrument was laid, but that in every instance, it should report within 25 days. If we are to move the goalpost, there has to be a cut-off point. What is proposed is too flexible and could leave lead committees in difficulty, especially if there had to be a debate about an instrument.

I sat on the Environment and Rural Development Committee when it had to deal with controversial Scottish statutory instruments that contained considerable detail. We could not debate them until we had received a report from the Subordinate Legislation Committee. There was a delay in telling people when the debate was going to be held, which impacted on their ability to tell the committee their views.

The proposed change could have unforeseen consequences if we put in the word "normally" but do not put in a cut-off date.

I agree with most of what has been said, and I particularly welcome Alex Johnstone's suggestion that we consult other committees. It is important that we hear from them. It would be good to get information on the Subordinate Legislation Committee's workload so that we can see where the time goes. If that committee is under pressure, other measures could be introduced. I agree that there has to be a time limit and a timetable to which people can work. We should seek more information to allow us to give the proposed change adequate consideration.

Does the Subordinate Legislation Committee meet fortnightly?

That committee meets weekly.

Some of the rationale behind the proposed change is contained in the background section in paper PR/S2/06/15/2, which states:

"The difficulties are accentuated before parliamentary recesses when there are larger than normal volumes of instruments laid by the Executive, or where instruments are technically complex and raise difficult legal issues".

Those are the very times and circumstances in which things are also going to be difficult for the lead committee. I do not think that the proposed change will cure the problem—it will squeeze it further down the system, although perhaps most conveners will say that in most circumstances they could deal with the change. The letter from Gordon Jackson states that the circumstances that are outlined are not the norm, but other committees would face the same circumstances, so instruments would just be pushed down the pipeline.

There is another worrying line at the end of page 2 in the section of the paper on the inquiry into the regulatory framework in Scotland, which states:

"If its recommendations are accepted, the 20 day rule will no longer exist."

That might be all very well for the Subordinate Legislation Committee, but it will kill the subject committees if there is no cut-off date by which the Subordinate Legislation Committee has to report. Some committees are having to meet two or three times a week to get through their programme of dealing with legislation. If we were to support the change, we would, in effect, be saying that the Subordinate Legislation Committee would not be required to meet two or three times a week at the end of a session to fulfil its obligations to other committees.

The sentence that you refer to is about a draft report that may, in due course, lead to a bill. At the moment, the 40-day limit—the thing that determines it all—is laid down by the Scotland Act 1998 and by the transitional provisions that followed it in 1999. When those orders were made as a result of the Scotland Act 1998, the intention was that they would, in due course, be superseded by an act of the Scottish Parliament, so the machinery is trundling slowly to achieve that. That might mean that the 40-day limit would either cease to exist or could be extended, which would help to relieve the burden on the Subordinate Legislation Committee and on the subject committees. However, that is a long way ahead.

I would like to clarify whether that would be the effect, if a new order were to be introduced. I do not know, but I would like to find out.

The Subordinate Legislation Committee has produced a draft report—there is no legislation.

If the draft report were, as it is currently written, ultimately to find its way into legislation, what would its effect be?

All that we have is the suggestion to abolish the 20-day rule.

That is a further indication that the matter has been considered from only one perspective, and that the ramifications and unintended consequences are not known.

We can clarify what the draft report says. Is it still a private paper?

It is a published report. In fact, I circulated a note about it to the committee a number of weeks ago, but I have to say that I cannot now remember all the details of it, myself. What is proposed is quite a radical restructuring of the way in which subordinate legislation is dealt with: it would not simply be a matter of removing the 20-day rule and leaving the 40-day rule in place. I think that it would remove the 40-day rule as well, but I need to check that.

Would such a change require an act of the United Kingdom Parliament to amend the Scotland Act 1998?

No. What we are talking about is an act of the Scottish Parliament that would replace a transitional order that had been made under the Scotland Act 1998. The transitional order itself provides that it has effect only until it is superseded by an act of the Scottish Parliament, but such an act will not now be in place until some time in the middle of session 3, given the timescale for producing such things.

We need information on that.

I suggest that we write to the subject committees saying that the proposal has been put to us and asking for their comments. We could include Karen Gillon's point about whether they would accept the proposal that committees should "normally" report within 20 days, or whether there should be a back-up position of 25 days, or whatever.

I am not sure that I want to concede those things before we get answers to our questions.

I know what you mean.

We need answers from the lead committees and from the Subordinate Legislation Committee, to see whether it has considered the ramifications of its proposal.

Perhaps what we should be asking about are the implications for lead committees of changes to how the Subordinate Legislation Committee reports to those committees. If the Subordinate Legislation Committee were to take 21 days rather than 20 days, would that knock a lead committee past another meeting? If it were to take 25 days, or 30 days, rather than 20 days, what would be the ramifications for the timetables of all committees, as opposed to just that of the Subordinate Legislation Committee?

The Subordinate Legislation Committee has not made its case on that, as I understand it.

Is it possible to progress by writing simultaneously to the subject committee conveners to ask their views on a wider range of issues, as Karen Gillon has suggested, and to the Subordinate Legislation Committee, to ask the convener to come and explain the process to us or to put the case to us more fully in writing to explain that committee's workload? That would enable us to see the Subordinate Legislation Committee's point of view more fully and to get other committees' points of view.

It will be useful to hear other committees' points of view, but I also want to know what other options have been considered. I sit on the Justice 1 Committee and earlier, Karen Gillon referred to the fact that some committees sit three times a week—the Justice 1 Committee sits three times a week on occasions and has sat twice a week for a considerable time. We have been told that the situation is particularly difficult before parliamentary recesses, so perhaps the Subordinate Legislation Committee needs to build in another meeting. I understand that if a committee is considering a complex legal matter on which it takes a long time to get advice, it would not matter how many times it sat, but we need to quantify what we are talking about and what other options have been considered.

A change to the 20-day limit would impact on other committees, so it should be the last resort rather than be considered early doors. It might be that the Subordinate Legislation Committee has considered other options and has had to dismiss them for one reason or another, but we do not have such information.

If committees are not getting the advice that they need in the timeframe in which they need it, there might also be staffing and resource issues, so simply moving the timescale would not deal with staff failing to meet committees' needs. As soon as we move the timescale, people will work to the new timescale, not the one that existed before, and the problem will go on.

Do you wish the convener of the Subordinate Legislation Committee to come and explain the matter at our next meeting, or to get a paper explaining more fully that committee's problems?

It would be helpful to have information on the potential impact of the proposed change on the subject committees before we hear from anybody else. We cannot enter into a dialogue with one side of the debate if we do not have information from the other side. I am not averse to the convener of the Subordinate Legislation Committee coming before us, but that would need to happen four or six weeks down the line to allow us to get information back from the subject committees so that we can have an informed discussion with her.

The clerk will write to the subject committees asking for their views and we will write back to the Subordinate Legislation Committee saying that we have discussed the matter fully, that we are asking other committees for their views and that when we have those views we would like the Subordinate Legislation Committee to come and explain the matter to us more fully. That will warn it that there will be an invitation in due course. Is that all right?

Members indicated agreement.

I have failed in one procedural respect: do members agree that draft reports on agenda item 1, on parliamentary determinations and resolutions, be discussed in private until we agree them?

Is there a need for those reports to be discussed in private?

That seems to be the custom, but I do not think it is a big deal. Is it agreed?

Members indicated agreement.

The last two items are draft reports, with which we will deal in private.

Meeting continued in private until 12.42.