Consolidation Bills
I welcome Murdo Fraser and Tracey Hawe and thank them for attending the meeting. I apologise for keeping them waiting for so long, but they will have noticed that our discussions have been open ended. It is difficult to forecast how long such discussions will last.
Murdo Fraser was the convener of the Parliament's only consolidation committee so far—the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee—and Tracey Hawe was the committee clerk. She has written a helpful but difficult paper on the subject. The subject is technical.
We will not make any epic decisions today, but we would like guidance from the witnesses' experience as to whether we should consider changing the standing orders. As far as we know, there is no immediate prospect of a consolidation bill being introduced, so time is not a critical factor, but we should consider matters and reach sensible conclusions. I invite Murdo Fraser and Tracey Hawe to tell the committee how the process worked and what issues we should address.
Thank you for inviting us to give evidence. I know that committee members have been greatly looking forward to the session; indeed, Karen Gillon told me yesterday how much she was looking forward to having a robust exchange of views on the technical aspects of consolidation bills. We will try to ease the process as best we can.
I am grateful to Tracey Hawe for preparing a detailed paper on consolidation bills, which I invite her to speak to. I may add a few comments after she has done so. We will then be happy to answer members' questions.
Tracey Hawe (Scottish Parliament Directorate of Clerking and Reporting):
As the convener rightly said, the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee was the first consolidation committee to be set up. We had very little precedent on which to draw in deciding what the committee's role should be at stage 1 and what factors it should take into account in reaching its conclusions. Therefore, we thought that it would be appropriate to feed our views on the process back to the Procedures Committee in a paper and to let the Procedures Committee reflect on our experiences and consider what changes to the standing orders might be needed.
I want to draw the committee's attention to four issues in particular that are mentioned in the paper. First, there is the role of consolidation committees at stage 1. There is not a great deal of information in the standing orders about the work that consolidation committees should undertake at that stage. Fleshing out the standing orders a bit might therefore be useful.
Secondly, there is the question whether there should be room for limited debate in the chamber at stages 1 and 3. Our committee rejected five of the 29 recommendations for change that the Scottish Law Commission made, and members thought that there were times when small but valid debates could be had on certain points.
Thirdly, the rules on the admissibility of amendments are not particularly helpful. There is a conflict between the general rules and the rules that relate to consolidation bills.
Fourthly, a cut-off point has been introduced for members' bills in any given session. Given the complexity of consolidation bills, we wondered whether a similar cut-off date for their introduction in any given session might be considered.
I am happy to answer members' questions.
One challenge that we faced in dealing with a consolidation bill was the lack of available guidance in the standing orders. We ended up looking at the Westminster model for guidance. Paragraph 13 of Tracey Hawe's paper mentions the work of the Westminster Joint Committee on Consolidation etc Bills in 1983. That committee's work gave us useful guidance.
A difficult question that took up a fair bit of debating time in our consolidation committee was what test would determine whether the recommendations of the Scottish Law Commission would lead to satisfactory consolidation. We were not only consolidating the law, which it is fairly simple to do; the Law Commission had also proposed a number of improvements to reform the law and bring it up to date and we had to consider whether to incorporate those proposals.
I appreciate that this is all very technical so it is probably easier if I give the committee an example. It is now standard drafting practice that all measurements in bills are metric rather than imperial. In the 16th century, they used feet, yards, leagues, furlongs and whatever else, and a strict consolidation would simply repeat those measurements in the new bill. However, the Law Commission's recommendation was to convert such measurements to metric, and we felt that that was perfectly sensible. Of course, a strict correlation does not necessarily exist: 100yd does not exactly equal 100m. However, the committee decided that we should just call 100yd 100m, because translating 100yd into 97 point whatever metres would have been nonsense. We had to have a bit of flexibility.
However, we felt that other recommendations of the Law Commission went too far. For example, it recommended that if there were ministerial powers to promote subordinate legislation, that subordinate legislation should be consolidated at the same level—that is, the instruments should all be affirmative or all be negative. We felt that that was a step too far, because the originating statutes all had different levels of subordinate legislation. However, if the Procedures Committee has the energy, it might want to look into that in more detail in future and it might want to decide whether it was appropriate to give a future consolidation committee a bit more guidance than we had.
I can see that rewriting existing laws in a more modern fashion—using metres, for example—is fine. However, the issue of making improvements is more difficult. One man's improvement is another lady's disimprovement.
Is the Law Commission the source of consolidation bills, or might some minister get enthusiastic about consolidating, say, window repair bills?
The Law Commission does a lot of the drafting and consideration of the law that will go into such bills. Our bill was introduced and led through the parliamentary process by the Lord Advocate. A committee's decision about a Law Commission recommendation—for example, about whether the recommendation was necessary to produce satisfactory consolidation—would be a matter of degree. Our committee was clear that anything involving a substantial change in Executive policy should be part of a programme bill rather than a consolidation bill.
From your experience, do you feel that we should have a brief parliamentary debate at stage 1 and stage 3, rather than just pushing a bill through on the nod?
When grey areas appeared in views of what was good consolidation and what was not, we felt that there was scope for a very brief stage 1 debate. However, there is always a risk that members will stray into areas of policy. The stage 3 debate on our bill dealt with very technical legal issues, but I remember that Dennis Canavan—who has a particular interest in fisheries—stood up and started to make political points. He was perfectly entitled to do that, but that was not the purpose of the stage 3 debate. It was not what a consolidation bill is for. If there were to be a stage 1 debate, we would have to be very careful about what kind of speeches and points were deemed appropriate.
Is it legitimate for a committee to lodge interesting new amendments at stage 2, as happens with ordinary bills, or are committees tightly limited by what the Law Commission has said?
The admissibility criteria are much more limited than they are in respect of a general bill. However, a committee could make amendments if, for example, it thought that a provision had not been consolidated neatly or accurately. In the case of the Freshwater Fisheries (Consolidation) (Scotland) Bill, committee members did not introduce any amendments because we had detailed discussions with the Executive and it undertook to introduce amendments to meet our concerns.
Your paper, together with your clarification of it, have given us a good basis on which to consider the matter. What is the best way forward? Should we ask the clerks to produce a report in response to the paper?
The former adviser to the Freshwater Fisheries (Consolidation) (Scotland) Bill Committee was unable to attend today, but he plans to produce a further paper on some points of detail. The next step will be for the committee to hear what he has to say.
Okay. We will do that. Will that be at the next meeting?
Yes.
I thank our witnesses and apologise again for their long wait. We have a fairly clear-cut issue before us and we will address it.
Before we go into private session for agenda item 4 on Crown appointments, I indicate that we have received a letter from the convener of the Conveners Group on the subject of annual reports. I am sure that we do not want to have a long discussion about that. Should we ask the clerk to report to the committee? I was at the meeting of the Conveners Group when the matter was discussed and there were three points of view. The majority view was that annual reports are a waste of time and that nobody reads them. Some statistics were produced to show that 3.5 people in Scotland have read a committee annual report. Some people argued that they are a waste of effort and that we should not have them. Another point of view was that we should continue to produce them with a standardised layout. The third point of view was that committees should publish annual reports only if they want to and that they could be published in a different way. Do members have any comments?
Does the Conveners Group need an instant response?
No.
Can we return to the matter at the next meeting when we have had time to consider it?
Yes. The item was included in the agenda to air the issue. Members might spend five minutes in the bath—or wherever they do their thinking—thinking about annual reports.
Meeting continued in private until 13:08.