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I welcome everyone to the 30th meeting in 2005 of the Subordinate Legislation Committee. We have received apologies from Gordon Jackson.
I will remember not to look up again, convener.
Thank you. We will come to timing later on in the session.
The Environment and Rural Development Committee deals with many statutory instruments, as a result of both Scottish primary legislation and the requirements that come from Europe. Our general view is that we could do better in managing that process. It is partly a question of timing—of being able to anticipate what is coming up—and also of the ability to take evidence on an instrument if we consider that its implementation is crucial. The key question is how that process is managed. We have some ideas about how we could improve timing.
Okay. Thank you.
I endorse what Sarah Boyack said about the slight difference in how the Subordinate Legislation Committee and the subject committees look at subordinate legislation. She is right in saying that there is a gap and that it needs to be addressed.
Thank you. We went to the Welsh Assembly and found it a very useful experience.
My first question picks up on the point that Sarah Boyack made about controversy.
The committee debated the Subordinate Legislation Committee's request and reflected on how we had done things over the past few years. It occurred to us that we had had affirmative motions that gave rise to very little controversy or discussion because everyone on the committee agreed that the proposal was inherently sensible and a good idea.
Is it simply a matter of having more information and proper programming? Does something have to be built into the system to allow the committee to judge whether the Executive has not consulted properly or provided adequate information? Should the procedure allow a committee to treat a negative instrument as an affirmative instrument?
We did not come up with that solution. I think that we wanted to hear the Subordinate Legislation Committee's thoughts in light of our reflections on what it feels like for a subject committee to deal with such issues. I suppose that we believe that some negative instruments should have the level of scrutiny of an affirmative instrument.
I appreciate that your committee is returning the issue to us to see what we think, but we need to recognise the difference between our committee's role, which is technical, and that of a subject committee, which deals with policy.
I hear what Sarah Boyack is saying, but our committee did not take quite the same view because, I suppose, our experience is that most subordinate legislation goes through quickly. For the most part, we deal with rafts of amnesic shellfish poisoning orders that do not generate much of the kind of discussion that Sarah Boyack mentioned. However, we consider many other instruments for which such issues arise. Most notably, we recently had to consider statutory instruments made under the Mental Health (Care and Treatment) (Scotland) Act 2003. For those instruments, we had to deal with a lot of important stuff on timescales and in ways that we felt were not appropriate and that did not allow us to dig deeply into the issues.
I want to put a related but slightly different question to Iain Smith. I appreciate that he has not been dealing with statutory instruments for very long—although, of course, he might want to suggest a procedural change to us—so I ask him to comment on this question. If we took it as a given that there should be some way of putting a spoke in the wheel to allow an instrument to be treated in a different way from that which was anticipated, should such matters be for the subject committee or for the Executive to determine? For example, the Executive might say, "We recognise that this negative instrument flags up significant issues, so we wish it to be treated using a different procedure."
That is not an easy question to answer.
That is why I asked it.
When Parliament agrees the parent act, it decides what the correct procedure is for a particular issue. The problem is that the Parliament might not envisage major policy changes. For example, as part of the less favoured areas scheme, powers were given, I presume, to deal with annual uprating and minor changes to the scheme, but the procedure in the parent act is perhaps not appropriate for wholesale changes to the scheme. Obviously, many procedures have been inherited from acts that the Parliament did not pass, which leads to problems.
I ask the other conveners if they favour that suggestion, which is not about changing the procedure from negative to affirmative, but about bidding for extra time.
We certainly support that, as it is one way round getting involved in whether the affirmative or negative procedure should be used. We usually have time for one committee meeting on a negative instrument, which is not long enough. For the committee to call for external evidence and to reflect on it, we probably need two meetings. In the timescale, we need to put an instrument on the agenda, do the preparation work and get the Subordinate Legislation Committee's view. By the time that we have processed all that, we are usually at the end of the 40 days and there is little time left. With controversial statutory instruments on which we have had an evidence session, the fact that the measures have not slid through at the last minute has helped key stakeholders, because they have aired their views and we have had Executive witnesses along to debate the issues with members. We would not want to do that with every statutory instrument, but if we had advance notice from the Executive, we could flag up controversial or significant instruments that we felt needed more time for consideration.
The Health Committee's experience has always been that instruments arrive at the last minute. If we are confronted by serious issues, the capacity for organising at such short notice witnesses and/or a sensible discussion in the committee is vanishingly small. It is a constant worry of all subject committees that measures go through without the scrutiny that they require. From speaking to a number of members, I know that there is a real fear that some of the issues will come back to bite us. I assume that you will ask separately about the possibility of amendment, which might deal with some issues. The fundamental problems that face us are the lack of advance notice and the short timescales. Those are at the root of our difficulties.
I move on to my second question. Sarah Boyack referred to instruments that raise no policy problems, but which raise procedural problems for the Subordinate Legislation Committee. In essence, we could do three things. First, we could accept the status quo; secondly, we could abolish the committee and pass our scrutiny role to each subject committee to consider the vires of instruments; and thirdly, we could empower ourselves to act on our own in relation to instruments that we see as procedurally flawed, which is the suggestion from the Environment and Rural Development Committee.
I will explain why we made our suggestion. We generally found the process quite frustrating. After the Subordinate Legislation Committee carries out detailed technical scrutiny of whether an instrument is likely to work and identifies points that need to be amended, the instrument come to us, but we do not do the same work on it. When we have no problem with the instrument from a policy point of view, what do we do with it at that point? The objective might be right, but there might be technical issues that the Subordinate Legislation Committee has felt strongly about. I do not think we have ever knocked back an instrument at that point. We tend to say that we would like the minister to come back to us with a replacement instrument as soon as possible.
Do the other conveners agree?
We did not discuss that particular issue in the Health Committee, which probably means that it did not really exercise our concern. However, Sarah Boyack made a fair point. I recall from my time on the Environment and Rural Development Committee a number of occasions when there were serious issues with drafting that gave rise to concerns. In circumstances where the fundamental problem with an instrument is a drafting or procedural issue, it must be possible for the subject committee to pass it in terms of policy but pass it back to the Subordinate Legislation Committee to consider whether it wishes to refuse it. Sarah Boyack is right: it makes no logical sense for one committee to say yea and another to say nay, and the instrument to go forward anyway.
We will discuss this more when we come on to amendments, but the problem for subject committees is that they have to decide whether the policy must be implemented in the timescale of the statutory instrument or whether it can be delayed by being sent back and annulled because of technical deficiencies. It would be preferable for the technical issues to be dealt with through technical amendments, while the instrument was going through, which clearly falls within the remit of the Subordinate Legislation Committee. Policy issues are about overall policy, rather than the technical merits of the instrument.
Before we continue, I should add that we are trying hard, through the clerks and legal advisers and through our liaison with the Executive, to get a lot of those technical difficulties cleared up during the process. We can often operate a twin-track approach, with slight amendments being made along the route. We hope that that process is improving, so that there will be less technical difficulty to deal with when committees consider subordinate legislation.
All the conveners have given their views on the importance of improving the timetable by which committees deal with subordinate legislation and on the idea of giving advance notice.
It is a bit of both, actually. At the moment, we have a nuclear option for all subordinate legislation, and a committee must either approve the whole thing or not approve it within a fixed timescale. There are circumstances in which it is appropriate to say, "Why delay this legislation? It's fine and nobody has any problems with it." In those circumstances, we just let it go through, and the timescales are fine. However, a committee may wish more time to consider the policy or financial implications of other pieces of subordinate legislation. In those circumstances, it should be possible to request that an instrument does not come into force until a further period has elapsed, to allow that further consideration to take place. It is a horses-for-courses thing, to some extent, and there should perhaps be a minimum period and a maximum period. It would then be up to the Subordinate Legislation Committee and the subject committee to determine whether to take the minimum period or the maximum period to deal with an instrument.
Do you think that it would be possible to work out in advance the criteria for delaying—perhaps delaying the wrong word—or building in an extra period for scrutiny?
There are always difficulties in putting too many things into rules; the rules will become extremely complex and they will be subject to interpretation. To some extent, it has to be left to the discretion of the committees, although if the Executive did a better job of providing advance warning of what is coming, and if it consulted properly on statutory instruments, the flagging up of instruments that were likely to fall into the maximum period rather than the minimum period could be done at an early stage and with the agreement of the Executive.
I agree with Iain Smith. It is a question of judgment and of spotting issues that we know are likely to be controversial or to need parliamentary scrutiny. Let me give a couple of obvious examples of such instruments that the Environment and Rural Development Committee has dealt with over the past couple of years.
It sounds as if you are saying that, with improved timetabling, the 40-day rule is manageable—tight, but manageable. In other words, you would not necessarily want an extra power to change the 40-day deadline, but what you really need is advance notice. Is that a fair comment?
Yes, but with something like an exemption for the few instruments that are genuinely difficult to programme within the 40 days.
So you want an exemption.
Forty days can be a problem. Witnesses who are invited to come to a parliamentary committee may not be based in Edinburgh and may not be able to drop everything immediately. If an issue is important, people will come, but we would still want to give them—and ministers—sufficient notice.
Members of the Health Committee were unanimous in feeling that longer timescales were required—although not, obviously, in every single case.
I wonder whether—
I want to bring in Stewart Maxwell who has a question on the same point.
Of course.
Iain Smith suggested minimum and maximum limits of, for example, 40 and 60 days, and there seems to be general agreement that the maximum would be used only in exceptional circumstances and that using it in all cases would not be desirable.
That would be simplest, if it was practical to do so, which would depend on the instrument in question. The earlier that such an extension is flagged up to the Executive, so that it is aware that the committee is likely to want extended time and can build that into the timetable, the better.
It must be said that committee timetables are so congested that it is highly unlikely that a committee will embark on extensive evidence taking on a statutory instrument when it is in the middle of taking evidence at stage 1 or is about to embark on stage 2. Most committees would take such action only on rare occasions when they felt that it was necessary. However, from time to time in the life of this Parliament, there have been occasions when taking such action would have been advisable, instead of sticking to the original time limits.
You all suggest that it should be possible to make exceptions for difficult cases. Deadlines are frustrating, but they are also useful, particularly when managing business. Instead of creating a mechanism where each committee has to choose the exceptions, would it not be better to extend the deadline for all instruments to 60 days? If that extension applied across the board, all committees would have enough time, particularly if the extension was married to the giving of advance notice and proper timetabling by the Executive. Would it not be better to have a flat rate, if I may use that term, rather than single out individual cases to which different criteria apply?
My instinctive feeling is that such a flat-rate increase across the board might be resisted in some quarters, whereas taking a more reasonable approach through negotiation—which we all do anyway with stage 1 deadlines and so on—might be better received. We are talking about what is likely to be achieved, rather than a flat-rate increase across the board to 60 days which would be wholly unnecessary in the case of the amnesic shellfish poisoning orders. I am sorry that I keep going back to those orders, but they are a good example from the Health Committee perspective of the kind of instrument that does not need much scrutiny.
We heard evidence on those orders last week. It is interesting to note that they are emergency orders to which timetables do not apply because they come into force immediately. Perhaps we will have to think about how we deal with emergency orders. Although we have some time to think about the amnesic shellfish poisoning orders, they come into force the moment they are laid, so they are a slightly different kind of subordinate legislation.
Perhaps there needs to be greater delineation, so that we do not treat emergency orders in the same way that we treat other orders. Perhaps the simple division between negative and affirmative is not the best way to designate orders; there may be better ways to proceed.
Indeed. Does Iain Smith want to say anything about applying a 60-day rule across the board?
I tend to agree with Roseanna Cunningham that if the Subordinate Legislation Committee made such a proposal there might be significant resistance from other quarters. The vast majority of instruments are non-controversial and there is no need to delay their coming into force. You should bear in mind the fact that most instruments have administrative effects on other organisations, which will need as much time as possible to implement them. Delaying the approval of instruments is unnecessary if there is no need to do so. However, in certain circumstances—for example, where a statutory instrument brings into force the detail of a piece of legislation that has recently been passed by the Parliament, or where existing legislation is being changed—more time may be required to ensure that the Parliament is satisfied that the Executive is using its powers correctly.
I have a final question on the 21-day rule, which Sarah Boyack commented on in her evidence from the Environment and Rural Development Committee. My question touches on a point that Roseanna Cunningham made. Effectively, negative instruments are already in force before committees get a chance to consider them under the 21-day rule. Should we extend the 21-day period in such situations, because it is effectively meaningless? It has been suggested that members are reluctant to change powers that are in place.
I think that our submission mentions the example of an instrument under the 21-day rule that had financial implications for others. I am thinking of an instrument that deals with grants and which is already in force by the time we consider it and decide to annul it. Members will see that many complex scenarios would arise from such situations. To what extent do we have an effective opportunity to annul such instruments? It is as if they are given to us just for information. That is certainly what it feels like to the committee. We would have to think very carefully before we annulled an instrument that was already in force, which is something that we have never done. We think that it does not help the scrutiny process if we are scrutinising instruments that are already in force.
So, on the 21-day rule, you agree with Roseanna Cunningham's view that emergency measures should have different criteria applied to them.
I do not think that Sarah Boyack is talking about emergency legislation. This is the nub of the argument. I agree that the amnesic shellfish poisoning orders are emergency instruments and that they, and similar instruments, ought to be designated as such. However, on Sarah Boyack's point, one might say that the relevant Executive department has never imposed any deadlines on itself, so it has never bothered to meet the necessary deadlines to ensure that committees can deal with legislation before it is already in force.
You are right that emergency instruments are different.
In general terms, the rules should be such that instruments, whether negative or affirmative, should not come into force until the timetable for the Parliament to approve or annul them has passed. However, there should be exceptions, such as emergency instruments. There may also be occasions when regulations are laid that must come into effect immediately to prevent evasion. Therefore, in exceptional circumstances, instruments would come into force immediately they were laid, but the general rule should be that Parliament should be able to have its say first.
I want to give a particular example that we put in our submission. In the period running up to the summer recess every year, we tend to have to deal with many statutory instruments in our final two meetings. This year, we had five instruments at our second-last meeting and nine at our final meeting before the summer recess. We did not have the time to scrutinise any 21-day instruments. We asked questions about some of them, but by the time we got the minister's responses and considered them in committee, the instruments had been laid for two months. The matter involves real time-management issues.
You will be pleased to know that we were not terribly happy either with what happened before the recess, so a strong letter—or perhaps it was a verbal comment—went to the Executive to say that what was happening was not good practice.
I have a quick question on the Welsh Assembly, which Roseanna Cunningham raised in the Health Committee's written evidence. The Welsh Assembly clearly gets detailed advance notice of subordinate legislation. Do you think that such a system should be replicated here, or should we simply strive to achieve a higher standard? Further to that, do you think that the reason why committees of the Welsh Assembly get that level of detail is that the Assembly does not deal with primary legislation? Do you agree that it tends to concentrate on detailed work on subordinate legislation because it does not have primary legislative powers? When we visited the Welsh Assembly, we were taken aback by the level of detail and the amount of energy that went into dealing with subordinate legislation. Do you agree that the Assembly does that work in such detail because that is its primary purpose?
Possibly.
The Subordinate Legislation Committee has asked why we cannot see Executive departments' timetables for subordinate legislation. They must have such timetables.
One would hope so, but I sometimes wonder.
Perhaps I should move on to our questions on amendments. We received a cross-section of opinions on whether the Parliament should have the power to amend SSIs. The Justice 2 Committee does not think that we should have such a power, but the Health Committee thinks that we should. The Health Committee gives the Smoking, Health and Social Care (Scotland) Act 2005 as an example because of the detailed and significant nature of the regulations that will stem from that act. The Environment and Rural Development Committee does not support the power of amendment, which it says would be
In principle, the Environment and Rural Development Committee did not want the power to amend all statutory instruments. This partly goes back to Roseanna Cunningham's point about our responsibilities in relation to primary legislation. I am not sure how we would cope with the ability to use such a power; we would certainly require expertise to back us up, and we do not have that expertise at the moment. Given the number of statutory instruments that are regularly before the committee, the power to amend them would have significant implications, and we did not want the power to amend policy. We feel that if we are really unhappy with the policy of an instrument we will knock it back.
You are suggesting a restricted power to amend. Would it be fair to go one step further and say that because the power to amend is in effect technical in nature, as it deals with typographical errors and so on, it should rest with the Subordinate Legislation Committee and no one else?
That was our view.
There was a unanimous decision by the Health Committee that it would like the power to amend, although I would not anticipate using it often. We flagged up the regulations stemming from the Smoking, Health and Social Care (Scotland) Act 2005 because the detailed nature of some of them raise policy discussions that would mean that, although we might not necessarily want to annul an entire instrument, there might be significant debate about one or two aspects of it. We felt that in such circumstances it would be preferable for us to have the power to amend rather than simply the nuclear option of annulling completely. The nuclear option will be rarely used—I think I am in right in saying that it has been used only once or twice in the history of the Parliament. Had the power to amend been available, one wonders whether there might have been a few more occasions on which committees were more proactive about statutory instruments than they are at present. I appreciate that that raises significant timetabling issues, but if some of the issues that arose from the timetabling discussion were dealt with, it would be possible to give more consideration to the idea of amendment.
Do you not think that if a committee had the power to amend what is effectively a serious policy, that would enable the committee to undermine a decision that the Parliament had already taken? A statutory instrument may bring into force a policy intention of an act that has already been passed by the Parliament. If we go back to your example—
It depends on whether you consider that the Parliament has already taken the decision. The problem with a lot of statutory instruments is that that is where the detail comes in. Arguably, who is acting as the Parliament in considering that detail?
I would like to make a comment about the difference between the Welsh Assembly and the Scottish Parliament. It is important to remember that the Welsh Assembly is a different statutory beast to the Scottish Parliament. The Welsh Assembly has delegated responsibility for secondary legislation in Wales and, in Scotland, we delegate our secondary legislation to ministers. Secondary legislation has a different status in the two bodies because of the way in which they were set up. The reason why the Welsh Assembly can amend its statutory instruments is because, effectively, it makes its statutory instruments while, in Scotland, it is the ministers who do so.
Effectively, that would mean that the instruments would circulate in the Subordinate Legislation Committee until such a time as we had agreed—
At the moment, the Subordinate Legislation Committee sends a report to the Executive saying that it thinks that certain things are wrong with a statutory instrument, and the Executive writes back and says whether it agrees. However, if it agrees, why cannot those instruments simply be corrected? I would not have thought that any further action, other than reprinting the instrument with the correct wording, would be required. That would not be a major problem; it is a more straightforward approach than having to lay another statutory instrument to correct something that is only a drafting error. I find it extremely frustrating that the same instruments keep coming back to us simply because there has been a drafting error.
I want to mention two areas in which we occasionally disagree with the Executive. First, we may think that a power is particularly wide and communicate that to you because the Executive has come back to us saying that it thinks that the power is perfectly acceptable and is close to what the original bill said. Secondly, there are various examples in today's papers of subordinate legislation that we do not think has kept close enough to what the enabling act said that the subordinate legislation could do. That is a vires issue. Sometimes there are bigger issues than purely technical ones, albeit that we are trying hard to get rid of technical errors. What is your reaction to those bigger issues?
I would find it surprising if one committee had the right—however matters were sorted out procedurally—to amend on a purely technical basis while the subject committees were not given the same right in dealing with the policy areas that are within their remits. That would be an anomaly, which I suspect would soon create difficulties.
I am trying to say that in much of our work—members of this committee are also members of other committees—we can see issues, and sensitive issues in particular, in which the vires question might arise and in respect of which there might be wide powers. I support much of what has been said, but we are flagging up issues that are important for the subject committees to—
We are still left with a decision about annulling or passing legislation. There is no middle ground to take or intermediate position that we can adopt on any statutory instrument—that missing middle ground often creates difficulties.
The debate is interesting. The issue of amendment is crucial to where we should go with statutory instruments. I wonder what the logical outcome would be if all committees had the power to amend statutory instruments. I do not necessarily disagree with what has been said, but would the Parliament have to debate, approve or vote on amendments? How much time would the procedure take? The issue is interesting and I do not suggest that there is an answer that can be given here and now, but it is obvious that there would be consequences for timetabling in the chamber if we went down that route.
That is right.
I tend to agree. There is a serious danger of drifting into treating secondary legislation as quasi-primary legislation and ending up essentially having stages 2 and 3, although probably not stage 1, for it. That would defeat the purpose of having secondary legislation, which is to avoid members having to come to the Parliament every time that measures have to be implemented.
Stewart Maxwell is right. If we had the power to amend statutory instruments—currently, that power is delegated to the Executive—we would exercise it. That would put the Environment and Rural Development Committee up there with every other committee and people would lobby us in the expectation that we could change statutory instruments.
I do not want to take up the whole morning on this point, but there is an interesting debate to be had. In the light of Iain Smith's comments, I wonder exactly how and where the line would be drawn. If the subject committees accept the technical stuff, that is fair enough. However, the convener was talking about something that is not technical in nature—she referred to vires and the width of powers—that goes to the committee and becomes, in a sense, policy. We are saying, "This is wrong. The Subordinate Legislation Committee can amend it." We might also think, "This is wrong. Let's pass it to the subject committee." However, if the line is drawn there, the subject committees still cannot do anything about the instrument. Where would you draw the line? Is it that either we allow everybody to amend or this committee does not?
The issue about vires clearly relates to policy; if the Executive appears to be drawing up a statutory instrument that is outwith the powers of the parent act, that is about policy. In those circumstances, the only option open to the subject committee is to annul the instrument or to refuse to approve it. That has not happened often, perhaps because committees are not taking enough time to consider the views of the Subordinate Legislation Committee on whether a statutory instrument is within the powers that are granted by the parent act. I am not suggesting that the subject committees are not doing their job properly, but they are perhaps not giving enough consideration to that aspect.
That goes back to the issue of timescales.
Perhaps if the committees chucked one or two statutory instruments back, the Executive might consider the issue of vires more carefully before it introduced further statutory instruments.
One of the difficulties for the Health Committee is that we often get the report from the Subordinate Legislation Committee only on the Tuesday morning or, after the statutory instrument has been discussed by this committee, it goes straight to the Health Committee at 2 o'clock in the afternoon. In those circumstances, what are we to do? Detailed scrutiny is an impossibility.
Stewart, are you content to leave it there?
There is a lot to mull over. This is difficult territory and I am not sure that we would get any further down the line with it.
You have raised a lot of interesting points. Thank you very much. You have obviously looked into the matter in great detail. Ken Macintosh will now address the issue of consultation.
I have two questions that are addressed to all our witnesses. First, do you agree that the Parliament should be consulted formally when the Executive is consulting on draft instruments? In particular, should the Executive consult the individual subject committees? Secondly, and drawing on a suggestion made by the Environment and Rural Development Committee, should the Subordinate Legislation Committee comment on the standard of consultation when we look at instruments? If we think that consultation has not been sufficient, should we flag that up? Should we make that one of the criteria that we apply? My general question is whether there should be a draft consultation process, in which committees are included. That would, in effect, be a bit like the super-affirmative procedure.
If we go by the Executive's improved timetabling option, under which a clear programme is provided for dealing with statutory instruments, we should be consulted when a draft instrument is out to consultation with the relevant people. That would appear on the relevant committee's timetable, so that the committee was aware that the consultation was under way. The committee would have the option to be involved at that stage, if it wanted to be. That would probably be a better way of proceeding than having a formal requirement to consult committees on a large number of statutory instruments, some of which would not be worth showing on the committees' radar screens.
I agree with that.
Ken Macintosh's other point is important. The explanatory notes accompanying statutory instruments should be clearer and should indicate who was consulted; they should cover any concerns that had been raised in response to the consultation. That is already required for primary legislation and I do not see why the standards for secondary legislation should be any lower.
We were particularly keen for that to be the case. We have not had reports on the consultations that were carried out on the instruments that have come to our committee, which are sometimes fairly substantial. We often receive a list of consultees, but that is not the same thing as knowing what they said. The information that comes to our committee lacks that quality. If fuller information were factored into the timing and into the notification that the committee is given, so that we know what is coming in advance, that would help us a lot.
Is there anything else that the conveners want to say about the super-affirmative procedure? I know that Iain Smith has said quite a bit about it, but you may have other comments.
When legislation is introduced whose policy and implementation will rely heavily on the regulatory framework, the Executive needs to adopt a much higher level of consultation and involvement with the Parliament on the initial instrument than would be the case with an ordinary SSI or with the renewal of an instrument. The extent of the initial consultation should be determined when the primary legislation is considered.
I want to raise the subject of how guidelines, codes of conduct and codes of practice are treated. Should all instruments of a legislative character be SSIs? Guidelines and codes of practice are commonly not SSIs, yet they can play a vital role in the implementation of acts. As Iain Smith will be aware, that is the case with the Education (Additional Support for Learning) (Scotland) Act 2004. A code was also central to the Mental Health (Care and Treatment) (Scotland) Act 2003. The Finance Committee made some criticisms with regard to the code of practice for the 2004 act. It pointed out:
There is no easy answer to that question. The danger is that, if we make them formal SSIs, they might operate in a different way from normal codes of practice. I realise that some guidance and codes have statutory backing, but they are to an extent advisory in nature and we must be careful about creating a whole new body of legislation by turning them all into statutory instruments. Indeed, one would have to agree in primary legislation that any codes of practice and guidance would have such legislative impact before they were turned into SSIs.
The Environment and Rural Development Committee agrees that not all codes of practice should be issued as formal SSIs. However, the Executive might choose to implement some measures in a bill through statutory instruments and deal with others in codes of practice. We will be consulted only on SSIs, which means that we might get the chance to scrutinise only a small part of a package of measures. For example, on scallop fishery management, our committee had what might be called a robust discussion on one aspect of the process, but we did not have the chance to discuss the rest of the package. It would have made a lot more sense to bring in all the stakeholders and really scrutinise what the Executive was doing.
The issue did not really register with the Health Committee. However, I was interested to read about it in the evidence from other committee conveners; indeed, I can see exactly why Des McNulty has raised specific concerns on behalf of the Finance Committee. Sarah Boyack's point is more appropriate for the subject committees. The issue is not so much the nature of the beast before us as the opportunity for us to talk about the whole of the beast. That is not happening at the moment.
On Sarah Boyack's point that codes of practice do not come before her committee for scrutiny, how can we change the procedures that we are adopting just now if we do not flag such codes as statutory instruments? How do we ensure that we maintain in the system a level of awareness of the various codes, guidelines and so on? Moreover, how do we ensure that they receive the proper scrutiny that she suggested they should receive?
The minister in question could write formally to the committee, informing it that a code of practice is about to be published. The committee could then discuss the matter. I believe that several committees were able to discuss the access code, which touched on justice, environmental and rural issues. However, we believe that, after lengthy debate as a result of a petition that came before the Environment and Rural Development Committee, we had some influence in persuading the minister that he should, through primary legislation, publish a code of practice on sewage treatment works and odour issues. That code is about to be published, but it will not automatically come back to us for scrutiny. Indeed, we will not even be automatically notified of its publication.
In their written evidence, committees have also raised the issue of clarity. The witnesses this morning have mentioned explanatory notes, Executive notes and so on. How much jargon is there in statutory instruments?
My deputy convener once used the phrase "models of obfuscation". Someone suggested that we should bring an example to this meeting, but we thought that it would be more difficult to find an explanatory note that did not obfuscate than it would be to find one that did. The fundamental problem is that the legal jargon that is churned out is replicated in the accompanying notes, which are not much better than the statutory instruments.
I strongly agree that we need plain English and good writing practice in the documents. We have had to write to the Executive about several instruments to say, "We are not clear about the significance of this. Can you give us more information on X, Y and Z?"
Part of the problem is that there does not seem to be a standard way in which the Executive presents such information to committees. The explanatory notes and policy memorandums come in a slightly different format for every statutory instrument.
Sometimes the accompanying information is excellent and tells us exactly what we need to know. That is almost more frustrating, because it makes us ask why we cannot have excellent information for all statutory instruments. However, we receive some good information—I do not mean to say that everything is dreadful. There needs to be a culture of being helpful about explaining what we are about to scrutinise rather than giving us bare information in impenetrable language or too much information without cutting to the chase.
Thank you for coming along today and for the written information from your committees. This has been a very interesting conversation, which has taken us a little further down the road.
Meeting suspended.
On resuming—