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Good morning. I welcome everyone to the first meeting in 2001 of the Subordinate Legislation Committee.
In line with normal procedure, I have prepared a short statement. I am head of student support policy development in the Scottish Executive. With me is Jim Logie, the solicitor who is working on the bill.
How does the bill differ from the first as far as subordinate legislation is concerned?
Unlike the first bill, this bill incorporates an explanation of the term "graduate"; under the first bill, that definition had been contained in the subordinate legislation. Jim Logie will correct me if I am wrong; as we have all been working on the No 2 bill, it has been a while since I looked at the first one. All the other areas where we wish to take powers under regulations remain the same.
In earlier discussions of the bill, the committee commented that the powers to make subordinate legislation were quite broad. Subsections (7) and (8) of section 1 define the way in which statutory instruments will be made under that section. Subsection (8) stipulates that the first regulations under the section will be made through affirmative procedure, but that subsequent regulations will be made through negative procedure. However, subordinate legislation can be made under a range of subsections in section 1. Should each of those subsections be governed by a requirement for any initial regulations to be made through affirmative procedure?
The regulations—which will be known as the graduate endowment (Scotland) regulations—will cover all the powers mentioned in section 1 on which ministers will make regulations. That first set of regulations will be made through affirmative procedure, which will allow the Parliament to have a good look at all the details of the scheme; those regulations will be pretty detailed about the scheme and its arrangements. All the powers affecting graduate endowment that ministers wish to take under subordinate legislation will be contained within the same set of regulations and will be treated exactly the same.
So there will be one all-encompassing set of regulations.
Yes.
If you are preparing a substantial piece of subordinate legislation that deals with regulations concerning the graduate endowment, why not put that in the primary legislation?
To do that would be extremely inflexible. There will be a need to monitor the scheme regularly, which is what we do with all other legislation governing the student support system, and to make adjustments as required. In such a situation, it is extremely difficult to come back and make any necessary changes to primary legislation, as we need to find an opportunity to do that. The Executive's view is that the only sensible way of dealing with the scheme—including issues such as liability for the endowment, all the administrative arrangements and the collection of the graduate endowment—is through subordinate legislation. That will give us the flexibility to make changes as required.
Could the primary legislation not only specify the principal criteria but include the opportunity for any future amendments to be made through subordinate legislation?
The bill sets out what the graduate endowment is, but it would be inappropriate for primary legislation to include, for example, the amount of the graduate endowment—if I understand you correctly, that is what you are suggesting should be included. If we specified the amount in the bill, the way in which we would change the amount would be in doubt.
I sympathise with the position that you are taking on flexibility, as people do not fit easily into boxes. The student population contains a variety of people, who switch courses and so on. It would be very easy to include provisions in primary legislation that would not apply to individual cases that turned up unexpectedly. There needs to be flexibility, and to that extent I am happy. However, we are worried that Parliament might not be able to take a view on these matters. We want to ensure that we have opportunities to scrutinise, comment on and provide input into any changes in regulations.
That is why ministers have taken the view that the first set of regulations should be subject to the affirmative resolution procedure. The whole scheme is new, and that procedure will allow debate on the regulations and allow people to consider them in detail.
I fully recognise the need for flexibility in the system. The bill has been introduced and a major piece of subordinate legislation will follow hard on its heels. However, much of the definition could have been included in the bill and we could still have had subordinate legislation with the power to amend it. An example from last year is the Ethical Standards in Public Life etc (Scotland) Act 2000, which defined the public authorities to which it applied, but gave ministers the power to add or delete organisations from the list of bodies to which it applied.
We would probably find that difficult. As Gillian Thompson said, we will produce a complete set of regulations. Anyone who wants to know anything about the graduate endowment will simply need to read the bill and the set of regulations to learn all that they need to know. If we proceeded with your suggestion and drafted a huge bill that would be amended incrementally, year on year, through delegated legislation, the paper trail would soon become very long. An omnibus set of regulations will still create a paper trail as we amend it, but every so often we will have to consolidate the regulations. At various key points, a consolidated set of regulations will be available and will be the only document that will need to be read. If we had to find time every few years or every decade to introduce another graduate endowment bill that contained every provision about the graduate endowment, a lot of parliamentary time would be taken up and a lot of Executive time would be used in preparing it.
You make the case well for giving ministers flexibility. We have heard that argument time and again. We understand why ministers want the maximum flexibility, but that should not be the main concern. A balance should be sought between the outline in the bill and some substance. Many people would argue that the bill is the most significant that the Parliament has considered—it is flagship legislation. On this important subject, people could argue that, as the Parliament is taking a different track from that of the Westminster Parliament, the issue is therefore worthy of a substantive bill that sets out as much as possible in its body.
Ministers accepted that the bill that was introduced at the beginning of October did not detail sufficiently well some of the policy intention behind the graduate endowment. That is why we took the opportunity to introduce the Education (Graduate Endowment and Student Support) (Scotland) (No 2) Bill at the beginning of December. As I said, in doing that, we recognised more clearly in the bill concerns such as those about the meaning of "graduate", "higher education benefits" and "publicly-funded institutions". Most important for many people, we addressed how the income would be used. Ministers accepted that the original bill was not as well drafted as it might have been. The No 2 bill is the Executive's attempt to make the provisions clearer.
Is there no room for compromise? I accept the use of affirmative resolution, but my cynical mind tends to the view that regulations are never considered in the same way as primary legislation is.
That would be a political decision for ministers to make. Speaking as an official with experience of student support, I have to say that I understand what you are saying, but my view is that the detail of the scheme needs to be in the subordinate legislation, so that we do not get hung up on trying to find vehicles for making changes that would benefit students but that, because the detail was not in the subordinate legislation, would take longer to introduce. Ministers would have to decide whether the bill should be changed to reflect the suggestions that you are making. I cannot comment on that.
I accept that. The difficulty might be in the definition of detail. What one person regards as a detail might be regarded by another as the principle of the bill. Am I right in thinking that, as an official, you see nothing technically impossible about achieving the kind of compromise that I am talking about?
Having had some experience of this area over a number of years, I feel extremely uncomfortable about doing anything that would cause a difficulty in developing the detail of the scheme over time.
There is a great deal more specification in the primary legislation on many matters that come before us, such as legal aid and health issues, than there is in this case. I am not sold on the argument about the paper trail because, as a practising solicitor, I always found it far easier to go to the primary legislation than to try to follow the trail of the subordinate legislation that comes thereafter. Although an Executive of whatever political colour must be able to make changes in due course, there is benefit in having as much of the skeleton and outline of the matter as possible contained in the primary legislation. If the subordinate legislation is already prepared and is about to be rolled out, there must be some opportunity to provide some beef for a bill that, despite its importance for Scotland, is contained on three sides of A4 paper.
That was one of the reasons why we published the illustrative set of regulations when we introduced the bill in October. As I said, the Executive made it clear at the outset that that was the first stab at drafting the regulations. The regulations that I think will be published at the end of January will help people to understand what is in the bill and what will be done next in regulations.
Other than the political issues and the amounts of money, what elements do you think will change substantially over time?
It is difficult to say. You are asking me to speculate on an area that has changed substantially and unexpectedly in my six-year experience of it. However, on housekeeping issues, the new set of regulations—this was not the case in the previous ones—will set out the courses that will be exempt. For example, a schedule to the regulations will contain a list of higher national certificate and higher national diploma courses. We are talking only about degrees taken at publicly funded institutions; we have already indicated that students taking courses in professions allied to medicine, nursing and midwifery will be exempt from the graduate endowment. Those courses will be specified in a schedule to the regulations. If those courses were specified in the bill, it would be difficult to make changes to the list.
I support that view. We are dealing with shifting sands and we cannot fix these provisions. As MSPs, we will receive various representations from people on the regulations. It would be silly if that advocacy could not lead to a change in the regulations or if making that change would take an unreasonable amount of time. It is not as easy as it seems to construct regulations and definitions that will stick. Situations change—students may shift courses or their course might become a degree course part way through. It is legitimate to use a vehicle other than primary legislation to deal with that. We should assume that the Executive is being positive. I see this as a way for the Executive to provide more for students rather than to take away privileges.
We will debate that shortly. If there are no more specific questions for the officials, I will simply thank Ms Thompson and Mr Logie for attending the committee.
Thank you.
How much time do we have before we have to report to the lead committee?
We have to report forthwith—today.
I agree with Ian Jenkins. As far as I understand the situation, if something is stipulated on the face of the bill, there is a greater probability that there will be delays in making changes that benefit students. I support what Gillian Thompson said, as far as I understood it.
I apologise for being late. I was detained by the constabulary in Fettes Row. [Laughter.]
It is substantially more complicated to change primary legislation than it is to change subordinate legislation because of the various stages that are involved. My disagreement is because the bill covers only three sides of A4, but there are already substantial regulations that are ready to be rolled out contemporaneously. It seems to be a matter of balance and of allowing Executive officers to deal with matters of a relatively minor nature, such as deleting "2,000" and inserting "2,100", for example. I feel that some of the matters that will probably be covered under the regulations could be in the bill. I am not seeking chapter and verse on this, nor would I want every t to be crossed and every i to be dotted, but we seem to have got things out of kilter—the regulations will be far too great while the bill will be far too shallow.
I would have preferred a lot more definition in the bill. Gordon Jackson's point—that a bill will tend to be the subject of greater scrutiny than any piece of subordinate legislation—is fair. However, in this case, given that a major piece of subordinate legislation will follow hard and fast—by the end of January—and will be the subject of significant scrutiny, I would be prepared to go along with the bill. As a general principle for bills in future, however, I would wish there to be greater definition in bills, with the power to amend them contained in the subordinate legislation.
Margaret Macdonald is drawing to my attention the fact that primary legislation can be changed by subordinate legislation. It is not the case that everything must be contained in the subordinate legislation if it is to be changeable. A lot of health service and legal aid regulations provide evidence of that.
What do you want to be more defined? Give me some examples of things that should be in the bill.
Whom are you asking, Ian?
I was just wondering about how we find out about—
We could ask which courses and people were exempt and so on—
But can you not see that courses come up—
I understand what is being said, but the argument that is being made is, effectively, that primary legislation should have minimal content and that bills that have two or three pages should be passed regularly. I suppose that there is an intellectual argument for that, but I agree with the convener; if we run primary and subordinate legislation almost simultaneously, the presumption should be that as much substance as possible is included in the bill.
Those are difficult balancing acts. I do not really sympathise with Bill Butler's point about delay. If we are to consider carefully the delegated legislation, it would all come to much the same thing.
In practice, it makes a difference. It is not the committee's job to specify what should be in the regulations. We could go to the ridiculous extreme of including, for example, that the payment will be £2,000 and how that sum will vary—that could be fleshed out a bit more. The real difference is that, if the regulations introduce a group of exemptions that we like in part but not as a whole, there is not much that we can do. With a bill, a member can at least lodge an amendment to delete, for example, section 3(1). With subordinate legislation however, we have to throw out the baby with the bath water.
Is not that the case only for any subsequent amendments? Is not a statutory instrument introduced under an affirmative resolution that is subject to amendment?
No. Affirmative resolution is simply a different method of moving against an instrument. That is why we have argued in the past for a hybrid super-affirmative procedure that would allow greater flexibility. The affirmative and negative procedures would not allow us to delete, for example, a specific Queen Margaret University College course.
That is a serious issue. I thought, perhaps wrongly, that certain types of regulations could be amended. If we cannot amend statutory instruments, but must instead strike them completely, that is a strong argument for dealing in primary legislation with matters such as those that the statutory instrument we are discussing deals with.
I was concerned when, shortly before Christmas, a group of statutory instruments was put to the vote. One of my Conservative colleagues wanted to vote against one of the instruments, but we were forced to vote down four separate instruments on different subjects. We could not vote on the individual instrument; we could vote only for or against the group of four instruments. When serious political issues are concerned, that is not acceptable.
The difference between affirmative procedure and negative procedure is to do with the way in which members can move against an instrument, not whether they can move against a part of it. There must be a balancing act between having turgid bills that are 50 pages long, which slow down the Executive because it cannot get through its legislative programme while Parliament meets for days on end to discuss matters, and the right of Opposition and other members of Parliament to scrutinise proposed legislation and follow-up procedures.
What worries me is this: suppose that there are in the regulations five substantive matters—five big issues—one of which members disagree with. We could take that out of a bill. In regulations, the gun is at Parliament's head. If we want to remove something, we must knock the whole thing out. That is a serious gun to allow the Executive to load too often on such important matters.
We have never before had to come to a vote in the committee; we have always managed to be consensual. We are not here to comment on policy as such—we consider matters from the perspective of subordinate legislation. However, this is something that we may have to vote on. I regret the fact that the balance is out of kilter. We would have preferred more of those provisions to be included in the bill, because too many are drafted into subordinate legislation.
I am happy to agree with the view of the committee. I do not want to force a vote. There is, however, a danger that inclusion in the bill of all provisions might lead to inflexibility in future. I listened to Gordon Jackson's argument about where scrutiny should happen if not in the Subordinate Legislation Committee. If the issue is put in those terms, I am happy to agree to what is suggested.
I have always taken the view that the Subordinate Legislation Committee is the eyes and ears of Parliament. Members look to us for guidance when subordinate legislation is passed to a lead committee.
That seems to be a perfectly reasonable general comment to make. Nobody would be against that.
We could say that, for various reasons, we are worried that the balance is out of kilter in this instance.
That is entirely reasonable. Most people would agree that the balance is out of kilter. However, the instrument is now an intensely political document—not because of what it says, but because of the fact that it must be passed for the scheme to start when it was promised that it would start. How much time would be lost in our telling the Executive that we would like it to rejig the regulations? Would we carry the can for any delay?
We cannot tell the Executive that; we can only submit a report to the lead committee. We can give our views from the perspective of subordinate legislation, within the parameters of what the committee is charged to do. It will then be for the lead committee—I think that that is the Enterprise and Lifelong Learning Committee—to take cognisance of the matter when the bill is debated at stage 1 or stage 2, as would be the case for any individual member.
It is important to highlight the issue. Like Margo MacDonald, I do not want to slow down the process. However, our colleagues may say, "Wait a minute—we have regulations that we must accept in an all-or-nothing way and we do not like that." We should at least be able to say that we had pointed that problem out to the Executive. It is a problem. Executives prefer statutory instruments, because they allow an Executive to push through whole rafts of provisions.
Gordon Jackson and others have made the point that, regardless of individual and party views of the bill, it will be a significant piece of legislation. That reinforces the argument that the provisions should feature in the bill, perhaps more than other matters that are much less politically contentious.
We are making a general point that applies not only to this bill, but to all bills and it is perfectly reasonable for us to do so.
Okay—we have managed to reach a consensus on the need for balance. Without seeking to restrict the Executive in its legislative programme, we want to see as much as possible included in the bill and, perhaps, an explanation to our parliamentary colleagues of the effect of the provisions and how restricted members' ability to deal in due course with subordinate legislation and the regulations will be. As Gordon Jackson said, at least we could say, "We telt ye so."