Official Report 118KB pdf
The regulations have caused great concern because they could contravene the Scotland Act 1998. The regulations refer to a benefit or a payment that could impinge on social security payments, which are a reserved matter. Although it pains me to say it, we must ask the Executive to reconsider its response.
Are Scottish statutory instruments subject to approval from Sir David Steel's office in the same way as bills are?
No.
So a bill must have a certificate of competence from Sir David Steel, but an SSI does not need one? Other than the Subordinate Legislation Committee, is there a vetting department?
No.
That sounds like a gap. It seems odd that David Steel's legal office has to declare primary legislation competent when a great deal of legislation is produced by statutory instrument. Why should the same office not have to declare that subordinate legislation is competent?
In a sense, that is our job.
It is our job and it is not our job.
Gordon Jackson's point is that the Parliament cannot proceed with a bill unless Sir David's office proves that it is within the competence of the Scotland Act 1998. A parallel procedure should exist for statutory instruments.
Bristow Muldoon points out that there should be a procedure for statutory instruments parallel to that for bills. I have no concluded view. It simply interests me why the Executive does not have to run subordinate legislation past the same people past whom it must run bills.
The Westminster rule is that statutory instruments must be accompanied by, if you like, a bill of health from the minister concerned.
It would be interesting to ask about this.
There is perhaps a gap, which is another good reason for the committee to return the regulations to the Executive to look at again. We are not quibbling with the policy decision. We are asking whether the policy objective can be achieved by that mechanism.
Is it appropriate to ask for a witness to come before the committee?
Yes, we could do that.
It is important that the matter is resolved because the regulations raise a significant issue. We are, as you pointed out, trying to be helpful. There is no point in our moving to the next stage if somebody then comes forward to say that the regulations are invalid.
That is right.
We must have a clear focus. Are the regulations valid? The Executive's response did not make that as clear as would have been helpful. It would be helpful if the Executive could set out the evidence for us.
We are under pressure of time, but we could invite a witness to next week's meeting. Can we say who we want to talk to, or does the Executive say whom it wants to send?
We have legal advice that the regulations are ultra vires.
We suspect that they may be ultra vires.
I thought that the legal advice was that we had a strong suspicion.
That is right; we have a strong suspicion.
If the Executive's advice is that the regulations are competent, we want to hear from somebody who has the technical ability to tell us why that is. There is no point in our cross-examining someone on the issue about which we are disturbed if that person does not have the technical ability to tell us the reasoning. We want to hear from somebody—whatever their title is—who can argue their corner.
I assume that a lawyer will be sent. I absolutely demand that the lawyers on the committee are here to question him.
Do we need a constitutional lawyer?
No, Gordon Jackson will do. [Laughter.] We will write to the Executive to ask whether we can have a witness.
Does the meeting have to be next week?
I am afraid so.
I will not be here next week.
We could have the meeting on another day if you are willing. I think that the matter is important enough for us to convene on another day—we need you to attend, Gordon.
Can I talk to you about that later, convener?
Is the suggestion that we convene on another day—provided that we get a quorum and find a suitable time—acceptable to members? The matter will arise again so we should take this opportunity to question the Executive.
Given the importance of the matter, it would be acceptable to meet at another time, as long as we can find an appropriate time to do so.
How about Saturday morning?
An appropriate time, convener.
As long as we have the meeting in Moffat town hall, I am available.
The clerk will check the availability of Moffat town hall.
It would be wise to hold fire until we hear from the witness because everything else will build on that—or not as the case may be.
We shall do that. I will be in touch with members over the next 24 hours to try to fix a time for the meeting.