Procedures Committee, 12 Sep 2000

Meeting date: Tuesday, September 12, 2000

Official Report 227KB pdf

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Subordinate Legislation

Item 2 is the report on the Subordinate Legislation Committee and its proposed change of remit. We are joined by Kenny MacAskill, who is supported by the Subordinate Legislation Committee clerk. I invite Mr MacAskill to state his case.

Thank you, convener. It may be appropriate to lay out the context by detailing what the Subordinate Legislation Committee is. Our role is not to decide on policy: we recognise that our role, to some extent, is to be the eyes and ears of the Parliament and the relevant lead committees, with respect to the subordinate legislation that can be introduced.

Much of the subordinate legislation may not be of special interest, but it can be of great importance. Our remit is to determine whether it is competent, properly drafted and ultra vires. We have no powers to decide on policy—that is a matter for individual members, on a party basis, in the relevant lead committees.

Acting as the eyes and ears of the Parliament, we have noted that there is a potential democratic deficit, as some provisions are being introduced that, as far as we can see, confer powers of a legislative nature on ministers and others which are not framed in the normal terms. That situation is described in paragraph 3 of the paper that has been provided. At the moment, we are unable to deal with those provisions, as they are not classified as subordinate legislation, although the power that is given to the ministers is quite extensive.

An example of such a provision, from the Standards in Scotland's Schools etc Bill, is referred to in the paper that has been provided. The Executive, to its credit, has addressed matters. However, as you will see from the paper, the powers that theoretically could not have been dealt with by either our committee or the relevant lead committee were of a fairly substantial nature.

It should be possible to address that situation, although the decision would not, ultimately, be that of the Subordinate Legislation Committee. We could only make a recommendation to the appropriate lead committee as to whether we felt that the provision was competent, properly drafted and within the vires of the Parliament. However, the matter should be dealt with in the Parliament; otherwise there is a democratic deficit, as such matters would, theoretically, remain in the domain of the Executive.

The provisions involve substantial powers that we think it should be possible for individual MSPs and the Parliament as a whole to address. We are therefore seeking to extend the remit—not the powers—of the Subordinate Legislation Committee to enable it to consider matters that are legislative in nature and in fact but which, due to the current drafting of the rules that govern our committee, it is not within our remit to deal with. Ultimately, any policy decision would be for the relevant lead committee and the Parliament as a whole. However, we feel that matters have fallen between two stools and we are seeking to correct that by extending the powers of the committee not over policy, but in terms of being able to scrutinise the provisions and advise the relevant committees.

Alasdair, do you have anything to add to that?

The proposed adjustment to the remit of the Subordinate Legislation Committee might appear to extend the powers of that committee in a way that might cause concern to this committee and individual MSPs. However, that will not happen. Before any of those provisions are referred to the Subordinate Legislation Committee, a procedure will take place, involving parliamentary officials and the Executive, which will sort out which provisions are of a subordinate legislation character. Once an agreed list of those provisions emerges, it will be referred to the Parliamentary Bureau, which will formally refer those provisions in the bill to the Subordinate Legislation Committee. There is, therefore, a clear control at the level of the Parliamentary Bureau over which provisions the Subordinate Legislation Committee will scrutinise.

In advance of this meeting, we were worried about the precise meaning of

"proposed delegated powers of a legislative nature".

We regarded that as an extremely wide definition that could open up all sorts of activity to challenge. However, if I understand it correctly, you have just said that that is part of the control and is to be a matter of agreement between Executive and parliamentary officials.

Yes. That is correct.

Are there any other questions from the committee?

That last point is extremely important. I am sympathetic to the change in the Subordinate Legislation Committee's remit, and I think that the example that has been provided, from the Standards in Scotland's Schools etc Bill, is an important one. There are many such provisions. However, it would be difficult if the committee had to act as its own scrutineer of such material. What Alasdair Rankin is saying is that the present arrangement of referral by the bureau would remain, with the committee acting as a watchdog to ensure that items that it was concerned about came to it for consideration.

That process remains unaltered by the proposed change to the remit.

The Executive's view is that the proposed changes are unnecessary, as the committee already has the powers that it seeks to gain from the change.

The Subordinate Legislation Committee proposes that it should be empowered to consider a report on proposed delegated powers of a legislative nature. However, the committee already has powers to consider general questions relating to powers made under subordinate legislation. The existing powers are wide enough for the committee to consider issues that it thinks should be covered by an order. The committee can consider legislation—as it did with the Standards in Scotland's Schools etc Bill—for which it feels there should be a requirement to put an order before the Parliament, even if the bill itself does not do so.

Rule 18.1 of the standing orders provides that subordinate legislation should have the same meaning as in the Scotland Act 1998. The definition of subordinate legislation in the Scotland Act 1998

"includes an instrument made under an Act of the Scottish Parliament".

In other words, it means an instrument of a legislative nature. The Subordinate Legislation Committee is therefore making a double reference when it mentions

"proposed delegated powers of a legislative nature",

as it already has those powers. The Executive's view is that the committee's remit is already sufficiently broad and that it can do what it seeks to do without a change to standing orders.

In that case, we have to bounce that back to you, Kenny. I take it that you do not believe that to be the case.

The Parliament's lawyers do not accept that, and the Executive's lawyers did not accept that, as was indicated by the draftsmen. The powers are not there.

This matter is of some importance. We are not seeking to extend the remit as a policy decision. We want to extend our ability to scrutinise important matters and to assist the relevant committees. The matters that were referred to in connection with the Standards in Scotland's Schools etc Bill were quite substantial. We are talking about matters that could remain unchecked unless we have the ability to address them.

We do not accept Iain Smith's view that the position is fine at the moment. Our advice, and indeed the Executive's view, is that it is not.

I tried exactly those arguments on the Executive when discussing the referral and I had a fairly fierce argument with the draftsmen and others. They expressed the view, and eventually persuaded me, that the way in which the remit was phrased did not cover the sort of power needed where there is not a legislative instrument. The Standards in Scotland's Schools etc Bill was a good example of that. The current phrasing makes it difficult to say whether such an instrument comes within the definition of delegated legislation in the standing orders.

The view expressed to me was that that was probably the sort of power that the committee should be considering, but members of the committee did not feel able to comment on it. They felt strongly that the fundamental power to set criteria for education was something that the Parliament would want to consider and scrutinise in the form of a subordinate instrument, such as a Scottish statutory instrument. That the Parliament should consider such an instrument was accepted by the Executive, and the power is now to be exercised by affirmative instrument. That means that the Parliament has got to give it its stamp of approval. The Standards in Scotland's Schools etc Bill provides a good example of the sort of provision that the Subordinate Legislation Committee would like to express its views on.

It may be worth considering section 4 of the bill as it was introduced, before the Executive, to its credit, accepted the representations that had been made. However, the position that is indicated in section 4, paragraph (a), is that ministers could, after consultation,

"define and publish priorities in educational objectives"

and, in paragraph (b),

"define and publish measures of performance".

Until the Executive's acceptance that the matter should proceed through subordinate legislation—an affirmative procedure—that was something that any Executive could do on a whim or a fancy. Neither MSPs nor the Parliament would have had an opportunity to comment other than by opposing the Standards in Scotland's Schools etc Bill from the outset. The matters would have been dealt with by ministerial prerogative, instead of through subordinate legislation. Subordinate legislation would have had to come through the Subordinate Legislation Committee, which could have commented on it, and the lead committee—in this case, doubtless, the Education, Culture and Sport Committee.

I want to respond to the points made. The Standards in Scotland's Schools etc Bill was an example of the committee achieving what it wanted—the Executive took note and made changes. It is possible for the Subordinate Legislation Committee to make comments in its reports on bills and to highlight areas of concern, where it feels that there should be a power to make subordinate legislation. That is what the committee did in this case and the Executive took its views on board, so I am not entirely clear what the problem is. The committee got the result it wanted.

I think the point that is being made is that the Subordinate Legislation Committee does not feel that it has the ability to review the whole gamut of potential legislation.

The Executive's view is that the committee's remit under rule 6.11.1(c), to consider

"general questions relating to powers to make subordinate legislation."

covers that.

In that case, there is surely no difficulty in extending the remit. According to your argument, it would be tautologous, in that the committee already has the power, but why not spell it out? It might be a bit declaratory, but this is not primary legislation.

The problem is that adding something to standing orders that is not necessary will result in a lack of clarity, where there is meant to be clarity at present. We seem to be having a discussion that we are not qualified to have. There is a debate between solicitors from the Executive and solicitors from the Parliament. It might be better for them to go away and try to sort it out.

That is a fair point.

I do not quite see Iain Smith's argument against the proposal. He thinks that the new wording would introduce unclarity, but surely there is unclarity at the moment, which is what is causing the dispute between the two lots of lawyers. I agree with the convener that the solution is to make standing orders as clear as possible and to give the committee the powers it wishes.

On the general issue, it seems to me, from my brief experience at Westminster and here, that the whole issue of subordinate legislation and ministers acting in a secondary capacity on the basis of primary legislation is one of the weak points of our democratic system and needs much more scrutiny. If I remember rightly, the Greeks had a dog called Cerberus with 100 eyes. We need more than 100 eyes to keep an eye on Governments of any shape or colour. The more authority there is for parliamentary committees to scrutinise Executive activity the better. I support the proposal wholeheartedly.

The point that Iain Smith was making is the Executive's bent knee to the committee. The committee is not looking for a bent knee, but for the right to scrutinise. I am all for that. Paragraphs 3 and 10 sum up the situation.

Paragraph 3 says:

"The Committee is also concerned that exercise of powers under such provisions might not be subject to any Parliamentary control, although in its view they should be."

Paragraph 10 talks about the need for the committee to be able to perform its duties effectively. That is not a gift; it is a right of the committee to be the watchdog for the Parliament. We should go ahead and make the changes that we are being asked to make.

The nub of the argument is the point that Iain Smith has addressed: whether the powers exist or should exist. There seems to be general agreement that they should. I am quite willing to take Iain Smith's word on what happens, but if the practical application is that it is not happening and difficulties are being experienced, the change must be written into standing orders for the avoidance of doubt. That does not confuse anything; in fact, it makes the situation much clearer. In those circumstances, if the committee has a difficulty that, despite the assurances of the Deputy Minister for Parliament, is not being solved, we should follow our instincts and support the committees of this Parliament to ensure that they can do their job.

Although I am not entirely convinced about the need to extend the committee's remit, Iain Smith's point about the legal implications was right. It seems obvious that there is a legal dispute between the committee's lawyers and the Executive's lawyers. But is this committee the correct forum for airing such a dispute? I am a bit wary about making a decision based on a legal issue.

I am advised by the clerk that there is no immediate prospect of a report to Parliament recommending changes in standing orders, which means that there will be further committee meetings before we come up with a report making such recommendations. That gives us time to consider the legal implications of the issues that have been raised this morning. If it turns out that there have been difficulties with fully scrutinising secondary legislation, I am quite happy to put on record my support for the change.

I entirely accept Mike Russell's distinction between whether the powers exist or should exist. From what has been said this morning, it seems that the Executive is not disputing that such powers should exist, so it should be a relatively straightforward matter to ensure that the legal provisions are clear and that we can resolve the matter amicably. However, if the matter cannot be resolved by negotiation and discussion, the committee will make a recommendation in ample time for its inclusion in a general report recommending a number of changes in standing orders. If committee members agree, we will try to resolve the legal entanglements and bring out a further report.

Any report should record the broad support of many members of this committee for the change.

The Official Report of the meeting will show that. However, at this point, two committee members are missing. In this committee, we try to do everything on a consensual rather than majority basis, which is a practice that we recommend to the Executive. We have made our pitch this morning. The Executive will now read the runes, which might help to unscramble the difficulty.

We are due to meet the Executive legal team as well. Our position has been enunciated by several committee members. It is currently at the Executive's discretion which provisions we can scrutinise. The Executive's lawyers have accepted that that situation occurred with the Standards in Scotland's Schools etc Bill. We believe that it should be the Parliament's right to scrutinise all provisions, as the framework of any democratic society should take into account not just a situation where there is a good minister and a good Executive, but one where there is a bad minister and a bad Executive.

If there had been such an Executive during the passage of the Standards in Scotland's Schools etc Bill, certain matters might have been thrust upon the Parliament and the public. If the terminology, not the principle, is in dispute, we will happily resolve that difficulty with the Executive's legal team. If the Procedures Committee were to take a position in principle, we could supply the relevant legal advisers with the correct terminology to ensure that the standing orders are right. Thereafter, the matter would simply have to be ratified by this committee and we would not have to trouble you needlessly.

The fact that you are up 4-0 at half-time as far as committee members are concerned probably means that you will be able to achieve an agreement in principle and not trouble us any further. We will obviously receive a further report on the matter in the fulness of time.

Kenny MacAskill has made a key point. If discussions between his officials and the Executive's legal team result in a binding resolution, of course he should not have to trouble us again. However, if he is unable to receive that resolution, the matter must come back to the committee for inclusion in our review of standing orders.

If the matter is resolved, we would appreciate a report simply for noting.

Thank you.

Are members happy with that?

Members indicated agreement.

Item 3 also involves the Subordinate Legislation Committee—it is merely a report for noting, unless members have any questions they wish to put to Mr MacAskill before he hurries away.

The report explains that work that was going to happen in a certain time scale will now happen over a longer time scale. We are quite relaxed about that. There are no questions, so we thank Mr MacAskill and his clerks for their attendance.