Justice 2 Committee, 12 Sep 2006

Meeting date: Tuesday, September 12, 2006

Official Report 275KB pdf

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Regulatory Framework Inquiry

Item 3 is consideration of the Subordinate Legislation Committee's inquiry into the regulatory framework in Scotland, which we agreed to carry forward from last week. I presume that members have read the note from the clerk. The Subordinate Legislation Committee has recommended a number of changes to current procedures including streamlining the number of different types of instrument and replacing the current negative and affirmative procedures with a general and an exceptional procedure. I invite members to consider and comment on the SLC's proposals.

It is a good piece of work. Dealing with drafting rather than policy mistakes in a sensible way is a good idea, because the job of commenting on such technical mistakes often lands on policy committees, which would be freed up to consider policy.

I am on the Subordinate Legislation Committee—

Perhaps I should have asked you to comment first.

No, it might be better to ask me to speak last because I support all the points in the SLC paper.

We will come back to you.

As Maureen Macmillan said, it is a good idea for the Subordinate Legislation Committee and the lead committee to consider instruments in parallel, as long as both committees do not consider policy.

I was struck by the Subordinate Legislation Committee's recommendation that the Executive put in place a

"co-ordinated approach across all the departments."

I also understand that the Subordinate Legislation Committee proposes that

"at the beginning of each three month period, the Executive should provide the Parliament with a programme of likely subordinate legislation, including the likely content and proposed parliamentary procedure for each instrument."

The wider recommendation is fine in theory. Exceptional circumstances and exceptional instruments are considered, so as far as the proposal is practicable, it is eminently sensible and I have no problem with it.

The Subordinate Legislation Committee raised 15 questions at the end of its report. The second question is about whether there should be parallel consideration of instruments. One of the things that I have discovered from my time on various committees is that the Subordinate Legislation Committee tends to pick up on drafting, technical and framework issues as opposed to the policy substance and point those out to the lead committee and others. That cuts down on some of the difficulties, because if a lead committee were to get an instrument about which it was unsure, it would have to refer it back to the Subordinate Legislation Committee, which is time consuming. They would refer it to their clerks who would take it to the clerks of the Subordinate Legislation Committee, who would then take a view and so on.

I have put a tick and a question mark next to question 10 in the paper. It talks about rolling and pure considerations. Perhaps Stewart Maxwell will explain that more fully.

I think that it is rolling and pure consolidations.

Did I say considerations? I am awfully sorry about that; I have had a long day.

My other query concerns question 11, which reads:

"Should commencement orders be subject to the modified general procedure under which the lead Committee will not be entitled to consider them?"

I assume that there would be a vote in Parliament on such a proposal, which would give the Parliament an opportunity to comment, but I could be wrong.

I am sorry that there is no proposal from the Subordinate Legislation Committee to ask the Executive to make its explanations of the content of statutory instruments more user-friendly. Sometimes we have no idea what they are about. The explanation can be written in such jargon that it does not explain anything. It would be helpful if the Executive were to consider the lay people who have to consider statutory instruments.

As no one else has any comments, I will ask the clerk to speak before I come back to Stewart Maxwell. What is the procedure for dealing with the report? Do we have to answer all the Subordinate Legislation Committee's questions?

We can proceed in whichever way the committee decides. The deadline for comments is 22 September, so we will draft a response based on the comments that are made today.

Committee members will have the opportunity to comment on a draft response written by the clerks by what time?

By early next week if members agree to comment by correspondence. It is up to members to decide whether they want to do it that way or put the matter back on the agenda.

I will let Stewart Maxwell answer our questions after further comments from other members.

I do not know whether Jackie Baillie has any comments because she is absent but, if she has not and for the sake of efficiency, could we not just refer the Subordinate Legislation Committee to the Official Report of today's meeting?

The SLC would prefer us to submit a response, which will be based on comments made today, as our clerk said.

I am sure that the clerk could summarise our salient points and, as the convener said, prepare a draft response on which we could comment by correspondence if everyone agrees.

I am of that view and presume that the rest of the committee is too. We will return to that question. Stewart Maxwell is a member of the Subordinate Legislation Committee. Can you answer any of our queries?

With any luck, I should be able to.

I support the proposals for the new Scottish statutory instrument procedure. It is much clearer and simpler and more easily understood by all members, instead of only those who have to slave on the Subordinate Legislation Committee. As the paper says, there are currently eight varieties of instrument, so the proposed new procedure would make things much easier.

I will go through some of the questions that have been raised. Bill Butler commented on question 5, about the three-month rolling advance programme. The issue arose because of the concern of the Subordinate Legislation Committee and lead committees that there is no advance warning of instruments, so that arranging workloads and organising witnesses to give evidence is difficult. The Subordinate Legislation Committee visited the National Assembly for Wales. Obviously, different bodies are involved in Wales, but the Government there provides a detailed advance programme of all the subordinate legislation that will come through the system. Information is laid out in a timetable and all the committees can plan their work. The committee thought that if such an approach was feasible for the Welsh Assembly, it was feasible for the Scottish Parliament, which is why we made the proposals. Such an approach would make things much easier.

That ties in with parallel consideration. I understand the point that the convener made. It is helpful if the Subordinate Legislation Committee reports first on an instrument because the information that it provides can then be used by a lead committee. However, many conveners and members of lead committees have said that such a procedure ties their hands because they cannot report on an instrument until the Subordinate Legislation Committee has reported on it. They said that such a procedure—as opposed to a parallel consideration procedure—restricts their ability to work on subordinate legislation and bring in witnesses or a minister. If the proposal is agreed to, the lead committee would not be forced to report prior to the Subordinate Legislation Committee's report. It could carry out parallel work, wait for the Subordinate Legislation Committee's report and then finish off its work, taking into account any technical or drafting errors that the Subordinate Legislation Committee had noticed, and produce a final report. Therefore, an avenue would not be blocked and the lead committee would be freed up to carry out its work earlier.

Would the clerks have a watching brief with the Subordinate Legislation Committee clerks, so that if an instrument came to the Justice 2 Committee, an aspect of which we thought we would consider and which the Subordinate Legislation Committee was going to consider too, there would be informal feedback between the Subordinate Legislation Committee and us to facilitate the process?

Some mechanism would have to be in place to allow that to happen. Currently, 40 days are available. The Subordinate Legislation Committee has to report within 20 days, which leaves the lead committee only 20 days. The idea is that if an instrument comes before a lead committee that particularly interests it and the committee wants to invite witnesses to discuss the policy issues that are involved, it can go ahead with that work from day one. Therefore, the committee would have the full 40 days rather than only 20 days to deal with the instrument, although it would not help the Subordinate Legislation Committee, which would still have only 20 days to deal with it.

You are right: there probably would have to be a mechanism for discussion between the Subordinate Legislation Committee clerks and the lead committee's clerks, but that would not be difficult to arrange. The main aim is to free up lead committees' ability to do their work and to give them more time to deal with subordinate legislation. Currently, such legislation is mostly ignored as a result of time constraints and committees' inability to do any preparatory work or research on issues.

Has the Subordinate Legislation Committee taken views or evidence from the Minister for Parliamentary Business?

Yes.

What were her views?

The Executive was not yet convinced that a complete change from the current procedure to the new procedure is necessary. However, we have had negotiations with it, and Executive officials have been witnesses. Discussions have gone on for some time. The work has been going on for at least two years—indeed, it has probably gone on for nearer three years. The Executive's position is neutral, which is why we have organised a further consultation. Rather than publishing a full report, we have published a draft report and put it out to consultation, so that we can get the views of all the committees and, if possible, reach a final agreement with the Executive on where we should go, although we might not do that.

I turn to consolidation. There is a difference between pure consolidation orders and rolling consolidation orders. With rolling consolidation, every time there is a change, a little bit is added to the text of the document and that rolls forward. With pure consolidation, the various different changes that have been made over a period are brought together in a single document. In other words, instead of a rolling process of consolidation, a complete consolidation is made but only after a few changes have been made. With rolling consolidation, a new version of the text is reproduced each time.

I will need to go back to the legal advisers on the exact definition of pure consolidation and rolling consolidation.

Presumably, pure consolidation involves bringing together instruments that have already been brought into force and have been through the parliamentary process.

I am working from a poor memory, but I think that that is correct. With rolling consolidation, every change that is made to a text is made, in effect, in real time, so the text in the most recent instrument will always be the most up to date.

Would rolling consolidation mean that there would be an opportunity to do away with overlapping provisions and ensure that redundant provisions were superseded?

It would. The problem at the moment is that, with a given piece of subordinate legislation, people can never be absolutely sure that they are reading the most up-to-date version, because instruments can be repeatedly amended over time. For example, at this morning's Subordinate Legislation Committee meeting, we considered an instrument that will make the seventh amendment to a set of regulations, so anyone who wanted to understand the current position would need to look at all seven amendments as well as the principal regulations. We have also had much worse situations, with instruments being amended 10, 12 or 14 times. We feel that the current arrangement can be too complicated and difficult for users. It is not user-friendly.

To be fair, the Executive agrees that it would be better to have consolidation all the time, but it is a time-consuming activity. Once rolling consolidation was up and running, it would run fine, but there would be a lot of background work to bring things up to speed from where we start today.

On question 11, which I think is on commencement orders—I cannot remember—the convener asked whether the Parliament would still have a vote as part of the process. Is that right?

Yes. Question 11 asks:

"Should commencement orders be subject to the modified general procedure under which the lead Committee will not be entitled to consider them?"

I asked whether the Parliament as a whole would still have an opportunity to vote on such commencement orders.

I think so, but I will need to check. The point is that, if a bill has already been passed and is simply being commenced by such an order, why should the issue be bogged down in committees? It is a bit of a pointless exercise. Therefore, the idea is that once the provisions in the original bill have been agreed to, the commencement order should just be accepted.

Do members have any other comments?

I have not responded to the point about plain English. Our original documentation for the inquiry included a reference to plain English. For the reasons that Maureen Macmillan outlined, we were very much in favour of plain English, but Executive officials suggested to us that the technical, legal nature of statutory instruments means that it is difficult to get away from ensuring that the language is very exact.

I would always expect statutory instruments to be written in language that is appropriate for a piece of legislation, but the accompanying addendums, such as explanatory notes and impact assessments, are often incomprehensible.

We took up that issue with the Executive and highlighted the need for plain English not just in the instruments but in the accompanying notes. We got a more sympathetic response on the language used in the accompanying documents.

I would not expect a change in the language of the instruments themselves.

To be honest, some other legislatures require that all instruments be written in plain English. However, I think that there is a slight nervousness about moving away from what has been done for a long time. That battle is still to be won.

We will ask the clerks to produce a draft response, which we can agree by e-mail correspondence by, I think, Wednesday.

I will include in the e-mail the deadline by which we need to produce the response.

Members have been warned.

We will now move into private session as previously agreed.

Meeting continued in private until 16:50.