Official Report 191KB pdf
Item 3 concerns the procedure for consolidation bills. There are two substantive points and some more minor technical issues. We will deal with the substantive points.
Debate is always useful, but we are talking here about consolidating existing legislation that has presumably been debated by the Parliament. The purpose of consolidation bills is not to change legislation but to make it easier for people to interpret it. Given that the committee is concerned that members should have more time to debate areas where we are changing the law, is it sensible for us to introduce a new arrangement for the sake of allowing someone to stand up to say something? In effect, that is what the arrangement would be. Debate is always good, so I am not digging in my heels on the issue—I just wanted to make that point.
I support the option in the second bullet point in paragraph 10 of the paper, primarily because we will sometimes consider consolidation bills that include legislation that we have not debated, because it was in place before the Parliament came into existence. It would be useful for the Parliament to have an opportunity to talk about such legislation. By adding the word "normally", we can determine which bills fall into that category and which do not. That is probably the simplest way of proceeding.
The idea that Parliament should have an opportunity to raise issues at stages 1 and 3 appeals to me. I assume that the aims and objectives of such parliamentary debates will be entirely different at each of those stages. At stage 1, the decision is whether it is necessary to consolidate. At stage 3, the decision is whether the bill does what it set out to achieve. The great fear is that such debates might run for hours and hours in Parliament, but I think that some consolidation bills will ultimately be dealt with without any debate. I would prefer the issue to be put to Parliament wherever possible.
Do members wish to support Karen Gillon's proposal that the word "normally" should be added to rule 9.18.5 and 9.18.7? Therefore, instead of stating,
The second substantive point concerns timing. I understand that those who dealt with the only consolidation bill that we have had so far felt that the bill was introduced very late in the parliamentary session. They felt under a lot of time pressure to push the bill through, which was not felt to be helpful to the mature consideration of the subject. We could have a rule that there should be a cut-off date for consolidation bills similar to the cut-off that we have for members' bills. Alternatively, instead of introducing a new rule, we could publish advice—one might even call it guidance—for the Executive that recommends that consolidation bills should not be introduced when Parliament is very busy with other things but should be postponed until there is some more time, such as at the beginning of a new parliamentary session.
Perhaps the most constructive way forward would be to issue a strong opinion. Those of us with experience of the legislative race that is the last six months of a parliamentary session realise that that is not a time when people want to deal with consolidation bills. Any future Executive should be encouraged to introduce any consolidation bills as early as possible in the session.
Do colleagues agree with that?
Right. Those are the two main issues.
On paragraph 22, why can consolidation bills not include a restatement of the common law if that has been recommended by the Scottish Law Commission?
I am not in a position to answer that.
I think that it has been the convention and practice with consolidation bills that they involve bringing together statutory provisions and restating them. There is a difference in status between common law and statute law. If consolidation bills were to start to bring in common law and put it in a statutory form for the first time, they would make a change to the nature of that law that would, in a way, take them beyond pure consolidation. The convention has been that such bills—which do exist at Westminster—are known as codification bills. A codification exercise has wider implications than does pure consolidation and might require a different sort of scrutiny. The presumption behind the rule is that we are dealing only with statute law being restated as statute law.
That is not what it says in paragraph 21, which states:
That is a technical point on which we will take advice.
I have a particular interest in the issue.
Do members want to make any other points about these technical matters?
What do the current rules say about who can introduce consolidation bills?
At present, it is open to any member to introduce such a bill.
Why would you seek to restrict that, if the member could secure adequate support and assistance to be able to introduce such a bill?
It seemed to the officials who considered this over the summer that, in practice, only the Executive—with the input of the Scottish Law Commission—has the necessary resources and expertise to carry out a consolidation exercise. It is hard to conceive of circumstances in practice in which a consolidation bill would not be an Executive bill. The suggestion is that that situation might be formalised. That is one of the recommendations that we have presented to the committee. If the committee does not agree, the rules can remain as they are.
If it is custom and practice that only the Executive introduces consolidation bills, perhaps in the future only the Executive will do so. However, there is nothing in the current system to prohibit a member from introducing such a bill in a particular area of interest, if they have the necessary resources and skills or if such resources and skills were supplied to them by an outside body. I would not support anything that would remove that right from members, who have limited rights to introduce legislation as it is. I reject the recommendation in paragraph 24.
In practice, I presume that the proposal would be put by the Scottish Law Commission. Do you think that it is important that members should have the right to initiate consolidation bills?
There might be an area in which a member has a specific or perhaps constituency interest. Through research and work with various organisations such as the Scottish Law Commission, they might come to the view that a consolidation bill would be appropriate. If they had secured the necessary outside help to introduce the bill, the Parliament should not preclude them from doing so. Given that the rules do not currently preclude them from doing it, I would be reluctant to put before the Parliament a recommendation from officials on which we had not consulted members.
We must remember that in future a member who wants to introduce such a bill might be an experienced lawyer or former Government minister—or both—and might well have the necessary experience.
Right. We will not make the recommendation in paragraph 24.
I hope that we will not be making the recommendation in paragraph 34, given that we have not yet agreed to the recommendation in paragraph 22 in relation to the definition of a consolidation bill.
It may be that the clerks can produce options for the way forward. When will the matter come back to us?
In the light of the view that the committee has taken today, we will need to come back with some further information or advice on the specific points that have been raised. After that, we will bring a draft report to the committee for consideration.
Okay. I apologise for missing something out because I was so keen to have a cup of coffee after Tavish Scott and his colleagues left. We still have to decide whether to produce a report on the Transport and Works (Scotland) Bill—I assume that we want to do so—covering our interest in it. Do members want to have a private session at our next meeting or at an early meeting thereafter? Given the differing opinions in the committee, I do not know whether the clerks are in a position to produce a draft report. I ask the clerks whether they will produce a discussion paper, or whether we will just discuss the bill ourselves—what is the best way forward?
We are in the committee's hands. The deadlines are as indicated in the papers. In order to report to the lead committee and give it time to take this committee's views into account in its stage 1 report, this committee needs to report to the lead committee, if possible, before the October recess. That is a fairly tight timescale.
Do we want a debate in public, in which we would try to clarify our views, or should we ask for notes and a draft report, which we would discuss in private?
Can I clarify something before I answer your question? Have we started to have weekly meetings? If so, when was the decision to do that made?
Today's meeting is an additional meeting that has been slotted into our normal fortnightly schedule. It was arranged because of the minister's availability.
But there are no more additional meetings to be slotted in.
The normal pattern is still for fortnightly meetings.
That is all right, then.
Do members want to have a round-table discussion in public at our next meeting, following which the clerks will produce a draft report that we will consider in private? Or should we go straight to consideration of the draft report in private?
Given the timescales that are involved, we need to move straight to a draft report. The clerks have a fairly good indication of where members are coming from, but I am sure that they will get a better indication at our next meeting.
I agree. I assume that it will be a fairly short report, as there is not much for this committee to consider in the bill.
Okay. Thanks very much. I should have raised that matter before.
Meeting continued in private until 12:03.
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