Justice 2 Committee, 13 Sep 2005
Meeting date: Tuesday, September 13, 2005
Official Report
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Regulatory Powers Inquiry
We move on to agenda item 3, which concerns the regulatory powers inquiry that is being undertaken by the Subordinate Legislation Committee. The convener of that committee has written to all the other committees and provided a consultation paper. Members will have received a copy of that paper, which indicates the various areas on which the Subordinate Legislation Committee would welcome comment.
I realise that this is a complex and technical issue and that it might not seem to be the most exciting topic that the Justice 2 Committee has ever handled. Nonetheless, it is important for the Parliament to get right the way in which it handles subordinate legislation. There have been some hiccups and it is timely that the Subordinate Legislation Committee is considering the matter.
Because the matter is fairly technical, I propose that we ask our clerks to examine our experience of handling subordinate legislation and come back to us with a note of any difficulties, pressures or problems that we have encountered. At the same time, they could perhaps give some notional thoughts on the areas on which comment is sought. I know that the clerks would find members' comments or suggestions helpful. My idea is that the clerks come back to us with a paper, supplemented with those ideas and suggestions, and that we consider it at a future meeting and finalise our response to the Subordinate Legislation Committee.
Your suggestion is well made. If we ask the clerks to examine the committee's experience, that will pay dividends when we consider our detailed response to this important inquiry. There is one matter on which you could fill me in. Before I joined the committee, did it have any experience of the super-affirmative procedure, which is one of the more esoteric aspects of subordinate legislation? It is well over two years since I had the privilege and joy of being a member of the Subordinate Legislation Committee and it would be useful to have some information on the experience of the Justice 2 Committee before I joined it.
Off hand, I cannot remember. The clerks may want to go and research that. They will need to consider our experience and handling strategy before they are able to respond to that specific point.
The problem for me is with negative instruments, in that a minister does not come to explain what they are about. The explanation from the Executive is often written by people who are deeply immersed in their subject and who are not writing for lay people, which is what we are. I would like more clarity in the explanations of the impact of the instruments that reach us, so that we have a better idea of what we are looking at. I am sure that I do not speak just for myself when I say that when we are considering legal language it sometimes takes a long time to work out exactly what is what.
That is a well-made point. The nature of subordinate legislation is that it will probably be detailed and technical, although that does not mean that a mistake or an omission cannot occur. If we understand better what an instrument is trying to address we might be in a more positive position to pick up such mistakes or omissions.
Do members have any other questions?
It is not so much a question as a comment. I agree with the idea of coming back to the issue with a paper in front of us. That would be helpful. I have the pleasure of being a member of the Subordinate Legislation Committee, so I have been involved in phase 1 of its inquiry. The committee is proposing to introduce a bill in 2006 to try to tidy up some of the issues surrounding statutory instruments and subordinate legislation in general, so it is important that the committees get involved.
The super-affirmative procedure has a great deal of merit, particularly in relation to our ability to consider drafts. That is its major advantage. At the moment, the procedure is rarely used in the Parliament—I can think of only two examples off the top of my head.
We should take particular interest in the section on amendments in the Subordinate Legislation Committee's paper. At the moment there is no possibility of amending subordinate legislation. Effectively, instruments come before us and we either accept or reject them. There is merit in some discussion about the possibility of considering amendments to subordinate legislation. We would probably not want to amend most of it, but sometimes there may be a case for amendment. Amendments to subordinate legislation create some difficulties with the Scotland Act 1998, so we have to think about how we would go about it. However, it is important that we consider the issue of amendments.
For lead committees, the other issue is the timescale for dealing with Scottish statutory instruments. Most of the time, the timescale is okay, but there are certain times of the year and certain SSIs in which the timescale becomes a bit of a problem. The timescale can be very tight between the initial date of an instrument's publication and the date on which it has to go before Parliament. In the meantime, the Subordinate Legislation Committee has to see the instrument and report on it, and it has to go before the lead committee. It is extremely important that we consider that. There is a case for extending timescales, but there are difficulties with doing so.
My final point is on instruments that are not subject to parliamentary procedure. Such instruments go to the Subordinate Legislation Committee, which considers them from a technical point of view, but lead committees do not consider them after that. A lot of stuff goes through that is not laid before Parliament and in which no parliamentary procedure as such is involved. There may be a case—as outlined in the Subordinate Legislation Committee's paper—for considering whether some sort of procedure should be put in place under which all the instruments that do not come before the lead committees in the Parliament would be considered. The paper contains many issues that we should address.
That is helpful.
I recall one instance of the operation of the negative procedure when a member wished to question the wisdom of allowing an instrument to continue; in other words that member sought the instrument's annulment. That created practical problems because a committee has to be convened to consider the issue and a minister has to be available to speak—if anyone lodges a motion to annul, a minister has to be given the opportunity to speak to it. That all involves working within the rather tight framework—40 days after the draft is laid—for negative instruments. That is an area on which I would want us to give some thought. Committee members might have their own views on whether that procedure is entirely workable.
Our discussion has been extremely helpful. I will ask the clerks to give some thought to what we have said and to consider the paper. In fairness to the Subordinate Legislation Committee, we should try to return to the issue as soon as possible, without placing impossible burdens on the clerks in investigating the matter.
Meeting continued in private until 15:02.