Legal Adviser's Briefing
Agenda item 9 is in response to a point that Murray Tosh raised at last week's meeting. We are to consider which parts of our meetings should be in public and which parts should be in private. We want some guidance on the issue.
I consulted the clerk on how the previous committee worked and on how it understood the matter. It appears that legal briefings were not seen as part of the committee's proceedings—although perhaps Gordon Jackson will tell me that I am wrong.
No, no.
As the legal briefings were not considered part of the committee's proceedings, all the committee's proceedings essentially took place in public. Members may want to debate that point.
Like quite a few other members, I am fairly new to subordinate legislation, so I would welcome our continuing—at least for some while—with the legal briefings in their current format, as they allow us to ask questions that might appear silly to somebody with the background legal knowledge. We could perhaps reassess the matter after a while.
I fully support the convener's comments. New members especially find it helpful to receive the legal briefing—which is not part of the meeting as such—in private, so any questions can be raised before the formal meeting starts.
I, too, support the continuation of the current format. Nobody wants to look like a fool in public by asking questions that have a very simple explanation. However, I would be concerned if there were any suggestion that material that was available only to the committee in private might have a material effect on decisions that were taken in the public meeting. If there were any such suggestion, I would like us to consider further whether the discussions should be part of the public session. I am conscious that we want to avoid any suggestion that the decisions that we take are made before the meeting on the basis of information that is available only to us in private.
That is a good point, with which I am sure we would all agree.
It is worth noting that that criticism was never made during the past four years. There is a reason for that. It is partly because, in a sense, what the committee does is not at all political. We do not take decisions on policy matters. It does not matter what the policy is on the issue to which an instrument relates. We might find a policy abhorrent, but that is none of our business. Margo MacDonald was a great fan of mentioning policy, but she did so just for fun. Policy is not our business. If we thought that a policy to which an instrument related was abhorrent, we could refer the matter to the lead committee. We deal only with the technical format of a policy, not the policy itself. We consider whether that technical format is legally right. The potential criticism that Christine May mentioned has never actually been made; it is more theoretical than real.
There is nothing to prevent a member from putting anything from the legal briefing into the public domain during the public session. Members do that all the time. We often have discussions in which it emerges that a member is unhappy about an issue that was mentioned in the private session. There is no rule that prevents members from taking the opportunity to put an issue that was dealt with in the pre-meeting into the public domain. The briefing session is not a method of hiding things from people; it works very well. Members can say what they want during the public session.
Frankly, I do not know anyone who could handle such material without private legal briefing. I have often said to the legal adviser Margaret Macdonald that how she manages to deal with the material is a mystery to me. The Subordinate Legislation Committee is a unique committee in that it deals with material that is purely technical. Members could not handle such matters without some kind of advance briefing. We should not kid ourselves that we could work out these things on our own. None of us could do that; it is a full-time job.
I am reassured by what Gordon Jackson has said.
I agree. The hour during which we managed to hide our stupidity was the hour that gave me most explanation. It was essential to help me to understand what was going on. I would ask whether any member of the public is interested in that anyway. The legal briefing gives us the chance to get our heads round the legal position. If even Gordon Jackson does not understand it, other members will struggle.
It is not even a matter of understanding. I understand the legal briefing; everyone can understand it. The point is that it involves a huge amount of work. Members would not be able to do it by themselves. I suppose that I could do what Margaret Macdonald does, but I would have to be employed full time. No one could get through the material unless they were working full time on it. The issue is about work load, not about understanding.
Do you want to say anything, Murray?
I want to refer to the clerk's briefing note on the weekly legal briefing. I received my copy only this morning—I was late to the meeting because I stopped to read it—so some members may not have seen it.
I realise that the guidance on public and private sessions that is quoted is not the responsibility of the clerk to the Subordinate Legislation Committee; it is produced by the clerking directorate. I was surprised not to find in paragraphs 7.7 to 7.15 of the guidance any reference to the absolute requirement in standing orders that matters of legislation be dealt with in public. In my view, that extremely important principle goes to the heart of what the Parliament is about as a transparent institution.
I want to comment on the arguments that are put forward in paragraphs 5, 7, 8 and 9 of the clerk's note. Several members have referred to the argument in paragraph 5, which is that, because we do not know what the material is about, having part of the business in private protects us in some way. That is not a remotely allowable reason for any committee to decide to go into private session. As Gordon Jackson has pointed out, no matter how expert any of us becomes, there will always be matters that we do not understand and need to seek guidance on. No one should be embarrassed about asking a technical or legal question or finding out what an unknown or unfamiliar acronym means. In such circumstances, members should just ask their question, rather than have the committee go into private session.
Paragraph 7 makes a point about unanimity. We have had only one hack at things, but we have not had any difficulty in arriving at unanimous positions on matters that are technical and procedural, rather than matters of policy.
Paragraph 8 suggests that, if we had the legal briefing in public, Executive party members might not wish to pursue matters with the Executive. During this morning's public session, Executive party members have agreed happily to write to the Executive. My experience of other committees tells me that that is simply not an issue. As Gordon Jackson pointed out, the Subordinate Legislation Committee is not a policy committee. In my view, we will not have such political difficulties.
Paragraph 9 argues that we might lose our authority if we were portrayed as simply approving legal advice. We have not done that—we have discussed many issues surrounding the legal advice. In any case, if we were solely reliant on legal advice, it would be necessary to make that known, for the sake of transparency. We should have no reason to feel embarrassed to take legal advice or to rely on the legal briefing. The matters that it was suggested we should take up with the Executive, which were in the paragraphs from the legal briefing that the convener carefully read out, were recommended by our legal adviser. That strikes me as being prudent, sensible and normal practice. Those of us who have previous local authority experience know that officials can write recommendations. Members discuss them and decide whether to agree to them; sometimes they add to them or subtract from them. That is nothing to be ashamed of or worried about.
Having said all that, I do not think that there is necessarily any particular reason why the briefing meeting should be part of the public record—although I might change my mind on that in the future.
As we went through the meeting, I was struck by the frequency with which we required to refer to the legal briefing. It is a principle of the Parliament that our proceedings are recorded and are accessible. Although, as Mike Pringle said, it might be the case that few people are interested in our deliberations, that is not the point. The point is that anyone who is interested in our deliberations must be able to understand them. I referred to the legal briefing a number of times, the convener read from it a number of times and other members referred to it. It strikes me that, in certain circumstances, it would be difficult for someone to track our discussions and decisions without referring to the legal briefing. Therefore, I must ask our legal adviser whether the briefing would suffer from being a public document and whether it could be issued with the other committee papers.
My thoughts were running along the same lines during Murray Tosh's explanation. I gather that the legal briefing is not available as a public document at present. Could we give Margaret Macdonald and the clerks time to think about the matter? Gordon Jackson, who has past experience on the committee, could also make an input. Rather than rushing to a quick decision on whether to make the legal briefing a public document, we could discuss the matter next week.
I do not want to push anyone into making quick decisions. I accept the argument in the final paragraph of the clerk's note that members would wish to be confident about what they were doing before they made any changes.
Absolutely. You seemed to say that you did not think that there should be an Official Report of the legal briefing part of the meeting, but I got the impression that what you said earlier contradicted that. You seemed to imply that the legal briefing discussions should be in public. I am a bit confused about that.
I said that I would make my mind up about that in the light of experience. If the briefing note was part of the record that the public could refer to along with the instruments on the agenda, any reference to it in the committee meeting would make sense and could be followed by the reader, whether they were a lay person, a specialist or someone who was affected by the instrument. Without cross-referral to the legal briefing note, some of our discussions are rather opaque.
We are dealing with two different points, but I take them both on board.
I agree with Murray Tosh. Why could not the legal briefing note be a public document? Has that not been the case in the past?
No. Let us take that idea away and consider the pros and cons of it before bringing it back to the committee.
Murray Tosh says that he has no great feeling that we should rush to take the legal briefing in public. Because most of the rest of us quite like the way in which it is taken at the moment, according to the format that has been used in the past, I suggest that we stick with the format that we have. We could return to the issue later and decide whether we want to change that format.
I would like us to discuss the matter again in the fullness of time, when I have settled my mind on some of the issues. It would be appropriate for our adviser to take a little time to think through the implications of what I have said and to return with a considered response.
Okay. Is that agreed?
Members indicated agreement.
This has been a rather steep learning curve, but that is not to say that we have not begun to master the subject. If we gather as much information next week, we will be well on the way to understanding a lot more about subordinate legislation. Thank you very much.
Meeting closed at 10:52.