Subordinate Legislation Committee, 18 Nov 2003

Meeting date: Tuesday, November 18, 2003

Official Report 112KB pdf

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Delegated Powers Scrutiny

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Nature Conservation (Scotland) Bill: <br />Stage 1

We move on to the first item of business, which is delegated powers scrutiny of the Nature Conservation (Scotland) Bill at stage 1. The committee wrote to the Executive to raise a number of points. Members should have the Executive's response. I am sorry that most of us received our copies only this morning, but the legal advice on the Executive's answers arrived a little earlier.

The first point that we raised, on the Scottish biodiversity strategy, related to the general issue of when provisions are legislative or administrative in effect. The procedure in relation to the strategy has been regarded as administrative, as the Executive confirmed in its response. In our letter to the Executive we suggested three options, none of which has been taken up. Are members happy with the response?

Yes. I do not think that there is anything for us to get too excited about. As you say, a line needs to be drawn, but I think that the provisions that we are discussing are well on the administrative, rather than the legislative, side of that line, so I think that—in this case—the Executive is right.

In its response, the Executive said that it would submit the strategy to us. However, it is obviously more important for the lead committee to have the strategy, as that committee will take forward any policy aspects.

I still think that there is a bit of a gap—at least in my understanding of the Executive's approach, if not in the approach itself. It might well be that the Scottish biodiversity strategy will be more an administrative than a legislative document. However, lots of strategies are policy documents and might fall into neither camp in particular.

The Executive's suggestion that the strategy will be sent to the lead committee for scrutiny is useful. However, that almost implies that the Executive would not do that in other circumstances and that it is not in the habit of doing so. One wonders what the fine gradations are between administrative, legislative, political and other strategies, which would determine when the Executive submits a strategy to a lead committee. What degree of involvement, feedback and discussion about the principles that have been raised does the Executive expect from lead committees?

I have no particular axe to grind in relation to the Scottish biodiversity strategy, but I think that we should pursue with the Executive the issue of how we handle its strategy documents, so that we have a clear understanding of what it does and so that we can be satisfied that a consistent approach is taken on strategy, policy or any other documents that fall within those general parameters.

I think that we reached a fairly firm agreement last week that we would add that issue to our list of wider points that need to be raised. Do members agree that, in relation to the particular case that we are discussing, we are happy with the Executive's response, but that the wider issue still needs to be taken up?

Members indicated agreement.

The second point that we raised with the Executive related to the power to identify a regulatory authority. Members will remember that the committee had been worried that the Executive might not introduce an order, but the Executive has at least provided reassurance on the proposed timing of the first order. Are members happy with the Executive's response?

The Executive has responded to our main point, which was to ask for clarification that it would implement section 15(2) of the bill, by stating that there is a firm policy intention to do so—in fact it used the word "commitment". That is what we wanted to know.

Is the committee happy with that?

Members indicated agreement.

The third question was on section 42 of the bill, on guidance. Members will remember that this is similar to the first point that we discussed. Murray Tosh said quite a lot about the issue. What are your feelings about the response? Again, a general point is raised here.

The points that I made about the first question also obtain here. We should retain it as an area for further exploration with the Executive.

It is obvious that guidance is important in relation to how provisions are implemented. Therefore, we will put the issue on our list of wider issues to be taken up.

The Executive's statement that it is happy to provide interested committees with copies of guidance throws all the responsibility for scrutiny on to the committees. It does not appear to put an obligation on the Executive to inform committees so that they know that they should be interested. The balance should be the other way round.

We should note that point for later, when we will consider our list of wider issues. Apart from that, do members agree that we should go along with what the Executive says?

There is a wider issue about how rigidly guidance is enforced and what force it has. When is it obligatory to follow guidance and when is it merely discretionary?

We will add that comment.

Section 54 of the bill is on the power to make ancillary and transitional provision. We made a point about supplemental provision and the letter from the Executive gives examples of where supplemental provision has taken place.

I am not totally convinced by the Executive's explanation. Our question asked why the word supplemental is necessary in this case, and in the other cases that we have mentioned, especially as the words consequential and incidental are already used in the bill. The word supplemental is not usually used in bills.

I am unclear whether the example that the Executive cites in its letter would not be covered in any event by the word incidental. We could argue about that, and I suppose that the example that is cited would be subject to the affirmative procedure because it would add something to the act. That gives us some reassurance, but the argument about the word supplemental remains. It is all very well for the Executive to say that it uses the word to allow it to put in a minor provision, but our argument is that it could be used to put in something much more significant. That is the danger; our worry is not about the Executive doing something trivial, but about an ill-disposed future Executive doing something substantial.

Do members agree that we have raised the issue and received sufficient reassurance, and that we will take up the wider issue at a later date. Are we happy with that?

Members indicated agreement.

Paragraph 17 of schedule 6 to the bill is on amendment of schedules to the Wildlife and Countryside Act 1981. We thought that the power under that paragraph should be subject to the affirmative procedure. It involves changing items on schedules—for example, it could involve removing or adding birds or animals. It appears that the Executive does not agree with us; its response shows that it wants the power to be subject to the annulment procedure. What are our feelings?

We should stick to our guns. I note that we are advised that a mechanism is available to the Executive that involves notification to local authorities of proposed orders under the power. The mechanism also allows for, subsequently, objections to be lodged and a public inquiry to be held, should ministers so decide. However, that is a lengthy, time-consuming and expensive procedure and to do it the other way round, by affirmative procedure, would allow the issues to be dealt with simply, without the expense of a public inquiry.

Are we agreed on that?

Absolutely.

I take it that we will include Christine May's comments in the report that we send to the lead committee. Is that agreed?

Members indicated agreement.

If I may, I will jump back to section 2 of the bill. We were discussing whether the subordinate legislation was purely administrative, or whether it was legislative, policy-related or whatever. Wrapped up in that was an issue of consultation, which we did not really address. I am not sure that we wanted to make the case that there should be statutory consultation; however, we were anxious to establish that consultation should take place. I am now walking in a landscape that I do not know, but I would suggest that we add the question of consultation to the list of strategic issues that we might wish to discuss at some future date. The Executive has codes of accepted practice that determine when and how it consults, but that is not the same as statutory consultation.

I do not want to set a hare running whereby we insist on having statutory consultation all over the place. It is appropriate, however, that we consider how the Executive consults on statutory instruments and that we scrutinise its conduct and activity from the point of view of consistency and a logical and uniform approach. I do not suggest that we raise the matter with the Executive now—I do not know what exactly I would raise at this stage—but I would not mind spending a wee bit of time discussing how the Executive goes about consultation in general.

That is a very good point, which we missed last week. That will be added to our list of points relating to the strategies that we wish to adopt with regard to such provisions.