Official Report 343KB pdf
The purpose of agenda item 4 is for the committee to consider the Scottish Government’s response to our report on our work during 2014-15. The correspondence supplements the oral evidence session that the committee held with the Minister for Parliamentary Business on 15 December 2015.
Do members have any comments?
The final paragraph on page 4 of the letter from the minister is headed “Bills containing ‘framework’ provisions”. In the second sentence, the minister says:
“There is however, a place for Bills that provide an outline within which policy can be fully developed with stakeholders then implemented by subordinate legislation.”
I have some reservations about that sentence, which could be taken to mean a few things. I would be more happy if it just meant that the vast bulk of the policy was in the bill and there was room for a little bit of movement in subordinate legislation, which I think is what we are aiming at. However, the way in which the sentence is written suggests that its meaning could be much wider than that, to the extent that there is little policy in the bill and far too much is left to subordinate legislation—and we have seen examples of that.
Therefore, I do not fully agree with the minister on that point. I do not know whether we should say that to him or just leave it until later.
I back up what my colleague John Mason has said. I, too, am very concerned about the apparent trend of leaving policy development to subordinate legislation and to engagement with stakeholders. Parliament exists to create legislation—that is why we are the elected representatives of the people of Scotland—and I do not think that the trend has emerged is beneficial from the point of view of creating good legislation. I say that it is a trend, because in the past year we have had the Community Empowerment (Scotland) Bill, the Land Reform (Scotland) Bill, and the Burial and Cremation (Scotland) Bill, all of which have been short of policy, with the policy being left to be developed in subordinate legislation. I do not think that Parliament should be happy about that.
I again draw the matter to the Government’s attention. We have already raised it with the minister and, in other respects, I welcome his response to the committee, but I think that we should write to him again to say that we are not content with the new trend that we have spotted. If that is to be the way in which legislation is developed in future, he should say so loudly, clearly and publicly, because it is certainly a departure from what has been the law-making process hitherto.
I think that there are a couple of points that we should put on the record. First, if such an approach is being taken, we should remind all who might be watching our proceedings that we would expect the changes in law in question to be made in affirmative instruments. We have made that point quite regularly, and it is as well that we remake it.
Equally, the fact that those affirmative instruments would be bringing forward new policy is an important point for the committees that are responsible for policy in the areas concerned. In writing to the minister, we might well want to seek an assurance that, when secondary legislation is the means by which new policy is brought forward, timetables will be arranged such that subject committees have adequate time to consider the policy issues. With other subordinate legislation, the policy committees are looking to see whether it properly implements policy that Parliament has already discussed and agreed. There is a difference of approach in the cases we are discussing, and it would be helpful to get the Government to recognise that that difference exists and to make appropriate commitments to Parliament that it will ensure that there is sufficient time for policy changes that are brought forward by secondary legislation to be adequately and properly considered.
The issue is maybe not to do with the traditional conception of a super-affirmative process whereby there is more consultation; it is maybe about having a process whereby more time is given beforehand to ensure that policy is properly considered.
I think that it would be not unreasonable for the committee to write to the minister to ask him to explain how he sees the new process whereby policy is developed through subordinate legislation evolving, because there are nuances, as Stewart Stevenson has accurately described. The issue should be one for Parliament’s wider consideration.
I think that what we are seeing happening is a product of the fact that we are getting towards the end of the session, and I think that we might have seen it happen regardless of the colour of the Government that was in place. Throughout the session, there have been many bills that have been extremely thoroughly examined before they were even drafted—they were consulted on and all the rest of it—and all the policy has been laid out on the face of the bill. Therefore, I think that it is a timing issue.
I think that we all accept that it is necessary to speed things up towards the end of a session, but when we are dealing with a major piece of legislation—the Land Reform (Scotland) Bill, which is extremely wide reaching, is such an example—there must be adequate time for the consideration process.
That discussion is on the record, and the Government will be listening. On the basis of that, I will see whether I can draft a letter that we might consider sending to the Government as a response to Joe FitzPatrick’s response to us. Are members content with that?
Members indicated agreement.
That completes agenda item 4 and we move into private.
11:15 Meeting continued in private until 11:27.