Subordinate Legislation Committee, 20 Mar 2007

Meeting date: Tuesday, March 20, 2007

Official Report 186KB pdf

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Legacy Paper

I suggest that we go through our draft legacy paper page by page, but before we do that, do members have general comments about it? Has anything been missed out, for example?

No.

I invite comments on the introduction, the section on our inquiry into the regulatory framework in Scotland and the section on bills, which starts at paragraph 4.

It is a shame that three years' work on our inquiry into the regulatory framework in Scotland has been reduced to two paragraphs. I hope that a future committee will consider our report seriously, because it would be a shame if it was left to gather dust. We made useful comments about possible solutions to problems with parliamentary procedures. I am not suggesting that we amend the legacy paper, but it is worth stressing the importance of our report. I strongly recommend that members of our successor committee after the election take the time to consider it.

I agree. Given the amount of time and work we put into our inquiry and the importance of reforming and improving the regulatory framework, our efforts should not be wasted, even if our successor committee does not follow our recommendations. We wrestled with the issue and mapped out a number of possible approaches, as well as a very specific way forward.

The clerks have used relatively neutral language in paragraphs 2 and 3, but I suggest that we beef those remarks up by highlighting the importance of our inquiry in a way that reflects the tone of Stewart Maxwell's comments. We can consider a new draft at our meeting next week, if members are content to do that.

I am happy with that.

Do members have comments on paragraphs 4 to 8, on bills, or paragraph 9, on instruments?

We note that there were a number of bills to which the committee lodged amendments or to which the Executive lodged amendments in response to our comments. It might be appropriate to add that we have had a reasonably good dialogue with the Executive recently and that ministers have lodged amendments when we have pressed for them, particularly in the context of our concerns about the use of the negative resolution procedure.

I do not want to induce complacency in our successor committee, but we could give a steer about the improved understanding that there is between Executive officials and the committee. The group of officials who most recently attended a committee meeting were particularly responsive to our comments, which perhaps demonstrates that the Executive is more comfortable with the committee's angle on matters. Of course, the improved way of working might also be to do with the expert legal work that goes into our submissions.

Indeed. You make a fair point. We say in paragraph 4:

"The Committee successfully pressed for amendments to a number of bills over the session",

and in paragraph 5:

"There are many examples of the Committee's success in this area",

but perhaps we could expand a little on that.

The phrase "the Committee's success" gives the impression that we made a point and the Executive gave way, but the approach has been more constructive. There has been improved understanding on the part of many Executive bill teams.

We occasionally comment that there have been only one or two attempts to annul a piece of subordinate legislation, none of which has been successful—the same situation applies at Westminster. It would be fair to highlight how we work with the Executive and what we regard as our successes. Often, the committee expresses concern and the Executive accepts our point, but no one outside the committee is any the wiser about what has happened, so it is worth drawing the Parliament's attention to the constructive relationship that exists, so that our successor committee can build on that, rather than start afresh.

We should nod in the direction of Executive officials and ministers, who are perhaps more used to reading comments in the Official Report that are critical and express frustration. When things work well, we should acknowledge that.

That is right. People go to see their MSPs only when they have a problem, but we do not assume that everyone has a problem; our relationship with the Executive is similar. Are the clerks happy to redraft the paper to reflect members' comments?

Yes. Would members also like the paper to mention our evidence-taking sessions with Executive officials after a bill has been amended at stage 2, which seem to be a component of the constructive relationship that Murray Tosh talked about?

In that context, in paragraph 8, we express concern about

"the short time between the completion of stage 2 and the stage 3 debate".

We should explain that we often have either to accept what the Executive says or to lodge a manuscript amendment. Timetabling needs to be addressed. The recent approach in which Executive officials have attended committee meetings to explain issues has been helpful, but we should expand paragraph 8 a little to set out the problem.

We could include that point in paragraph 8, but Murray Tosh's comments were not limited to that issue.

Stewart Maxwell's suggestion is good, but we should also say that our handling of such issues has improved. Perhaps we should have started inviting officials earlier in this session of the Parliament; their evidence has benefited us recently.

We recently discussed the production of supplementary delegated powers memorandums after stage 2. Sometimes no memorandum is produced or changes are incorporated into the previous memorandum, which can make it difficult to ascertain where changes have been made. We might comment on that. When we discussed the matter, we thought that changes should be highlighted.

I remember that we considered a memorandum that had been circulated internally, in which changes had not been highlighted. I think that the Executive accepts the need to highlight changes, but perhaps it is worth emphasising the importance of doing so.

Murray Tosh made a good point. In the first session of the Parliament, Executive officials came to every meeting of the Subordinate Legislation Committee, which was unnecessary. We have got closer to striking the right balance, in that we occasionally invite officials to give evidence, which can be helpful and saves correspondence. We could recommend that our successor committee try to strike a balance by not inviting officials to every meeting but taking advantage of the ability to invite officials, particularly after a bill has been amended at stage 2.

Are members content with page 2?

There might be a continuity problem in paragraph 10, which ends with a dash.

The dash is followed by subheadings—

Oh, I see. It is not obvious that the dash introduces the italicised subheadings on the next page.

Perhaps we should add a colon, or something.

Do members have any points on page 3?

Paragraph 16 suggests that legislation should be consolidated

"where principal regulations are amended on 5 occasions".

I understand the point, but do we need to be so specific? Legislation might need to be consolidated after four or six amendments of the principal regulations. Indeed, on some occasions, it might be appropriate to amend the principal regulations five, six or even seven times without the need for consolidation. I simply wonder whether we need to be tied to a specific reference to "5 occasions".

I do not know why that particular trigger was chosen, although it is, of course, important to have a trigger point. Last week, we dealt with a case in which the principal regulations had been amended nine times. However, the amendments, all of which were very minor, simply took account of inflation and did not change the legislation's substantive meaning.

The point is that if the principal regulations are amended on five—or even six or seven—occasions, we at least consider whether there should be consolidation. Of course, we do not have to recommend that consolidation take place.

It could be the wording of the paragraph, which says:

"where principal regulations are amended on 5 occasions, they should be consolidated."

That makes it sound like we are drawing a line in the sand. That is not the case; we have always accepted that in some cases, one or two amendments might trigger the need for consolidation and that, in others, 10 amendments might be made without any particular problem. The reference to "5 occasions" simply sets out a general rule of thumb for the point at which the committee should consider the need for consolidation. Perhaps the sentence does not really make it clear that we deal with these matters on a case-by-case basis.

The clerk has suggested that "they should be consolidated" be changed to "they should be considered for consolidation". Members make a fair point that the current wording might be overly strong.

Although it is implied, paragraph 11 does not explicitly set out our view that the committee should produce what might be described as an annual report card on what the Executive has or has not done with our comments and recommendations and what work is outstanding.

Yes, perhaps. It might be better to change the heading of that paragraph to "Tracking reports".

That was more the idea. The report was supposed to show whether the Executive had responded to our points.

The annual report, which we have just considered, is based on a formal template.

That is a different thing.

We are talking about producing a very specific iterative document that allows people to follow whether the Executive has implemented our recommendations. Perhaps we should reword paragraph 11 to bring that point out and to make it clear that it would be in addition to our annual report.

Yes.

Paragraph 12, on "Reports to lead Committees", deals with our relationship with other committees. I think it was Euan Robson who not so long ago pointed out that there might be an issue with the language we use. I believe that the phraseology is laid down in standing orders—I can see Ruth Cooper thumbing through that very document even as I speak. For example, we use terms such as "defective drafting" that colleagues who have never been members of the Subordinate Legislation Committee might find difficult to understand. Moreover, despite the imperative in the Parliament to use English at all times, the committee uses a fair amount of Latin. I am in two minds about that, because it is an educated language.

I am not quite sure what you mean by that.

Do we not use Latin terms a fair bit?

But surely the Latin terms that we use have become loan words or phrases, and are therefore perfectly acceptable—quod erat demonstrandum.

Apart from that phrase. I have absolutely no idea what it means.

Point well made, Murray. However, I feel that the committee's language is open to misinterpretation by other committees. In particular, there is a tendency for lead committees to look at our reports and not understand whether we have serious concerns about an instrument or bill, or whether we are raising important matters that nevertheless do not affect an instrument's validity or do not negate the fact that it is ultimately up to the Executive to justify it.

I have been a member of a lead committee that has not been able to deduce from the language used the importance that the Subordinate Legislation Committee has placed on a particular item. Perhaps we should look at the matter again, either by reviewing the language set out in standing orders or by providing a guide.

I agree that we should look at the language set out in standing orders. However, if we did not have a standard set of criteria or expressions, the wording of our reports would be all over the place and committees might find it more difficult to appreciate our exact point. Of course, the problem might lie less in the language that we use than in our failure to provide proper and exact explanations of the phrases as set out in standing orders.

But we already cover that. Our reports already draw attention to defective drafting and, with regard to the more minor cases, say that they do not affect the validity of the instrument. We could abbreviate that to a reference to "technically defective drafting" to signal instances that are not so serious. However, it is not the case that we are not doing that already. If we did not make such a qualification, we might well be suggesting that the defective drafting in question was more serious than it actually was.

The issue is tricky, because it goes to the heart of what we do.

Perhaps it is up to the committee clerks to understand what we mean when we say that something is defective, or that it is defective but does not affect an instrument's validity. There is a distinction to be made in that respect.

That is correct, but I think that the committee clerks understand the issue. When the matter has been raised before, the clerks have had no difficulty making it clear that a particular point is not so important or that the committee is quite concerned about it.

That said, we have an odd relationship with lead committees—particularly, for example, those considering bills. Although all our reports go to them, they do not so much dismiss our comments or reduce our concerns to minor points as marginalise what we have to say. They do not necessarily take on board our serious points or acknowledge the range of our concerns.

I think that there is room to improve our relationship with lead committees. I am not quite sure how we might do that, but I think that a lot of it has to do with the language. We have all served on lead committees. Of course, our attitude to the Subordinate Legislation Committee's reports might be different because we serve on the committee, but in practice other members tend not to look at them.

Or am I wrong?

I think that you make a valid point, but I am not quite sure what to do about it. At the end of the day, members have a responsibility to read and pay proper attention to the reports that are put before them. I am not sure that we can force them to do that.

Perhaps more members should spend time on the Subordinate Legislation Committee to understand the purpose of subordinate legislation and its impact on the overall legislative framework. After all, you are right to suggest that many members who have never served on the committee lack an understanding of subordinate legislation—although that is not necessarily their fault.

Indeed. It is something to do with language.

We all trust colleagues on other committees to do their job and they trust us to get on with our job with regard to subordinate legislation. That is fine, but when I read reports from other committees, I see a communication gap between the Subordinate Legislation Committee and other committees that simply does not exist when the other committees communicate with each other. As I say, it is to do with the inaccessible language we use.

Perhaps you would like to draft a paragraph for inclusion in our report. We could consider it next week.

It is a legacy paper, so I will ask my colleagues in the future Subordinate Legislation Committee to draft that paragraph, effectively.

But you will have to express the thought for members of that committee to be able to do that.

My thought is that some of the terminology that we use, for example "defective drafting", is relatively inaccessible. Members on other committees might have to refer to other documents to work out exactly what such terms mean.

Her Majesty's Inspectorate of Education has now improved its reporting on schools. HMIE provides a wee guide at the back of its reports now, which provides explanations about the ratings of "excellent", "very good", "satisfactory", "fair", "unsatisfactory" and so on. It is like a traffic light system. We need either to include a little guide with every report we issue, to explain what our recommendations mean on the scale of things, or to use some form of traffic light system, to indicate how important things are.

I do not think that you need to identify the solutions. You could just express your concerns and the future committee could consider them.

That is enough on that point. We could perhaps refer to the use of language and terminology. A change to standing orders might be required, which would be quite complicated, but we need something to address the relationship between this committee and lead committees.

There are no further points on page 3 of our draft paper—on forward planning or consolidation—so let us turn to page 4.

I have a point to raise about that poor girl, IRIS, who we are shoving around all over the place. Paragraph 18 states:

"The Committee recommended that the Executive should relocate its Improving Regulation in Scotland Unit".

From where to where: Glasgow to Edinburgh, or one department to another? We might need to specify for the reader who does not know the background where IRIS is off to.

I think it is the Borders, Euan.

If that is agreed, I am happy to find a building for the unit.

That is a fair point. Originally, we recommended that the unit be relocated in the First Minister's office—we thought that it should be relocated somewhere where it could have greater influence. We are talking about a departmental reorganisation, not necessarily a physical one.

Somebody reading that paragraph cold might not know what we are trying to say.

So we should put something like, "that the Executive should relocate its improving regulation in Scotland unit (IRIS) within its departments, in order to have a greater impact on other departments".

The middle sentence in paragraph 18 also needs to be adjusted. It is clear to us that we mean that IRIS should have an enhanced role but, as it is written, the sentence suggests that the committee should have an enhanced role.

That is about the use of "it".

Yes. We should replace the pronoun with "IRIS".

There are no other points on page 4, so we come to page 5, on combined powers. Ruth Cooper has pointed out to me that we are currently just mentioning the combination of negative and affirmative powers. The Executive says in its letter that it does not wish to combine negative and affirmative powers, but it thinks it is okay to combine the negative procedure and no procedure. We have concerns about that. Today's legal brief was particularly good on that point. We would not want to attach the whole of the legal brief to paragraph 26 of our report.

I am sorry—I see that the paper does in fact mention the combination of negative procedure and no procedure:

"However, where the Executive combined negative procedure with no procedure the situation was different."

Perhaps we could expand paragraph 26, not to the extent that is covered in today's legal brief, but making the points that the JCSI at Westminster has raised the matter and that the United Kingdom Government accepts that the types of procedure should not be mixed. We should say that, although there are practical situations where such a practice might be advantageous for the users of instruments, that creates difficulties—in parliamentary terms and for various other reasons—for users in the end. We should express our outstanding concerns.

The last sentence of paragraph 26 is clear to us, but it would be better if it started, "The Executive's views".

There is also a pronoun problem in paragraph 24. This is not just pedantry—the wording makes us wonder what exactly is meant. I think that "they" refers not to the SLC, but to lead committees. The meaning would be stronger if the wording read "lead committees could take these into account".

Is that a recommendation that clarity could be clearer? It is a point of clarity, at any rate.

No points arise on financial transparency or on European issues, on page 6.

Subject to a pronoun check.

I like the way the report ends on the happy note of away days. It makes it sound as if it is fun, fun, fun on the Subordinate Legislation Committee.

On a serious note, it was very useful for the original committee members to have a day being briefed and having things explained to them at the start of session 2. The language the committee uses can be difficult to get into. The day was helpful.

We will return with the paper next week, having incorporated those recommendations.

I close the meeting and thank members for their attendance.

Meeting closed at 11:26.