Subordinate Legislation Committee, 20 Sep 2005

Meeting date: Tuesday, September 20, 2005

Official Report 136KB pdf

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Sewel Convention (Correspondence)

The committee has received correspondence from the Procedures Committee about its inquiry into the Sewel convention. The letter has two sides; I am sorry that only one side was included in the papers that members received by post.

As members will note, the Procedures Committee is moving towards a recommendation that committee scrutiny under the Sewel convention should be based on a memorandum about the relevant United Kingdom Parliament bill. The Procedures Committee is examining the possibility of amending the standing orders to make it a formal requirement for such a memorandum to be referred to this committee. That would happen when a bill includes provisions that confer new powers on Scottish ministers to make subordinate legislation.

Are members happy with the Procedures Committee's recommendation, which is to be found at the foot of the first page of the letter?

The proposal is entirely rational. If subordinate legislation is contained in a bill—even if we are scrutinising it on a secondary basis—it is entirely rational to refer the bill to us. Apart from anything else, we need the work.

I am not sure about that.

It is hard to see the rationale against the proposal. The whole thing read entirely sensibly, but I may have missed something, of course.

I agree. We should be looking at all delegated powers. My only query concerns the phrase "may report". I understand that in some ways we are dealing with the unknown and that we do not want to be swamped with work, particularly if a number of Sewel motions were to come in a rush at the same time as a lot of subordinate legislation.

However, I cannot imagine that the committee would look at subordinate legislation and not make a report to a committee. We report to somebody on virtually every piece of subordinate legislation that comes before us. Therefore it would be strange to pick and choose which Sewel motions to report on. I imagine that we would wish to report on every Sewel motion that came our way.

That said, I agree with what has been recommended.

It is consistent with the attitude that we are taking towards the Executive: we expect a whole lot of boxes to be ticked unless an explanation is given. If we were to apply the principle of our report on regulation to ourselves, we would be saying that we should tick a box.

Even if our reports were to say that any changes are minor or technical and that we have nothing substantive to say, we should give the lead committee some kind of response, should we not?

I understand what both Ken and Murray have said. However, the Procedures Committee's proposed new standing order says that

"the Subordinate Legislation Committee shall consider"

provisions that would confer on Scottish ministers powers to make subordinate legislation. So we certainly will look at them all. That places an obligation on us. It may be that we also end up reporting on all the memorandums, but the phrase "may report" gives us flexibility, particularly since we are likely to end up with them all bunched together at the end of the term. That is part of the problem. That said, we do not report on absolutely everything; we do not report on subordinate legislation dealing with guidance. It is not an absolute rule that we report on everything. The proposed standing order fits in with the rules under which we work at present and is probably okay as drafted.

I think that "may" is okay. Why should we tie our own hands? Stewart Maxwell is probably right: we will almost inevitably report on every bill. However, say that for one reason or another we did not report on a minor matter in a bill. Let us be ridiculous and say that we forgot about a minor matter of no consequence. All of a sudden, somebody will tell us that we have breached standing orders. Why should we make ourselves hostages to fortune? It is unnecessary.

Murray, do you wish to make a point?

Gordon has covered it.

To be fair, what was being considered with "may" was the bunching, as Stewart said, that happens before the recess. We struggle then to cover everything and to get all our reports written, but I cannot imagine a time when we would not report on anything major. If a great deal of subordinate legislation came to us we might have to prioritise, but I cannot see that happening.

However, there may be small technical issues that might have to be left to one side while we looked at more important matters in the detail that they deserved.

In such circumstances we could explain that to the relevant committee without formally reporting to it. There would be a response and an explanation for that committee's members.

I agree. A quick letter or an explanation to a committee could be forthcoming without our going to the bother of reporting and publishing. That should cover it.

That might get over Kenny's point. We could send a letter to a committee pointing out that the matter in question was a small technical point.

I am relaxed about it; it is not a huge issue. My point is that we should be consistent. The most important thing is that we report on delegated powers under Sewel motions, so I wholeheartedly agree with the Procedures Committee. The question of consistency is one for us or for other parliamentary procedures.

I think that we have agreed on a way forward. Are you happy, Ruth, to report that?

Yes.