Regulatory Framework Inquiry
We come to item 5, the Executive's response to our phase 1 report, which you have in front of you. There are two ways to proceed. We can go through the response point by point or we can make general comments. We should remember, however, that we will be coming back to some of the issues at phase 2 and that the conclusions will be made by the committee when it completes its inquiry report at the end of this year or the beginning of the new year.
Do members want to make any general comments on the Executive's response?
The Executive's response is a bit of a mixed bag, in that some of the stuff is welcome and some of it is less so.
On regulatory impact assessments, I am slightly concerned by the suggestion on page 2 of the response that the lack of an RIA should be dealt with by
"including a statement within the Executive Note as a matter of standard practice",
rather than by considering each case on its merits. I appreciate that the issue would at least be covered if the standard practice was that the Executive note would include such a statement, but I have some concerns about that.
On the impact of RIAs on the wider community, although the Executive appears to agree to our recommendation, I am slightly confused by the list that is given of those who might be affected
"depending on where they live (in deprived, urban or rural communities) as well as on their ethnicity, gender, age, health and income."
When we originally discussed the matter, we wanted the impact assessments to extend beyond businesses and charities to include local authorities and other such bodies. I am not against widening the impact assessment in the way that the Executive has suggested, but it is rather odd that the Executive has not agreed to extend RIAs to include an assessment of the impact on bodies such as local authorities. It might be worth seeking further clarification on that point.
On a number of our recommendations, the Executive has said, "Yes, we appreciate your point, but we are not sure how best to do that, so we will think about it." We will just need to ensure that that happens. For example, on our recommendation that there should be a statutory requirement to consult, which we felt fairly strongly about, the Executive has said, "Yes, we see what you mean, but we will think about how best we might do that." The next stage—I am sure that the convener will do this—is that we need to ensure that the Executive does not somehow forget the offer that it has made with the result that nothing happens. At this stage, I think that we just need to keep the response and ensure that the Executive delivers on the stuff that it has promised.
Parts of the response provide quite a lot of explanation, especially about the accessibility of legislation, how legislation is understood and the extent to which plain English is used. We discussed many of those issues previously, so we can understand the difficulties involved in using plain English in legislation that is technical or that needs to link with older legislation. That part of the response is quite useful, as it agrees with many of our previous discussions.
Another recommendation that we made, in addition to what we said about regulatory impact assessments, was that the improving regulation in Scotland unit—IRIS—should be taken away from the business side of the Executive and relocated in a more central place, such as in the First Minister's office. Do members have views on the Executive's response to that recommendation or will we just hold on to that for the moment?
That is the least satisfactory part of the response. We will now need to consider whether we want to press the issue and how we might do that. For almost all our other recommendations, the Executive has either come to a median position—I am not sure whether "median" is the correct word, given the theological discussion about concepts such as median and mean that takes place in the Parliament—or it has accepted them. By and large, the Executive's response is reasonably positive.
For me, the biggest concern is the argument about resource. We will probably just need to accept the commitment that has been given about the consolidation of legislation. We will probably not get what we want, as I suspect that that would be very resource heavy in comparison with the benefits that would be gained
On the resourcing of a website on which subordinate legislation might be shown, I am concerned that the Executive has not taken on board the points that we made. We cannot depart from the principle that we need to show all legislation that is in force. That includes legislation that was in force when the action that the regulation covers was undertaken. People have to be able to appeal if they can show that their action was taken according to the regulation that was in force at the time. People must be able to access the original regulation, the current regulation and all the intermediate stages as well. It is not defensible that people should be charged to find that out. It is everybody's property; it is the intellectual property of the people. In a democratic country we should all have access to the law.
I know that Gordon has a more emotional if less philosophical attachment to the idea that people pay for the law. What people pay for, however, is interpretation, judgment, advice and good counsel. They should all be able to access the law. That is an area that we might wish to pursue further with the Executive.
I was smiling because I was thinking that we have access to the law—lawyers. However, that was probably entirely unfair.
I suspect that the logistics would be fantastically demanding. Of course I agree in principle with Murray that everyone should have access to the law. It is a legal presumption that people know the law; it is there for them in the public domain. For most people, however, it is very difficult to access. I am not persuaded that it would be easy to do what we want to do.
Can we justify diverting large amounts of resources to cater for what may be a very small number of people who may want access? A business that wants to access very technical regulations that were in force a year ago will get people to do that for it. That is how things are.
The principle is 100 per cent right; I am not sure, however, how practical it will be in the detail.
At the bottom of page 5 of the Executive's response it says that the Department for Constitutional Affairs
"has no current plans in relation to revised secondary legislation."
We can explore why that is the case. I suspect, however, that it is a massive resource problem.
I agree that the resource implications are quite large. However, at the end of the day access is a goal that we should be pursuing.
I am loth to become boring about the matter, but it is a question of the resource implication against the number of people who will want to access information on regulations. I totally agree with the principle that every citizen should able to access the regulations if they want, but how many people ever come to an MSP's constituency office and complain that they have a problem accessing a regulation? There may be too much regulation, and people probably cannot access the sort of material that we would like them to be able to. I am not sure how big a problem it is, that is all.
One of our difficulties is that we do not know the form in which the Executive itself holds all this information. I suspect that, just as you can track changes in a document, the Executive has its own versions of textually consolidated and updated instruments and all the intermediate stages.
I imagine that the reason that the Executive does not want to make that public is that it may not be satisfied with the rigour of what it does; it may not want to expose its documentation and the electronic versions that it is surely working with. Perhaps we could explore that in greater detail, if only to increase our own understanding of the practical issues that Gordon raised or to tease from the Executive what it considers a realistic target for us to aim at.
At the moment, however, we are talking about a principle on the one hand while the Executive is talking about the practicalities on the other. We do not know whether there is an intermediate position, and that is something that we could usefully explore.
I agree with what has been said: the principle is important. My main disappointment, however, was that there was no commitment on the website database and no commitment on rolling consolidation. The Executive will not put legislation on a website and it will not commit to consolidating legislation on a rolling basis. That leaves us going nowhere. I understand and accept Gordon's point about resources but, if there is no commitment at least to aim for the goal, we will never achieve anything.
A problem that we see week in and week out is that amendment after amendment is introduced for legislation. The number of amendments must make the process very complicated for individuals and companies to follow. Not to commit on rolling consolidation or on the website—especially in relation to secondary legislation—is a poor response. We should pursue the issue with some vigour, to try to get some movement.
Can I come back in, in case I have misunderstood?
Kenny Macintosh was first.
I am sorry. I did not see Kenny.
Several explanations are given in the Executive's response for why information will not be available on the database. One explanation is that the Executive will not set up its own database but will rely on the Department for Constitutional Affairs. The implication is that the scale of the task is out of proportion to the use that will be made of it. However, the Executive agrees with the principle of our recommendation.
As parliamentarians, we should be conscious of not wasting what we know to be limited Government resources on a task that is not of practical benefit to many people. There may be other ways round the problem. The Executive has agreed with the principle and we already know its record on open government and so on. It is committed to moving in that direction.
The key point in our recommendation is the "free of charge" point. Even if information is not available on the database right away, there might be other ways of addressing the "free of charge" point at a later stage. Information might not be available electronically but we can quite easily have a debate about the fees when people make inquiries.
On the point about consolidation, I am conscious of the volume of legislation that is coming through the Parliament. I am not saying that that is a reason not to consolidate bills, but we have to be careful about what we ask the Executive to do when we ourselves are constantly complaining about the parliamentary timetable being jammed and about having too much legislation at different stages. I have a lot of sympathy for the Executive; it has its hands full without consolidating every single bill.
I may be crossing my own wires, but I have huge sympathy for the committee's position on consolidation, no matter how difficult consolidation is. The Executive accepts that we should be consolidating more, and it accepts that there should be a rolling programme. However, I think that Murray Tosh was making a slightly different point—about people's ability to tell easily what regulation was in force at the time they did the thing that is being complained of. That is what is incredibly difficult because of the resources that would be involved; and consolidation in itself does not necessarily give that information.
That underlies the committee's position; we wanted all the intermediate stages to be accessible as well.
I am not going to argue with Ken Macintosh about the need to be careful with public resources, but the purpose of committee inquiry is to scrutinise and hold to account. I do not think that we should just run at the first sign of Executive gunfire to the effect that something is resource intensive. We should have some sense of what databases, intelligence and memory systems the Executive operates, and of what the practical implications would be of making those systems accessible.
If we look into this and discover that the costs are huge and the potential benefits trivial, then we will have established that after having scrutinised the Executive and come to a rational decision. However, at the moment we need to stick to the position that we have taken. We should ask the Executive for dialogue so that we can understand the issues properly and take a truly informed position.
That is fair.
Yes, I think that is fair. I also take on board Stewart Maxwell's point—although I have forgotten what it was.
It was memorable.
I am sorry—put it down to age.
It will all be in the Official Report.
My line of thought completely went.
It was his finest moment and it passed unnoticed.
I want to go back to the points about accessibility—
I remember what Stewart's point was. It was that because there is so much legislation—statutory instruments and amendments—it must be very confusing for people out there to try to access it and to see the changes that have been made. We are trying to work towards better accessibility. I agree with Murray Tosh that we might find that there are huge resource implications, but that that should not stop us at this stage from going along the path to see what might be possible. As Kenny Macintosh said, there might be other ways of getting around the problem.
We have made a good start on the Executive response. Many good points have been made, but we still have to pursue many areas, one of which is accessibility. We could also explore the work on enforcement that the Executive is doing with small businesses. I cannot remember what the other area was, but the Executive said in its response that it was working closely with small businesses on two areas. One of its big concerns was making sure that small businesses knew about consultation ahead of time, as well as the review of statutory instruments.
A well-named group is referred to on page 8 of the Executive response:
"The regulatory sub-group of the Small Business Consultative Group".
Snappy title.
I am delighted to hear that the group is looking at enforcement and we should work closely with it.
We should be kept up to date with what is happening in the group because it is also looking at the review, which we were keen should be addressed. Circumstances change so there is a need to review regulation.
On that point about the periodic review, there is a response in the Executive document to sunsetting, which is a bit less responsive than I recall the minister—or someone—being when we took evidence. It seems that sunsetting is to be allowed in "special and exceptional circumstances". It might be worth exploring with the Executive what constitutes special and exceptional circumstances. Sunsetting might be capable of more general application than the tone of that final sentence seems to imply.
I agree. We have made a good start. I thank colleagues for coming and hope that you will be here next week for a round-table meeting with the academic and other witnesses who will join us.
Meeting closed at 11:08.