Procedures Committee, 21 Feb 2006

Meeting date: Tuesday, February 21, 2006

Official Report 129KB pdf

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Consolidation Bills

For item 2, we welcome as a witness Iain Jamieson, who is the former adviser to the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee. As committee members know, the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill is the only consolidation bill that the Parliament has considered so far, so Iain Jamieson is an important source of experience in the sphere. He has sent two papers—he sent a substantial paper and then a second, amended version.

Mr Jamieson, we have studied your paper, which makes several recommendations, with interest. Will you focus our minds on the main issues and tell us anything else that you would like to say in supplement to your paper? After that, we will ask you some questions.

Thank you for inviting me to give evidence. In my written comments, I suggested various amendments that might be made to the standing orders. Those amendments are detailed and technical, but I will summarise two main matters and, in doing so, simplify the amendments that I suggested.

The first matter is the definition of a consolidation bill. I suggest that a consolidation bill should be defined simply as a bill to consolidate enactments relating to any matter, subject only to any amendments that are necessary to produce a satisfactory consolidation. That differs from the existing definition in various respects. First, it indicates what kind of amendments the bill can make to the existing law while remaining a consolidation bill, because it restricts such amendments to those that pass the necessity test—that is, those that are necessary to produce a satisfactory consolidation. Secondly, it indicates that the amendments are not restricted to those that the Scottish Law Commission recommends. During the passage of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill, the consolidation committee recommended an amendment that the SLC had not recommended. The Executive accepted that recommendation and lodged such an amendment. Thirdly, my proposed definition removes the need that I identified in my paper for the standing orders to define "minor drafting amendments", as any amendment would be allowed provided that it was necessary to produce a satisfactory consolidation.

The second main matter is the role of a consolidation committee at stage 1. You will have seen from my paper that the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee had to adopt a creative interpretation of the standing orders so as to carve out a role for itself. It is clear that it would be unsatisfactory to place future consolidation committees in a position in which they had to make such creative interpretations. It would be much better if the standing orders spelled out what the committee's role should be.

I suggest various approaches in my paper, but I think that I can summarise them by saying that a consolidation committee should consider whether a bill properly consolidates the relevant enactments and whether amendments to the enactments are necessary to produce a satisfactory consolidation. In other words, a consolidation committee should consider and report to the Parliament on whether the bill is a consolidation bill that should be approved. Such an approach would get rid of the problem that I encountered during the passage of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill, when the committee recommended to the Parliament at stage 1 that the bill be approved, subject to specific amendments. I thought that that was peculiar—indeed, other amendments were proposed that were not covered by that recommendation.

Those are my two main points, but I also want to make a point about what happens when consolidation bills are considered in plenary session at stage 1 and stage 3. There is currently no provision for debate. The Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee thought that provision should be made for debate in certain circumstances—what those circumstances might be could be left for discussion. The committee thought that the absence of a debate meant that the onus was on the committee to decide what amendments should be recommended and thought that different views might be taken on the matter. However, the purpose of a consolidation bill is, of course, merely to restate the law and such bills should not take up much time in the chamber.

Thank you. You suggest that standing orders should state that any amendments that are made must be necessary to produce a satisfactory consolidation. I approach the matter as an amateur and it seems to me that we can take either a minimalist approach to consolidation bills, in which we restrict ourselves to putting old enactments into modern language and a modern format, or an approach in which we take the opportunity to incorporate into a bill good ideas from the Scottish Law Commission that are relevant to the subject. One could take a minimalist or a maximalist view—if that is not to state the matter too simply. In which direction should we tend? Should consolidation bills be kept as basic as possible or should we allow useful additions?

I can give an example from the passage of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill. The Scottish Law Commission made 29 recommendations for the amendment of the existing law. The consolidation committee agreed with 25 recommendations and disagreed with the rest, although it agreed that the proposed amendments to which it disagreed would be desirable. For example, one amendment would have given Scottish ministers the power to amend what was meant by fishing by "rod and line". The bill contained a statutory definition of the phrase, which properly consolidated old enactments, but the commission thought that it would be desirable for Scottish ministers to be given a power to amend the definition to take account of changes in fishing practice. The committee took a different view; it considered the change to be desirable but thought that it went beyond what was necessary to produce a satisfactory consolidation. The committee took the view that the proposed amendment would not consolidate the law but would make provision for amending it. That was one matter on which the committee disagreed with the Scottish Law Commission.

To answer your question, convener, the test is flexible, but we should tend towards the minimalist view, because any policy matter or amendment that is merely desirable ought to appear in an Executive bill and be properly considered by the Parliament. That is the quid pro quo for having no proper stage 1 consideration of the principles of the amendments.

As I understand it, the purpose of the approach to consolidation bills is to fast track them because they do not propose new law.

Precisely.

If we include anything new—however desirable—in the bill, the bill should be treated like an ordinary bill, as you suggest, and there should be no fast tracking.

I agree.

Irene Oldfather has joined us. Are you here as a committee substitute?

I am substituting for Karen Gillon.

I assumed that you were doing so. We welcome you to this discussion of the intricacies of consolidation bills. I remind members that, although Mr Jamieson has produced many interesting ideas about detailed changes that might be made to standing orders, at this stage we are interested in the philosophy of the matter. When we have decided what line we want to take, Mr Jamieson's ideas and others will be taken into account by the clever people who draft legislation.

I thank Mr Jamieson for his useful briefing paper. As the convener said, we are amateurs and we are seeking a little information. Who initiated the consolidation effort that led to the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003?

I am sorry; I cannot tell you about the policy initiative, but I imagine that work on the bill began before devolution—no consolidation bill has been produced by anyone post-devolution. The bill probably began with the Scottish Office suggesting to the Scottish Law Commission that enactments to do with salmon fisheries should be on the commission's programme for consolidation. The commission would then have arranged for a draftsman to produce a bill, and in the course of discussions between the draftsman, the Scottish Office and the commission various recommendations for the amendment of the law would have emerged. That is my experience of what has happened in the past and I imagine that that process was followed for the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill. A bill on the matter was about to be introduced in the Westminster Parliament around the time of devolution, but it was decided that it would be better to introduce a bill in the Scottish Parliament.

Someone has to sow the seed. When it is decided that existing law needs to be consolidated, does the Scottish Law Commission do the detailed work?

Yes, that is right. Someone has to sow the seed, which means that the Executive must allocate resources to enable the commission to spend time on the preparation of a consolidation bill. I think that in every annual report that it has produced since devolution the commission has regretted that the Executive has not devoted resources to consolidation.

I think that that is right. In housing, for example, the Scottish Parliament has enacted a number of pieces of legislation, all of which are good, but I imagine that it would be easier for the practitioners on the ground to have all of that law in one place. The same is true of the Planning etc (Scotland) Bill, which we are dealing with just now.

The suggestions in your paper are certainly useful. Could you expand on your point about consolidating enactments and restating existing law and on your comment that the existing rules under the Scotland Act 1998 are too broad in that area?

That is rather a technical and pedantic point on my part. The standing orders say that a consolidation bill is a bill to restate the law. However, a consolidation bill does not restate both the statute law and the common law in a policy area; rather, it consolidates enactments. You are perfectly right to say that there is hardly a subject area in Scots law—housing, planning, criminal law and so on—that is not crying out for consolidation. It is in a dreadful state, but that is not a matter for us. We are concerned only with the procedures for dealing with consolidation bills.

The idea of producing a memorandum seems sensible. As Cathie Craigie said, when proposals come forward members are often in the dark as to why, so a memorandum would be helpful. Do you envisage such a memorandum being prepared by the Executive or by the Scottish Law Commission?

When the Scottish Law Commission drafts a consolidation bill, it will produce a report. In that report, it should try to justify the amendments that it is making as being necessary to produce a satisfactory consolidation, because that has now been flushed out as being the criterion on which such recommendations are made.

So is it the case that such reports are already being produced but not in the form of a memorandum?

The reports are produced, but it is the Executive that would produce the memorandum and would have to justify all the amendments made, which could be done by reference to the commission's report. If the Executive had its own amendments, those too would have to be justified.

You have raised the possibility of allowing people other than the Scottish Law Commission to introduce amendments. Is it the effect of the standing orders at present that only the Scottish Law Commission can introduce amendments, or is it just being assumed that that is the implication of the standing orders?

The existing definition of a consolidation bill in the standing orders confines the amendments that can be made to those that are recommended by the Scottish Law Commission. I gave an example of a situation in which the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee suggested to the Executive that a further amendment should be made. The Executive lodged an amendment, which may have been strictly outwith the statutory definition, but it was also agreed to by the Scottish Law Commission at the time.

Was it the Executive that lodged the amendment?

Yes. There may be other examples of such circumstances. For instance, if the Scottish Law Commission cannot produce a consolidation bill because it does not have the resources to do so, the non-Executive bills unit could produce it. Alternatively, if a committee dealing with housing said, "It is undesirable that we should be working on old legislation," there is no reason why it should not produce a consolidation bill.

There might be some practical reasons why that would be unlikely, given the pressure that NEBU is under. I wondered whether you would suggest empowering any member to lodge amendments. In what is quite a tight procedure, that could open up the proceedings to far more debate and to the introduction of issues that were not at first considered pertinent to the consolidation bill. Perhaps that would overcomplicate the procedure. Is that a danger that you foresee?

At present, there is no restriction on members lodging amendments to any bill, including a consolidation bill. However, there is the rule of admissibility, which means that—I am summarising my suggestion—at stages 2 and 3, members can lodge only amendments that would not have the effect of turning the bill into something other than a consolidation bill. In fact, the kind of amendment that could be made and considered admissible would be restricted to amendments that are necessary to produce a satisfactory consolidation. As the convener said, that is a flexible test, and the committee would have to take a view on what was necessary and what a satisfactory consolidation was, but that is the best test that people have come up with so far. I would veer towards a minimalist view.

It would be helpful if you were to lead us through the differences in procedure between a consolidation bill and an ordinary bill, as we are all acquainted with ordinary bills.

A committee is appointed to deal with a consolidation bill. At stage 1, does it interview witnesses in the normal way?

I am going by the experience of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee. That committee first of all went through the bill and made a considerable number of comments—about 80 or 90—on whether the provisions correctly consolidated the law. Those comments were put to the Executive, and Executive officials responded in writing and also came in and spoke to the committee. During that iterative process, the Executive undertook to introduce amendments to address certain of the committee's concerns. In certain other cases, the Executive did not give that undertaking but left it open.

The committee called witnesses from the Scottish Law Commission to speak to the commission's recommendations—not so much to explore the detail of the recommendations but to establish what test the commission had used to make those recommendations. It was during that process that the criterion emerged that amendments must only be those that are necessary to produce a satisfactory consolidation. That was the test that we discovered was used by both the Scottish Law Commission and the Law Commission in England in making recommendations. That was the test used at Westminster, and it seemed to the committee to be an appropriate test to adopt.

That was all done at stage 1. Witnesses were called and then a report was produced summarising the points that the committee had raised with the Executive. The report indicated in what respect the Executive had agreed to introduce amendments and in what ways the committee disagreed with the recommendations of the Scottish Law Commission. The committee recommended that certain amendments should be lodged to address points that the Executive had not agreed to lodge amendments about, and it recommended that the bill be approved, subject to those amendments being introduced.

That is where I have a slight difficulty. It is certainly different from agreeing to a bill in principle. It is agreeing to a bill in principle, but subject to certain amendments. I am suggesting that, at stage 1, the committee should ask the Parliament simply to approve the bill as a consolidation bill. That would leave it open to committee members or the Executive—which might reconsider the bill in the light of the committee's comments—to lodge any amendments that they thought were necessary at stage 2.

Do you think that there should always be a stage 1 debate in the Parliament, or should there just be the option of a stage 1 debate?

There should be the option because, sometimes, there might be no need for a debate. A consolidation bill should just consolidate existing enactments. If a specific amendment was on the borderline between minimalist and maximalist—in your terms—there might be a case for having a debate. At present, no debate is allowed, and the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee suggested that that is a bit restrictive.

At stage 2, who decides on admissibility? A consolidation bill is obviously different from a normal bill. Does the Presiding Officer's team decide whether an amendment is admissible, or does the Scottish Law Commission or the committee clerk and convener? The key issue is what is and is not admissible in broadening the legislation.

I think that the committee's clerk—who is absent today—decided that in his previous position. As part of the legislation team, he would comment on whether members' amendments were admissible. I have certainly seen that done with regard to Executive bills. However, he sometimes let amendments through and the decision was then up to the committee, which might take a different view from the clerks on whether an amendment was necessary to produce a satisfactory consolidation.

As I understand it, you are right to say that the initial sift is done by the clerks. The procedure for consolidation bills should be no different from the procedure for normal Executive bills.

As Richard Baker said, most of us have probably sneaked in amendments that have been pushing it a bit to be relevant to a bill, but the powers that be have said, "That's a reasonable idea; let's at least debate it." We are now talking about a different exercise, and members should not be allowed to sneak amendments in.

Equally, in deciding whether an amendment is relevant, there is some latitude, as you have pointed out.

I would be worried about having too much latitude. It has become the practice of the Executive and the Parliament that, when changes to legislation are proposed, we consult widely over a period of time. If members were to sneak amendments in at stages 2 and 3, the general public—whom we seek to represent—would not have the opportunity to be fully involved in a consultation on the proposed changes.

I take your point. You should always look suspiciously at what might be done by members trying to sneak amendments in.

Are you listening, Donald?

In the case of a consolidation bill, a tight view must be taken, as you are not meant to be changing the law, although you might change the wording that is used. There was a good example of that in the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill, which was not the subject of a Scottish Law Commission recommendation. The draftsman was re-enacting an offence from the Theft Act 1607, to do with the taking of fish. The 1607 act was worded to make that a theft offence, but the draftsman properly took the view that, as fish do not belong to anyone, it is not right that taking them should be a theft offence. In fact, the courts had not been approaching it as a theft offence; they had been approaching it as a type of fishing offence, and the draftsman redrafted the wording to reflect that. That is an example of the wording being changed to produce a satisfactory consolidation. The Parliament could not have enacted an offence dealing with the theft of a fish if nobody owned the fish—and nobody owns fish.

Once we have gone through stage 2 and made wise decisions about admissibility, should the Parliament be obliged to have a stage 3 or should that be optional?

There should always be a stage 3; the question is whether there should be a debate at stage 3. At present, there is no provision for a debate but, for the same reason as there should be a provision to allow a debate at stage 1, there ought to be a provision to allow a debate at stage 3 if an amendment is thought to be on the borderline. The Parliament would have to consider not whether the amendment was desirable, but whether it was necessary to produce a satisfactory consolidation, which is a different criterion.

I wonder about your written comments on the Subordinate Legislation Committee. You seem to suggest that all consolidation bills should go to the Subordinate Legislation Committee whether or not they confer new powers, although that may not be necessary. Is that correct?

Yes. There is a slight difficulty. A consolidation bill would have to go to the Subordinate Legislation Committee, although it might be a waste of time for it to consider provisions that merely re-enacted existing powers. Nevertheless, the Subordinate Legislation Committee might take a different view—for example, if the bill was subject to the negative resolution procedure and the committee thought that it should be subject to the affirmative resolution procedure. That would not be relevant if the bill simply re-enacted the existing law, as it would be considered under the negative resolution procedure, but it would be relevant if the bill conferred a new power. There was an example of a new power being conferred in the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill, and it was right and proper for the Subordinate Legislation Committee to consider it.

Although it is not really a matter for me, in my written submission I was simply trying to suggest that the resources of the Subordinate Legislation Committee could be saved if it did not have to consider something that really ought to be considered by the consolidation committee—that is, whether the powers were being properly re-enacted.

The question is then about who decides that and whether it would be better to leave the situation as it is. What is your judgment, on balance?

It would be better just to leave it, because it would be too difficult to try to spell it out in standing orders. It should be left to the common sense of the Subordinate Legislation Committee.

Are there any further questions for Mr Jamieson? If there are none, I thank Mr Jamieson. Your submission has been particularly helpful. It will all be put in the pot and stirred up.

We should ask the clerks to write a report, taking account of the evidence given today and at the previous meeting. I sense that there is a view that any rules should make the whole thing as tight as possible. That would help to reduce abortive work. If that is the general view, we can give that guidance to the clerks.

Members indicated agreement.

The report will appear in due course.