Subordinate Legislation Committee, 21 Feb 2006

Meeting date: Tuesday, February 21, 2006

Official Report 158KB pdf

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Legislative Consent Memorandum: Legislative and Regulatory Reform Bill

Item 3 relates to an entirely routine and uncontroversial bill, which we can quickly pass over. [Laughter.] Perhaps not.

The Legislative and Regulatory Reform Bill is a United Kingdom bill that is, in anyone's view, pretty dramatic. It gives to UK ministers powers under UK statute that will be, I imagine, highly controversial in Westminster.

To put a marker down, if I were in Westminster—heaven forfend—I would be extremely uneasy about the bill. However, the question for us is the extent to which we can get involved in the matter, given what our role is and what we are supposed to be reporting on. I know that members will have strong views on the theoretical or practical—I do not mean to use the word "theoretical" in a pejorative sense—effect that the powers could have on Scotland. I do not think that we would agree entirely on that issue, of course. However, I am not sure of the extent to which that has anything to do with the committee or whether, in our report, we should go beyond those matters that may be less controversial but which directly bear on what the Scottish Executive does by subordinate legislation.

I appreciate that members will, at least, have comments that they wish to place on the record. With that in mind, we will start with Stewart Maxwell.

I wonder why.

You have been clear about the effects of this Sewel memorandum and the fact that it affects Scottish ministers only in relation to the making of subordinate legislation to implement European Union obligations under the European Communities Act 1972. However, I think that we have to comment on how the legislation will impact on us.

There is no doubt that the bill is controversial and I hope that it has caused controversy at Westminster. It changes the nature of what Governments can do. Whereas, previously, they would have to use primary legislation to change, repeal or vary other acts of the Westminster Parliament, the bill will enable them to do so through subordinate legislation. That is a fundamental change.

The Scotland Act 1998 is reserved to Westminster and, under the bill, it would be theoretically possible for a Westminster Government to change, repeal or alter that act using subordinate legislation. It seems entirely inappropriate that that could be done. If a Government wants to change the devolution settlement, it should have to do so through primary legislation. I understand the difficulty that the committee has in reporting on this matter, but I think that we have a right and a duty to report on issues that affect this Parliament and that are to do with subordinate legislation. It is entirely appropriate that we comment on this and I want to put on record my strong objections to the bill and the possible impact that it might have on this Parliament in the future.

That is a perfectly fair comment, but it does not address the issue for us, which is the matters that are the subject of the Sewel memorandum and the areas within the competence of Scottish ministers that are affected. That is all that we can report on. Stewart's views are Stewart's views and I quite agree with most of what of what he said about the nature of the powers that are being taken at Westminster, but that is an issue for the House of Commons, not us.

Stewart Maxwell knows my position, which is that I can see the theoretical point. I understand that the bill would allow ministers to make huge variations to the Scotland Act 1998. I hope that Stewart understands that I am not accusing him of this, but I would not want the committee to give the impression that it is scaremongering. We should not be writing the headline that the Subordinate Legislation Committee says that the Scotland Act 1998 is in danger from Westminster subordinate legislation. Although he is right that that danger exists, I would describe it as theoretical because the political reality would have to be quite other than it is for a piece of subordinate legislation that would change the devolution settlement to come before Westminster next month. That is fanciful; the threat is not real and we should not give the impression that it is.

Clause 8 states:

"An order under section 1"—

which is the huge power in the bill—

"may not",

except in relation to some minor technical matter,

"make provision which would be within the legislative competence of the Scottish Parliament".

Therefore we are specifically excluded. Stewart Maxwell might say, "Ah, but, oddly enough, the Scotland Act 1998 is not within the legislative competence of the Scottish Parliament." However, the fact that the bill contains a provision to say that UK ministers cannot interfere with devolved matters means that the possibility that they would use regulations to destroy the Scotland Act 1998 is just theoretical and not practical.

Although Stewart Maxwell is quite entitled to make his comments, I am entitled and obliged to say that I do not think that there is a genuine danger. The bottom line is, of course, that Westminster could repeal the Scotland Act 1998.

Yes, but at the moment it could do that only through primary legislation.

I do not like it at all.

Although I agree that that is theoretical and unlikely to happen and that it is not on anyone's radar, the point is that UK ministers are taking these powers. Were it within the competence of the Scottish Parliament, we would be entitled to ask a series of searching questions and make recommendations about the bill. The point is that the areas that are of concern to us are not within our competence and we cannot pursue them through the powers that have been given to this committee.

Of course UK ministers are taking these powers. What I am about to say might come back to haunt me, but if the Executive did this, I would be the first to the barricades. I would not like it at all. I may be offering a hostage to fortune.

That is immensely reassuring.

You would not like it either. I do not think that the Parliament would like these powers to be taken here. I might be wrong because I do not know what the Executive's plans are; it might turn up with a bill tomorrow and I will find myself whipped out of this position. I do not like it, but we cannot report on that aspect of it, although we can make comments.

There is a fundamental point here. We can report to the lead committee that is dealing with the legislative consent memorandum on our concerns about the nature and possible impact of the powers. I know that the deputy convener thinks that the danger to the Scotland Act 1998 is fanciful and theoretical and that the bill will not be used in that way, but the fact is that UK ministers are taking these powers and can use them if they so wish. I know that we disagree fundamentally about this but, as parliamentarians, we have a duty to point out any possible danger to the Scotland Act 1998. We have a responsibility to say that, irrespective of what we report on under the rules of the committee.

Within the rules under which the committee operates, we should report to the lead committee about the nature of the powers contained within the proposed legislation. Surely the lead committee could ask questions of Westminster on the basis of these proposed powers.

Oddly enough, I would have no problem with the lead committee asking those questions, but that is its business. Reporting the issue is not our business. I can see why superficially it seems attractive to do so, assuming that we all agreed on the matter, but we have no entitlement, in examining the non-policy, practical aspects of subordinate legislation, to report on a bill's provisions that do not have subordinate legislation effect in Scotland. I know that the bill will affect Scotland, but the UK Parliament could pass a bill to do with anything and the committee still would not have a right to comment on it. I will take guidance from the clerk or the legal adviser, but I do not think that it is within our competence to make the comment that Stewart Maxwell wants us to make in our report.

Could we not attach a copy of the Official Report of our discussion?

Yes; the lead committee can read that. I ask the clerk whether I am right or wrong.

The standing order that we work under allows the committee to report on powers to make subordinate legislation that are conferred on the Scottish ministers. That is what can be done within the confines of the report. However, there is nothing to stop the committee attaching a copy of the Official Report of our discussion, if members want to keep the lead committee ahead of the debate.

If that is all that we can do, we should do it.

I have no objection to our doing that. We have aired the issue and we are not trying to hide it. I just do not think that the matter can form part of our report.

Okay—that is the rule.

We now come to the issue with which we are actually meant to be dealing, which is slightly less controversial. To summarise, clauses 26 and 27 will give powers to the Scottish ministers, but only to tidy up European legislation. Do members have any problems with those procedures?

Not particularly.

So, oddly enough, we do not have problems with that which doth concern us; we are just horrified by the things that do not concern us. That seems a fair summary of our position.

We will have that comment included in the excerpt from the Official Report.

Absolutely.