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I welcome members to the Subordinate Legislation Committee's 32nd meeting in 2006. I have received apologies from Adam Ingram and have been informed that Gordon Jackson may be a little delayed.
I am delighted to be back at the committee and I am looking forward to our exchanges. I am grateful for the opportunity to give evidence on the committee's draft report on the regulatory framework in Scotland. For the record, I emphasise that the Executive welcomes the opportunity to discuss what are important matters. We acknowledge the expertise that the committee has built up during its deliberations and the commitment that it has to improving the regulatory process in Scotland.
I will start with a few general questions. You talk about the merits of the existing procedure compared with the new procedure proposed by the committee. Will you elaborate on that?
The obvious argument is that the existing procedure is well understood. We think that people are now working it effectively and that changing it might lead to greater confusion. The more principled and important argument relates to our belief that it is for the Parliament and the Executive to determine the right level of scrutiny. Rather than having a uniform procedure, the level of scrutiny should rest with the Parliament and the Executive. The level would very much depend on the instrument and the policy that was at hand. Embedded in that is an argument about accountability. When the Executive proposes a certain instrument, depending on the importance of that policy, it is appropriate at times that it is taken to the Parliament. That is it in a nutshell. I will bring in the officials if they wish to comment.
As the minister said, the essential point is that the procedures are designed to provide the right level of scrutiny and accountability on the part of the ministers. We think that the two main procedures that we have at present—the negative and the affirmative—work well. In introducing any new power to make subordinate legislation, there is scope not only to decide whether those two procedures are apt but, given the unusual nature of a particular power, whether any alternative procedures are apt. It seems perfectly appropriate to consider such a question in the context of the legislation that would introduce the new power. The alternatives are, for example, to make a power open so that it can be subject to more than one procedure in certain circumstances, or to make a power subject to what is sometimes called the super-affirmative procedure, such as that which was employed in the National Parks (Scotland) Act 2000. Any such alternatives would allow for the right level of scrutiny and accountability in the context of the particular piece of subordinate legislation.
The minister commented that the existing system allows the Parliament to determine the level of scrutiny. However, when we took evidence, I think that I am right in saying that the example that particularly impressed us was when Sarah Boyack talked about an instrument that came before the Environment and Rural Development Committee on the disbursement of less favoured areas support money, or something similar. Her committee wanted time to consider it in some depth, but as it was a negative instrument that was not possible, and they felt that they were not allowed to give the policy issues that were inherent in the instrument the level of scrutiny that they wanted. That has weighed heavily with us. One of the reasons why we want more flexibility is to enable committees to determine for themselves the time that they give to considering instruments and the depth that they go into on them. Under the current system, all the discretion is contained in the parent act, which does not give a committee discretion if it makes a separate judgment about the importance of a specific instrument.
I am not sure that the proposed system would give you that flexibility either. Perhaps I need to explore that more, because I am not sure that it would necessarily address the point that Sarah Boyack made. I do not know the specific point, and I would need to go back and consider it.
If I may interrupt, the new system that we propose would afford a 40-day period for consideration and, when it is aligned with the advance programme of work, it would mean that a committee could anticipate a significant instrument coming up and programme an appropriate volume of work on something that it considered to be important in policy terms.
Thank you, I appreciate the point now. That would be my answer. At the first level, we would want to ensure that the lead committee gets the maximum time to scrutinise an instrument in what it deems to be an appropriate manner. There could be engagement between a committee and the relevant minister on the level of scrutiny. We find that committees are approaching us more and more about that.
Because the instrument was negative, the Minister for Environment and Rural Development did not go to the committee and no debate in the Parliament was possible because the negative procedure does not provide an opportunity to trigger one.
Presumably, the decision to make the instrument negative would have been made by the minister, based on the level of scrutiny that was required and on the nature of the instrument. I do not know the details of those points in the case to which you referred, but I am happy to go away, examine the details and have a further discussion with you.
I doubt that the minister would have had any discretion, as the parent act probably specified the negative procedure.
That makes the point. When we pass a parent act, it is important that we know the level of scrutiny that will be necessary for subordinate legislation under the act. We now put much more emphasis on preparation for subordinate legislation when we prepare a bill.
You said that, in future, committees will be able to discuss more with you so that the situation that Murray Tosh described would not arise. How would that have worked in practice to ensure that the less favoured areas scheme would have got the airing that it deserved?
We would have to go back to the point at which the issues were originally discussed. I presume that the lead committee was the one that considered the parent act and therefore that it would have understood the context of the subordinate legislation that was introduced under it. It should have understood the significance of the connection between the act's implementation and the procedural implementation—that is, the instruments that are associated with the act.
I understand that the less favoured area support scheme regulations are made under section 2(2) of the European Communities Act 1972. There is a choice of procedures—affirmative or negative—when an instrument is made under that act. I do not know why the Executive chose the negative procedure, but the choice was available in that case. I imagine that, for other instruments in relation to which that choice exists, there might be scope for discussion between the Executive and the relevant committee to determine, in advance of an instrument being made, the appropriate procedure in each case.
I am grateful to Jane McLeod for drawing out that distinction. The minister clearly understood that the committee had that degree of discretion; however, in fact, it is the Executive that has the discretion. The opportunity for the committee to discuss with the Executive which procedure might be chosen would be an interesting extension of the work that we have been doing. That might be something on which the Executive could get back to us. We have not looked in any depth at areas in which the Executive can exercise that discretion, and it did not come out strongly from the response that the Executive was willing to discuss with committees where that discretion might be exercised jointly with committees. It would be useful if we could develop that in correspondence and exchanges following today's meeting.
I am trying to follow what Murray Tosh is suggesting that we do. How common is it for the parent act not to specify whether the affirmative or negative procedure is to be used? You say that there is room for discretion when an instrument is made under the European Communities Act 1972. Does that apply to many instruments?
No, it is relatively uncommon to have that open kind of procedure. Most parent acts specify whether the procedure is to be negative or affirmative.
So, that discretion is quite unusual.
Yes. It does arise in acts other than the European Communities Act 1972, but I cannot recall them exactly just now.
The Scotland Act 1998.
Of course. The Scotland Act 1998.
I think that there is a slight disagreement in that the European example is perhaps more common than you say. Aside from that, the principle that Murray Tosh was asking about—which I was trying to pursue as well—is how we can move further with this particular aspect in the future.
The point that I was making to Murray Tosh is that it is about the style of the partnership that we have with the committees. The procedure for instruments is determined by their parent act. Nonetheless, if an issue was important to a committee, there would be some evidence of that as the parent act was going through Parliament and the Executive would be open to the views of the committee if it said that it wanted more scrutiny of the issue. However, that would be during the process of the parent act.
But what if the parent act was passed 10 years ago? It might be pre-devolution primary legislation or legislation that was incapable of being interpreted in that relaxed way. We know now that there is possibly some discretion in the case of regulations that derive from European directives. However, I presume that that discretion does not exist for regulations that derive from our own legislation. The whole point is that we are dealing with subordinate legislation; we are not going back to the primary legislation. If regulations are determined by the parent act to be subject to the negative procedure, you cannot change that; you cannot exercise any discretion, as we understand it.
The procedure will be prescribed by what we have inherited, but that happens in all sorts of circumstances that we have to address. I am saying that you should not throw out the baby with the bath water. Do not, in an effort to address that, tie our hands too much as we try to improve the processes, which will lead to much better implementation.
We thought that we were trying to exercise that discretion in ways that did not tie your hands. Perhaps we should return to the convener's question about how we would be tying the Executive's hands.
Frankly, minister, I do not understand the line of argument that you are pursuing on a number of points. You seem to be suggesting that the SSIP is less flexible than the current system. I am lost as to why you would make such a suggestion when the SSIP is clearly much more flexible. It provides absolute flexibility for committees.
I do not agree with that. With respect, Stewart, we need to be clear about the difference between policy and procedure. There will be times when committees agree that the power to make subordinate legislation should be passed but, given its significance, the instrument should be debated in Parliament and therefore subject to the affirmative procedure. We believe that that power should still exist. There are times when we think that it is appropriate for instruments to be subject to the negative procedure. We regard that as flexibility, because of the range of instruments. For example, a commencement order is straightforward and does not need such a high degree of parliamentary scrutiny.
Sorry, minister—nobody is suggesting that it does. The point about the SSIP is that it would provide flexibility for little or lots of scrutiny depending on its appropriateness. It would not tie down commencement orders to lots of scrutiny. My point is that once a parent act is passed, providing for affirmative or negative procedure, nothing can be done if subsequent information or additional evidence comes to light.
But that is a policy issue. My point is that it is inappropriate to have just one procedure for both something like a commencement order and more important subordinate legislation. That is a matter of principle, and it is for the Executive—the owners of the policy—to determine the level of scrutiny that is appropriate to the procedure. It is legislation that the Parliament is passing, and—
No, it is for Parliament to decide.
Let the minister finish.
And the legislation rests with the Executive. That is our argument.
I think that it is for Parliament to decide, rather than the Executive.
The Executive owns the policy.
I accept that, but let us move on to a slightly tangential point. The Executive response says that "the Parliament sees merit" in the affirmative and negative procedures. Where did you get that information from? Have you done a survey to show that support? I am not aware of any such survey.
It is that the Parliament has used both procedures in a well understood way.
But you said that the Parliament sees merit—
Just a second, Stewart. I want everybody to ensure that an answer has finished before they ask another question. Gerald, have you finished answering?
I have.
I thought that he had as well.
I was just making sure.
The Executive seemed to suggest—well, more than suggest—that the Parliament sees merit in the current system. My question is simple: where did you get that information from? What evidence do you have to supply to the committee to show that the Parliament sees merit in the current system?
I think that what we said was that the Parliament sees merit in both the affirmative and negative resolution procedures, because both have been used. Parliament has pressed for different procedures in different circumstances, and as the minister said in her opening comments, it seems to be a well understood system. Both procedures have been used. That is our evidence.
That does not answer the question. Frankly, it is nonsense to say that people see merit in something because they have used it when that is the only thing that they can use.
The point is that both procedures have been used. The negative resolution procedure has not been discarded by Parliament as something that does not offer sufficient scrutiny in appropriate circumstances. That is our argument.
The committee will be well aware that, in undertaking our response, we consulted widely in terms of our experience of taking procedures through committees. We have received no evidence of momentum—from across the Parliament or from other committees—in favour of the changes that the committee is recommending.
So you consulted widely with the Parliament.
Stewart, if you bear with me, I will be very clear; do not put words in my mouth. What I am telling you is that we consulted across departments and looked at the legislation that is going through the Parliament and at the work that is being undertaken. I see that Stewart Maxwell is about to speak; I would appreciate it if he would hear me out. We got no evidence back.
We are almost talking about the same thing, but not quite. When we talk about flexibility, we should be asking, "Flexibility for whom?" I can understand why the Executive wants things to be the way they want them to be, but I am a little puzzled by the Executive's assertion that
Of course, I have responsibilities as an Executive minister and I will speak for the Executive. It is the Executive that has consulted and looked at that, but I thought that I had made it clear that, in the process of consultation, the Executive engages with committees—primarily with the clerks, but also with conveners. My conclusion is that there is no momentum for change.
I want to justify the thinking behind that proposition. We did not do a consultation, but the proposition is based on a lot of experience, as the committee will appreciate. As the minister mentioned, the experience is in particular that of bringing to the Parliament and its committees, including this committee, bills that confer powers to make subordinate legislation. The working premise is that we will use the tried and tested affirmative and negative procedures.
I invite Murray Tosh to ask about time and workload for committees.
The only point that we did not raise—we covered all the rest—was that we thought that one of the advantages of the proposed open procedure would be that committees and ministers could have discussions when ministers had to turn up at committees rather than requiring them to attend to move motions on every affirmative Scottish statutory instrument. We thought that the proposed procedure would be attractive to ministers, but apparently it is not because it would be too inflexible for them. Perhaps the minister will comment on that at greater length.
I am happy to comment. I appreciate and am grateful for your concern for ministers' workloads. However, I return to the key point, which is about the accountability of the Executive to Parliament: if there is a demand for a certain level of scrutiny, ministers should be present.
You refer to a demand for a certain level of scrutiny. My difficulty, on which I seek your comments, is with the timing of that demand. A parent act is passed and it exists for many years—I am not talking about Westminster stuff; even our own acts exist for years. Provision will be made in the parent act for subordinate legislation, and this committee might say, "That looks as if it might be quite a serious issue, so we think that the procedure should be affirmative rather than negative." However, five years down the line, when the subordinate legislation is made, the issue might not be so serious after all.
I see your point entirely. As you will appreciate, when we confer a power to make legislation by subordinate means, we understand the constitutional importance of trying to be as clear as we can about how we will use that legislation. We are rightly scrutinised and tested on that. As I said earlier, as part of that scrutiny and testing process, we have to present ever more drafts of regulations and be far clearer about what we have in mind. As part of that process—if it works properly, and I suggest that it does in nearly every case—questions about the extent to which the power should be used in both comparatively unimportant circumstances on some occasions and really quite important circumstances on others help to determine what form of procedure is prescribed.
I understand that, but my difficulty is that, to some degree, the process that you describe demands the gift of prophecy: it demands the ability to see into the future. The process might often work well; I am not saying that if we continue to have negative and affirmative instruments, by and large the wrong procedure will be picked—we do our best to prevent that from happening. Why do you feel the need to tie the procedure down? I do not want to use the word "flexibility"—we get terribly confused about flexibility, as the question arises, "Flexibility for whom?" However, if the decision as to how much scrutiny of subordinate legislation is required could be made when instruments are made, that would give ministers freedom. Why does the Executive feel the need to make a prediction, bearing in mind that all predictions turn out to be wrong to some degree?
I come at the issue from a slightly different perspective. If we adopted the committee's proposal, and you were on a subject committee, you could find that there was a difference between the committee and the minister. The committee might say that it felt that an instrument required a lot of scrutiny and should go to Parliament, but the Executive could say that it did not.
Absolutely.
I do not know whether that is the right way to go. My key point is connected to the policy; it is about the policy of what we are trying to do.
I did not mean that. I meant that something might be done umpteen times but only becomes important later.
I appreciate that. I was trying to see how much of a problem there is and to grapple with some of the issues. I would like to think—this is certainly my experience of legislation—that there is a coherent link between what is done in the parent act and the implementation of the act as it goes through the various procedures. That is a key link.
I take your point, and I understand the Executive mentality—I do not mean that rudely; I mean that I understand the Executive mindset. At least, although I have never been there, I am trying to understand the Executive mindset as best I can.
I am sure that it is a matter of time.
Thank you. I have now lost my train of thought—that happens when I move into fantasy.
Is not that an extreme action for a committee to take? Members might agree with the instrument but they would have to lodge a motion to annul it to get a debate. That is bizarre.
I do not know how many other members have done so, but I once moved a motion to annul an instrument at a committee, even though I was not a member of that committee. I mention that as an example. So, is it—
My point still stands.
Minister, that is naughty.
Sorry, convener.
Is it really to be thought of as a difficulty that sometimes a committee will want scrutiny that the minister does not want? Is that not a small price to pay for having flexibility at that end of the process? You will obviously say no, but I nevertheless put the question.
I think that that question can be inverted, too. I keep making the point, which to me is self-evident, that the level of scrutiny should be determined by the policy that the Executive is trying to implement. For some things, we have to be seen to have parliamentary scrutiny.
That is vital. As the minister says, it is all part of the policy. If we suggest to the Parliament that, as a matter of policy, something should be done through subordinate legislation—through a power conferred by an act as opposed to through a power in the act itself—it is really important that we are clear about what we are doing. We should have a debate about that and, as part of the debate, we should ensure that whatever procedures we apply are apt, whether affirmative, negative or any of the others—even new ones that we could make up.
I want to move on but first I would like to summarise.
As I think I said, by "open procedure" we mean that there is a choice of procedure. That choice could be given at large—by which I mean that there would be no set criteria in the statute against which the procedure would be decided—or there could be a choice of procedure depending on a range of criteria set out in the statute. In the latter case, it would be fairly clear when we should use the affirmative procedure, the negative procedure or whatever other procedure might be thought appropriate. In the former case, we would ordinarily expect to set out a policy statement indicating in which circumstances we would decide that the affirmative procedure was more appropriate than the negative procedure.
Given what you said earlier, I was hoping that you might say that you were willing to explore with us ways of getting more flexibility into the system. The nature of one of the powers makes it difficult to know what some of the outcomes will be.
As a point of principle, we would not rule out working with the Subordinate Legislation Committee in any way to try to improve the system. We do not support your proposals because the disadvantages outweigh the advantages—we can go through the reasons for that again, if you want. However, that would not prohibit any discussion with the committee at any time to try to improve our procedures. I am not quite sure how the committee intends to take forward its work, but I would like to move fairly quickly with regard to some of our proposals, which have come out of some of the evidence that you have gathered. We will try to address issues that you think need to be addressed. However, we must be careful to ensure that, in addressing one problem, we do not create another set of difficulties.
I was merely repeating what you said when you answered Murray Tosh's point.
We noted that you said in your report that there would be a need for an exceptional procedure for emergency instruments that were identified in the parent act and other urgent instruments, in relation to which the Executive would have to justify its use of the exceptional procedure to Parliament at the time.
Sorry—can you go over that last bit again?
Basically, I am saying that the committee's proposals on exceptional procedures reflect some of our comments on the requirement for a range of procedures to scrutinise secondary legislation in order to reflect the various circumstances in which instruments will be made.
You seem to be arguing that this category was drawn too tightly.
I think that you identified one or two circumstances in which the proposal would be used, particularly in relation to keeping in step with Westminster secondary legislation. I expect that you would find that there would be pressure to develop a range of circumstances in which the use of the exceptional procedures could be sought by the Executive or other bodies that make statutory instruments.
As we have no further questions on that issue, let us move on to the issue of the 40-day period and the Executive's suggestion that the 21-day period might be changed to 28 days.
We thought that that was a constructive response. As I said earlier, we think that there are issues of timing. The advice that I have received is that the committee's proposal on the 40-day period would cause us considerable difficulties in keeping the show on the road. I can give an in-depth explanation of those practical issues if the committee wants. The proposal would create a real difficulty. It would create gluts in the system—that is one way of putting it.
As I think other committee members will confirm, we want to provide for as much parliamentary scrutiny as is necessary—the Executive states the same on the first page of its response—so the suggestion that the clock should not be stopped for recesses is a proposal with which the committee would not, I think, be particularly happy. The Executive seems to have made that suggestion at the same time as suggesting that it wants parliamentary scrutiny.
We understand the reasons for the committee's proposal, but the essential point is as the minister said. On our proposal for moving to 28 days, we were struck by the fact that subject committees, because they do not consider an instrument until after it has been considered by the Subordinate Legislation Committee, often consider the instrument after it has come into force. That led us to think that we could perhaps prevent that from happening—or at least reduce the risk of it happening—if we moved to 28 days and accepted the committee's proposal that policy committees and the SLC should be able to work on an instrument in parallel. In effect, that would mean that the lead committee would have four weeks and the SLC would have three weeks to consider the instrument. In many cases, that would enable, we hope, the lead committee to react to the SLC's report on the instrument before the instrument came into force. We thought that the proposal for parallel working, taken together with our proposal to move to 28 days, would represent a real improvement in scrutiny.
Is the Executive's position basically that it would not be worth trying to move to 28 days if days during recesses do not count towards that period? There would be no merit in trying what would amount to a reduction in parliamentary scrutiny by allowing the recess period to count.
As I recall, our comments on the recess period were directed more towards the bulges that occur just before recesses, particularly at new year and at Easter. We suggested that allowing some of those recess days to count might smooth the workload of committees slightly. The suggestion probably requires a bit more working through, but it was directed more at that issue than at the other more general points about timescales to which Murray Sinclair referred.
The committee has discussed on previous occasions the question whether the recess period should count. However, given that we very much want as much parliamentary scrutiny as possible, I think that our genuine feeling would be that we would welcome a move to 28 days but that we would not particularly like the proposal to include recess days. Perhaps my colleagues can join in and say what they think about the matter.
I agree with the convener that allowing recess days to count would create problems at the other end. In effect, instruments would come into force during the recess, before committees had a chance to consider them. The bulge would occur after the recess rather than before it. Committees would need to consider all the instruments very quickly after, instead of before, the recess. I am not sure what the advantages of such a proposal are.
I want to ask about the gluts to which the minister referred. I am not clear why working to a 40-day timeframe would create gluts but working to a 21-day or 28-day timeframe would not create gluts.
I will refer that question to Murray Sinclair. I should say that "glut" is not the formal term but my interpretation.
Whatever word was used, the implication was that adopting a 40-day timeframe would create blockages in the system and that there would be periods when there would be too much work. We know that that happens. I do not follow why the problem would be worse with 40 days than with 28 or 21 days.
I hesitated because I did not remember the context in which the minister had used the word "gluts". A 40-day period before an instrument came into force would create problems with the delivery of policy and Executive legislation—a long lead-in time would be required. From our perspective, that would be particularly difficult during recess, especially the summer recess, because we would have to allow for the possibility that the instrument could not come into force for 40 days. That would have a serious impact on our ability to deliver law in cases that would not always be exceptional or emergency. Instead of moving to a default system of 40 days, we would prefer to use and improve the current procedure, which is well tried and tested. That is why we have proposed extending the period to 28 days. It would mean our losing seven days, but that would be manageable—certainly more manageable than a 40-day gap.
Stewart Maxwell made the point that if we do not stop the clock for recesses, we will end up considering some orders after they have come into force. We do not think that that is a good idea. Would one of the witnesses like to respond to the point?
To be honest, I do not think that we saw counting recess days as laying days as a magic solution to the problem of bulges. We do not think that moving to a 40-day period would make the problem worse or better. It is possible that we would end up moving the bulges around. To some extent, bulges are caused by the annuality of orders and the fact that they have to come into force on particular dates. The problem is best addressed by planning and discipline in laying orders, rather than by moving to a 40-day period or by counting recess days. It was thought that counting recess days might help for some orders, because then they would not all arrive on the same day. I take the point that it is possible that they would all arrive on a different, slightly later day, towards the end of the recess. None of the proposals is seen as a magic solution to the problem of bulges. The problem has arisen because of the way in which orders are made and the fact that some have to come into force on particular dates, especially 1 January and 5 or 6 April.
That leads us nicely on to the issue of timescale and planning.
I will preface my question by offering some thoughts on the Executive's general approach to the committee's recommendations. One reason for the tone of some of the questions this morning is that the committee put a lot of work into its report. The Parliament is still relatively new, but we are working with quite an antiquated system. Many of us believe that we have an opportunity to change that.
Those are interesting comments, especially those about tone. I sincerely hope that the committee does not think that we are dismissing its proposals out of hand or that we are just hiding behind procedures, saying, "Those have been our procedures for eight years and we're not shifting from them." The committee knows that I have no difficulty in disagreeing with people when I feel the need, but I can say in all honesty that we have given the proposals, and the arguments behind them, considerable thought.
My understanding is that Westminster is moving towards a system similar to the one that we are recommending.
As the minister said, no one could disagree with the idea that there should be proper forward work planning. As she said, we have come to a Subordinate Legislation Committee and had that discussion in the past. We are genuinely making movement on that.
I do not know much about the technical difficulties, but it is true that OSSE is working to develop an SSI tracker system, on the back of the Executive's electronic records management system. Our attempts have run into one or two difficulties along the way, but the work is still on-going. The tracker system would be partly for internal management purposes, to ensure better timetabling of such work within the Executive and to get our policy colleagues signed up to the discipline of strict timetabling. It would also serve the purpose of enabling forward planning and passing of information to the SLC on our future plans. Progress on the work tracker is the key to being able to provide the committee with proper forward planning information. It is the tool that will enable us to get information from the whole Executive into a central pool, from which it can be disseminated.
I welcome those remarks. Your tone is much more positive than that of the Executive response.
We are keen to develop the protocol, which will continue to have some status. I will ask my officials to engage with the committee on how that will work.
That is welcome.
In our response we suggested that, for the sake of clarity, it would be better if one committee had the right to recommend annulment to the Parliament. Generally, that committee will be the lead committee, acting in the light of advice from the Subordinate Legislation Committee. The Executive would not want to be too hard and fast on the issue; it is for the Parliament to consider what it wants. We have given our view, for what it is worth. I understand that individual members can also lodge motions to annul. However, when it comes to committee recommendations, we would find it easier if the Parliament had one voice.
I accept your comments—it is for the Parliament to decide on the issue. I understand that members can only ask a committee to lodge a motion to annul.
I did that once, unsuccessfully.
Gordon is our expert on moving to annul.
When we had discussions about this some time ago, I was struck by the arguments for such a change and the need for that level of technical amendment, particularly in circumstances in which mistakes have been made and it is clear that something needs to be clarified and that not making a change could result in consequences that none of us would want. I was quite insistent that that point must be addressed. We might have a debate about how we do that, but we have accepted the argument that we need to do so. We have made a proposal that we hoped would find favour with the committee. Again, perhaps I was too hopeful.
You say that you accept our position, but your explanation feels like a rejection. Perhaps Murray Sinclair could expand on the matter.
The thinking behind some of the words that we used in our response could be teased out.
So the only difference is that the minister would not come to the committee to move an amendment but instead would issue a certificate.
Yes—in agreement with the convener.
Yes, there would be an agreement. We would have to agree a process. For example, you might send us a letter on Tuesday, we might respond on Thursday, and we might be able to identify where there is scope for agreement on amendments for which there should be a certificate. That certificate could be in place for the following week.
And that process would be sufficient to give legal status.
Yes.
But without slowing down the 40-day process.
Yes.
How quickly could such a change to the process be put in place?
Do you want our definition of quickly?
Is it weeks or months?
It might be useful if I could meet you and any other committee members, perhaps not in a formal committee setting but in a formal meeting, to discuss the outcomes of this morning's meeting. We might have significant differences, but there is a shared agenda. On the point that we have just been discussing, and one or two others, we could discuss that shared agenda and make proposals.
That would be very acceptable.
The new process that Murray Sinclair has outlined would have to be teased out, but it would obviously work. A statutory instrument would be published, sent to us for discussion, and then possibly changed by means of certificate. Would setting up that new process require primary legislation? It might.
We would have to take advice on that.
As the minister has suggested, having discussed these issues today, we will have to produce a paper that gives our proposals in more detail.
Do you see my point, though?
I certainly do.
The procedures are serious and we are seeking to change them. I wonder whether the new procedure would have to be in primary legislation before it had the force of law.
We will give further thought to how we could make the change and to whether it could be done incrementally.
We can pursue that with the convener.
I just wanted to ask the question.
It was a good one. Murray Tosh, was your question similar?
It was the same question—which means that only one of us is raising our game. I do not know which one.
Okay. Can I ask for the panel's views on consolidation, which you will know is an on-going issue for the committee? You said that it should be for lead committees rather than the Subordinate Legislation Committee to determine whether an instrument is a pure consolidation, as we recommended in our draft report.
To some extent we regard consolidation as a policy matter rather than a procedural issue, because the consolidated instrument would need to be checked for its policy content.
Euan Robson wants to come in on the matter. He brings fresh eyes to it, as he has just joined the committee.
Lucky him.
For primary legislation, the Lord Advocate usually leads on consolidation and an ad hoc committee is set up. I say "usually", but my recollection is that there has been only one such consolidation: the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003. Would it not be appropriate to have a parallel process for consolidated statutory instruments? Someone other than the minister with policy responsibility would lead on the consolidation and there would be a different forum from the lead policy committee. In effect, the same type of procedure that is in place for primary legislation would be in place for secondary legislation.
I take the argument. I confess that I do not know how much consolidation of secondary legislation has taken place and whether it would demand a different procedure from that for the consolidation of primary legislation. As you say, there has been only one example of a consolidation act in primary legislation, so the procedure has been used only once. You might want to reflect further on whether that gives us enough evidence that that is the right way to do it and whether secondary legislation raises different issues.
I again want some information. Obviously, we think that consolidation is important as it improves the availability of law to people. It is not very good when someone has to trace the law through seven different SSIs. I understand your point that some consolidations are pure consolidations but in others the Executive decides that, as the legislation is being consolidated, it will introduce changes. Do you have any gut feeling for how often that happens, in percentage terms? Are they normally pure consolidations or is it more normal to take the opportunity to tweak the policy? The procedure that needs to be set up will depend on the answer to that question.
I think that stopping us tweaking the policy would be almost impossible.
Any proper consolidation will be more than a mere editing job and will involve more than bringing bits of the statute book that have been enacted in 10 different places and putting them into a single statute. A consolidation will involve that, but it will involve more than that.
Usually.
Usually. For primary legislation that will certainly be the case, as one aim is to ensure that the language is sufficiently modern and fit for purpose, because much of the legislation will have been around for a long time.
Indeed.
There are issues about what we have in mind when we talk about consolidation and about whether the full scrutiny process would be appropriate if we moved to something more than a mere editing job in consolidating subordinate legislation. A working group was set up to investigate those issues, but it has not yet reported. It is perhaps something that we need to resuscitate.
The minister and her officials will be glad to know that we are near the end. We have two more questions, the first of which is about rules of court.
For the minister's benefit, I point out that currently rules of court come to the committee as SSIs but the committee has no powers to amend or annul them. From our perspective, that is an unusual relationship. We have looked at the status of all SSIs, which also include local road acts and local SSIs, and we are thinking about whether they should be SSIs. The Executive suggests that they should be, because acts of adjournal and sederunt may amend primary legislation. What amendments do they make to primary legislation? I cannot imagine that they do much more than amend the technical implementation of acts.
I am happy to give the commitment that we will be involved in discussions on the review. We will work out how that is done, and we will need to think through all the implications.
The extent to which such instruments are used to amend primary legislation is limited.
I can understand that. I have dealt with them all my life and I have never thought of them as amending primary legislation, so I was a little surprised by the issue.
There are sometimes forms in primary legislation—changes could be that limited.
That is what I understood. The titles written down sound formal and significant, but we are just talking about court procedures and paper.
We will come back to the committee on that.
Finally, would the Executive prefer to keep the status quo on local instruments?
On local instruments, we felt that a range of issues needed further consideration. Having launched into an answer, I think that Murray Sinclair might be better placed to respond, but I can tell the committee that local instruments cover a range of situations from local road closures up to major issues. We hesitated about taking them out of the current numbering and publication system without having worked out in more detail what to do instead.
That is right. Local instruments cover a huge range of issues, and the feeling from the people in the Executive who are responsible for the various orders was that the current system works well. There was no pressing desire to change it.
We thought that we were doing everybody a favour, but nobody wants rid of the system.
You have a good heart.
The evidence from the Queen's Printer for Scotland was that it is making changes to publish all SSIs on the Office of Public Sector Information website. Is that another area that we could talk to the Executive about?
Yes.
I am pleased to say that we have finished our questions. We thank the minister and her officials.
Thank you too—I look forward to our continued conversation.
Thank you. We will suspend for about five minutes to get ourselves together for the next part of the meeting.
Meeting suspended.
On resuming—