Subordinate Legislation Committee, 23 Jan 2007

Meeting date: Tuesday, January 23, 2007

Official Report 127KB pdf

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Transposition and Implementation of European Directives Inquiry

Members have a copy of a draft response to send to the convener of the European and External Relations Committee in relation to its reporter's inquiry report.

The first four paragraphs of our response present background information. Paragraph 5 draws the attention of the European and External Relations Committee to a few points.

The first bullet point in that paragraph deals with transposition notes not being routinely provided with instruments.

The second bullet point draws the committee's attention to the open procedure that is provided for in section 2(2) of the European Communities Act 1972 and states that we are

"also aware of the available choice, under section 2(2) of the ECA, of using primary rather than secondary legislation to implement European law."

We have pointed out that there could be greater scrutiny than is sometimes the case in relation to the negative procedure.

The third bullet point relates to section 2(2) of the European Communities Act 1972. We talked about this last week or the week before, in relation to a case in which the Executive was using that provision instead of domestic legislation.

The fourth bullet point says:

"The SLC has a role in relation to the scrutiny of delegated power and has often encountered new powers specifically designed to provide delegated powers for the provision of implementing obligations in a specified field. It is not always clear why the Executive has sought specific powers rather than rely on section 2(2) of the Act."

We thought that we might include at that point in our response an example of what we are talking about, using a situation involving criminal proceedings legislation.

That would be a good idea.

The next bullet point deals with the working relationship between the United Kingdom Parliament and the Scottish Parliament and says that the implementation of European Union directives relies heavily on co-operation between the two bodies. That is a good point to make, because we have had problems to do with timescales in that regard. Do members have anything to add to that?

I would just insert the headline that was in The Herald yesterday.

I have not seen it. What did it say?

I will let you read it for yourself.

The last bullet point says:

"The Committee considers that there can be merit in there being as little deviation as possible between certain provisions made at Westminster and in Scotland."

With all due respect, because of the can be's and the possible's and so on, that paragraph is somewhat convoluted. The main point is about timescales and penalties. We could have a separate paragraph to say that in most instances where instruments involve penalties and timescales it would be appropriate that they should be as similar as possible, although there could conceivably be circumstances in which that might not be the case. That point is a bit lost among the qualifications.

There could be a separate bullet point to say that the committee also accepts the fact that the Scottish Executive and, indeed, the Parliament should be free to diverge where there are good reasons to do so. It is a little difficult to obtain the sense of that from the way in which the paragraph is composed.

I disagree entirely. Euan Robson's suggestion completely changes the meaning of the paragraph. He suggests that we are effectively saying that there should always be little deviation, except for rare circumstances and exceptions. The current paragraph could perhaps be made clearer, but the general thrust is that

"there can be merit in there being as little deviation as possible".

What Euan Robson is saying turns that the other way round. We would be saying, "This should always be the case but, on occasion, there may be good reasons why provisions should diverge", as if that was the norm and everything else was abnormal.

That is a political point, which is not appropriate here. If Euan's suggestion is taken up I will oppose it, because it completely changes the meaning of the paragraph.

I see your point.

The paragraph is quite diplomatically worded at the moment. We are not really talking about the difference between Scotland and Westminster. The context is harmonisation, and the implementation of European directives. I can see why it is worth making the point that, if we are trying to harmonise with European law, we would want to harmonise the law in England and Scotland too. However, that is so close to such a political dividing line that I am not sure how we can find our way through it. There is no point in making a huge issue of it.

The paragraph makes the point that "there is merit". I accept the wording as it stands, in relation to timescales and penalties, but if we go down a different route we will have a problem.

What Euan suggests would put more emphasis on consistency with the United Kingdom Government.

As Ken Macintosh says, the paragraph is diplomatically worded. To separate it out or to have a big disagreement about it just complicates the issue. It is probably best to leave it as it is.

The general agreement is to keep what we have got. Okay?

No problem at all. If the same words can be read in two different ways, that is marvellous.

We move on to the section on phase 1 inquiry recommendations. We thought that we might as well put as much as we could in here. The first point is on regulatory impact assessments—it is fair enough.

The first sentence concludes:

"and in particular the relevant processes in Ireland."

That sits there with no explanation.

We could explain it a bit more.

That is in response to what the European and External Relations Committee reporter highlighted.

I read that in isolation.

It may not make sense in isolation. We could take it out or develop it.

We will make that clearer.

Jim Wallace went to Denmark and Ireland and a few other places.

Is the thrust of that paragraph, which is about issues to do with regulatory impact assessment, okay?

Members indicated agreement.

The next bullet point is about effective consultation, which is always important. The point after that deals with the committee's recommendation

"that there should be a requirement for the Executive to explain, when consultation has not been carried out in relation to any statutory instrument, the reasons why it has not been undertaken."

I do not know why that is a separate bullet point. I suppose that that makes it clearer. Is that all right?

Members indicated agreement.

That is one of the on-going issues.

Finally, there is the suggestion that the improving regulation in Scotland unit be relocated to the First Minister's office.

That was in the committee's report on phase 1 of the regulatory framework inquiry. I was not a committee member then, and I do not agree with the suggestion, which I notice is up for discussion later. It is a daft recommendation. However, the committee agreed to it a year or so ago. I am not particularly worried about it.

Stewart Maxwell and I are in a bit of a weak position here, because there are only two of us. Is Euan Robson happy for us to keep with the previous inquiry recommendations?

Sorry to interrupt, convener, but would it be helpful if we added a sentence about why we support that position, which is because of the effectiveness of the unit down south? We saw the merit—to use a phrase from a previous paragraph—in the unit's relocation. Members might disagree, but that approach might be helpful.

The idea was to extend the work of the unit away from purely the regulation of business and into all the other realms. We took evidence from Margaret Curran, who agreed that we should give more consideration to the voluntary sector and other aspects. It was agreed by the committee that that was a move in the right direction.

Are you saying that Margaret Curran, the Minister for Parliamentary Business, agreed that the unit should move to the First Minister's office?

No. Margaret Curran suggested what Stewart Maxwell was suggesting—the rationale for our conclusion—that it was important that the unit should not just be focused on business and economics, but that it should consider all other areas as well. We discussed where the unit should be located, and Margaret Curran would perhaps not agree that it should be in the First Minister's office, but that was our conclusion.

It is not a huge issue. We have not yet agreed that in the committee's regulatory framework inquiry report—perhaps we will later. Can we say that previous members of the committee called for it?

We could do. Euan?

As you posed the question, I do not think that the First Minister's office is the appropriate place for IRIS. I agree that we should put it somewhere more prominent, but I am not clear that the First Minister's office is the right location. Having said that, if you were to ask me where else it should go, I would say possibly the Minister for Parliamentary Business's office, or possibly somewhere near the permanent secretary.

I suggest that we head up this paragraph with the rationale for the suggestion, and conclude by saying that the unit should be given a more prominent status or position. We could suggest what that position might be, but that would leave it more open.

We could put in "for example", which would not necessarily commit us all to the suggestion that the unit should go to the First Minister's office.

The rationale is the important thing.

The rationale is the important thing here, although it might be helpful to say that that is what we called for in the earlier report.

We will put it in context, and we will put the rationale up front. Okay?

Members indicated agreement.

Are members happy for us to send this letter off with all the suggested attachments?

Members indicated agreement.

Meeting continued in private until 11:43.