Subordinate Legislation Committee, 24 Jun 2003

Meeting date: Tuesday, June 24, 2003

Official Report 164KB pdf

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Instruments Not Laid Before the Parliament

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Instruments Not Laid Before <br />the Parliament

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Mental Health (Care and Treatment) (Scotland) Act 2003 (Commencement No 1) Order 2003 (SSI 2003/316)

Item 6 refers to a commencement order not laid before the Parliament. No points arise on the instrument.

I wish to make a general point. While acknowledging the fact that we are mostly new on the committee, I am extremely concerned about the quality of the drafting of what we receive. There are some points that are picked up consistently, and the responses that we get back appear to be more dismissive of the committee's views than I would like. Those who advise us are, in some cases, more expert than those who are doing the drafting. This is a very complex area, and training is required to help the staff who do the drafting to get up to speed with it. I wonder how much training is available.

Later in the meeting we will discuss the schedule for our away day. I wonder whether it would be possible for committee members to meet some of the more junior staff who do the drafting, so that we can get an indication of what the issues are for them. I have no wish to knock staff who work very hard, but the regulations, orders and other instruments that we deal with implement law, and they may be relied on in courts of law. Therefore, they must be right. The more often that they can be right in the first place, the more helpful it is and if the views of those who are expert in the area can be taken on board and implemented, we will surely get better quality drafting.

I agree. What do other members think?

This is nothing new. I was on the committee during the previous parliamentary session and the unreasonable level of mistakes has always been a problem. Statutory instruments are very technical and some error is unavoidable.

The Executive is aware of the matter. Last week I had a conversation with Patricia Ferguson on the subject, and I am not entirely clear why it does not get better. I am also not sure that it is worse here than it is anywhere else. I have been looking at statutory instruments all my life, but never in the way that the committee requires. Perhaps if someone such as the committee's legal adviser had been looking at Westminster statutory instruments in the past, they would have found the same level of mistakes. Of course, I do not have a yardstick against which I can measure the current level.

It should be possible to improve the quality of drafting, but I have no idea how to achieve that. During the past four years, the previous Subordinate Legislation Committee was constantly expressing its concern about the levels of mistake and inaccuracy. It is different when we have to discuss, for example, whether an instrument is ultra vires; that is a straightforward argument that the committee can have with the Executive.

I understand that the House of Commons set up the Joint Committee on Statutory Instruments to consider this very issue. We could make inquiries.

I am told that the JCSI was set up in 1972 with the aim of improving the quality of statutory instruments. We could write and ask for some information on whether the quality of statutory instruments has improved.

Did you say 1972? That is only 31 years ago.

And they are still trying to improve.

In legal terms, that is a minute period of time.

We could make inquiries and find out how much progress the JCSI believes has been made during those years.

I agree with Gordon Jackson, and that was the point I made earlier. We want the quality of drafting to improve, but how do we achieve that? I do not want to imply that we are criticising the staff who are working very hard. That should certainly be the message that we send to the Executive.

It is all very well saying that we want the quality of drafting to improve, but we have to address the problem of how to do that.

We might be able to use the JCSI's website to find out whether it has come up with any initiatives and, if so, whether they have been implemented. Let us ask the question.

Are we agreed that we should try and find out a bit more information about what has been happening at Westminster?

Members indicated agreement.

I am reliably informed that the situation has improved. If we can find out how Westminster has managed to achieve that, we might be able to take some steps forward.

If the situation has improved, it must have been pretty bad before.