Subordinate Legislation Committee, 24 Oct 2006

Meeting date: Tuesday, October 24, 2006

Official Report 244KB pdf

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Regulatory Framework Inquiry

We have two witnesses with us today. Professor Chris Himsworth is from the school of law at the University of Edinburgh, and Professor Colin Reid is the professor of environmental law at the University of Dundee. We are happy to have you both here today to go through some of the feedback that you have given to the inquiry.

I also welcome Iain Jamieson to the committee. He is the committee adviser and he has, as ever, been very helpful in briefing us. We also note that, although Aileen McHarg cannot be with us today, she has sent in evidence that I believe the witnesses have also already seen. That has been very useful to us. We asked the Executive if we could have a response from it before we wrote to you. That would have been very helpful, but we do not have it, although we know that it is in progress and we should receive it shortly. It would have been better to have had it now; I hope that there will not be any surprises in it. If the Executive's response makes any further points, we will write to you again, if that is all right. If, after today's meeting, you find that there are any points that you did not raise that you would like to write to us about, we would be happy if you did that.

Before we consider your responses in detail, I want to ask for your general views on our draft report and the recommendations that we have made. Are you in favour of the proposed procedures?

Thank you for the welcome. I am pleased to be back with the committee, although I am doubtful at this point about what added value I can offer.

I do not think that I want to expand beyond what I said in my written response. My starting point is one of general welcome for a radical new and progressive proposal for handling subordinate legislation in the Parliament in a uniform way across the piece. That is a good initiative.

In a nutshell, my principal questions are as follows. First, to what extent do the proposals emerge from a broader consideration by the committee of the complete process of authorising the making of subordinate legislation and of the subsequent handling of subordinate legislation in the Parliament? I say that with particular regard to the relationship between the Parliament and the Executive under the process. In my written submission, I took the liberty of going back to the founding principles of the Parliament. I can see that reformulations of that relationship are coming out of the new procedures in any event, but there are possibilities for taking the process a bit further. Perhaps we can then arrive at more technical or procedural proposals.

Aside from one or two other matters that are covered in my paper, my other lingering concern is about the consequences of the new, uniform procedure and what I interpret as the loss of the affirmative procedure. I retain an open mind on the matter, but I get the sense that the case has not yet been compellingly made for that result to be achieved. I would pick out a couple of instances, although they could be expanded way beyond this concern, looking back through the history of the Parliament so far, at the budget process and one or two pieces of legislation.

The Parliament gave a lot of attention to the style in which it wished to have instruments made and approved. That seems to have been a constitutionally interesting and important feature of practice so far, with the Parliament being seen as approving the content of certain instruments. I will keep an open mind on the issue, but I would have preferred the arguments that have been made in that direction to have been expressed more compellingly before the committee takes that step.

You make two good points there, which we will return to in a second. Do you have any general points to add at this point, Colin?

I will make two points. First, we should not underestimate the scale of change that the new procedures will require, both on the part of the Parliament in how it decides where it will put its effort and how it stays alert to important things coming through, and on the part of the Executive in adapting to what I suspect will be a very different timescale for its way of working, particularly as it has to co-ordinate things with the other Administrations in the UK.

Secondly, I would pick up on what Chris Himsworth said about the need to think about subordinate legislation as part of the bigger picture. The actual scrutiny and procedures for making subordinate legislation are only one part of the story. When legislation is being scrutinised, there are initial decisions to be made about who will make what rules, and when. Furthermore, there are other ways of calling ministers to account: scrutiny of particular items of delegated legislation is not the only way to call the Executive to account for what it is doing.

Thank you very much for that. As we go through these questions, please do not feel frightened to ask if you wish some things to be clarified. We had to explain to the Executive what we meant in certain areas. Ken Macintosh will start with one of the areas that Chris Himsworth mentioned: the balance between primary and secondary legislation.

Chris, you have already outlined some of your thoughts on this. Will you expand on what you said? I think that you are suggesting that we are missing an opportunity. It is not that what we are doing is wrong, but it is being suggested that we are missing an opportunity to redress the balance of power—or the balance of control over legislation—between the Executive and the Parliament. There is an assumption that the balance is currently wrong. Is that correct? Am I reading too much into your comments on that?

I am a bit nervous about how to put this. It sounds as though I am being rather impertinent about the role of the committee or about its perception of the balance between the Parliament and the Executive. My starting position comes from the historical position as it emerged over a much longer period in the Westminster Parliament and latterly in the Scottish Parliament—and, I suspect, in most jurisdictions worldwide where anything like the same system has run.

Thinking back to the talk of a new despotism in the 1920s and so on, the peril in any constitutional system is domination by the Executive. There can be a process whereby Parliament, in exercising its powers, is invited by a relatively dominant Executive to give further powers to that Executive to make further legislation, which vastly outweighs the legislation that can ever be made by the parent Parliament—in quantity, if not in quality. That is subject to the fact that, over the years, the powers of control have demonstrated themselves not to be up to the task of their apparent formal potential. In other words, Parliaments are not, on the whole, able to exercise their scrutiny role to the extent that they might be, for various reasons. That applies especially when it comes to the merits of statutory instruments. We should bear it in mind that it was, I think, the settled intention of this Parliament to try to redress that balance at relevant points. The committee's inquiry is perhaps the territory on which that rebalancing might be expected to take place.

The outcome of the thoughts about rebalancing would be a matter for the practices of the Parliament and the re-evaluations that the Parliament makes of its relationship with the Executive over the years, and it would be subject to the practicalities of the Parliament. There are limits to the time, resources and so on that the Parliament can be expected to provide.

The starting question might be whether under the future operation of the Scottish Parliament we expect the statute book to continue to be dominated by secondary legislation—in quantitative terms—or whether we expect more to be done through primary legislation. Once one has got to the next stage of acknowledging that some things will be done through secondary legislation, one has to be alert to maintaining the Parliament's powers with respect to whatever is delegated to the Executive. The committee will approach the matter from that point of view, although there is a balance to be struck.

Of course there are considerations of efficiency and the effectiveness of government, for example. Committee members can be expected to be as sympathetic to or as knowledgeable about those considerations as people on the Executive side of the debate are. The starting point must be alertness to the dangers that that relationship holds, if it is maintained, and the measures that might be taken to contain it best.

I am being a bit general, but that is where my concerns come from. That is why I posed the more specific questions about affirmative resolutions and such matters.

You have outlined your concerns, as you did earlier.

I ask Colin Reid to comment. The general point has been made that the volume of subordinate legislation is increasing—there is no doubt that it is—but it is difficult to see how the committee's proposals would weaken or dilute the current balance of power or scrutiny. On the balance of power, I suggest that the proposal offers the Parliament a far greater opportunity to exercise scrutiny and control—if I may use that word—over the Executive.

Perhaps the big issue is the affirmative procedure. The Parliament has had three levels of involvement. The first is the full parliamentary procedure, which is multistage and inevitably takes a long time. The second is the affirmative procedure, under which the Parliament must give express approval, but in a way that tries to be efficient. The third covers the various negative procedures, under which instruments are considered carefully and the opportunity is available to make changes, but it is almost expected that most things will be all right.

The proposed simplification of procedures would largely get rid of the halfway house, which could result in an argument for putting more in primary legislation, if we wanted to require express parliamentary approval of matters. The affirmative procedure or some other halfway house provides a different way of dividing the work. We have a spectrum that goes from what clearly needs to be dealt with formally and officially with maximum scrutiny that involves everybody, to what is purely technical and involves tick-box exercises. Parliament must decide how many divisions to have along the spectrum and where the dividing lines will be drawn. As Chris Himsworth said, arguments and battles about how much power the executive should have for efficient government go back to the start of the previous century.

I will continue in that vein on the affirmative procedure. We are going for a simplified procedure. Simplicity is a great advantage in securing transparency in how we exercise our scrutiny powers. I do not say that the affirmative procedure has been misused, but, in relation to orders on paralytic shellfish poisoning, for example, it has required a minister to appear before the Health Committee almost every month, although no questions are ever asked. When that happens, the process becomes slightly meaningless and is demeaned. The proposed reforms would allow judgment to be exercised about what is called for debate. A political or other judgment could be made about scrutinising a measure and whether the Parliament was required to make a statement or have a debate.

Several people have commented on the fact that the Parliament has never annulled an instrument, although the Executive has withdrawn some instruments. Chris Himsworth has said that we are missing the opportunity to use the affirmative procedure as a chance to focus debate, but we suggest that the new procedure provides a far better way to focus debate.

I would be the first to subscribe to the general advantages of simplicity and transparency, and I see the attractions of the new procedure for such reasons. The attractions sound good. I also understand the difficulties that may emerge from some procedures becoming a bit tired, lying unused, being a waste of time all round and becoming overly formal in the worst sense. However, two responses can be made to that. First, one may still expect to want to flex one's muscles and use the power that is available to the Parliament only every so often; on other occasions, matters will remain relatively routine.

The other response relates to the general use of affirmative resolutions. If forms of delegated legislation have attracted the wrong procedure, it is in principle open to the Parliament to modify the procedure and enable something to be done differently, in so far as doing so is in the Parliament's gift. Of course the point is taken, as it has been at Westminster over many years, that measures such as additional taxation in particular ought to attract the affirmative procedure for constitutional reasons. A fairly consistent thread runs through the statute book on that basis.

However, beyond that, the perceived significance of instruments is the issue. Sometimes, a distinction is made so that the first instrument in a series on a new system of grants or other financial arrangements is subject to the affirmative procedure while later instruments are subject to the negative procedure. I am sure that inconsistencies and irrationalities can be identified. However, that is a question of babies and bath water. We do not necessarily abandon the concept of the affirmative resolution procedure just because irrational inconsistencies have occurred.

Another step that was proposed in the direction of the committee's proposal was that the committee or somebody else in the Parliament could decide, after primary legislation had been passed, what procedure should attach to delegated legislation. That proposal has never attracted me much and I am rather glad that the committee has gone beyond it to the general procedure.

I return to the member's original statement about the new procedure. I accept that the idea that every instrument could be laid in draft and be subject to review by the Parliament—although that might not suit the Executive—sounds like a strong measure to adopt. However, still lurking is the present requirement—I do not see how its constitutional validity has been displaced by things that have happened since—that the Parliament must commit itself affirmatively and positively to some instruments rather than simply follow a procedure that requires a draft to be laid and enables consideration to be given but does not formally require the Parliament to be seen to say yes to an instrument.

Given the way in which the committee is going, perhaps that is a price that will have to be paid. My interpretation of Dr McHarg's response in her submission is that she believes that it would be worth paying that price. She can see that a balance must be maintained and seems to be persuaded by the committee's view. It is plain that reasonable people can reach different conclusions on the same matter. However, I believe that it is still an issue, because such instances, although currently uncommon, would be affected most poignantly by the proposed new general procedure.

The Parliament should review at all times whether the correct procedure is used for particular orders. If the shellfish orders, for example, were subject to an inappropriate procedure, that should be considered and changed, to the extent that that is within the Parliament's power.

In relation to the bigger issue, I am left with a series of questions that I cannot answer. Does the fact that a measure has to go through the affirmative procedure alter the Executive's thinking about what it puts in it and how it is shaped? Does that alter what is acceptable in the political process? Will relying wholly on the parliamentarians to pick up the important points be absolutely sound, given distractions at times of political crisis? Realistically, one can have only so many balls in the air at one time and important matters might be allowed to slip through while concentration is elsewhere.

I do not know enough about the inside workings of either the Executive or the Parliament to be able to answer such questions. Retaining the affirmative procedure might be seen as a longstop or guarantee that members and the Executive will be forced to think consciously about measures rather than allowing them to be overtaken by other events.

Professor Reid said that parliamentarians would have to be guard dogs who look at every proposal to make sure that they are aware of its significance in order to pick up on the important ones. That is correct.

Currently, the Executive decides what is important. In primary legislation, the Executive decides which later measures will be subject to the affirmative and negative procedures. Although the Parliament agrees to that when passing the primary legislation, the significance of the different procedures is not necessarily clear at the time. For example, negative instruments have later turned out to be extremely significant, and yet it is the Executive that is proposing negative instruments on important matters. I do not see how the proposed procedure would be worse than what we have currently.

That goes back to the point that both Professor Himsworth and I made at the beginning of the meeting about the wider process. It is the Parliament that decides what procedure should be followed. The Executive might propose it, but ultimately the Parliament decides what will be in an act. That goes back to Chris Himsworth's point about the balance between the Executive and the Parliament in the law-making process at all stages.

There will always be areas that are thought to be important, whereas what is proposed is totally non-controversial and will not matter. Equally, areas that are not expected to be controversial can turn out to be so. It is true that there needs to be constant scrutiny of every measure in order to pick up such changes as and when they occur. However, as concerns constitutional propriety and the express endorsement of the Parliament, one could argue that there is scope for the affirmative procedure in areas where one wants to ensure debate.

Similarly, certain aspects always have to be gone through formally at company annual general meetings although they are not controversial most years. The fact that directors have to come to the AGM to get certain matters approved is a form of check and guarantee that when people's minds are elsewhere for perfectly good reasons, people will realise that certain matters are still important.

I accept what you say, but having gone through the review of parliamentary procedure, I have been convinced that the flexibility offered by the proposed new general procedure would allow parliamentarians, particularly in committees, but perhaps in the chamber, to focus on important proposed measures. The general procedure would give the flexibility to deal with unforeseen circumstances. I accept that different reasonable people reach different conclusions, but that ability to react to matters as they arise, as opposed to trying to predict what will happen in advance—I come back to that phrase, a "price worth paying"—is better than the formal process of the affirmative procedure. I am not asking a question; just noting a difference of opinion.

What is the cost of having some measures go through the affirmative process unnecessarily? Would we lose more by doing that than we might gain through catching some of the important measures that could otherwise slip through? It is important to keep under review whether the correct procedure is being used for the correct measure so that when one identifies a class of measures that have been dealt with inappropriately, one can go back to the Parliament to get them changed.

Stewart Maxwell is suggesting that, in the evolving process that we have, what we are currently accustomed to debating in the lead committee would be understood. An issue would be highlighted as on-going by committee clerks and committee members, which is what the affirmative procedure is being used for at the moment in many cases. I do not know whether you would accept that the experience that we have gained from the evolving process is sufficient to allow the general approach and the advantages of its simplicity. I understand your argument—I am of the same opinion—but we might have to accept that committees now have a lot of expertise. The areas that you outlined in particular, such as the budget, need that type of debate and have always had it. What do you think of the gathering expertise that committees now have?

I pay huge respect to that gathering expertise and experience. Both Colin Reid and I made the point that there are aspects of the debate that raised questions that are much better answered by those who have got their hands dirty with this business in recent years, within the Parliament and the Executive. As I said at the beginning, I would accept the arguments that point in the direction of greater simplicity and transparency. I would certainly sympathise with developments in favour of greater managed selectivity of attention given by committees. That is bound to be a consideration, given that there are lots of other things to do. The use of appropriate procedures to enable selective approaches, which can be managed within a comprehensive procedure, sounds altogether attractive. Those are the upsides of that sort of development.

The parallel with company practices is not exact; nor is the parallel with local authority practices—I would be reluctant to draw such a parallel in other circumstances—but there is a statutory requirement that certain significant decisions by local authorities, such as the setting of the council tax, have to be handled by the full council of the authority, rather than by some delegated committee on behalf of the council. It is not a question of procedure or of the issue being brought to the attention of members. It is not that consideration cannot be given to such matters, but that a constitutional status is given to certain types of decision, which sets them apart.

I am not quite sure about the detail of what I would argue for. The exceptional procedure that is already envisaged would not take account of the instances of the use of the affirmative resolution of which I am thinking. It seems to me that it would be worth hanging on to the requirement that Parliament be seen to affirm certain measures as part of a generally uniform procedure. Once the number of procedural options has been whittled down from the five, seven or nine possibilities that currently exist on the statute book to one in principle, it should still be possible to retain that capability in the framework, until contrary arguments are produced.

Does Colin Reid have a similar view?

Yes. My general point is that, over the centuries, our constitutional tradition has attached as much importance to conventions as it has to legal rules. If the feeling is that there are clear practices and conventions that provide adequate protection for certain matters, that would certainly not be unusual in the British way of doing things.

Gordon Jackson has some questions.

We considered the idea of the Subordinate Legislation Committee and the lead committee considering items of subordinate legislation in parallel rather than in sequence, which is the present practice, and the possibility of our having the power to recommend disapproval or annulment. Will you expand on your concerns about our proposals on disapproval or annulment?

I will go first. My position echoes a point that Colin Reid put elegantly in his submission, which is about the manageability of consideration of subordinate legislation. It is difficult for people from outside the Parliament to comment on that. If a parallel procedure can be operated efficiently, it will be a good thing.

On the role of the Subordinate Legislation Committee specifically, my presentation of two arguments might, on the face of it, appear to be a little contradictory. That is because I had still not come to a final view when I prepared my submission. On one hand, it seemed to me that, with respect, the case had still to be made for the Subordinate Legislation Committee's role to be elevated to that of the lead committee or of the Parliament as a whole, which can recommend that an instrument be withdrawn or can take action that has the effect of annulling a draft instrument. However, I recognise that that proposal has its attractions and in no way do I wish to downgrade the work that has been done by this committee and its equivalent committees at Westminster. The points that have been made by those so-called technical committees have consistently been far stronger than those that have been made as part of reviews of legislative proposals on other grounds, such as their merits. The question is whether that should lead to this committee having the equivalent of an annulling power under the new procedure.

Since I first raised that question, I have become more sympathetic to the committee's point of view, which reflects the logic of its approach. My contrary view was that if the committee could recommend that an instrument be annulled on the ground that it was in some way ultra vires—in other words, unlawful—why stop at that? In her evidence, Dr McHarg made the point—Professor Reid might have done so, too—that the fact that an instrument raises a devolution issue is another ground on which it can be reviewed by the Subordinate Legislation Committee. Such a reason is similar to the ground of an instrument being ultra vires. To my mind, if there is a question about whether it falls within the power of the Scottish ministers rather than a United Kingdom minister to make the rules on a particular matter, that is just as fundamental an issue as whether an instrument is ultra vires.

Another example that was cited was that an instrument might be utterly unacceptable on the ground that it had been drafted defectively to the point of being unintelligible. That would seem to be just as compelling a reason for the committee to intervene at that point as the fact that an instrument gave rise to a hypothetical vires issue. There is a bit of a contradiction in my position. Although I recognise that there is an argument against the committee having a power to recommend annulment, I have largely rejected that view in that I now acknowledge that it could be argued that the proposed power should be extended so that the committee could recommend annulment on other grounds.

I will bring Colin Reid in in a minute but, on the other side of the coin, you suggest that perhaps there should be other grounds on which we could recommend annulment. When it came to the power that we wanted to take, we restricted ourselves because even though we are a parliamentary committee, we are highly non-political. Believe it or not, we manage to succeed in not being political. I took the example of an instrument raising a devolution issue as being another way of saying that it was ultra vires. To say that something is not competent for reasons to do with devolution is just another way of saying that it is ultra vires. Did you have in mind grounds for recommending that an instrument be annulled other than that it was ultra vires or that no one could understand a word of it—I am paraphrasing the other reason that you gave?

The list of the powers that the Subordinate Legislation Committee has contains about five, seven or nine points—I do not have the list in front of me. It is more or less a re-enumeration of the powers that the Westminster committees have. I have no doubt that the Subordinate Legislation Committee manages to maintain its non-political stance. Although it has occasionally been suggested that the Joint Committee on Statutory Instruments at Westminster has allowed political arguments to be raised covertly, under the cover of rather innocuous technical grounds, I am not aware that that has happened in the Scottish Parliament.

My point is not that the Subordinate Legislation Committee's approach should be questioned. Indeed, I believe that it could be adopted in relation to the other grounds on which the committee can intervene, for example in relation to the extraordinary use of powers—I forget the other grounds because I do not have the list in front of me. I am not sure why all those grounds should not remain part of the same group.

I invite Colin Reid to comment on what has been said. Do you accept that if there is to be parallel consideration of instruments, we would need to have the power to recommend annulment or disapproval? Otherwise we would just be ineffective.

That would be a useful power for the committee to have. Some of the discussion depends on how widely one draws the concept of vires. If an instrument were unintelligible, one could certainly argue to the courts that it went beyond the legal powers. We are talking about extreme cases that involve technical issues relating to the boundaries of power. The fact that matters of vires arise only in fairly extreme cases is perhaps an appropriate reflection of the role that the committee should be playing.

If there is to be parallel consideration, the Subordinate Legislation Committee should have the power to start the annulment procedure. There is then the practical issue of managing the process. Will a motion to annul be lodged by both the Subordinate Legislation Committee and the lead committee? Will one have to give way to the other? How will such matters be worked out? Such considerations must be dealt with through the internal workings of the committee system.

We would assume that the other technical committee—the Procedures Committee—would work out a method of dealing with that nuts-and-bolts question in due course. I think that either one or both of you were somewhat unconvinced that a motion to annul could come only from the committees. Linked to that is the legitimate point that regardless of whether committees are whipped—one of the great mysteries of the Parliament is precisely what goes on in committees—there is an Executive majority on them. Should there be more power for Parliament to disapprove of instruments and, if so, how could that be provided, bearing in mind that it is likely that some of the instruments would already be in force? I am trying to tease out the idea of broadening out the Parliament's power as against the committees' power, given the Executive majority on committees.

I sought simply to air the issue. My concerns about that are much less in relation to this committee. I believe that the current procedures in the standing orders provide that motions to annul have to be initiated within a committee.

Any member of the Parliament can lodge a motion to annul and then go to the committee considering the motion. Only once in seven years have I laid a motion to annul before a committee of which I was not a member. That was pure politics; it was nothing to do with technical matters. Anyone can lodge a motion to annul and go to the committee considering it, but only the committee members vote on it.

I wanted to raise that specific issue afresh in the context of a potential new procedure and the Parliament's first comprehensive consideration of the procedures since the development of the original standing orders.

I can see that it might still be necessary to confine the route, on the ground of efficiency within the Parliament. Political objections to instruments might well be made; the procedure might be a device for broader political purposes. I am not certain that such an opportunity should be narrowed. I suspect that the new procedure will not narrow it any more than the current rules do.

There will always be a balance in the relationship between individual MSPs or groups of MSPs on committees, in the same way that there is a balance in the relationship between the Parliament and the Executive. You might want to consider providing that a certain number of MSPs could lodge a motion to annul, rather than allowing an individual MSP to throw a spanner in the works. The dynamics will change. If you are looking at all the instruments in draft form, you will not face the same pressure to consider whether an order will continue to be in force. That in itself might alter the dynamics in the committees. Without having observed the detailed workings of the various committees, I think that it is hard to comment on how open they are to suggestions from outside. Again, the wider context comes into this. If you are losing the affirmative procedure, that might narrow the opportunity for outside MSPs to get involved and take the initiative. With lots of different things moving around, the dynamic will be quite different.

Does the new procedure accommodate the Executive too much? Are we making things too easy for the Executive?

There is a danger of that. I am not sure how the whole process will work. A fundamental part of what is being proposed is the advance schedule of legislation. Given the Executive's current practice, whereby some measures that appear to have been promised are delayed for hidden reasons, such as the need to co-ordinate with European initiatives and measures in the rest of the United Kingdom, I am not sure how effective the new procedure will be. The new procedure will require a big change in practice on the part of both the Parliament and the Executive. If everybody buys into it and is happy for it to go forward, it could work. However, if either side is unhappy or the practice does not work out, things could fall apart.

I ask Gordon Jackson to move on to questions on the definition of SSIs.

We raised the question, "When is an SSI not an SSI?" We recommended that the definition of an SSI should not cover every rule or anything that looks like a piece of legislation. Dr McHarg made the interesting suggestion that although there should be no general requirement that all rules of a legislative character be made by SSI, there should be enacted a rebuttable statutory presumption that rules that are not made as SSIs do not have any binding legal effect. She saw certain advantages in that. Do you have any comment on that?

I hold the very old-fashioned, strict view that there are things that are law and things that are not. Only the things that are law change, take away or confer legal rights and entitle people to be punished. In the past 20 or 30 years, there has been a general problem in government of the blurring of the distinction between what are legal matters that should be stated in a formal, recognisable sense and other forms of rules, guidance and advice. A strict division should be stuck to. Rules that affect rights and provide for possible punishment should be made by a formal law-making procedure and not in any other way.

Does that fit with Dr McHarg's view that it should be made clear, by statutory statement, that rules that are not made in that way are not legally binding laws?

I do not think that there is any need for such a statement, because that should already be the understood position. However, if people are confused about it, stating what I would say is obvious might not be a bad thing.

You had concerns about the suggestion that certain measures might be removed from the SSI category, which would impact on their publication. Will you elaborate on that?

The SSI status affects the procedure by which things are made and the status that they enjoy in the courts. There are also publicity and publication elements to that. With local SSIs, it can already be hard to find out what the rules are, even though one can end up being prosecuted in court for breaching them. The same can apply to local authority byelaws. Somehow, getting hold of such things can be difficult.

If you are going to take things out of the class of SSIs, you need to spell out clearly the procedure by which they are being made, their legal status and the requirements for publicising them. Otherwise, people will be at risk of having their legal rights affected or of being prosecuted when they did not know what the rules were because they did not go out of their way to find out.

I think that we tentatively saw some benefit in taking certain local matters and rules of court—they are an odd example to which I might return, although they are not covered in the briefing paper—out of the formal SSI structure, in the interest of proper scrutiny, given the sheer volume of instruments that we consider. We have ended up considering things that we feel that the Parliament would be better to leave alone.

That might be appropriate. However, you have to decide what such rules are going to be. You cannot just say that they are not SSIs. You have to decide what they are going to be, the procedure for making and publicising them and their legal status. Perhaps many shellfish orders or traffic orders should be regarded as some sort of byelaw rather than statutory instruments, but that raises the issue that byelaws are a hotch-potch. Different bodies have powers to make byelaws by different procedures with or without rules on publicity, but those byelaws are still matters of law that affect legal rights and can lead to prosecution. The status of and procedures for byelaws throughout the country could be the subject for another inquiry by this or another committee.

We suggested that we could leave instruments that are to do with court procedures—such as acts of adjournal and other things that the Lord President promulgates—and let the judiciary run its own business. As a lawyer, I thought that the judges would be delighted at that, but it turned out that they were horrified and said, "No, no. Please don't leave us on our own." I do not know whether that was due to a fear of high places. Do you have any comment on that? We thought that it was sensible to clear out of the committee a lot of stuff that we did not think it was necessary for us to scrutinise.

The rules of court bring us back to two of the issues that I have raised. One is publicity, publication and how they will be disseminated, but they also raise some issues of scrutiny. Judicial independence is fine but, on the other hand, we want the judiciary to be accountable somehow. We do not want the Parliament to pass laws that give people rights that are unenforceable because the rules of court make them so—for example if, to claim a right that an act of the Scottish Parliament gave them, people had to appear at the Court of Session between 5 minutes to midnight and midnight on a particular day. That is an absurd example, but the rules of court have an impact on the effectiveness of what has happened at this end of the Royal Mile.

It had never occurred to me that a rule of court could prevent an act from working. In the seven years of the Parliament, no one has ever scrutinised a rule of court. The committee's legal adviser scrutinises them from a technical point of view, but I do not suppose that we ever scrutinise the policy of the rules.

I hope that that would never be necessary, but the question is whether you should have the fallback position of being able to do so in case things go wrong or whether other mechanisms that are available to the Parliament would provide adequate safeguards. You do not have to load everything into the SSI procedure; are there other routes by which potential problems could be dealt with?

You have given me an answer as to why there should perhaps continue to be some scrutiny of the rules of court—they might bear on how we legislate—which I had not thought of before. However, you have also said that, if the rules of court are not going to be formal SSIs, there might have to be another way of scrutinising them. Would you like to suggest another way?

Perhaps the production of an annual report on such matters would be one way. Would any minister's responsibilities extend to the rules of court? I do not know.

My inclination would be to try to keep the rules of court within the SSI framework. That is not to disagree at all with Colin Reid's fundamentalism on the difference between law and non-law. I am with him entirely on that, but my understanding is that the SSI procedure—1946 and all that—came to the rescue, as rules were being made by all sorts of bodies according to all sorts of different procedures and were lying unknown and unappreciated by the general public or even their advisers. The huge advantage of the SI designation and procedures was to cure that and bring everything within central Government control. Of course, local authority byelaws and some other things remained distinct but, as long as Parliament said that a measure was to be an order in council or a statutory instrument, the complete code was brought to bear. Perhaps it is worth trying to hang on to that.

There seem to me to be two reasons for departing from a standard procedure. One relates to publication, but I wonder whether that has been overcome by technology. Websites seem to be able to accommodate virtually anything and I cannot understand why we cannot have every SSI, whether local or not, on the same website. One can understand the concerns of Her Majesty's Stationery Office in 1946 about not wanting to publish local instruments and complicated schedules, but one could still have rules about what has to appear on paper and be published by the Stationery Office.

The other question is what parliamentary procedures should attach to certain categories of SSI. I understand that there might be a wish to distinguish between SSIs at that point in the process. If the committee still does not have the stomach for scrutinising every local statutory instrument, so be it. There is nothing to prevent that, but the idea of retaining the uniform designation of SSI sounds nice to me. It is a good thing to hang on to.

I notice what the Lord President has said on procedure. He obviously welcomes the committee's future intervention.

We have spent nearly an hour on this matter, so I ask members and the witnesses to make their questions and answers punchier. We will move on to questions about the amendments that the committee would be able to make under the proposed new procedure.

I will treat that warning with due reverence.

There seems to be a difference of opinion between the witnesses and Dr McHarg on the power of amendment. We recommended that the committee should have the power to suggest amendments to the Executive to tidy up mistakes in an instrument without stopping the clock—that is the phrase that has come to be used. What is your opinion on going beyond the committee's recommendation on that point? Should lead committees be allowed the power to suggest to the Executive amendments on the policy of statutory instruments? Dr McHarg seems to suggest that such powers should go as far as the lead committee and even further.

I favour leaving the power of amendment in the Executive's hands on the directions of the committees because so much subordinate legislation is interconnected in all sorts of ways or is constrained in various ways by European legislation that a well-meaning, sensible and perfectly reasonable proposal that anyone in the Parliament could make might hit other problems elsewhere. For that reason, the right way forward is for the Executive to be responsible for proposing detailed amendments. It is a safer way forward than committees doing what they think is best and what seems perfectly reasonable to everybody and then, three months down the line, discovering because of something that is about to come out that a stray provision is in force.

On who should have the power to propose amendments, to the extent that the power is meant to deal only with minor, technical drafting matters, it seems more appropriate to leave it to this committee. If it were opened up to the lead committees, would it be regarded as an opportunity for restructuring the policy issues? Would it be an irresistible invitation to start debating matters that are perhaps not appropriately debated in the context of making particular changes to particular bits of legislation that may be part of a wider network?

Professor Himsworth, do you have a view on the question?

I can be brief, as I broadly agree. The move from the old procedures to the uniform procedure in draft provides a good opportunity for the proposals on recommendation of amendment, whereas the old notion of amendment instead of annulment raised sharper and perhaps more difficult questions that the committee did not fully resolve.

As to which committee should have the power, my provisional feeling is that there is no reason why recommendations on amendments to draft instruments should not come from both sources.

When the committee discussed the arguments, our view was that going beyond minor or technical amendments could open up an issue again. Parliament agrees the policy in the primary legislation, and we felt that giving people a second chance by allowing them to make policy amendments to statutory instruments could lead to radical changes to the intentions of the primary legislation. The example comes to mind of the Smoking, Health and Social Care (Scotland) Act 2005, in which much of the detail was left to regulations. If a committee could intervene in such regulations, the same debates could come up as came up during the passage of the parent act. We did not feel that that would be appropriate.

Some parent acts more or less say, "The Scottish ministers shall go away and make regulations"—they say scarcely anything further. That is much frowned on and may be a style of legislation that, over the years, this Parliament will increasingly not agree to pass.

Some powers are remarkably broadly cast, and the point at which rules are made is really the first opportunity for the Parliament to debate the substance of legislation. Even if the Parliament has seen some draft rules in advance, it would not be reasonable—if any notion of scrutiny or of potential control over outcomes in issues of substance is to be retained—to surrender the power to scrutinise beyond saying, "We think it's a bad thing," or to lose the power to say, "No, we really want you to have a rethink, even at the cost of delaying the making of the regulations, because some fundamental issues remain to be resolved."

As you say, a lot is often left to ministers. However, what has happened in practice is that the committee has demanded to see draft regulations so that it can be sure that certain things have been covered. The situation is not quite as bad as you suggest. Practice has evolved—although I am not sure that we are going in the best direction.

Dr McHarg suggests that the whole Parliament should be given the power to amend SSIs. Would that be a natural and logical extension of lead committees having such a power, or should the line be drawn at committees?

Two issues arise. One is the fundamental constitutional issue, which was raised the last time we were here, although it was not tested to destruction. Whose rules are they? Who owns the rules once they are made? Do they remain the Scottish ministers' rules, even when responsibility has been shared with the Parliament? Such questions are answered to an extent by scrutiny of drafts, because out of that procedure come instruments that are made by ministers.

The second issue is that of practicality. A lingering democratic instinct may make people feel that certain issues should be brought to the chamber—

That is what the committee discussed—practicality.

Yes, and such discussions can lead to a rather different tension. The question becomes not only one of ownership and constitutional propriety, but one of the tension between democracy and efficiency.

Timing would also be an issue: when would an amendment take effect and would anyone be able to check it? If a committee recommends an amendment and the Executive takes up the recommendation, there is a possibility of parliamentary consideration as a backstop if a dispute arises over whether the amendment is adequate. However, if the issue is raised only with the full Parliament, problems may arise.

Would Stewart Maxwell like to ask about commencement orders?

All right. Interestingly, the two professors seem to have come to diametrically opposed conclusions on commencement orders. Professor Himsworth thinks that commencement orders should be subject to scrutiny by the lead committee on policy grounds; and Professor Reid is saying that such orders are non-controversial—they are just commencement orders. I ask both to expand on how they arrived at their different conclusions.

I accept that, on the whole, lots of commencement orders turn out to be non-controversial. However, I have a bit of a bee in my bonnet about them.

Unless it is constrained by one of the rather complex formulae that say that, in any event, a law will come into effect by a certain date, a Parliament that delegates the power to decide whether laws come into effect or not—and, if so, when—is actually giving remarkable power to the Executive. At Westminster, there are lingering examples of legislation that has never come into effect because it has never been commenced. At Westminster—and the issue may also be being considered in this Parliament—there has been a struggle to monitor what has come into force and the criteria used for bringing it into force on a particular date.

On the whole, commencement orders have not been subject to parliamentary procedure—to annulment or to affirmative resolution. That has struck me as being slightly anomalous over the years, and I hope that this Parliament will consider the issue. The conclusion may be that, in the main, commencement orders are indeed deeply insignificant and merely technical. However, because of their possible policy consequences, it is not inconceivable that timings will affect the effectiveness of an act. That could be just as important as other policy issues raised by the act itself.

I accept that, but the problem of non-commencement would not be solved by your suggestion. If a commencement order is never introduced, it is difficult to know how to deal with the Executive about that.

I take that point.

Commencement orders can raise significant policy issues, but I am not convinced that the best way of addressing the problem is to subject individual orders to scrutiny as items of subordinate legislation. An overview taken at certain times—considering what has or has not been commenced—would give the Parliament a better opportunity to scrutinise what is going on and to identify patterns. Taking such an overview as a separate exercise would be better than taking a piecemeal approach and perhaps losing track of things.

That chimes with something that we have discussed—that the committee should produce a report card covering what the Executive has or has not done, what legislation it has or has not commenced and which of our recommendations it has or has not taken up.

You will know whether this committee is or is not the most appropriate committee to consider commencement orders, in view of the policy issues that arise. However, a statement of where we stand in relation to commencement and an opportunity to discuss that statement and to question the Executive on why legislation has been delayed more than was expected would be useful additions to the way in which the Parliament operates.

I do not think that we envisaged that we would then bring the minister to account for that. It might be a lead committee's role to pick up on the report and to ask why certain things had happened or not.

We picked up this point from the Joint Committee on Statutory Instruments at Westminster, which I think had adopted that approach.

On the non-making of an order, the exception comes where large tranches of an act are brought into force but some sections are not. I do not see why, in theory, an order could not be scrutinised in respect of its omissions.

Those are very good suggestions. Thank you very much.

Adam Ingram has the final question, on the emergency procedure.

There seems to be a little bit of confusion about the exceptional procedure. There are two types of case: first, cases that are identified in the parent act as being subject to the emergency procedure; and, secondly, cases in which the Executive considers that it cannot comply with the general procedure and that an instrument has to come into force urgently—for example, it might be necessary to have instruments that are similar to those that apply in the rest of the UK. Do you agree that the exceptional procedure should be available in both types of case?

I did not submit anything on exceptional procedures, beyond acknowledging that they are there and that they seem to be a good thing. I imagine that there is an argument for both types of case coming under an exceptional procedure.

I agree. The obvious examples concern food safety and certain environmental safety matters, on which quick action is required. Those areas can be identified in advance. I suspect that you might run into difficulties and arguments with the other category. When is it necessary, as opposed to convenient, desirable, preferable or practical, to bring in measures at the same time as Westminster brings them in? There might be particular difficulties given that Westminster operates under a different timetable of recesses and elections.

The issue of co-ordination will require a lot of thought and, I suspect, a big change in practice, and not just in the Scottish Executive. If such co-ordination is really to work, the change will need to apply to the Whitehall departments. Otherwise, there is a danger that, in those areas in which the European Community lies at the back of things, matters will be dealt with in London, through Westminster's powers under the European Communities Act 1972, rather than people facing the hassle or difficulty of working out the different timescales, going through the exceptional procedure and putting in reports. People will say, "Och, it's easier just to make one order in London."

Would not that put a burden or obligation on the committee to scrutinise the urgent cases as defined by the Executive? If we determined that any such instruments were unnecessary, should we be able to report that to Parliament? Can you suggest any criteria that we could use to measure what the Executive might regard as necessary or urgent?

I would quite like to see what the Executive says in relation to that suggestion in the first place before expressing a clear view on the matter. There are very few cases in which one could argue that, legally, it was absolutely necessary for things to happen together on a particular date. In lots of other cases, it will be hugely convenient—not just for the Executive, but for the people on the receiving end of the legislation—for rules to come in at the same time throughout the country. The issue is not black and white. The example that I was thinking of relates to a reserved matter, so it is not a good one, but there are all sorts of areas of cross-boundary business in which it makes sense for rules to come in on the same date. It is not absolutely necessary for them to come in on the same date, but it is good government for them to do so.

This strikes me as rather post hoc report card stuff. Provided that one puts in an initial hurdle and that the Scottish ministers are seen to be declaring that a matter is an emergency and reporting that to the Presiding Officer, for example—whatever procedure is adopted, it must be followed seriously—post hoc monitoring is probably the best way to check up on things after the event.

Thank you very much for spending time with us this morning. Some of your suggestions have been very useful. We hope to take some more evidence and finish our report by Christmas. We also hope to receive a response from the Executive that will be useful. I hope that you will not mind if we write to you if we think of further questions. If you have any further thoughts, please get back to us.

I suggest that we take a few minutes' break before we move on to item 3.

Meeting suspended.

On resuming—