Subordinate Legislation Committee,

Meeting date: Tuesday, May 25, 2004

Official Report 114KB pdf

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Regulatory Framework Inquiry

We move on to item 10, which is the committee's inquiry into the regulatory framework in Scotland. Members have a copy of the report that Christine May and Alasdair Morgan have put together on their visit to Westminster. Perhaps one of them would like to speak to the paper and take us through some of the main points. Who would like to volunteer?

Perhaps I could give some overall impressions rather than speak specifically to the report. Unlike Alasdair Morgan, I have no experience of Westminster. What struck me was how diffuse the scrutiny system for subordinate legislation is; it is spread over a number of bodies.

As the report highlights, the body that tends to have the greatest weight placed on its deliberations is the House of Lords Delegated Powers and Regulatory Reform Committee, which is a select committee. Certainly, it was clear from what its members told us that significant account is taken of its reports. I do not think that they do very many reports in huge detail, but when they do produce one, the weight of the committee's expertise means that its reports count for a considerable amount.

The other question that was asked of that committee's members was what account they took of Scottish elements in delegated legislation. Other than Lady—I am sorry—

Lady Carnegie.

Yes. Lady Carnegie made it her business to look out for Scottish elements.

The House of Commons Regulatory Reform Committee does not meet on a regular basis; it meets only when there is sufficient work for it to do.

The Joint Committee on Statutory Instruments is quite similar to this committee. I recall that its membership is fairly static, which means that it has built up a considerable amount of skill and expertise. Its meetings are relatively short. We found it interesting that most of the JCSI's meetings are held in private, unless witnesses have been called to give evidence. The fact that there is no statutory requirement to publicise the committee's agenda means that the timescale between deciding what might be on the agenda and debating a particular subject is quite short.

The European Scrutiny Committee obviously considers a great volume of material. I suppose that the main difference is that Westminster does not have the subject committee structure that we do, which allows the policy elements to be examined in parallel with the work that the Subordinate Legislation Committee does. That is a significant difference.

I have to confess that, by the time we found out about the Select Committee on the Merits of Statutory Instruments, my brain was getting a bit tired—it had been a very long day. Alasdair Morgan might want to comment on what that committee does.

Although the work of the regulatory impact unit and the better regulation task force was interesting, I did not get a great sense of what they have achieved in terms of reducing regulation in a practical way. We still hear the same sorts of comments from business, local authorities and others about the impact of regulation. Perhaps a bit more time might be necessary for that to work through the system.

Thank you, Christine. Alasdair, do you want to add anything?

It is clear that, from the outside, the position as regards the number of committees and how their responsibilities are divided is a bit confusing. Our system is much simpler. That is because the Westminster system has arisen in an ad hoc fashion over many years and because Westminster is a bicameral Parliament, which means that two chambers have an interest in subordinate legislation.

I will develop a couple of the points that Christine May mentioned. There might well be an issue about United Kingdom statutory instruments that cover Scotland, but I suspect that that is no more the case with statutory instruments than it is with primary legislation.

Some of the committees at Westminster seem to have more weight. For example, the Select Committee on the Merits of Statutory Instruments can secure a debate in the House of Lords if it has concerns about a particular instrument. Although it is not impossible that we could secure a debate in the Scottish Parliament in similar circumstances, I suspect that that is rather unlikely to happen.

The fact that the Westminster system has some strengths stems, in part, from the more extended consideration that the House of Lords can give to all kinds of legislation; it can adopt a more measured and relaxed approach and can examine matters in depth. However, given that we will not have a second chamber here for some time to come, that is probably not a viable option.

I thought that the regulatory impact unit was interesting. It is clear that it has plans. The Select Committee on Delegated Powers and Regulatory Reform was also eager to consider regulatory reform, so I think that there is more pressure down in Westminster to begin to reform pre-existing legislation. That is not something that we are doing to any extent.

Are there any other comments?

I have a couple of points. First, the report was good and helpful and we are all grateful for the work that Alasdair Morgan and Christine May have done.

I have a query about the note in parenthesis in paragraph 17 of the report, which states:

"At Westminster, Ministers are required to provide with affirmative instruments, a statement of compatibility with Human Rights."

It goes on to say that there is no such parallel requirement here. I wondered what the reason for that is and whether it is an issue that we should consider at some stage. At first sight, it occurred to me that the reason might well be that all our legislation must be compatible with human rights, but I presume that that would not cover subordinate legislation that was made under pre-devolution legislation. It struck me that that was a bit of a gap in our procedures.

I gather that that is because we have a blanket requirement for the European convention on human rights to apply to all our committee work and so on.

Does that mean that any subordinate legislation that was made under the Environmental Protection Act 1990, for example, which was passed pre-devolution, would be ECHR proof?

As far as legislation that has been passed since the Scottish Parliament was set up is concerned—which is obviously all that we are concerned with—everything that the ministers deal with must have taken into account the human rights aspect. Can you ask your question about the pre-devolution situation again?

Not all the statutory instruments that Scottish ministers make are made within the framework of devolved legislation; some of them are made within the framework of primary legislation that predates devolution and which was passed when adherence to the ECHR was not binding. I am simply asking whether instruments that are made under those arrangements are still ECHR proof.

We do not believe that such instruments would be ECHR proof.

That is a good point.

We do not need to put the matter at the top of our agenda, but the legal advisers might like to give it some thought and to consider whether we ought to raise it.

That is a very good point. In relation to paragraph 17 of the report, I suggest that we—

I do not think that the paragraph needs to be changed; it simply identifies an issue.

Yes, but I do not want to miss that point when we conduct our review. I want to ensure that Alasdair Rankin has made a note of it. The legal adviser will find some more information and prepare a further note for us, which will add to the comment in paragraph 17.

The other point that struck me when reading the report relates to paragraph 27, which says:

"The Committee was aware that any instrument on which it did report would be likely to be prayed against."

That is a straightforward importation of Westminster jargon. I wonder whether it might be helpful to translate that into everyday speak. There are many pieces of legislation in the Scottish Parliament that all sorts of people pray against in a different sense. [Laughter.]

That is no problem; we can do that.

I was not thinking of Stewart Maxwell's bill, although I know one or two people who might be praying against that.

I was interested in paragraph 26, the opening sentence of which mentions that "some 1,500 negative instruments" come before Parliament each session. That is an incredible number of negative instruments. On the back of that, I wondered how effective Westminster had been in reducing the number of statutory instruments. Does the figure of 1,500 represent a reduction on the number of negative instruments in previous years or has there been no impact at all? The regulatory impact unit has obviously been set up with the intention of simplifying, codifying and consolidating what already exists, but I hope that it also has the aim of reducing the amount of red tape. I wonder whether the figure that is quoted represents a reduction.

I do not think that we asked the question.

That figure does not represent a reduction.

I seem to recall that the impression was given that better regulation did not necessarily mean fewer pieces of paper; it just meant that less of an onus was put on those people who had to comply with it.

I accept that, but when I read that Westminster dealt with 1,500 negative instruments per session, I wondered about the volume.

I think that we were struck by the volume of legislation that is dealt with by a plethora of committees. It made my head ache to think about how anyone could keep a track of the whole process.

I accept what Christine May said about the fact that better regulation does not necessarily mean less regulation, but I hope that, in addition to simplification and codification, part of the remit would be to reduce the overall amount of bureaucracy, if possible. Having read some of the material for the next item on the agenda, I would have thought that one of the points of our inquiry into the regulatory framework in Scotland would be to consider whether certain pieces of subordinate legislation—whether negative or otherwise—are not only well drafted and all the other things that they need to be, but necessary. I would have thought that reducing the number of statutory instruments should be part of the overall agenda that is considered.

That is one of the things that the regulatory reform folk look at. They consider whether it is necessary to have instruments at all. However, I do not think that they have yet found an example of one that was not necessary. I am sure that we asked about that.

I was just curious about that.

As Murray Tosh did, I thank Alasdair Morgan and Christine May, as well as Alasdair Rankin, the clerk, and Margaret Macdonald, our legal adviser, for their input and for putting together the draft report. I thank Alasdair Morgan and Christine May in particular for giving us the context, which is always very useful. Alasdair Morgan also has the experience of having been at Westminster as an MP.

It might be appropriate for you to write to the relevant people at Westminster, in each House, to thank them.

Yes, that is agreed.

I bring to an end the public part of the meeting. We move into private for item 11.

Meeting continued in private until 12:10.