Conference Report
I am happy that David Mundell was able to represent the committee and Parliament at the conference "Re-Engineering Regulations and Scrutiny of Legislation for the 21st Century", which took place in Sydney, Australia. David's report has been circulated to members. We cannot include his report in the committee's annual report, because the conference took place after the end of the parliamentary year. The report will live on in memory and will be included in next year's annual report. I ask David Mundell to speak to his report.
Thank you, convener. Members will be pleased to hear that I do not intend to read out the report.
Good.
I was accompanied to the conference by Alasdair Rankin, the clerk to the committee, and Margaret Macdonald, the Parliament's legal adviser. There is no doubt that our attendance at the conference was an extremely worthwhile exercise on behalf of the Parliament. Myriad contacts have been made and a body of knowledge has been gained. That knowledge does not rest only in me but in Margaret and Alasdair.
The bulk of the documentation from the conference will be placed in the Scottish Parliament information centre, so that it can be available to members. We also intend to send a copy of our report to the Presiding Officer, to the Procedures Committee and to Angus MacKay, who is the minister responsible for modernising government. Many of the issues that were highlighted in contributions made at the conference related to the modernising government agenda.
It is ironic that we had to travel to Sydney to have an opportunity to meet representatives of the House of Lords, the House of Commons, the Welsh Assembly and the Northern Ireland Assembly. We had productive discussions about our different, though complementary, practices. It would be worth our continuing those exchanges in another format, because we have a great deal to share on the issues that Gordon Jackson raised this morning—how many errors are to be expected, how many regulations are to be expected and so on.
We should not forget that at the moment there is considerable interest in the Scottish Parliament and in the fact that we are developing almost from a blank sheet of paper. There was great interest from the delegates across the world in what we were doing in Scotland, where we had started from and the choices that we made when we had a greater freedom of choice than many people who had precedents to follow. We found particular interest among delegates from South Africa and Kenya—emerging countries where they are looking to develop systems and they were keen to find out what we were doing.
Everyone at the conference was concerned with the volume of regulation. That was the overriding principle in whichever topic was discussed. Every law-making nation is producing more law and the question is how to manage that body of law. When new law is created, how does it relate back to enabling existing provisions? That is a challenge for all nations. There were discussions about how that could be done.
Various initiatives to cut back the body of law are being pursued by the UK Government, the Australian Government and the New Zealand Government. However, everybody agreed that even if we have the will to do it, it is a difficult exercise. The report highlights a number of ways in which people have sought to reduce the body of law. For example, there is a series of provisions called sunsetting provisions. Each regulation contains a date on which it expires and it would only be re-enacted if somebody proactively did something about it. That means that a fireworks act of 1858 would fall unless somebody decided that there was a current issue. Those provisions should be considered.
Two areas are worthy of the Parliament's consideration. The first is what is now being called tertiary legislation, which we have come across increasingly in this committee and in the way that the Parliament works. We have accepted it for practical reasons. The main thrust of the body of the law is contained in guidance or regulations that are issued by ministers. There is no mechanism for scrutinising that sort of regulation, which would determine, for example, how care homes are laid out, the number of staff that they have and the regulations that will apply to tuition fees and graduate endowment.
The regulations will not be scrutinised by anyone. They are a third layer of legislation after the enabling act and the subordinate legislation that this committee considers, but the meat is never properly considered by anyone. In more experienced jurisdictions, it is an issue that they are trying to address by ensuring that if there were a substantive provision, the regulations would also be laid before Parliament so that they were scrutinised in some way. That is an important point.
The second point is whether there should be a formal process of review—regulatory impact analysis or RIA as it is referred to. That would mean that when the regulations appear before this committee, they would not just appear with the explanatory note, they would appear with a much greater impact analysis so that it is clear that all the repercussions have been thought through. That is an issue for the Executive because it is resource-consuming to do that. The RIA concept is certainly gaining a great deal of credence in other jurisdictions as a way of conducting pre-scrutiny of regulations.
My final point was highlighted by Murray Sinclair last week—that we should consider how the Commonwealth of Australia copes with the issues that arise as devolved law evolves in that environment. I did not fully understand the set-up of the Commonwealth of Australia and its individual states. It is not that dissimilar to the United Kingdom's situation in some ways. There is a body of experience that we should not forget to draw upon. We often talk about the Scottish Parliament in the context of European models, but there are also Commonwealth models to consider.
I thank David Mundell for his report. I enjoyed reading it. I particularly enjoyed reading about your open-hearted invitation on behalf of the Parliament to consider hosting a conference in 2005. I will ask the clerk to report to the committee on the implications of such a generous offer before we proceed further.
The other thing that I noticed was the RIA. Your report says that there is already some type of RIA in the UK.
Yes.
It is worth drawing that to the attention of the Parliament when the report is presented, to say that it might want to consider whether it can learn from the way in which the UK is using it or whether we can improve on it.
That is possible. Margaret Macdonald accompanied me to the conference—
That was the next thing. I was going to ask Margaret if she would speak to the committee as a delegate at that conference.
Margaret Macdonald (Scottish Parliament Directorate of Legal Services):
I echo everything that David Mundell said. I found the conference extremely interesting and worth while as well as hard work. If anyone looks at the papers that were issued to us, they will find them to be of enormous interest. For me, it was an opportunity to meet other legal advisers. I found that we share many of the same problems. It seems that the same issues arise on subordinate legislation around the world.
It was interesting to learn that the Parliament of New South Wales has limited power to amend statutory instruments. I was also interested in the power of the New Zealand committee to annul instruments many years afterwards on a petition from an affected member of the public.
I noticed that that was not time-barred.
No, it was not.
There were details in the report that I found interesting, but the first thing that must happen is that the report is lodged so that it is there for everyone to access. We should learn things from it. Once again, thank you very much indeed.
All the ancillary documents will also be in SPICe—not just the report, but the various contributions. We understand that a full Hansard transcript will also be available on CD-ROM.
For Christmas?
Yes, for Christmas.
For those who cannot sleep of an evening.
That is right.