Subordinate Legislation Committee

Meeting date: Tuesday, October 25, 2011

Official Report 281KB pdf

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Subordinate Legislation

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Interpretation and Legislative Reform (Scotland) Act 2010 (Consequential, Savings and Transitional Provisions) Order 2011 [Draft]

I welcome members to the eighth meeting in session 4 of the Subordinate Legislation Committee. I ask all those present to switch off their mobile phones if they have not already done so. We have received apologies from John Scott.

Agenda item 1 is the first of two items concerned with the consideration of the Interpretation and Legislative Reform (Scotland) Act 2010 (Consequential, Savings and Transitional Provisions) Order 2011 [Draft]. The committee is considering the instrument today from a policy perspective. We considered it at our previous meeting from the usual technical non-policy perspective, and we did not have any concerns. Our job today is different, in that we are considering the policy aspect in our lead committee capacity; that is why the Minister for Parliamentary Business and Chief Whip and his officials are before us.

The first item is an opportunity for members to question the minister and his officials on the instrument prior to debating the motion recommending its approval under item 2. I welcome Brian Adam, Minister for Parliamentary Business and Chief Whip in the Scottish Government; Fraser Gough, from the Scottish Government legal directorate; and Al Gibson, policy adviser with the constitution and governance team in the Scottish Government. I thank you for coming, gentlemen.

Would the minister like to make an opening statement?

Yes, I would. I thank you for your kind remarks. The instrument on which I am giving evidence is in itself relatively straightforward. However, I consider it appropriate to offer the committee a few introductory remarks to place matters in context.

The draft order is promoted under powers that are contained in the Interpretation and Legislative Reform (Scotland) Act 2010. The basis for the 2010 act was to replace three transitional orders that were enacted back in 1999 by Westminster to underpin legislative matters at the Scottish Parliament. One of the reforms that the act delivered was a reduction in the number of parliamentary procedures for the scrutiny of subordinate legislation, for which I am sure all members are grateful, especially those of you who served in the previous session of Parliament.

The act defines three distinct scrutiny procedures: the affirmative procedure, in which a Scottish statutory instrument is laid in draft and is only made subject to parliamentary approval; the negative procedure, in which an SSI is made before it is laid and the instrument is subject to annulment by the Parliament for a 40-day period after laying; and no procedure other than laying.

Schedule 3 to the 2010 act modified the scrutiny procedures in existing acts to one of those three procedures. However, certain statutory frameworks gave rise to the need to make further consequential amendments to complete the modification exercise. Although towards the end of session 3 the Government laid a consequential order under the 2010 act, it became clear that further time was required to proof the integrity of further necessary consequential provision. In the knowledge that the order-making powers that are concerned would not be exercised during the summer, a decision was taken to postpone the making of that provision until after the summer recess. The remainder of the necessary consequential provision is contained in the draft order that is before the committee.

The Government worked closely with relevant stakeholders—the Lord President’s office and Transport Scotland—during the drafting of the order, and both parties are content. The draft order makes amendments in three areas. The first area relates to the legislation-making functions pertaining to court-related matters that are exercised by the Lord President, the Lord Justice General and the First Minister. For example, those powers relate to the setting of court fees, the disposal of court records and the removal of a sheriff. The second area relates to order-making functions that are exercisable by transport ministers in relation to significant transport infrastructure projects. Thirdly, the order simply updates a narrow and out-of-date statutory cross-reference in the European Communities Act 1972.

In summary, the effect of the consequential amendments is to ensure that the statutory frameworks that are concerned reflect the coming into force of the 2010 act. Members should note that the draft order does not affect courts or transport policy. The changes affect only the parliamentary scrutiny to which such orders will be subject.

Thank you, minister. Members have questions, the first of which is from James Dornan.

Why did the Scottish Government determine not to lay the order in the previous session of Parliament, at the same time as the other orders that implement the new ILRA framework? Given that the consultation on the draft order began last September, why was it not possible to lay it so that it came into force prior to the commencement of the new regime on 6 April 2011?

That is a fair question. In the particular areas that are covered by the order, we needed a bit more time. We are glad that we took that time because, following further consultation with stakeholders, changes that would not have been available to us back in April came to light, particularly in relation to the Lord President’s office. We were aware that nothing was going to happen between then and now that would cause any legal problems, and nothing has happened. It would have been ideal to have tied up everything at the initial stage, but the slight delay gave us improved opportunities to introduce what we hope are all the necessary corrections. If further corrections are required, we can return to the issue. However, we think that the draft order should be the end of it.

Good afternoon, minister and colleagues. The minister said that nothing significant has happened since 6 April 2011. I understand that we reduced the number of procedures from eight to three. Has any instrument of the kind that the order covers been made since 6 April 2011? You commented on courts and the 1972 act, to which I will refer. Has any instrument under section 40 of the Sheriff Courts (Scotland) Act 1907 or to which paragraph 2C of schedule 2 to the 1972 act applies been made since 6 April 2011?

To the best of my knowledge, the answer is no.

Given that answer, what would have happened if such an instrument had been made between 6 April 2011 and the coming into force of the order?

That question is hypothetical. Nothing happened, and the judgment was made that nothing was likely to happen.

These things do not happen overnight. The process of drawing up statutory instruments is fairly complex, as the committee has undoubtedly realised. Knowing that nothing was in the pipeline gave the Government confidence that there were no potential pitfalls that would have to be dealt with urgently.

I cannot answer your hypothetical question about what would have happened if something had come up. Nothing came up and nothing was forecast to come up. An instrument is not drawn up in a week, a fortnight or a month—it takes quite some time.

I will ask another hypothetical question. The order will apply retrospectively to clean up the process that applies to the acts to which we have referred and to other acts. What might happen if the process did not cover the full requirements of any new acts in the future?

The 2010 act allows for further such amendments. If we discover weaknesses, we will be more than happy to return to the matter. If the committee identifies and cares to write to me about any potential weaknesses, we will consider them appropriately.

I think that we all welcome and are grateful for the simplification that the 2010 act has introduced. In evidence to the previous Subordinate Legislation Committee on 1 March 2011, your predecessor as the Minister for Parliamentary Business intimated that a future order might among other things amend the Pensions Appeal Tribunals Act 1943. Why does the order that we are discussing not contain amendments to that act?

That question is perfectly legitimate and Mr Gough will answer it.

The 1943 act was on the list of provisions that we identified as potentially needing to be remedied. However, when we looked at it more closely, we established that schedule 3 to the 2010 act, which glosses out all the old procedures, applied perfectly adequately to the 1943 act, so we did not need to deal with that separately.

That is a great relief to our advisers, who were concerned about that.

You said that the delay had allowed you to make improvements. Are you confident that the order now captures all the enactments that it is necessary to modify to give full effect to part 2 of the 2010 act? You mentioned what would happen if other issues arose. Will you undertake to have a further review process to ensure that there are no outstanding enactments for which such provision needs to be made?

14:45

We are confident that we have covered all the eventualities, but life is such that we cannot offer guarantees. If deficiencies are identified, either on the Government side or through the committee, we will return to the issue, but I am fairly sure that we will not be doing it next week, next month or even next year. Given that we had a little more time and that we went out for a further consultation, we are pretty confident that we have covered all the bases. If we have not, we will revisit the issue. There is no plan to have it under constant review; we will react to events rather than proactively review the situation.

I hope that that fully answers the question—unless either of my colleagues wishes to comment.

Just briefly. As the minister said, the previous consultation exercise identified everything that folk thought was out in the ether, and we have taken steps in the order to address those issues. As the minister said, we will not look proactively for material on the back of the previous work that we have undertaken, but if anything crops up or further issues arise, we will be open to looking at them. Any future statutes will be drafted in line with the 2010 act.

I call Kezia Dugdale.

The minister has put on record on three occasions that he is happy to revisit the issue if problems arise, so he has dealt with my question. I will leave it at that, convener.

That is fair enough.

There being no further questions from members, I thank you, minister, for answering our questions and invite you to move the motion, on which we will have a debate—in theory.

Motion moved,

That the Subordinate Legislation Committee recommends that the Interpretation and Legislative Reform (Scotland) Act 2010 (Consequential, Savings and Transitional Provisions) Order 2011 [draft] be approved.—[Brian Adam.]

Are we happy simply to agree to the motion?

Members indicated agreement.

I thank the minister and his officials for their time.