Official Report 342KB pdf
The purpose of agenda item 5 is to consider the powers to make subordinate legislation that the Small Business, Enterprise and Employment Bill—which is a piece of United Kingdom Parliament legislation—confers on the Scottish ministers.
Members will recall that we considered the bill last week and agreed to write to the Scottish Government for an explanation in relation to the powers in clauses 149 to 151 and a proposed new clause. The relevant amendments containing those powers were tabled in the House of Lords on 7 January 2015.
The clauses in question will provide the Treasury and the Scottish ministers with powers to make regulations that would require a public sector employee or office-holder who received an exit payment as a result of leaving work or the relevant office to return the payment or a proportion of it.
Given the potential significance of the powers, the committee asked the Scottish Government why it was considered appropriate that regulations that are made by the Scottish ministers under clause 149 of the bill should be subject to the negative rather than the affirmative procedure.
The committee may consider that the Government’s response does not provide a sufficient explanation of why the negative procedure is considered appropriate.
It strikes me that, on this occasion, the use of the negative procedure may make some sense. It is not clear that the requirements that we would normally expect to be present that would lead us to say that the affirmative procedure should be used are present. The powers in question appear to relate to a matter of detail rather than a matter of creating legislation. It is a fine distinction, but I am not clear that we should particularly object to the use of the negative procedure in this case.
The proposal is that we should suggest to the Government via the lead committee that it should reconsider the use of the negative procedure.
I would propose otherwise. I suggest that, while we should draw the matter to the lead committee’s attention, we should make no recommendation about changing the procedure that is used.
That would possibly be the point, but the lead committee might want to look at the issue again and, with its deeper insights into the problem, come to a view.
In effect, we have a proposal.
I have a lot of sympathy with the idea that the affirmative procedure should be used, because I feel that the area with which such regulations would deal is such a sensitive one. It is an area that is of considerable interest to the public, and it is one in which there have been problems in the past. I presume that that is why the relevant provision is being brought in. Therefore, I lean towards the use of the affirmative procedure.
It is clear that there are differences of opinion on the issue, but it is certainly not one on which we should have a vote—I will not even suggest that. Perhaps we should simply report to the lead committee that we are concerned that the use of the affirmative procedure is not proposed and that we are not entirely convinced by the Government’s response. We could suggest that the lead committee might like to consider the matter from a policy point of view, because that is what it is about, whereas our concern is with process. Would members be comfortable with that?
Members indicated agreement.
We will find a form of words. That is not quite what we normally do, but let us address the matter in that way.
That takes us to the end of the agenda. Thank you all very much.
Meeting closed at 10:48.