Justice 2 Committee, 27 Sep 2005

Meeting date: Tuesday, September 27, 2005

Official Report 204KB pdf

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Regulatory Powers Inquiry

Item 3 concerns the Subordinate Legislation Committee's regulatory powers inquiry. I thank the clerks for providing the committee with a paper that helpfully takes us through the various issues on which the Subordinate Legislation Committee would like to hear our views. That committee has asked me to give evidence, perhaps in November.

If members agree, I will simply go through the clerk's note and we can discuss any points that might arise. On page 1, under the heading,

"Current negative and affirmative procedure",

paragraph 4 poses two questions, the first of which is:

"Does the committee feel that, by and large, the importance of the instruments coming before it is reasonably reflected in the use of affirmative and negative procedure?"

How do members respond to that question?

I think that the importance of instruments is reasonably reflected in that way. Moreover, the Subordinate Legislation Committee's distinct role in commenting on the instruments that we receive is also very helpful.

I agree with Bill Butler. However, the issue is less about the procedure and more about how matters are intimated and there being better committee intelligence. It could be argued that things should be left up to individual members, but that is a difficult approach in the light of the number of Scottish statutory instruments. Rather than disagree about whether instruments should be subject to the affirmative procedure or the negative procedure—in the main, I do not have a quibble in that respect—we need to discuss a better system that flags up instruments with which there are difficulties. My major quibble is about instruments that might sneak through without our realising that they have done so.

Perhaps we can deal with that specific point later, as it reflects a shared concern, but I would like to confine our thoughts to the first questions in paper J2/S2/05/23/3. Do members answer yes to the main two questions in paragraph 4?

Members indicated agreement.

Do members have views on whether Parliament should have the power to amend or to recommend the amendment of SSIs?

I understand that there are arguments for why Parliament should have such a power, but I also see how a minefield could be opened up. I was convener of the Subordinate Legislation Committee long ago, so I appreciate why soundings are being taken. I can see the benefits of having such a power, but I also appreciate that real problems could be caused. I would prefer the Subordinate Legislation Committee to say what would be the downside of such an approach. I can see the upside, but the procedure could also be used for political posturing and point scoring because many SSIs are worthy aspects of Parliament's work that must be dealt with.

I am interested in your views, as you are a former convener of the Subordinate Legislation Committee. Do you agree that, under the current system, draftsmen are disciplined to be very careful about what they do when they frame SSIs because an SSI will either succeed or fall at the committee stage?

Absolutely.

That is an important point.

As a former member of the Subordinate Legislation Committee who has served under Kenny MacAskill and Margo MacDonald, I agree that minefields should be avoided. Parliament should therefore not have the power to amend or to recommend amendment of SSIs.

I would reinforce what has been said. If amendments are allowed, the committee will be in danger of being hijacked by special interest groups. Often, there is not much time to consider regulations at great length and there would tend to be a one-sided view of their impact. I would not like committees to be manipulated by special interest groups into amending instruments.

Members seem to be saying that there should be respect for the integrity of subordinate legislation, which is not primary legislation.

I agree with Maureen Macmillan. The problem with amendments is that they might be popular and supported but, as a result of timescales, might result in bad laws. The best method of addressing a bad or unpopular statutory instrument is the all-or-nothing method. As you correctly say, the draftsman must get things right or the instrument must be withdrawn. Instruments are focused and the danger in accepting amendments is that things could be all over the place as a result of drafting by individual MSPs, their researchers or whoever. That would cause mayhem.

There would also be consequences in that, if such a procedure were in effect and the committee's original finding was overruled, there would be a retrospective effect on what may for a time have been enacted legislation. The suggestion would therefore lead unwisely into very difficult territory. I have a clear feeling that members are against Parliament's being given such powers.

Let us look at the paragraph that is headed "Consultation" and the suggestion that there might be increased consultation of Parliament, as opposed to outside stakeholders, on draft instruments, which would be a kind of super-affirmative procedure. It is pointed out that that has not been used for any bills that have been considered by the Justice 2 Committee. Two questions are posed. First, do we want an increased general requirement to consult Parliament on draft instruments? Secondly, does the committee want increased use of the super-affirmative procedure? Those are two separate issues, so I ask members to differentiate between them when they comment.

On the general issue of consultation, Parliament works based on a structure of political parties; those parties cannot escape the obligation to be aware of what is happening, to inform their members and to deal collectively with how they want to respond to particular situations. I would have thought that that is an appropriate way for political education to take place. It is then open to anybody—Parliament or anyone else—to get in touch with the appropriate committee and say that they are worried about something or that they have views on something.

I agree with that. My view is that the super-affirmative procedure is probably best used sparingly. There may be an argument that it should have been used more often, but I believe that it would be devalued if it was used routinely. Its use is more a matter for the consideration of committees and ministers at the time and I would be wary of tinkering with the system. Perhaps the Parliament just needs to be reminded that the procedure exists and can be used.

I agree with Kenny MacAskill and you, convener, although I do not say that that is a holy trinity—that would be blasphemy.

It is an unprecedented harmony.

Well, this is an inclusive Parliament.

I take your point that there is a structure that should ensure that members and their parties are informed and I agree with Kenny MacAskill that the super-affirmative procedure should be used sparingly, if at all. We should work with the structure that has been laid down. For members who are not lawyers but who have the benefit of joining the Subordinate Legislation Committee, it takes time to learn about the system. We should, therefore, keep to the structure and not start mucking about with it if there is no good reason to do so.

The only time that the super-affirmative procedure is necessary is in relation to a bill where the devil in the detail will be in regulations that are made later. During scrutiny of the bill, the committee may request that the super-affirmative procedure be used when regulations on contentious issues come before the Parliament. The regulations would then be well flagged up in advance. Other committees of which I have been a member have said that they wanted the affirmative procedure to be used on such-and-such a matter when it came before the committee again as regulations. That would be a place—possibly the only place—for use of the super-affirmative procedure.

The note that we received two weeks ago reminds me that the procedure that we are discussing would make the Parliament responsible for moulding and shaping an instrument, whereas the Scotland Act 1998 states that subordinate legislation should be made by Scottish ministers or by bodies that are responsible to the Parliament, not by the Parliament itself. If we crossed that line, I would become confused and we could get ourselves into an area in which confusion, mistakes and all sorts of unintended consequences could occur. I really think that we should answer no to both questions.

Okay, that is helpful. On the first question, on whether we wish to see an increased general requirement to consult the Parliament on draft instruments, the committee's firm answer is no. On whether we wish to see an increased use of the super-affirmative procedure, the committee's answer is, again, a firm no, for the reasons of which Gillian Baxendine has managed to take a note.

The next question concerns other forms of instrument, such as directions, schemes, codes of conduct or guidelines, which are not subject to parliamentary supervision, although some might be regarded as instruments of a legislative character. I do not know what Kenny MacAskill thinks about the issue, but my lawyer's hackles were rising with every word that I read. An instrument either has a legal status or it does not. When we deal with subordinate legislation, everybody understands what it is—we have a mechanism and primary statutory guidelines. There is completely confused thinking here. My firm view is that such instruments should not become SSIs, because they are not.

I point out again that I am a non-lawyer, but apples are apples and lemons are lemons, so we should not mix them—and that is without even mentioning oranges.

We must be careful of overlegislation and overburdening. The other instruments that are mentioned are important, but they should not be SSIs. Whether parliamentary committees should be involved in scrutinising some of those schemes and codes of conduct is a separate matter, but they should not be SSIs, which was Bill Butler's point. They relate to administrative and procedural matters.

A clear message is coming out, for which I thank members.

The next issue is timing, which takes us back to the concerns that Kenny MacAskill expressed earlier. Members have seen the explanation of the timeframes for the different types of instrument, particularly the reference to the annulment procedure. Our committee has not had to use that procedure, but the timeframe is tight. I was once on a committee in which that procedure was used, which was extremely difficult, because we had to summon up a minister from somewhere at short notice, which gave rise to practical challenges.

The broad question that is posed is whether the current timescales are adequate and, if not, whether we would we like an increase and, if so, how and in what cases. One suggestion is that additional time should automatically be made available if a motion to annul is lodged. Again, as I am a lawyer, my hackles rose at that, as I see it as wide open to abuse.

The 21 and 40-day limits are sensible. The problem is not so much the number of days, but the procedure of parliamentary committees and the structure of the parliamentary week. If a committee meets on a Tuesday and an instrument is lodged on the Monday, it will be the next week until it is considered. One idea is in some instances to stop the clock, depending on when a committee sits, although some legislation could not be built around that. However, that is a matter for the Subordinate Legislation Committee, which is closer to the issue than we are.

I am wary about changing the 21-day rule. The real problems tend to arise when an instrument is lodged on a certain date and does not fit in the cycle of a particular committee's meetings—the committee's next meeting may be after the Friday on which the decision must be made, for example. I wonder whether the clock could be stopped, or whether the Executive might be asked not to lodge instruments until they can be fitted into the parliamentary cycle. That is a matter for the Subordinate Legislation Committee.

I agree with Kenny MacAskill and the convener. Any device or mechanism by which we attempted to stop the clock running would have, I guess, all sorts of unintended consequences. The timescales of 40 and 21 days are reasonable. There are times when an instrument comes close to the wire, but that is just the way things are and there is no way round that. The committee that is closest to the matter—the Subordinate Legislation Committee—will have to deal with it, as it did under the convenership of Kenny MacAskill and Margo MacDonald, and as, I am sure, it will continue to do under Sylvia Jackson's convenership.

I have known situations in which an instrument is in force before a committee considers it, which should not happen.

That happens with instruments that are considered under the negative procedure.

Yes—when they come to a committee, they can already be in operation.

Yes, but I have never known a case in which it has not been competent to annul the instrument, if a member wanted to do that.

That is true, but such situations seem nonsensical. However, I am not a lawyer. Perhaps it is all right in law, but it does not seem to be common sense.

I think that it would be nonsensical if an instrument were not subject to annulment. If an instrument is subject to annulment—

Something can be done about it.

There is a safety net.

Sometimes the situation is difficult, particularly when instruments have to be dealt with over recess periods. They have to be drafted and promulgated. There might be a need for them to come into force, but the first opportunity that a committee might have to consider them might be in week 1 after a parliamentary recess. I would not find fault with that.

That has happened in my previous committee experience. A negative instrument was in force and, because of recess pressures, nobody had been able to consider it. After the recess, someone lodged a motion to annul competently within the 40 days and the minister came before the committee. One of the arguments advanced by the minister for opposing annulment was that annulment would have practical consequences—the instrument was already in force and people had already been able to do certain things. He was not arguing that the committee could not annul the instrument, but he pointed out that, if it did so, it must take those consequences into account. It might sound slightly illogical for an instrument to be in force before it is considered for annulment, but it is not fatal.

The patient will recover.

If there is a serious concern about the instrument, it can be annulled. That is a consequence of the negative procedure. Negative procedure is meant to introduce a reasonably fluid track line for subordinate legislation. The example that I set out is my only experience of a negative instrument being annulled—or challenged, I should say; it was not annulled.

We have to allow for Executive action. I never realised that there was so much law on shellfish, potatoes or agriculture. With some instruments, we have to allow for Executive action, subject to the fundamental right of the Parliament to review it. There are consequences that the minister has to weigh up before making a judgment.

Are we content to suggest that we do not see a need to change time limits and that we find the existing annulment procedure for negative instruments adequate as a protection?

Members indicated agreement.

Those were the meatiest issues arising from the paper. As members will see from the following paragraph, the other issues are very technical and are less directed to the subject committees.

You are right, convener. We do not need to comment on the clarity of the explanatory notes; it is up to the Subordinate Legislation Committee members to do so. We have responded reasonably and timeously to the main considerations.

I sometimes think that the explanatory notes do not explain anything.

Explain your explanation, as Groucho Marx once said, I think.

Often the statutory instruments that we are asked to consider are very technical; at first sight, particularly when they are taking bits out of acts and changing terms, it is difficult to understand what on earth they are about. I wondered whether it would be helpful to ask the drafting officials to indicate whether there were any challenges as they prepared a particular SSI and what areas seemed problematic.

I agree with that and with what is said in the annex to the report about timescales and amendments. It is incumbent on the Executive's civil servants to realise that they are drafting instruments not simply for the Subordinate Legislation Committee, but for subject committees. Instruments should not just be written in lawyerspeak, which everyone on the Subordinate Legislation Committee, whether they are lawyers or not, eventually picks up and gets into.

Civil servants should also consider the timescale. If they want to get it right, they need to decide to which committee the instruments will go for consideration—whether to the Justice 2 Committee or somewhere else. They should say to themselves, "We'd better not lodge it on Friday, because it won't meet the clock." The civil servants should not simply have regard to the Subordinate Legislation Committee, because the documents have to be read by subject committees, too. The civil servants must consider when they lodge an instrument and what they attach to it in order to make it clear.

I support that helpful suggestion.

A plea for plain English.

We will say to the minister's department that the civil servants should remember that instruments will also be looked at by a subject committee and that they should allow for that not just in the timetable, but in preparing the explanatory notes.

I add the caveat that, although I have not practised law for six years, I still get chastised by my wife for using legalspeak. I just cannot get out of the habit after 20 years and still use terms such as "with respect" and "cognisance".

You will grow out of it in due course.

The discussion has been helpful and will enable our clerks to draw together a paper. We want to get a response back to the Subordinate Legislation Committee before 14 October. We do not have a committee meeting on 4 October, but I think that it will be adequate to clear our response through correspondence. I ask the clerks to circulate the paper to all members; if there are any comments, members should send them to the clerks so that we can adjust the final version. Is that acceptable?

Members indicated agreement.

That is us. I remind members that tomorrow we have a joint meeting with the Justice 1 Committee on the budget. The meeting will be held in private and we will be briefed by the Scottish Parliament information centre and Professor Midwinter.

Meeting closed at 15:37.