Official Report 287KB pdf
The second item on our agenda is the Interpretation and Legislative Reform (Scotland) Bill. This is our first evidence session on the bill. Next week, we will hear from the Minister for Parliamentary Business. Today, we have three panels of witnesses. We will hear first from the Faculty of Advocates, then from the Scottish Law Commission and finally from Mr Iain Jamieson, representing the Law Society of Scotland. It is my pleasure to welcome our first set of witnesses: Andrea Longson, senior librarian at the advocates library; Roderick Thomson QC; and Brian Gill, advocate. It is nice to have you before us. We have prepared a series of questions. I invite committee colleagues to take you through their chosen questions.
Good afternoon. The scope of part 1 of the bill is pretty complex and has made thrilling reading for all of us. There is an underlying concern or problem. As the Scottish Parliament does not have legislative competence in all areas, there is potential for confusion to arise if different legislatures do not operate by the same rules. Will the provisions of part 1 be able to achieve consistency of interpretation across the Scottish statute book?
Our reservations are expressed in our second submission, which is a much summarised version of what we said earlier. However, we are relatively content with the broad thrust of the bill.
In your opinion, how will part 1 apply to provisions of acts of the Scottish Parliament or Scottish instruments that amend Westminster acts or statutory instruments?
That is a rather broad question. We have highlighted issues that we think are worthy of comment. Subject to their being addressed, we are content that there will be sufficient clarity.
The difficulty is that there is a risk of different interpretative regimes applying to different parts of the statute book. Unfortunately, that is just in the nature of the devolution that we have—there is no way around that. Whether that will be a problem will be a matter for draftsmen. Mr Clark, who will give evidence later, can speak to the issue better than we can. Generally, parliamentary counsel know what they are doing and will have different interpretative provisions in mind when they draft legislation. In practice, there should not be a problem.
Do you have a view on the retrospective application of part 1 to acts of the Scottish Parliament or Scottish instruments that amend old acts of the Scottish Parliament or old Scottish instruments or Scottish statutory instruments that are not covered by the definition of "Scottish instrument"?
Previously, we expressed the view that the bill should not apply retrospectively. In one response, it was suggested that it is unnecessary to have three interpretation codes. However, we see that as necessary, given that the bill is likely to be passed. Having three codes is not a difficulty, because the draftsmen will have that in mind when they draft legislation.
So you are confident that the draftsmen will ensure that aspects are made clear.
Yes.
We read with interest the faculty's submission, which disagrees with the bill's approach to the application of acts and instruments to the Crown. Will you outline the faculty's preferred approach?
We prefer the current rule to remain, which is express inclusion or necessary implication. We have previously set out our reasons for that. It is submitted that the existing rule is sensible. It is useful and works in practice. A body of settled case law exists. There is no reason to diverge from that Westminster approach. Having a different rule from Westminster could create complication.
I do not have the benefit of legal experience, but does the suggested approach not just revert to the pre-1707 situation, so it provides continuity with Scots law before 1707?
Much more continuity would be achieved by keeping the rule as it is. In 20 years of practice, the occasions on which I have had to look at a pre-1707 Scots act have been few and far between.
I suppose that the Crown's relationship to Scotland is slightly different from that in England.
We do not think that that should weigh heavily in considerations, but that is, of course, a matter for members.
Indeed.
That went by rather quickly.
I am sorry. Would you like me to ask the question more slowly?
We did not get what you said.
Under the changes that are proposed in the bill, if a new Scottish Parliament act created law on building controls, for example, and amended an old Scottish Parliament act about building controls, and the new act was silent about Crown application, I understand that the new act would bind the Crown, because the Crown is to be bound by acts of the Scottish Parliament. The question is whether the new provisions that were added to the old act would bind the Crown. The existing rule is that the Crown is not bound unless that is done specifically or by necessary implication. In the circumstances that I described, would necessary implication apply? Is that clearer? That will be in the Official Report. Perhaps you can write to us.
The question will indeed be in the Official Report. You may want to consider it and give us a reasoned response.
I am afraid that I would be uncomfortable answering that question here and now, but we would be happy to give an answer in writing.
All right. We will have a gentleman's agreement on that. It was a tricky question. Let us move on.
Sections 12 and 14 deal with references to the European Union and other legislative provisions. The explanatory notes say that references to EU instruments are not intended to be ambulatory. That is in contrast to section 14, which provides that references to United Kingdom legislation are to be ambulatory—future changes will wash through and be adopted by existing references. Do you have a view about the difference of approach that has been adopted to EU law and UK law?
We did not consider that matter in huge detail. We were relatively comfortable with the draft as it stood originally and as it is.
I suppose that the problem is that if references are not ambulatory and there are future changes in EU law, there will be difficulties with what is being dealt with. That seems to be the nub of the matter to me as a lay person. Do you agree that it is?
Yes.
So there would be problems.
I do not wish to say more than what we have already said about that matter, because we did not make a detailed response on it.
Okay.
Yes, if you do not mind.
Okay. Let us move on.
Our primary concern is about ministers having the power to change definitions. The concern is not so much about adding definitions; it is about changing definitions that have been in place for a certain amount of time—perhaps for a long time—and in light of which acts have been drafted. We are concerned about ministers changing those definitions. Because of the ramifications for legislation that was in force, it would be preferable to deal with the matter by primary legislation so that there would be greater scrutiny.
What could the effect be of amending definitions or adding new ones? Could the effect be retrospective? Would it not be complicated to identify the provisions to which the new definition applied? Could there not be a mess?
There could be. Of course, the issue could be dealt with by transitional provision at the time, but our difficulty is simply that a level of unnecessary complexity would be created. Requiring primary legislation to make a change would ensure that the full scrutiny that would be necessary to think through such problems would occur.
For the sake of tidiness, have any definitions in the Interpretation Act 1978 or the interpretation order—the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc of Acts of the Scottish Parliament) Order 1999—been omitted from schedule 1 that ought to be included?
We did not consider that we wanted to propose any.
Has Brian Gill thought of one?
In his written evidence, Mr Jamieson makes the point that the interpretation order imports from the Scotland Act 1998 a number of important definitions, such as the definition of "the Scottish ministers". There is no particularly good reason for those not to be included in schedule 1, but they are not there. According to the policy memorandum, schedule 1 proceeds from the idea of a frequency of use test, but it is not clear what that means. In my opinion, it is not necessarily the correct test. The correct test is to identify the key terms that we want to be sure are defined for all purposes for acts of the Scottish Parliament. From that perspective, consideration could be given to the omission of the 1998 act definitions from the bill.
That is an interesting thought. We will probably return to the matter.
When it writes to us, the faculty could provide a list of the definitions that would benefit from being included in schedule 1.
Yes, applying a sort of building blocks test rather than a frequency of use test.
My question relates to section 26, on "Service of documents". It is recognised that, with the increased use of electronic communication, provision should be made for electronic service of documents. However, there are a number of potential problems with proof of delivery or receipt. Do you consider that there are potential problems with the bill's provisions on electronic service of documents? How might those problems be resolved or overcome?
In principle, it is a good idea to provide for that, if the problems can be overcome. Some of the other respondents mentioned various problems, primarily in relation to service of notice. We believe that the problems that have been identified are real, but our submission focused on the separate issue of consent. We are concerned that there would be immediate problems, as section 26 provides that the device will come into operation only if the parties consent. From bitter experience—in my case, as a solicitor—we foresee all sorts of problems in proving consent. People could claim that they had not consented when they had, or vice versa.
We want to find out how the problems might be resolved. If you are unable to answer our questions today, you could write to us on the matter.
On the technical aspects, we could not add anything in writing to what we are saying today. The issue for us is to have a means of service that is reliable and testable and can be used against a denial that there was consent or that service was made in the agreed way, so that somebody cannot say, "I didn't consent," or, "I didn't get the e-mail."
That is helpful and I accept what you say. A number of us permit other people to open our e-mails, which could throw up a problem. If it was not reported to someone that a document had been served—messages are not always transferred reliably although one likes to think that they are—that sort of problem might arise.
I am afraid that we do not think that that response illustrates that our concerns are unfounded and I will explain why. I do not know whether you want me to tell you a bit more about our basic concern before I address whether it is unfounded; it might be helpful.
It may help if I say that I support what Roderick Thomson has said. From a librarian's point of view, what he has said is exactly right.
It would be good to hear your experience; the more we can hear the better. The Queen's counsel made a powerful presentation, but if you want to add something to enrich it, that would be helpful.
I would not like members to think that information professionals are against the electronic supply of information. That is absolutely the way ahead for making information available. We are not stuck in the past; we use that method all the time. However, this morning, I checked the website of the British Library, which runs the national preservation office. It recently carried out a study of 16 major international libraries, and it says on its website:
I hate to be slightly flippant because I take seriously what you say about preserving original copies. Those copies are reliable and can be scrutinised and archived. However, if a portable document format—PDF—file is sent to you, is it outwith the realms of possibility that the Faculty of Advocates could print off a copy of it? That is hardly lightning stuff if you are concerned about getting copies sent to you.
Yes, but how would we know how authoritative that copy was, unless it had been produced directly by the Queen's printer?
If the Queen's printer for Scotland were to send you a security-proofed, authenticated PDF file that could have come only from it, you could archive that electronically and print off a copy.
That is perfectly feasible, but why should SSIs be treated differently from all other legislation? Under the bill as drafted, there is no compulsion on the Queen's printer for Scotland to print SSIs, because no regulation has been made under the Legal Deposit Libraries Act 2003. That means that SSIs are being treated differently. Why should our Scottish legislation be treated differently from other types of legislation?
These things change all the time. The committee and other committees of the Parliament will have to scrutinise the matter.
Time is marching on. Do members have any further questions?
I am grateful to the witnesses for the answers that they have given, which I find powerful. They have made a compelling case.
As MSPs, we know that we must treat some electronic information with extreme caution, especially if it comes from Nigeria. In his 10 and a bit years as an MSP, my colleague John Farquhar Munro has never switched on a computer. He relies on his staff.
Is there any difference between publishing something electronically but having to provide a hard copy to a national library, and having to publish something in hard copy? Does the requirement to publish something in hard copy give other people the right to demand that hard copies be available to be purchased, as opposed to just libraries getting hard copies and other people having the right to get electronic copies?
The difference relates to the obligations that are associated with having something published in print rather than by other means. There would be no difference in respect of who was entitled to the document.
Thank you for your thoughtful, considered evidence, to which we will give proper weight. Enjoy the rest of the day. Jackson Carlaw must leave us now. After a short break, we will hear from the second panel.
Meeting suspended.
On resuming—
I extend a warm welcome to our second set of witnesses, representing the Scottish Law Commission. We have with us Patrick Layden QC, commissioner, and Gregor Clark CB, parliamentary counsel. We look forward to your contribution.
Welcome to the committee; thank you for coming. You will find that some of our questions are the same as those that have already been asked, but some were not put to the previous panel. I will start with questions that were asked at the beginning of the previous evidence session. Reference was made to different interpretative regimes applying to different parts of the statute book. Do you think that that is a problem, or are you satisfied with the approach that has been adopted? You have covered the matter to some extent in your written evidence.
From the user's point of view, there could be a problem. If I do not look to my right, I can harden my heart to the draftsman's problems. Draftsmen work with legislation all the time; if someone tells them that this or that regime applies, they can adjust to that. However, the user—the solicitor—picks up the act to find out what he is obliged to do. From his point of view, the interpretation legislation should be of assistance. It should be a reliable point of contact, so to speak.
So, you think that there will be a lack of consistency.
There will certainly be a lack of consistency. I turn to section 20. At the moment, any lawyer who looks at a statute from 1707 onwards knows that the Crown is not bound, unless the legislation says so specifically or there is a necessary implication. The bill will change that. In point of fact, it will make it even more difficult. It seems to say that both a Scottish act and a Scottish instrument will bind the Crown. If one thinks about that for a minute, one will see that, even if the Scottish act says that it does not bind the Crown, an instrument that comes under the act has a free-standing life under section 20. One would have to ask whether the instrument binds the Crown. The unfortunate draftsman who is putting together an SSI will have to make up his mind how or in what way the instrument will bind the Crown, never mind the provisions in the act under which he is drafting it.
Is your objection to the provision solely on the ground of consistency, or do you have other fundamental objections to the change in respect of the Crown?
The Crown—and it might be easier to talk of the Crown as the Executive with the tripartite division of power—is in a different position from the average citizen. It has powers and responsibilities that the average citizen does not have. It also has general duties that the average citizen does not have. It is therefore not surprising if legislation, a great deal of which is made for relations between citizens, does not bind the Crown; it would not be appropriate for it to do that. That said, it is appropriate in some cases and one therefore provides for that.
Dr McKee's example in this regard was on old acts of the Scottish Parliament. In general terms, what is your professional view on the matter? I understand that, if an amendment is made to a Westminster act, an old Scottish statutory instrument or old act of the Scottish Parliament, the new interpretation rules will not apply. Is that correct or is there some debate about that? Do you see any problem or lack of clarity? What is your understanding of the provision?
It is the case that an act will be construed according to the time at which the act was passed. If we amend an act of 1965—which is just before the last interpretation act—the interpretation regime that applied in 1965 is the valid regime. If a post-bill act amends a pre-bill act, the interpretation provisions that apply to the pre-bill act are the governing provisions.
Is a different approach suggested in section 55? Is that a way round the problem? Is the problem unavoidable or is it possible to deal with the inconsistency?
What problem? There is no problem if you keep the same regime.
Yes, but I am talking about amending an old piece of legislation.
It is a problem if the old piece of legislation is subject to a different regime. At the moment, we have the Interpretation Act 1978—and there has been quite a lot of legislation since then—and the Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999, which more or less reproduced the 1978 act. Therefore, we have a consistent interpretative regime throughout the United Kingdom statute book and the first 10 years of the Scottish statute book. Problems arise only if you start changing the regime now. If you do that, you create the possibility of confusion and conflict.
Are you basically saying that you would rather that no changes were made or do you welcome some of the proposed changes?
It is entirely appropriate that we should have a bill that sets out the interpretative regime for acts of the Scottish Parliament and that we should not rely on a transitional order. That is a good thing. I would very much prefer it if the bill kept the definitions and the interpretative regime that we have had up till now unless there are good reasons for changing it. We mentioned in our written submission one good change: the provision that clarifies that, if an amending act is repealed, the amendments that it made are not affected. However, that is a technical point.
Is that the sole positive change? Is it an example or is that it, as far as you are concerned?
That is it, as far as I am concerned.
We could go a little bit further. It would certainly be worth taking the opportunity to express things more clearly, as long as one was certain that one was saying the same thing.
The rules in part 1—I think that it is section 1(4)—will apply to non-statutory instruments such as warrants and byelaws. Do you believe that they should? Should there be a restriction on the power to add to the definition to exclude adding instruments or documents that do not have legal effect?
It is really a question of how far down the food chain you want the interpretations to travel. Quite a lot of things are done under an act, because of an act or to implement an act. Subordinate legislation, rules and various things can be introduced under an act. The question is how far down that trail of post-legislative activity you want the interpretations in part 1 to go. I can see the arguments for doing it the way that the bill's draftsman has done it, but equally I can see an argument for limiting the interpretative regime to proper subordinate legislation. If limited in that way, you might be able to simplify some of the concepts in the bill. However, where you draw the line is a matter of legislative policy.
So it is a matter for the Government rather than your opinion.
It is a matter for the Government and the Parliament, because the Parliament is accepting the regime as the way that it wants its statute to operate.
In your written submission, you highlight potential difficulties with the general qualification in section 1(2) that part 1
Again, we are considering the matter from the user's point of view. Section 6 provides a power to revoke, amend and re-enact, which
It is a catch-all—
There is currently a catch-all provision, but one has to know that it exists and then go back and look at it. For someone who does not use the interpretation legislation frequently—let us face it, not many people do—it would be easier if all the qualifications appeared in the provision to which they applied.
The tendency is for people to pick up the interpretation legislation and look for a particular thing. They will not read the act as a whole, as a complete document, so there is a real chance that the provision will be misunderstood and thought to be wider than it actually is.
I see. Practitioners will go straight to the bit that concerns them, and they might not get round to seeing the nasty bit that appears earlier in the act.
Yes.
Precisely so.
Is there a possibility of legal argument over the meaning of "otherwise requires"?
You will never get away from that.
I suppose that we would not have any lawyers if the meanings were all fairly well understood.
There is a curiosity, in that section 20(1) includes the qualification, which is completely unnecessary if we do have the catch-all.
The qualification is included in that provision but not in others. I was going to ask how the bill could be improved, but I think that you have said that it could be improved by including the qualification every time it is required. Is that right?
Yes.
Sections 12 and 14 deal with references to EU and UK legislation. The explanatory notes say that in relation to EU instruments, references are not intended to be ambulatory. That is in contrast to section 14, which provides that references to UK legislation are ambulatory—that is, future changes will wash through and be adopted by existing references. Do you have a view about the differences in approach?
I do. It is a personal view, because the Scottish Law Commission has not considered the matter. I spent a lot of time working with UK and EU legislation, and the prevailing view in Government was that although we could expect users of legislation to keep up with UK changes—UK regulations, acts and so on—it was unreasonable to expect them to hit the spot on the sometimes rapidly moving target of alterations in EU directives.
Thank you. I think that you have answered the question that I was going to ask next—do you agree, convener?
Yes, I agree.
It is useful to have the power to make small changes when dealing with words that cover a large area of meaning. Some references will be to statutes, and when a statute changes, updating references to it could perfectly well be dealt with in the amending legislation, which might update, for example, the old police area legislation. However, there is a chance that something might be missed in the primary legislation because someone forgets to change the definitions of words. The power to amend definitions will simply give flexibility by providing a chance to catch dropped stitches. Without that, an act would have to be introduced to make the change, which would cause a great deal of inconvenience. The power is intended to benefit users.
I also asked the previous panel about the retrospective possibilities of such a power and how complicated it will be to use. In addition, I asked whether anything has been missed out of the bill that ought to be included. Do you have any thoughts on those points?
I have no particular thoughts on what else should be included in the bill, but I have two thoughts on what should not be included within it.
I want to move on to part 2 of the bill, which deals with Scottish statutory instruments. Section 33, on "Combination of certain powers", will provide a legal basis for combining the exercise of negative and no-procedure powers in the same instrument. Do you envisage any problems with the combination of no procedure and negative procedure in that way?
I see no problem at all with that; I am surprised that it is not possible to have any combination of the three categories—affirmative, negative and no procedure—in the same instrument by using the highest level that is involved. For example, an instrument that is subject to the affirmative procedure should be able to include measures that are subject to the negative procedure. Very often, it is difficult to tell the whole story in one statutory instrument. It is absolute nonsense to have all the measures that are subject to negative procedure in one place and all those that are subject to affirmative procedure in another if that means that the reader does not get the total message.
That response helpfully heads towards answering my next question, which is on whether the provision is not ambitious enough because it does not allow all three procedures to be mixed within one statutory instrument. However, I will ask the question anyway so that you can put on record what I think you were saying.
Absolutely. There is an interesting little knock-on from that point. We were concerned about section 8(3), which contains a power to tag on to commencement orders transitional, transitory and saving provisions. We are not sure about the purpose of that, as commencement orders usually are subject to no procedure. Does that section suggest that transitional amendments should be made without procedure? That seems to be utter nonsense, because transitional amendments can have a serious impact on people's lives.
Obviously, we will consider the evidence on that point. Would you like to add anything?
Section 8(3) is not needed at all if the bill contains an expanded section 33, allowing any combination of procedures. A combined instrument could be passed using the maximum procedural formality: the affirmative procedure, if there were something in it needing that procedure. So if a transitional element seeks to modify statute, it should be dealt with under the affirmative procedure.
The procedure should be composite and it should use the highest threshold of scrutiny.
Yes.
Malcolm Chisholm wants to ask a question about an issue that is close to our hearts.
I do not think that you mentioned part 4 of the bill in your written submission, but it would be interesting to get your views on consolidation, given your role.
We did in fact respond in writing on part 4, but we did it to the Standards, Procedures and Public Appointments Committee, which is what we were asked to do. It helpfully mentioned what we said in its report to you.
What safeguards would be appropriate to prevent the power from being used to make policy changes without full parliamentary scrutiny, or are you saying that we should just follow the Law Commission's advice and that will deal with the problem? Should that be written into legislation?
It could be. You could give the consolidation committee power to consolidate with such amendments as the Law Commission proposes, which are either necessary or would facilitate the consolidation. There would then be a process between the Law Commission and the committee, as there was in 2003, and the committee would work out its views. Speaking as the draftsman of the previous consolidation bill, I found that process to be perfectly acceptable. The committee was very careful in what it accepted as being necessary for the consolidation, because it was conscious that anything more than what was absolutely necessary ought to be debated in Parliament, and since that was not going to happen it took a more restrictive view. The nature of consolidation is that it is a restricted exercise to reproduce the law, so you should be very cautious about making amendments.
In its response to the Scottish Government's consultation on the draft bill, the Scottish Law Commission expressed concern that there would be
No.
Would you like to amplify that?
For the reasons that we set out in our written submission, you will never get two lawyers—let alone 10—to agree on what the common law is on any particular subject. Even if a little bit of the common law has been agreed because the House of Lords has just decided what it is, as soon as you try to restate it you find all sorts of other questions that the courts have not got round to answering yet, but which need answering if you are going to restate the law.
Would it be more appropriate for the Government to introduce a substantive bill on the policy issue in question?
Yes. That would give everyone a chance to debate the issue. Codifying the law is one thing that the Scottish Law Commission is supposed to do.
I might be able to guess your answer to my final question. What steps would the Scottish Law Commission like to be taken to increase the number of consolidation bills that are introduced to the Parliament to give effect to commission reports?
It is one of the Scottish Law Commission's duties to propose consolidations. There is no doubt that a great deal of the law on our statute book needs to be consolidated, but consolidation depends on Scottish Law Commission and Scottish Government resources—particularly drafting resources—and also on the Parliament's capacity to process consolidation bills. It is all very well for us to produce bills, but a parliamentary committee has to deal with them. The Parliament formed a committee in 2002 to consider the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill and it might want to form such committees again. Standing orders cover the forming of consolidation bill committees, but they have to be formed from somewhere; members have to sit on them.
Is the Scottish Law Commission happy with the response that it gets from Government in reaction to its reports?
As the chairman of the commission said in his foreword to our most recent annual report, it is disappointing that, since devolution, the rate of implementation of Scottish Law Commission reports has fallen off. That is particularly disappointing given that a number of those reports were compiled in response to references from the Scottish Government. However, we welcome the establishment of a joint working group of officials of the Scottish Government and the Scottish Parliament, which is actively investigating ways of increasing the capacity to implement Scottish Law Commission reports and therefore the rate of implementation.
I will add what are essentially drafting points. The bill is quite a difficult read, and one thing that makes it so is the introduction of certain expressions. In part 1, we have the expression "Scottish instrument", then in part 2 we have "Scottish statutory instrument". Immediately, the reader is floundering and wondering what the difference is.
Thank you. That was useful.
Meeting suspended.
On resuming—
I welcome Iain Jamieson, who is here on the Law Society of Scotland's behalf—it is nice to see you. The format for your evidence is the same as before and we look forward to hearing your answers. As before, Malcolm Chisholm will open the batting, if I may use that expression.
All three panel sessions were to begin with the same question, but your submission is detailed so I am not sure whether I need to ask you about consistency, about whether having different interpretative regimes for different parts of the statute book is a problem and about your view of the factual situation.
I am not very good at finding solutions, but I will try. I should say that I appear in a personal capacity and as a representative of the Law Society of Scotland. That is uncharacteristically bold of the Law Society, because I am sure that it would not like all my views to be attributed to it.
You will explain which is which.
I will speak to the society's submission—that makes the position clear.
Towards the end of that section of your submission, you say that
No, not at all. My view has always been that it is preferable to be bold when it comes to matters such as this.
So you just think that it will cause confusion.
Yes. That echoes what Patrick Layden said, but of course he is in favour of keeping the thing the same; he is a status quo person and I am not.
Your submission suggests that section 1(2)(b) should be deleted. That suggestion may have been made elsewhere, but I did not notice it in anybody else's submission. What is your thinking on that?
Nobody else has made that suggestion. What concerns me about section 1(2)(b)—I think that I have said this—is that I do not think that it is necessary and I think that it is confusing. It is not necessary because part 1 will apply only to future Scottish legislation, so when the draftsman drafts something he should know whether part 1 applies and if he does not want part 1 to apply, he can apply these provisions. It is also confusing because, as Patrick Layden admitted, nobody knows what is meant by "otherwise requires." Cases go up to the House of Lords on the implications of acts; Lord Hailsham said that nine out of 10 such cases involve either the statutory interpretation of provisions that turn upon these words, or the meaning of words in statute. It is by no means clear what is meant by "otherwise requires". The provision was useful in the past when there was not a clear role and one could say, as Mr Clark said, that it was there to catch dropped stitches. However, there ought not to be dropped stitches—if the draftsmen of the acts and instruments are doing their job properly, the provisions ought to be expressly clear. The same applies to section 20.
You welcomed the provisions in section 8, which spell out what is implied when there is a power to make a commencement order. It seems that laid only procedure will apply to those orders. That reflects the current position, but might circumstances arise—perhaps when ancillary powers that are attached to commencement should be subject to procedure—in which the Parliament would wish to specify the procedure for commencement? Could that be done by the insertion of provisions in parent acts?
I am sorry—I take it that you are referring to section 12.
I refer to section 8, which is on commencement powers.
That is the section to which Mr Clark referred. Two separate issues are raised. One is that it is most unusual that the power to commence acts should be subject to negative or affirmative procedure, although that happens sometimes. The main idea of having a commencement order is that it should be done relatively expeditiously.
You have welcomed the changes that the bill proposes to the law on the application of acts and instruments to the Crown. Will you elaborate on why you take that view?
I come from a philosophical tradition that regards the Crown as no different from any other subject. It should be subject to the same laws, whether they are on health and safety or anything else. That is my prejudice.
Sections 12 and 14 deal with references to EU and other legislative provisions. In relation to EU instruments, the explanatory notes say that references are not intended to be ambulatory. That approach is to be contrasted with that of section 14, which provides that references to UK legislation are ambulatory—that is, that future changes will wash through and be adopted by existing references. Do you have a view about the difference in approach?
Yes, I do. My main concern is that when an ASP refers to a particular section of an act or to EU regulations it should be clear one way or the other whether the reference will be ambulatory. At present that is not clear. The provision in section 12 is taken from a UK act.
That is helpful. I think that you might have answered the question that I was going to ask next.
I want to look at schedule 1, "Definitions of words and expressions." We have heard concerns from the Faculty of Advocates about the proposal to give the Scottish ministers the power to amend definitions by order made by Scottish statutory instrument. The Scottish Law Commission took the opposite view. What are your views on that?
Which side are you on?
Or is there a third way?
I think that I am on the side of the Scottish Law Commission on this one, with one or two qualifications.
That is interesting. In essence, you believe that the Government should have the power, with parliamentary approval, to chop and change the definition as it sees fit so that there is a living piece of legislation.
Yes, provided that the order makes clear the legislation to which it applies. My main criterion is that the order must be clear.
You have answered part of my next question. Clearly, you do not believe that the power should be retrospective.
Absolutely not.
Some people believe that identifying the provisions to which a new definition applies will be complicated. Do you agree?
No—not if the power that is given to the Scottish ministers will enable them to identify the legislation to which it applies. I imagine that it will apply to ASPs or Scottish instruments that are passed after a certain date. The order must have provision to make that clear.
Okay. You are saying that the fact that the procedure is complicated does not mean that we will not be able to use it. That is what lawyers are good at and why they are so expensive to hire, of course.
The stock answer that I would expect to get is that those terms are self-explanatory nowadays and do not need to be defined. If that is the case, however, the drafters need to explain why they have included a definition of "Scottish ministers" while not defining terms such as "Lord Advocate", "Scottish Parliament" and "Scottish Executive". Those are just institutions, of course; I am more concerned with real issues, such as what is meant by "convention rights", "devolved competence" and "reserved matters". All those are significant terms of art, and they are part of our constitution. As long as the Scotland Act 1998 exists, the interpretation legislation should refer back to it. The Scotland Act 1998 is the mother ship from which all those things are derived.
Indeed it is, and that answer is helpful. Perhaps in the not-too-distant future we can consider terms such as "Scottish Government" and "Scottish Prime Minister"—that would be quite a wonderful thing.
That is getting too political for me.
We move on from such remarks, and from references to expensive professions—I turn to Dr Ian McKee.
I am retired Dr Ian McKee, alas.
I am conscious that your time is short. My main concern is that I would like the negative procedure to be made more effective.
Thank you. You suggest increasing the minimum number of 28 days before an instrument can come into force to something approaching 40 days. How would such a change strengthen the position of the Parliament in scrutinising negative instruments?
I preface my remarks by saying that all the suggestions that I throw out in my submission are only suggestions, and there are different ways of doing it. I suggested that one way would be to make the period before which the instrument comes into force as near as possible to the period during which the Parliament can annul the instrument. That would avoid the main problem with the negative procedure, which is that by the time the instrument comes to a meeting of the Parliament, it may have been in force for some time. The Parliament may therefore be disinclined to do anything about it. You must have come across that defect before.
Should there be an extension of the 40-day rule—perhaps to 50 days—to allow the Parliament sufficient time to consider a motion to annul?
During my time as adviser to the previous Subordinate Legislation Committee, we explored all sorts of ways of maximising the time for the SLC and the subject committee to consider the instrument and for the Parliament to examine it, whether by extending the time limit or doing anything else. That was why we came up with the suggestion we did, which I accept was not considered to be practical and was therefore dropped.
In circumstances in which Parliament resolves that an instrument should be annulled, are additional powers required in order to give effect to the will of the Parliament—a form of ancillary powers—to undo any permanent effects of the instrument that has been annulled?
The bill is quite good in that it prevents the instrument from coming into force if it has not yet done so. It prevents further action from being taken. However, it does not undo the past. In certain cases, undoing the past might not be feasible. Nevertheless, the overall picture must be that we try to restore the position to what it was before the instrument that was subsequently annulled took effect. If that is not possible, the Government ought to come along and explain why. The Parliament cannot impose duties that are not practical.
Sometimes, it is impossible to undo what has been done.
I know.
The transitional statutory instrument order contains a test of the necessity to bring an instrument into force before the expiry of the 21 days after laying. It appears from the terms of sections 28 and 31 of the bill that that test will no longer apply. Should it be removed?
I beg your pardon. Could you repeat that?
When an instrument is brought into force before the expiry of the 21-day period, should there be any restraint on that? Should it just happen—I think that is what is implied—with no test of when that is acceptable?
I would have thought that it would be difficult to devise an appropriate test. We suggested tests of urgency and emergency, for example, although those are sometimes catered for in instruments themselves. The best sanction that we can offer, which is repeated in the bill, is to ask for explanation after the event: "Why did you not do it?"
Does the reference to the Presiding Officer in section 31(3) have the same effect as the reference in the transitional order?
I beg your pardon.
Are you saying that there is no substantive change between the transitional order and the bill in terms of—
Section 31(3) says that the Government must explain to the Presiding Officer. The written explanation used to be examined by the Subordinate Legislation Committee, which used to be able to test the Government on it.
So, it may be that that could be strengthened a bit.
Yes.
The next question is on section 30, "Other instruments laid before the Parliament". The Law Society of Scotland has argued that where the enabling act does not provide for use of negative or affirmative procedure, the default approach for subordinate legislation should be for it to be subject to the highest level of scrutiny and therefore be subject to affirmative procedure. Would not that be an excessive default position?
After discussion with me, the Law Society has changed its mind and is content with the existing position, on the basis that if the Parliament wants a higher standard of procedure to apply, section 34 gives it the powers to do so.
I could be wrong, but after two hours and 20 minutes of scrutiny, I think that this is the third time I have asked my questions. First, section 33, "Combination of certain powers", would provide a legal basis for combining negative and no procedure powers in the same instrument. Do you envisage any problems with that combination of no procedure and negative powers?
Not particularly. I have referred previously to the commencement order and the transitional order. If the Scottish Government wishes to put its head in a noose, so be it.
Okay. I move on swiftly to the next question that I have asked previously. It is a slightly different example, but the principle is the same. The minister indicated in correspondence that the Government proposes to extend section 33 to allow powers that are subject to negative and affirmative procedures to be combined in the same instrument. Should that be permitted, subject to the uniform application of the more rigorous affirmative procedure?
The noose just gets tighter.
Could that noose be made by having provisions that would usually go through quickly, on the nod, included in a composite instrument that might fall?
Yes. That is quite possible.
You have provided some useful written evidence on part 4, and you have highlighted that you think that there are problems with the section 47(1) power for the Scottish ministers. What problems do you envisage with that power?
The power is too wide and it is unnecessary. It gives Scottish ministers far too much power, and calls into question and makes an abuse of the consolidation procedure. I agree with the Scottish Law Commission's view that if any change at all is to be made—on which I am saying nothing—it should be that the definition of a consolidation bill in the standing orders remains the same: that it is a bill
Section 47 should go, and you do not think that there can be any safeguards, or is what you are suggesting a safeguard? Perhaps you need, for my understanding, to clarify what you said. Are you saying that something in the legislation should refer to the Scottish Law Commission? Are you suggesting that ministers should be able to follow only what the Scottish Law Commission suggests?
No. Ministers do not come into Scottish Law Commission recommendations.
No—but I am talking about implementation.
Ministers do not implement legislation at all. That is done by the consolidation committee that considers the bill, along with the Law Commission's recommendations, which come under a limited category. The Scottish ministers do not make any order on that at all. They do not come into it.
Would the things that you are suggesting in relation to the Scottish Law Commission need to go into legislation?
No. The trouble is that the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee obtained from the Scottish Law Commission a view about the recommendations that it would put forward, and the committee endorsed that view. That is not to say that the committee could not have changed its mind, but that would have to be argued before the next consolidation committee. If it was in statute that the Scottish Law Commission could make recommendations and the criteria for those recommendations were defined, that would make matters clear.
Okay. You are saying that, as it stands, section 47 should go.
Yes.
You make some helpful suggestions about increasing the number of consolidation bills. Again, that is in your written submission, but it would be useful if you could highlight your main recommendations in that regard.
Again, my suggestions are just suggestions; there are other ways in which that increase could be achieved. However, something must be done to increase the volume of consolidation of Scottish legislation. I suggested that the Scottish Law Commission cannot do anything at present without the prior approval of the Scottish ministers, and that that has been the kiss of death, because the Scottish ministers have not done anything, or have not been prepared to do anything, to enable the Scottish Law Commission to consolidate legislation. Almost every annual report of the Scottish Law Commission criticised the view that the then Scottish Government took—although I am not making any political points here.
I thank you, Mr Jamieson, on behalf of the committee.
Thank you. I will just make one qualification. I think I said that I took a more radical view than Patrick Layden, who was more in favour of the status quo. It is not that I criticise the status quo—I am a lawyer, and we are by definition conservative in our legal thinking—but Patrick Layden and I take different approaches to these matters. It was not an insult to him.
Perhaps you see a certain middle way in these matters. I thank you for your contribution—having known you in my previous incarnation on the predecessor Subordinate Legislation Committee, it was nothing less than I expected.
Meeting suspended.
On resuming—