Item 2 is an opportunity for us to question Scottish Government officials on the Regulatory Reform (Scotland) Bill. I welcome from the Scottish Government George Burgess, who is deputy director for environmental quality in the environmental quality division; Joe Brown, who is the head of better regulation and industry engagement in the enterprise and cities division; and Stuart Foubister, who is a divisional solicitor in the directorate for legal services.
Can you give us the background to parts 1 and 2 of the bill? In particular, can you explain, in broad terms, how the bill will change the powers—in comparison with those that are currently available—to make subordinate legislation on regulatory and environmental matters?
In broad terms, the background to part 1 of the bill is to promote consistency in regulation across Scotland and to empower regulators to take into account, in the performance of their duties, economic considerations, in addition to their other statutory functions, so that there is an element of equity.
We propose to take powers to make regulations that would represent national standards of regulatory practice in areas that are yet to be identified.
Would the national standards displace all other standards at that level?
At this stage, it is hard to say. There is one proposed national standard elsewhere in the bill, where it is suggested that we will introduce a national standard for the licensing arrangements for mobile food vans. We are working on the food-safety element of that with the Food Standards Agency. That is quite a narrowly focused example.
We are also working with the Convention of Scottish Local Authorities to identify a range of regulatory functions in which it believes national standards could be introduced, and to bring forward proposals on those. I do not yet have those examples to present to the committee.
Other examples that came out during the consultation relate largely to aspects of licensing by local authorities in relation to alcohol and a range of other things.
You suggested in your opening sentence that part 1 of the bill will provide consistency. Is that consistency for a particular area of business across the country or is it consistency for all areas of regulation within Scottish law?
It will be more the former; we would look to address issues that particular sectors of the business community raise with us about their regulatory experience. Sometimes that will be about regulation as a truly national standard and sometimes it will be about underpinning processes.
The example that was highlighted frequently in the consultation was alcohol licensing, in respect of which local authorities impose different forms and requirements. When we looked back at the original legislation, we could not find a particularly good explanation for that approach. As a result, what could emerge from the bill is a consistent process for businesses to go through.
On your opening remarks, Mr Brown, I seek clarity on the bill’s creation of powers for one or more of the parties that are listed in it—of course, there could be more in the future—to take economic issues into consideration. Are any of the bodies in the current list not permitted to do so or is their not doing so merely for convenience?
The evidence that has been presented to us suggests that although there have been great strides in how the listed public bodies align themselves with the Scottish Government’s economic purpose of promoting economic development, the approach is not consistently applied—
I do not mean to speak over you, but I should point out that I am not anxious to explore the policy issues; that is not the committee’s remit. Instead, our approach this morning will be quite technical. If I heard you correctly, you seemed to say that the bill would for the first time enable bodies to take economic factors into consideration when making decisions, but can you point to a body that is at present inhibited from taking economic issues into consideration in decision-making processes? I ask the question simply to understand the scope of the technical detail, particularly in relation to the subordinate legislation—which is, after all, our particular interest—that will be covered.
My understanding is that with regard to all the bodies that are listed, individual regulators have discretion to take economic factors into consideration in their decision making. Equally, however, they have the discretion not to do so. The intention behind the bill is to provide equity and parity to allow regulators to undertake balanced consideration of economic and other relevant factors in determining their decisions, and be held accountable for that.
Okay. That covers economic factors. What other things are we trying to standardise?
The answer relates to the regulators’ specific functions. A regulator that deals with environmental, heritage, food safety or other issues would normally have a statutory requirement to consider those factors.
Do you mean under the bill?
I mean under the existing legislation that covers regulators’ roles and functions.
You must forgive me; it is early in the day and my brain might not have woken itself up yet. It seems that the bill boils down to the very slight thing of enabling ministers to apply a national standard to a range of bodies in their decision making. Is that the sum and substance of what looks like a rather bigger bill than such an aim might suggest?
Section 1 addresses the economic considerations and national standards. As you will appreciate, the bill is a composite one, so I would not necessarily endorse that description of it.
I invite you to express it in another way, then.
Certainly, the bill is intended to allow us to deliver greater consistency through national standards where appropriate, and to empower regulators to take economic factors into the decision-making process.
But we have already established that they can do so.
Yes, but to do so—
Forgive me, but I want to move on. I am sure that we can return to the issue, but I think that we have got the point.
I have what is perhaps a more straightforward question, which is on consistency. Taking the bill’s policy objectives into account, how has the Scottish Government ensured that an appropriate balance has been struck between primary legislation and the powers to make subordinate legislation?
Part 1 relates almost wholly to subordinate legislation because, as Joe Brown mentioned, it gives us powers to set national standards. There is nothing definite in that field yet to put down in primary legislation, so we have proceeded entirely by powers.
We have divided up our questions into those on part 1 and those on following parts. We are on part 1 at the moment, so if we could be clear about that, that might help the discussion.
I was referring to part 1. Paragraph 19 of the delegated powers memorandum states that the reason for the power to make regulations in connection with regulatory functions is that it will
“provide sufficient flexibility to enable measures to encourage or improve regulatory consistency to be taken quickly and efficiently in response to changing circumstances without having to resort to primary legislation.”
However, the memorandum does not seem to explain, or give examples of, how the power might be used in relation to the regulators that are listed in schedule 1. Will you explain the intended effects of the power on those regulators and perhaps give us some examples, in as much as you have not already done so for Stewart Stevenson?
Perhaps the best example is the national standard in relation to mobile food vans, which is in the bill and to which I have already referred. We are introducing a different protocol on that. I will explain the policy background, where the problem came from and how we are attempting to address it.
Through business representation, we established that, across the local authorities in Scotland, two different approaches are being taken to examination of mobile food vans to assess whether the equipment in them is appropriate for food-safety purposes. When we discussed with environmental health officers the two policy approaches that are in place, there was agreement that the situation is not particularly helpful, because it creates issues for food vans that operate in several local authority areas, as they have different requirements imposed on them—seemingly arbitrarily. We also confirmed that such vans have to be inspected by each local authority.
10:15With the Food Standards Agency, we are working towards the creation of a common and consistent standard of kit, which we expect to be delivered in December this year. Building on that common standard, the bill will allow us to eradicate the practice of multiple examinations and inspections by local authorities. We will put in place a mechanism whereby a mobile food van will be inspected against a common standard by the local authority in which the business is registered. If it passes, it passes; if it fails, it has remedies to go through.
As a result of the bill, the certificate that the food van receives from the local authority in which the business is based will be recognised by all local authorities in Scotland. That means that there will be clarity and consistency about the equipment that is required for food vans and there will no longer be multiple inspections.
Forgive me for interrupting. That is fascinating, but I remind you that we are not worried about the policy. I think that we can all see the point, but we are not the lead committee. Our concern is about the balance between primary legislation and subordinate legislation, and the flexibility that is inherent in the proposed approach. We have heard the example and we do not have to worry about whether the system will work, because that is not our problem. Does John Scott want to pursue the issue?
I have finished.
I seek a tiny wee bit of technical clarity. If the company that owns a food van is registered in Carlisle, which council will do the inspection?
Do you mean if the business is registered in Carlisle?
Yes. The van could be trading across the border.
I would have to—
One argument that is being deployed is that there should be consistency and a national standard. I will perhaps leave that thought with you.
Yes, absolutely.
Let us leave that thought there.
I will pick up on the same theme in broad terms. Has the Scottish Government considered whether there are any legislative provisions that set out significant regulatory functions of a body that is listed in the bill—or any other bodies that might be added in the future—in relation to which it might be more appropriate to retain scrutiny by primary legislation?
There might not be a stampede to answer. Mr Brown does not necessarily have to answer—anybody who wishes to answer can respond.
As I said, the premise of that provision is to enable us to respond to practical examples of problems that are experienced by either regulators or businesses when national standards may allow a better balance between—
I say with respect that you have explained that more than adequately. We are talking about the balance between primary legislation, which is subject to full parliamentary scrutiny, and subordinate legislation, in relation to which the level of scrutiny is perhaps not as great. How did you weigh the issue of scrutiny when you considered the balance between primary and subordinate legislation?
I think that the balance is down to the fact that we were hearing consistently from business organisations that the way in which regulatory activities have been carried out has not always been supportive enough of businesses and economic growth to be in the best interests of the economy. We had some examples, but not a host, of areas in which national standards could be introduced. The bill allows scope for such examples to emerge organically from the business community and/or regulators.
I am still not quite with you, in as much as you seem to be talking to a certain extent about policy rather than legislative mechanisms, but I will move on to my next question.
Has the Government considered whether any functions of the regulatory bodies that are listed in the bill, or which could be added in the future, are not appropriate for regulation by the Scottish ministers—for example, where local authorities have a level of independence from the Scottish Government?
I am not aware of there being any such specific issues. We have spoken at length to COSLA and engaged with it throughout the process of developing the policy. I am sorry to return to that, but COSLA has expressed some support for the bill, albeit particularly for moving forward following consultation, and it has not raised that issue with us.
The affirmative procedure will apply to the powers to make regulations in section 1. Will you explain why that level of scrutiny is deemed to be appropriate?
That is simply because the powers are wide ranging and they will allow a fair amount to be done by way of setting national standards. Rather than try to separate out more minor matters that could have been covered by negative procedure regulations, we felt that it was better to apply the affirmative procedure to provisions that will be made by way of section 1 regulations.
That brings me to my next question. Sections 2(1) and 2(2) include the power to create new regulatory requirements. The potential scope of such powers is uncertain, so was consideration given to applying a higher level of scrutiny, such as the super-affirmative procedure?
No.
You do not feel that, under those circumstances, that procedure might be appropriate.
No.
Why not?
The super-affirmative procedure is rarely used. I do not see the issues here as being major enough to justify use of that procedure.
Is that the case even when entirely new regulatory requirements are being created?
They are still regulatory requirements. The power is not at the top end, where we would normally consider use of the super-affirmative procedure to be appropriate.
Okay. Thank you.
Do you want me to go on to section 4, convener?
Yes.
As you will know, section 4 is on the power to give guidance to regulators as to the carrying out of the duty that is described in section 4(1). It provides for ministers to give guidance to regulators in relation to their duty to contribute to achieving sustainable economic growth, as we have discussed. Can you further explain how the Scottish ministers intend to use the power and how it could affect the regulators that are listed in the bill?
The expectation is that the principal source of guidance will be the code of practice that is identified in sections 5 and 6. However, we were alert to the potential for regulators and others to raise ad hoc issues on which ministers will give guidance, and that expectation led us to include the advice-giving power in the bill.
The expectation is that the code of practice, which we are in the process of developing, will evolve over time and disseminate points that emerge through policy development. We are keen to retain the capacity for ministers to give guidance to regulators on ad hoc issues, when that is required.
In the circumstances that you described, why has it been deemed to be appropriate not to apply any procedure to the power?
That is simply for flexibility. As Joe Brown said, the main document will be the code of practice. We expect most things to be in there. It could include the subject matter of what could alternatively have been drafted as guidance. However, we thought that it would be useful to have the ability to provide regulators with further guidance quickly and without parliamentary procedure when they come to us or the Scottish ministers for such guidance.
Is speed entirely of the essence in that circumstance? Scrutiny is also important; it seems to me that you are denying any level of scrutiny.
There is no parliamentary scrutiny on the power. However, the power is fairly limited. It is a power to give guidance as to statutory provision, and we obviously cannot give guidance that in any way falls outside the law. The ambit of what can be done under section 4 is a good deal narrower than what can be done under the code of practice in section 5.
So we should be assured that there would be nothing for us to be concerned about in respect of that power being exercised without any parliamentary scrutiny.
Yes—we would take that line.
I will follow that up with a rather obvious question: can ministers not do that at the moment anyway? If a body comes to the minister and asks, “What do we do with this, please, sir?” it will listen to the answer, so why does the minister need a power to give that guidance?
The power is in the requirement on the regulator to “have regard to” the guidance. Admittedly, if a body specifically requests some sort of guidance from the Scottish ministers, we can provide it without legislation. The teeth in section 4 are in the fact that the regulator must have regard to any guidance that is given.
I am just trying to get it clear in my head. At the moment, what you do in that regard must be done under legislation. Under the bill, it will only be done through guidance. Is that correct?
No. I was saying that, at present, if there is no legislation on a matter and a body wants to know what the Scottish ministers’ views are on interpretation of a statutory duty, those can be offered. I suspect that, if the matter came anywhere near lawyers, the Scottish Government would also usually offer its view, but would tell the body that the view carried no particular weight and that the body would have to take its own legal advice.
In the bill, we go a bit wider. We take a power to give guidance and say that the regulator must have regard to it.
However, the Parliament will have no input into that.
No, it will not, under the bill as drafted.
I quite like that previous answer, if I may say so. Something that saves two groups of people from having to take legal advice seems to me to be an extremely good idea.
We move to part 2, which concerns environmental regulation. Mr Stevenson will take us through it.
I am sure that this will be an opportunity for Mr Burgess to contribute to our deliberations.
Paragraphs 34 and 35 of the delegated powers memorandum say that the powers to make regulations to protect and improve the environment are a simplification and rationalisation. However, I note that schedule 2 contains a considerable list of matters that could be included in regulations, such as
“Specifying other activities as environmental activities”
for, I think, the first time and then regulating them.
Can you resolve the tension that appears to exist between the claim of simplification in paragraphs 34 and 35 of the memorandum and what is in schedule 2, which gives ministers a pretty wide power to expand the remit of environmental regulation? How can that be seen in any meaningful sense as simplification or rationalisation?
10:30
I will deal first with the question of simplification. The main environmental regulation regimes, which cover industrial pollution, waste, radioactive substances and the water environment, come from a variety of statutes of different vintages. That is quite a complicated mixture of primary and secondary legislation.
To return to questions that were asked about part 1 of the bill, there is quite a bit of detail on waste in the primary legislation and in the secondary legislation. The provisions on radioactive substances are from an act of 1993, which is essentially a consolidation from the 1960s. Almost all that is set out in primary legislation and causes difficulties for the Scottish Environment Protection Agency and for operators in trying to fit the regulated practices into the framework that the primary legislation sets out. Most of our industrial pollution prevention and control is dealt with under the Pollution Prevention and Control Act 1999, and the water environment is dealt with under the Water Environment and Water Services (Scotland) Act 2003.
The 1999 act has a very broad power, which is not dissimilar to the one that the bill provides, to allow ministers, by regulations, to regulate activities of any nature. A broad power already exists in that act, and our colleagues south of the border have used that power to bring together all their regulatory regimes for industrial pollution, waste and radioactivity. That power, on which the power in the bill is closely modelled, has a fairly detailed schedule of the matters that can be contained in the regulations.
In that sense, what we have provided in the bill is nothing new and is no wider than the existing powers in the 1999 act. What is different is that the 2003 act provides a much more proportionate scheme of regulation for the water environment, so that an activity could—depending on its significance—be regulated at the level of a licence or registration or simply under general binding rules.
Such flexibility and proportionality are absent from the 1999 act. I apologise to the official reporters for waving my hands in the air at this point, but we are taking the broad horizontal approach from the 1999 act, to cover a wide range of environmental activities for which all that can be done is to apply a permit, with the vertical approach from the 2003 act, which allows us to apply a much more proportionate level of regulation but in a narrow area. We are bringing the two together to get the new framework, which I sincerely hope will be quite a bit simpler and more flexible to operate for all concerned.
That is encouraging as a description, but I wonder whether it meets the test of simplification. If, as you suggest, the 1993 act still draws on a 1960s act in relation to radioactivity, and if the bill does not draw into itself all the powers of the 1999 and 2003 acts, is it possible to argue that you are merely spreading the legislative levers that are available across a further act without dispensing with any previous acts and that the word “simplification” is therefore not the most obvious one to use?
An attempt to simplify is certainly being made. The bill removes from the 2003 act the power under which the controlled activities regulations are made. We intend to do away with the power in the 1999 act if at all possible, but there are complications with legislative competence, because the issue is not entirely devolved and the 1999 act is also used to regulate industrial pollution from offshore activities, which is not within the Parliament’s legislative competence. The intention is certainly to replace everything that is regulated under the 1999 and 2003 acts with new regulations under the new power, but our ability to completely sweep away the earlier schemes of regulation is more limited.
We certainly also intend to use the new power to replace the waste regime in the Environmental Protection Act 1990 and the Radioactive Substances Act 1993—the latter is based on a 1960s model, as I mentioned—to ensure that we get a single set of regulatory procedures instead of having appeals procedures scattered across several pieces of legislation that do not all say the same thing.
Given the vires issues that you have just highlighted and the fact that the Government might seek to draw such matters into Scottish legislation, has the Government had any discussions with the UK Administration to get what I think is called a section 103 order to ensure that the bill can deal with such issues?
I will raise you one—it is actually a section 104 order.
Ah.
The issue is the regulation of energy efficiency which, as far as it is dealt with under the 1999 act, is already executively devolved. The Scottish ministers can use that power and did so most recently in making the Pollution Prevention and Control (Scotland) Regulations 2012 (SSI 2012/360).
To make it clear to those who might be reading our discussion, will you confirm that executive devolution means that the Scottish ministers may exercise the power but that Parliament may not legislate in the area?
That is correct, but I point out that what was executively devolved was the power for the Scottish ministers to make regulations. That power was exercised in the 2012 regulations, which came out at the end of last year.
There are complications about what precisely we can regulate. Although the regulation of pollution from offshore activities would probably not come in at any stage, we are as far as possible seeking to simplify matters and to get rid of the earlier regulation schemes.
I will finish by returning in the context of environmental legislation to the balance between primary and secondary powers with, in essence, everything that matters being delegated to secondary powers, which we raised in relation to part 1 of the bill. Given that secondary powers remove from Parliament the ability to amend proposed legislation—that ability comes only with primary legislation—is the Government making a commitment to being flexible about withdrawing and replacing instruments if Parliament has serious views about the structure and policy scope of secondary legislation? Given that everything will be dealt with in secondary legislation, will we as a legislature be able to influence adequately the development of environmental legislation through the secondary legislation mechanism?
I am sure that ministers are always cognisant of the views of any parliamentary committee, whether it be this one or a subject committee. However, I would certainly see that as the backstop throughout the whole process, which has been a partnership project between us and SEPA.
As the proposals have been developed, there have been a number of consultations and lots of opportunities for interested parties, regulated businesses, non-governmental organisations and others to get involved in the process. If there was suddenly deep concern about a fundamental aspect of a set of regulations before Parliament, I would see that as a significant failure on our part. I am sure that, were there to be any concerns in Parliament, ministers would deal with those appropriately. The approach is to consult people as we develop the detail of the regulations, so that everyone is content with that.
We can consider the history of scrutiny in the Parliament of regulations under the 1999 act power. I mentioned the set of regulations that was approved at the end of last year. There was a brief debate in the relevant committee, because those regulations were dealt with under the affirmative procedure. However, I happened to look back at the very first set of regulations dealt with under that power, in 2000, and they went through the committee on the nod.
Stewart Stevenson raises a valid point. When legislation is introduced by means of subordinate legislation and—most often, I suspect—negative instruments, this committee, at any rate, has little or no ability to scrutinise the policy issues. If the instrument is technically correct, it will go through on the nod here, as you say. The committee that might consider the policy issue just says, “Oh, the Subordinate Legislation Committee is quite happy with it. Next!” I feel that there is a sort of crack in the paving stones and that things could slip through, possibly without adequate parliamentary scrutiny. I want to be further reassured by you that that will not happen and that somehow or other I am being naive.
I am inclined to say, “Trust me, I’m from the Government,” but that might not be the answer that you are looking for. I gave the example that the more recent scrutiny of regulations made under the power in the 1999 act was more detailed than the scrutiny back in 2000.
Essentially, we are asking Parliament to give ministers a power. As members have said, the power is broad. However, it is also quite clearly expressed, given the detail that is provided in schedule 2 to the bill on what can be done using that power. It is also in an area that is quite well precedented. We have existing sets of regulations, which use very similar powers, so Parliament has already seen the sort of thing that ministers would do under such powers. I hope that that, combined with adequate consultation with interested parties, is enough to ensure that nothing falls through the cracks.
Does Mike MacKenzie have a question on that?
No. The issues have been explored fairly thoroughly.
I return to part 1 of the bill and the earlier discussion about levels of scrutiny. Mr Stevenson raised the point about cross-border legislation and trade and so on, which I will take a stage further. I am not looking for a response today because, if you could not respond to Mr Stevenson’s point, you will be unable to answer my question.
I am looking at European legislation and wondering whether we are putting ourselves at risk of somebody taking us to the European Parliament over such issues. How do we protect ourselves against that and allow the scrutiny that is perhaps being missed? I am keen to get a response that addresses not only Mr Stevenson’s point but the point about European legislation and how that would affect us.
10:45
I am sure that consistency with European legislation is a fair issue to raise, so does Mr Burgess want to address that?
Part 2 deals with environmental matters, on which quite a lot is legislated for at European level. That limits the realisation of our ambitions for a simple and streamlined system because, when we implement European Union legislation, we need to ensure that we have correctly transposed all our EU obligations. We want a flexible system with different tiers of permits, but we are limited by, for example, the industrial emissions directive, which mandates that, for certain industrial activities, there absolutely must be a permit and none of the lower levels will suffice. We do what we can within the framework of European legislation and there are times when that framework is not entirely consistent, which causes us some difficulties.
Mr Brown might be better able to respond on part 1. There are certainly issues in relation to the services directive, which sets up rules on how enterprises from one part of the EU can do business in another.
We are not conscious of any issue in relation to the bill and existing European legislation or requirements. We are comfortable that the provisions are compatible with EU legislation.
I am not really comfortable with that response. It does not convince me, but I am happy for you to come back to me with some detail. You are saying that you are comfortable with the position, but I am not, which is why I asked my question.
I will certainly provide additional material.
On the back of the discussion that we have had, it has just occurred to me that the guidance has been elevated to being a more significant part of the management framework for the policy, so I take it that a commitment has been made that all the guidance that will be provided under the powers in the bill will be published and made available for Parliament to scrutinise and respond to if it wishes to do so, even if no parliamentary process is identified with that guidance.
We have not yet considered that level of detail. The code of practice to which part 1 refers will be published. As I said, we envisage that there might be a line of sight or a route for more general ministerial guidance to be absorbed in subsequent versions of that document when it is published.
Could I suggest—I do so personally, because I have no mandate to speak for the committee, although I see that some people are nodding—that the committee would regard it as advisable for ministers to make such a commitment to publish guidance?
As I say—
This is not the place for you as an official to make that commitment, but I suggest that you should engage ministers on that point.
Yes.
I go back to part 2 and environmental regulation. In response to Mr Scott’s and Mr Stevenson’s questions, Mr Burgess might already have answered my question. The negative procedure applies to powers to make regulations under section 10, unless there is a textual amendment of primary legislation, to which the affirmative procedure applies. Schedule 2 includes some significant powers, such as the powers in paragraphs 28 and 30 to create new offences and to impose new fees and charges. Why is it considered to be appropriate that the negative procedure should apply save when primary legislation is to be amended?
I can explain that by looking at the history of what happened under the 1999 act, which, as I explained to Mr Stevenson, contains the predecessor power for a large part of what is proposed. A mixture of affirmative and negative procedure instruments have been made under that power. As I mentioned, the most recent set of regulations to implement the industrial emissions directive at the end of last year was made under the affirmative procedure.
The Interpretation and Legislative Reform (Scotland) Act 2010 allows the affirmative procedure to be used even if only the negative procedure is mandated. There is flexibility to use either affirmative or negative procedure, depending on the extent of the subject matter.
When we are required to implement European directives on environmental matters, we would do that through the proposed power. To be frank, some of those directives have little or no effect in Scotland—for example, one is coming up shortly in relation to the storage of metallic mercury, but that practice does not happen in Scotland. Legislation is needed to meet the European requirements, but it has no practical effect in Scotland.
In such cases, the negative procedure is perfectly adequate. In others, such as the first time that we use the power—and certainly when we bring in the material from radioactive substances and waste regulation—the affirmative procedure will be entirely appropriate. The affirmative or negative procedure can be used according to the instrument’s significance.
Given the scope of the proposed powers, was consideration given to applying a higher level of scrutiny—the affirmative procedure or even the super-affirmative procedure—to the new powers to make environmental regulation that extend beyond the existing powers?
Yes. As I said, we have looked at the existing powers that we have drawn on and the history of parliamentary scrutiny of those powers. We consider that what is provided in the bill is appropriate for that.
To return to European issues, paragraph 22 of schedule 2 to the bill allows the regulations to make provisions that,
“subject to any modifications that the Scottish Ministers consider appropriate,”
are similar to any provisions that are
“capable of being made, under ... the European Communities Act 1972 in connection with an EU obligation relating to ... the environment.”
Why is that power appropriate, given that the 1972 act is the general enabling provision that allows the implementation of EU obligations by subordinate legislation?
Although that power might look a little unusual, it is nothing new. It has a direct predecessor in paragraph 20(1)(b) of schedule 1 to the 1999 act and there is another similar power in the 2003 act. It is not a new power. Rather than have separate instruments or use the powers from two acts in making the same instrument—which, as the committee knows, is technically possible—it allows a single set of powers to be used.
Is the advantage of that the fact that, if you are making a set of regulations, it is easier to have one power that enables you to do them all in a oner rather than to refer to another power for the appropriate bit?
Essentially, yes.
Given the width of the proposed substantive powers in the bill, why are further powers required to make supplemental, incidental and consequential provision? Will you give examples of how those ancillary powers might be used?
Which power are you thinking of in particular?
The ancillary powers in relation to parts 1 and 2. I would need to ask others about the particular powers.
In relation to part 2, for example, it is very common that regulations that are made under such a power need to make consequential amendments to a variety of other bits of legislation. We might be dealing with environmental protection, but references to environmental protection regulations can frequently be found as far afield as tax legislation, so there is a need to be able to make such consequential provision.
Forgive me—I am confused. If you are making regulations that are designed to change things anyway, why do you need the power to make supplemental provisions to the regulations that you have made to change what is there? Is that not the change process? Why do you want to add supplemental stuff to that when your power in the first place is the power to change?
We need to be able to make provisions that extend to other legislation. That might be the case with consequential provisions more than supplemental provisions.
If you needed to change another piece of legislation in the process of making your regulations, surely that change should be the next line in the regulations that you make. Why do you want to have a power to do something else afterwards—other than because you forgot it the first time round? That is somewhat unkind, but that may be the point.
That is exactly what section 44 provides: it provides the power—within our regulation-making powers—to make supplemental, incidental or consequential provision. Without section 44, we would not have the vires to do that.
So basically you are not confident of getting it right.
I think that I am following you, Mr Burgess. You are saying that you need to be able to change the whole statute book; the power enables you to be quite sure that you can do everything that is necessary.
Yes. Without the power, we could make the environmental regulations, but we would not be able to make the changes elsewhere in the statute book where there are cross-references to the regulations. Without the power, that other legislation would not necessarily work as it was intended to, which is not a good thing to allow.
I thank you very much for your extensive evidence. As there are no further questions, I suspend the meeting.
10:57 Meeting suspended.