Procedures Committee, 29 Oct 2002

Meeting date: Tuesday, October 29, 2002

Official Report 138KB pdf

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Correspondence (Statutory Instruments)

We have a brief agenda this morning. The first item is a paper on negative Scottish statutory instruments, which is essentially a covering report accompanying a letter from Annabel Goldie MSP, who is the deputy convener of the Enterprise and Lifelong Learning Committee. Miss Goldie is with us this morning, principally to respond to any issues that committee members may wish to raise with her, but I give her the opportunity to add anything to the letter or underscore the significance of any point that she has made.

The letter is self-explanatory. The issue is highlighted at the top of page 2, which explains the time scale for consideration of the Late Payment of Commercial Debts (Scotland) Regulations 2002 (SSI 2002/335). The consequences of that time scale were rather alarming for the Enterprise and Lifelong Learning Committee. That highlights the issue that the Procedures Committee might want to consider, but if committee members want to ask me questions about the incident, I will be happy to respond.

We are also joined for this item by Alasdair Rankin, who is the clerk to the Subordinate Legislation Committee. Alasdair, would you like to draw any issue to the committee's attention? You are obviously aware of the recommendation that we raise the matter first with the Subordinate Legislation Committee.

The incident is the first time that a committee has taken a decision on an instrument and reported before a motion has been lodged and the committee has been asked to consider that motion. The time scale is a factor, as Annabel Goldie mentioned. It turned out to be very lucky for the member who lodged the motion to annul that the Enterprise and Lifelong Learning Committee was meeting the next day and happened to have the minister in charge of the instrument present. It could otherwise have been administratively difficult to put all the various stages in place to achieve what the lodger of the motion sought. Given that he had lodged the motion so late, the Parliament might have had to say that it was not possible to take all the steps that he was asking the Enterprise and Lifelong Learning Committee and the Parliament to take.

I know some of the background to the case, because one of the Scottish National Party front benchers contacted me the day before the Enterprise and Lifelong Learning Committee met. The Law Society of Scotland had realised that there were concerns about the instrument and I had been asked to contact the minister concerned via the Executive office, because we felt that the Executive might want to lodge a motion or withdraw the instrument.

We must balance the issues. There were genuine points of concern on the instrument, as Annabel Goldie reflects in her letter. We have a dilemma: the rules within which we operate say that members are allowed to lodge a motion to annul up to 40 days after the instrument is laid before the Parliament, but there is a commonsense point about how we manage our business to allow objections to be raised and considered properly.

The incident is a good example of a case in which there was probably good will on all sides to acknowledge that there was a potential problem with the instrument. I think that the jury is now out. My understanding from reading the Official Report is that the Executive has been asked to keep a watching brief on the instrument.

Rather than changing deadlines, we need more of a process. I have a question for Annabel Goldie, who has dealt with a number of negative instruments. It is right that committees should deal with SSIs as early as they can, which seems to be what the Enterprise and Lifelong Learning Committee is doing. However, if potential problems are subsequently brought to a committee's attention, should that committee be prepared to revisit the matter? It is reasonable to reconvene a committee if necessary within a space of seven to 10 days. Perhaps we should have a deadline round about the 30-day mark. That would allow a committee to come back to an instrument. There may be some instances in which a committee will decide itself that it wants to reconsider an instrument.

Is the problem not the 40-day deadline, but the process within those 40 days? Perhaps we need a process that allows for different scenarios. The problem is that, on the whole, those scenarios have not arisen—we just happen to have had one. Would it be reasonable to say that we do not necessarily want to establish a tighter deadline, or should we lessen the number of days slightly?

The 40-day period is not the problem. As Fiona Hyslop says, the problem is the process that is invoked within that period. The pragmatic way of dealing with the problem may be to have a final cut-off point for the lodging of a motion to annul within the 40 days for the simple reason that, if we do not have that cut-off point, we could create insoluble problems for the lead committee, the minister in charge and the Parliament. If the Enterprise and Lifelong Learning Committee had made a different decision on Lloyd Quinan's motion to annul, the consequence would have been that the Parliament would have had to consider the issue the following day.

The problem is the chain of events within the constrained time scale. As Alasdair Rankin indicated, whether the committee would manage to comply with the spirit of the existing rules was in the lap of the gods. Had the situation turned out otherwise, it might have been impossible. I do not know what sort of problem that would have created, because, as far as I could see, Lloyd Quinan acted perfectly competently—and, indeed, timeously—within the existing rules. The 40-day deadline is not the issue. The issue is what can reasonably happen within that period.

I agree.

When committees have to take a view on negative or affirmative instruments, the sense of standing orders is that members should regard the 40-day period as the total amount of time that they have to complete the procedure. It is impractical for members to think that they can lodge a motion on the 39th or 40th day. Although standing orders leave that possibility open, members will realise the practical difficulties that are raised when we try to telescope a procedure into three days, which is the absolute minimum. Everything happened to fall into place with the instrument concerned, but that might not happen on another occasion.

I have some questions that are not critical but which merely illustrate my lack of experience on the matter. Is it normal for the Executive to produce negative instruments that come into force before the end of the 40-day consideration period?

As I understand it, that is the effect of the negative procedure. The current procedural rule is that the instrument is in force and that there is a 40-day period for a potential annulment, if the appropriate committee decides that the instrument should not proceed.

Is that sensible?

I suppose that it mirrors the negative procedure in other fora.

With due respect, that is not an argument.

I do not object per se to the application of the negative procedure. There are circumstances in which it might be the sensible way in which to proceed. It is relevant to mention that the instrument that we are discussing came into force at the beginning of August, which was in the middle of the recess. Interested parties outwith the political domain might not have had their eyes on the ball at that time, which is understandable during a holiday period. That fact exacerbated the situation.

Would not it be more sensible if committees waited until the 40-day consideration period was over to discuss whether to annul the instrument?

I suppose that that depends on one's view of the point of the 40-day period. One view from a practical standpoint is illustrated by the instrument that the Enterprise and Lifelong Learning Committee considered. Because the regulation was in force, benefits were undoubtedly accruing to certain organisations in Scotland. It would be an onerous decision to decide at short notice to abbreviate the exercise of a benefit that individuals and organisations enjoy. The potential effect of an annulment is the reason why, if we are to have a negative procedure in the Parliament, I would not want an extension of the 40-day period. My view is that, if there is to be an annulment under the negative procedure, it must be within the 40 days. Fiona Hyslop makes a pertinent point about the management of the 40-day period.

Donald Gorrie probably raises wider issues about the nature, purpose and organisation of subordinate legislation in the Parliament, which are based on a transitional order that reflects practices at Westminster. The issue that we are charged with considering today is the more specific one about whether our procedures and standing orders need to be adjusted to make the existing system work. That exercise assumes nothing about the existing system, other than that it is there and that it should work in the terms under which it was framed and enacted. Reforming, amending, changing, sweeping away or any of the more radical options that Donald Gorrie might have in mind for the system are more important matters that might fruitfully be considered, but I suspect that the Subordinate Legislation Committee would be the best body to initiate that.

I accept your polite rebuke, convener.

It was not a rebuke; it was merely an amplification of your point.

Okay, convener. What is Annabel Goldie's best advice on how to deal with such a situation? Do we say that the person in Lloyd Quinan's position has 30 days instead of 40 days in which to lodge his motion, and that the committee has 10 days within that 40 days to give it proper consideration? How do you suggest we approach the matter?

There are two issues to determine. The first is what it is reasonable to expect a committee to do in considering a negative instrument. In the case of the Enterprise and Lifelong Learning Committee, it happened to suit our agenda to consider the instrument concerned at the earliest possible opportunity. We of course had a whole lot of other business to do. As I understand it, we first considered the instrument at the earliest possible opportunity—it was put on our agenda just after the end of the recess. Such flexibility is desirable. It gives committee members time to look at the instrument. If issues arise, members will have the remainder of the 40-day period in which to decide what to do about the instrument.

The second issue is what it is reasonable for anybody who is minded to oppose the operation of the instrument to do. I think that the first thing that it is reasonable for them to do if they have a concern is to appear at the relevant committee and intimate that concern. If, as happened in this case, the concern is not known about at all and has not been registered in the minds of any outside individuals when the relevant committee meets, I think that it is sensible to say that further objections may be lodged within the 40-day period. Perhaps there has to be a cut-off point seven days before the expiry of that 40-day period.

Our recent experience was the first time that my committee and I have had to deal with such a problem. I would be reticent about suggesting that I am the omnipotent authority on these matters. I can merely explain to you my experience and my reaction.

Thank you for bringing the matter to our attention. Your committee had to deal with the instrument in question, but the Parliament as a whole is affected by the issue.

My understanding is that it is important for committees to examine statutory instruments as early as possible. Ordinarily, a committee will have no issue with the instrument and will let it through. However, if a committee wanted to pursue a matter, it might want to call witnesses. There has to be a period to allow it to do that and to have a second cut at the issue if it wishes. I do not want us to assume that committees will wish to examine these things only at a later stage; it is important that they consider them early on.

Would it be fair to say that the end process may mean that members who want to lodge objections have to do so within a seven to 10-day period in order to allow for the subsequent chain of events, but that the committees themselves could lodge motions until fairly late in the 40-day period? When we are considering the procedures, we should perhaps bear in mind the difference between an individual lodging an objection and the committee lodging an objection. Please correct me if I am wrong but, if the committee decides that an issue is so important that it wishes to convene to discuss it, it will probably need only a day or two—as long as that period covers the Wednesday or the Thursday, when the Parliament meets—in which to lodge a motion. That is the worst-case scenario. We need to consider the various scenarios and ensure that our process can accommodate them all.

How would you feel about different lodging dates for committees and individuals? If an individual lodges an objection, they will need evidence and will need to be given the chance to say their piece. They can do that only with a committee's agreement. If the committee itself decides to object to an instrument, it can, I assume, lodge a motion up to a fairly late date. I invite responses to those points.

Fiona Hyslop has drawn an interesting and valuable distinction. If the Enterprise and Lifelong Learning Committee, when it first met to consider the instrument, had been made aware of the reservations that were felt by other parties, I think that it would have wanted to take evidence, but it might well have found itself against the wire, with 33 days or whatever. Having taken evidence, the committee might have had to convene a meeting to establish what its members made of the evidence and to reach agreement on its position. There is a strong argument that the committee needs the latitude of as much of the 40-day period as possible to do what is proper.

On the other hand, one would imagine that an individual might have a particular reason to be concerned about the provisions of the instrument. If that is the case, it seems reasonable for the individual to be required to represent their concerns at an early stage. I am not unsympathetic to the suggestion that, if an individual is unhappy about an instrument, they should act within seven days of the 40-day period, whereas a committee should have slightly greater latitude to act within the 40-day period.

Do we agree with the report's recommendation to refer to the Subordinate Legislation Committee the issues that Annabel Goldie's letter raises about the compatibility of our current procedures with the essential framework for subordinate legislation?

Members indicated agreement.

We shall invite the Subordinate Legislation Committee's response and encourage it to reflect on some of the broader issues that have arisen in our discussion, which might be pertinent in the longer term for it to consider.

Thank you.