Subordinate Legislation Committee

Meeting date: Tuesday, November 8, 2011

Official Report 279KB pdf

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Correspondence (Commencement Orders and Transitional Provisions)

The purpose of item 3 is for the committee to consider its approach to the scrutiny of commencement orders where complex transitional provisions are attached. Members will note that consideration of the issue was prompted by the concern that the inner house of the Court of Session expressed about the Adoption and Children (Scotland) Act 2007 (Commencement No 4, Transitional and Savings Provisions) Order 2009 (SSI 2009/267), which made transitional provision in relation to the commencement of the Adoption and Children (Scotland) Act 2007. It expressed specific concern about the scrutiny of such instruments.

The committee is invited to consider correspondence from the Scottish Government and to assess whether the Government’s commitment to provide Executive notes for commencement orders that it considers to contain complex transitional or savings provisions, and to endeavour to allow the full 40 days between the making date of commencement orders and the appointed day in order to maximise scrutiny time, is an adequate response. It is suggested that the committee write to the Government with an assessment of the adequacy of those measures.

Reference is being made to the letter from Paul Cackette that we considered last week, which made three points, two of which I have just mentioned. The third was about separating transitional provisions from commencement orders. The Government suggested that that might give it a problem, because one instrument might be agreed to and the other not. The first two suggestions seem to be sensible responses to what we asked. Do members have any thoughts on that?

As I was not here last week, it is probably not appropriate for me to comment.

A technical concern arises where there is no scrutiny by the lead committee, which we might have expected to pick up the problem. The convener mentioned an example. Although it is essentially a timing problem, there is concern about it. I am not convinced that the Government response picks up on the procedural problem that arises when there is no scrutiny by the lead committee. That is my feeling, but I stand to be corrected.

Thank you for that. Do other members have thoughts?

Forgive me for not being at the pre-meeting briefing. How do our legal advisers view the fact that the Government’s response does not provide a commitment to separate out transitional provisions from commencement orders in complex cases? Perhaps that was discussed earlier, but I would be grateful for guidance on it, if possible. Is the position that the Government has adopted reasonable in the view of those who have legal minds?

I will put that to our legal advisers in a moment. First, are there any other questions in that vein that members would like addressed? As there are not, I ask Judith Morrison whether she would care to give a view.

Under existing acts, ministers have a choice—which the Parliament has given them—whether to adopt one or other process, so it would not be wrong in legal terms for ministers to adopt one or other of the two options. The Parliament, as scrutineer of whether the Government is exercising the powers that it has been given—properly, in the Parliament’s view—can, of course, comment on that. It is not so much a legal issue, as a matter for the Parliament to consider whether it is appropriate in any particular case, and it is open to the Parliament to comment on that.

The Subordinate Legislation Committee will have the opportunity, in considering new bills and new powers, to consider how the Government should be given powers and whether it should be given a choice of procedure or not. That is something that the committee can comment on in the course of considering new powers.

I think that I made this point last week. We are talking about transitional provisions of substance, and we also talked last week about complexity. Who defines the substance or the complexity of transitional provisions? I know that the Parliament can give a minister or cabinet secretary authority or what have you, but if a commencement order falls into that grey area, who makes the decision?

Because ministers have a simple choice, which is not based on a test of complexity, they make the choice and the Parliament scrutinises it and comments on it. There is no legal test of complexity and I do not think that it would be a good idea to write one into future acts because, as I think you are saying, it is difficult to quantify it as a legal concept.

As we discussed, there is a spectrum of provisions. A minister could decide that all transitional provisions are non-complex or that he does not want to make a decision. There has to be some means of deciding that provisions need to be looked at. Or am I digging too far?

I think that the answer, as we are hearing it, is that Government ministers decide how to proceed within the powers that they have available to them. Where they have a choice, they exercise it. Where they have no choice, they must go through a particular procedure.

I understand and accept that, convener, but, reductio ad absurdum, we could get into a situation where we ask why we should discuss this at all. Why not just give the minister authority over all the provisions so that the decision is made by the minister?

It is ultimately up to the Parliament to decide what it does. There are two sorts of legislation: there is the sort that we already have to deal with and there is the sort that will come in the future. Regarding the sort that will come in the future, we clearly now have an opportunity to ask ourselves the question about the powers that ministers are being given—it would be within our remit to do that and in the light of this, maybe we should. Where ministers are exercising existing powers, it is our job simply to ask them whether they have done it the right way.

In the letter in front of us, the Government says that it will consider whether it might separate commencement orders from transitional provisions but, reading between the lines, I think that it is saying that it does not want to do that very often, because it does not want a situation in which one instrument might be agreed to and the other might not—that would leave it in an untenable position.

I suggest that we go back to the Government and say that although that makes logical sense, we are concerned about complex provisions. They do occasionally happen, they have happened and they did bite us. We could ask the Government to consider how often those situations arise, whether it recognises them when they do arise and, if they do come along again, how the Government proposes to deal with them. That is a question that we might legitimately ask, because the implication of it is that if the Government does come along with extraordinarily complex orders, we might ask some difficult questions.

Okay. Thank you.

That is perhaps the way forward. Does that meet with general approval?

Members indicated agreement.

Are members comfortable that I write to the Government in those terms, welcoming the first two commitments, which are essentially what we asked for; recognising that the third suggestion does have a problem—that it has given us, collectively, a problem; and asking it for a bit more detail about how it will think about the matter?

Members indicated agreement.

Okay. Thank you.