Education, Culture and Sport Committee, 12 Mar 2002

Meeting date: Tuesday, March 12, 2002

Official Report 224KB pdf

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Subordinate Legislation

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Scottish Social Services Council (Appointments, Procedures and Access to the Register) Amendment Regulations 2002 (SSI 2002/60)

Under agenda item 3, we will consider first the Scottish Social Services Council (Appointments, Procedures and Access to the Register) Amendment Regulations 2002 (SSI 2002/60) under the negative procedure. The purpose of the regulations is to effect minor and technical changes to allow greater flexibility regarding the timing and payment of fees and allowances to members and non-members of the Scottish Social Services Council who serve on committees and sub-committees. We have with us an Executive official, Gillian Ottley, who will be able to answer questions from members.

I suggest that, at an appropriate moment, we recommend annulment of SSI 2002/60 on the grounds of defective drafting, as reported to us by the Subordinate Legislation Committee. This is not the first time that this has happened. The Executive admits that the drafting is defective, so it would be in order for the Executive to withdraw the regulations and come back with them drafted correctly. The committee should not approve regulations that are drafted defectively. The time has come for the committee to indicate its concerns formally by recommending annulment, unless the Executive withdraws the regulations and comes back with them drafted correctly.

The second instrument that we will consider is unobjectionable.

The Subordinate Legislation Committee regularly comes across minor defects in drafting. The issues that are involved are sometimes complex, and it is a fairly regular procedure for the Subordinate Legislation Committee to point out minor defects to the Executive. The Executive, while it recognises the defects, indicates that the instrument, if it goes ahead in its unamended form, will still perform the function for which it has been drafted.

In this case, the Executive admits that there is a defect in certain terms, but has said to the Subordinate Legislation Committee that it will take steps to make the necessary amendment when the instrument is next amended. The Subordinate Legislation Committee therefore drew the defective drafting of the regulations to the attention of the lead committee—this committee—and the Parliament. The Subordinate Legislation Committee does not approve of the defective drafting, but I suspect that the legislative process would be difficult if every minor defect caused legislation to stop. The error in question appears to be a minor drafting error, which might not be a good reason to stop an instrument that carries forward policy.

If no other members wish to contribute, I ask Gillian Ottley to respond.

I am grateful for the previous comments.

I want to say a bit about the background. The Scottish Social Services Council is a new body, which was established by the Regulation of Care (Scotland) Act 2001. The council became operational on 1 October; its major responsibility is regulating the social care work force.

The Scottish Social Services Council (Appointments, Procedure and Access to the Register) Regulations 2001 (SSI 2001/303) were written to govern the appointments processes and access to the council register. Mr Russell is right; it is a fair cop, I am afraid. We made a mistake in drafting the Scottish Social Services Council (Appointments, Procedure and Access to the Register) Amendment Regulations 2002 (SSI 2002/60). There was an oversight in amending the regulations, but we do not think that the defect will give rise to any specific difficulties in practice. Regulation 11(1)(a) has been amended—the reference to annual fees has been removed—so there is no longer anything on which regulation 11(3) can bite. Therefore, there is no difficulty in allowing regulation 11(1)(a) to lie. Nevertheless, we should have spotted the defect and we will seek to remove it at the first opportunity.

This is the first opportunity that has arisen for the regulations to be withdrawn and brought back correctly drafted.

A major principle is at stake. If we make laws that are defective, we provide money for lawyers, give rise to lots of interpretation, and do not provide a good service. We are here to provide a good service. The committee is meant to be raising standards in education and elsewhere, but I am afraid that repeatedly—and I have nothing against Miss Ottley and the work that she is doing—we hear the argument, "There is a mistake, but it doesn't really matter." It does matter. Precise language is what laws and regulations are about.

If the regulations were huge and overarching, and if the world would stop turning if we did not make a recommendation on them today, I might not push the point. However, at some point, we have to say that this is the opportunity to get it right and that, if something comes to us wrong, it must be taken away, corrected and brought back. If I am correct, the regulations come into force on 15 March, so there is time for the necessary work to be done. We know what the defect is and there would be virtually no difficulty in coming back with a properly drafted statutory instrument.

If we nod the instrument through, we are simply aiding and abetting the mistakes that have happened in the past and that will go on happening. It is right for the committee to take a stand.

With the greatest respect to Ian Jenkins, I find it extraordinary that a member of the Subordinate Legislation Committee, when he is confronted with his own report, is not prepared to make a stand for good drafting and correct procedure.

I am saying simply that I know the difficulties—

We all know the difficulties.

I have no problem with the principle of Mike Russell's argument. In my short period on this committee, we have witnessed drafting errors of varying degrees. Given our previous discussions, in which we debated words with the minister and drafting was criticised, I have much sympathy with Mike Russell's argument. However, I want be reasonable, so I do not think that we should send back this statutory instrument.

The wider issue that needs to be raised, either by this committee or by the Subordinate Legislation Committee, is how we stop defective drafting when there is the time and space to correct it.

I met Margo MacDonald, the convener of the Subordinate Legislation Committee, after I wrote her a letter following the last but one piece of subordinate legislation—the last one was withdrawn because it was defective. We will make a joint approach to the Procedures Committee to raise the issue and to examine the possibility of bringing into line the timetables to which the Executive and the committees of the Parliament operate. The fact that they operate to different dates and times causes some of the problems that we have experienced.

I echo what Mike Russell said. It is important that we make a stand on this issue. This is not the first time—it must be the sixth or seventh time—that we have received a statutory instrument that contains defective drafting. Had it been the first time, I would have been content to let it go, but it is not. There comes a point when it is worth sending out a message. Given that we have the opportunity to do that on this occasion, we should do so.

We would lodge a motion and the regulations would come back to the committee on 26 March for a further debate of up to 90 minutes with the minister, prior to Parliament and the Parliamentary Bureau taking a decision before 15 April. We would therefore be required, if necessary, to produce a report overnight on 26 March.

Do members wish to proceed with that course of action? Is there a mood to move that way? I know two members' views; I am not sure that I know the views of the majority of the committee.

That would be a waste of parliamentary time and effort. If the Official Report of our discussion were to be sent with a firm note to those in the Executive who are responsible for drafting, it might be considered as a yellow card and they might realise that, the next time that this happened, they would get a red card.

We have discussed such matters before; I accept that this is not the first time. However, the course of action that has been described would be harsh and would cause us timetabling difficulties later on. We have other, more important things to do. We could send out the same message without going through that procedure.

If we lodge a motion for debate on 26 March with the intention of annulling the regulations, would that give the Executive the necessary time to draft competent regulations?

Our view is that the regulations that are before the committee are competent. The defect that has been noted does not give rise to any difficulties in practice. It is for the committee to take a view on the matter. I believe that we could probably draft new regulations, but we would have to go through a process of consultation again. That would probably take us beyond 26 March.

I am not sure how the majority of the committee wants to proceed.

The matter is part of a wider set of issues that we should refer back to the Subordinate Legislation Committee in the strongest possible terms. This is not the only committee that has experienced the problem. That would be the most sensible way to proceed.

After hearing Jackie Baillie's contribution about five minutes ago, I was minded not to press the matter to a vote, because I thought that she was talking sense. Ian Jenkins has goaded me a little. His ability to sit back and do nothing may be liberalism, but it is certainly not parliamentary democracy.

Having said that, I accept that the warning that we send will be the final warning. If we were to receive another such document, no matter what it was, I hope that the committee would push the matter further. I see nods of assent from committee members. I also hope that the Executive might, even at this stage, take the regulations away and do something about them.

To say that the regulations are perfectly competent and will do their job is a wrong argument. That may be true of the regulations that we are considering, but the same thing has happened with other instruments on which we have discovered that the job has not been done. Failure to draft accurately, for whatever reason, is bedevilling the committee and the Parliament.

I will not press the matter to a vote. However, as far as I am concerned, we are now in the 59th minute of the 11th hour on the issue, which is another part of the issue that I raised at the end of the stage 2 debate.

I think that all members share your concerns about the drafting of legislation. With the convener of the Subordinate Legislation Committee, I will continue to press for effective measures to be put in place to ensure good drafting. Thank you for not pressing the matter to a vote.

I assume that we will make no recommendation on the regulations and will allow them to proceed.

Members indicated agreement.

I will ensure that members' comments are passed on to the relevant ministers for their information.

I hope that you will pass on those comments with an appropriate explanation of how close the regulations came to being sent back.

Indeed, Mr Monteith. I will also send a copy of the Official Report, which will express the committee's concern.

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Children's Hearings (Legal Representation) (Scotland) Rules 2002 (SSI 2002/63)

We will now consider the Children's Hearings (Legal Representation) (Scotland) Rules 2002 (SSI 2002/63) under the negative procedure. The purpose of the rules is to permit publicly funded legal representatives to be appointed for children who appear at children's hearings, as defined in section 39(3) of the Children (Scotland) Act 1995, in certain circumstances.

I welcome back to the committee Boyd McAdam from branch 2 of the Scottish Executive's young people and looked-after children division, which is responsible for children's hearings.

Do members have any comments? I think that the Executive may have got the instrument right this time.

I hope so.

I put on record our appreciation of the work that Boyd McAdam has done.

It is certainly a more fruitful meeting this time. The instrument is before us under the negative procedure, so, unless there are strong objections, the committee will agree that it does not wish to make any recommendation in its report to Parliament. I assume that that is the case.

Members indicated agreement.

I suggest that we take a short comfort break.

We will reconvene at 15:45.

Meeting suspended.

On resuming—