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I welcome members to the meeting. I was going to welcome the press and members of the public, too, but we do not have anyone as yet—they must have looked at our agenda. I remind everyone to put their mobile phones on silent mode. We have received apologies from Rob Gibson, Richard Lochhead and Elaine Smith.
It has always seemed silly to me that, after instruments go before the Subordinate Legislation Committee, which suggests minor drafting amendments to improve them, the Executive will say, "Yes, we accept what you say, but we need another legislative opportunity to do it." That means taking two bites at the cherry, which must be confusing for the people who are regulated by the instruments.
Do you have any thoughts on what you would expect to change or on procedures?
One of the suggestions in the inquiry paper is the option
If the Subordinate Legislation Committee raises an issue and we, as the policy committee, agree with that, and everything is on the record so that everybody knows exactly what changes are being suggested—in other words, where there is consensus—it would make a huge amount of sense to do what Nora Radcliffe suggests. I can think of a couple of things that have had to come back to the committee. Sometimes we have had to remind ourselves that we have no issue with the statutory instrument at all, and that the issues that existed were merely technical.
Could we come into the process a bit earlier? According to the background papers that accompany the instruments, the Executive has often consulted with the trade or with whomever is directly affected—the people with the expert knowledge. If the committee had a heads-up about what was being consulted on, that might give us an opportunity to take evidence from the same people, so that when instruments are laid, we might be able to get access to the advice and information that would allow us to consider them at that earlier stage. I do not know whether that would be feasible.
There must be advance planning in the Executive. Our being brought in slightly earlier might indeed help.
I agree with Nora Radcliffe. There is nothing worse than suddenly being pounced upon by lobby groups a week before an instrument comes before a committee and being told that something is terrible and awful and should not be happening. It is impossible to get a take on the points that those people are making or to have time to sift out the issues from what they are saying.
The issue about consultees is important. For example, we had very strong lobbies from certain stakeholders when it came to the draft Water Environment (Controlled Activities) (Scotland) Regulations 2005. If we had had more information with that Scottish statutory instrument on what the consultation had thrown up—even if the information was just in summary form, given we do not have much time to read through responses—we could have predicted the debate and the views of other stakeholders could have been brought in, possibly with a different take on the detailed issues.
We have raised that issue in committee in relation to a couple of statutory instruments. Tantalisingly, the Executive note says that there has been a consultation and lists all the consultees, but it does not give us any sense of what any of them said. If one of us is lobbied by one of the consultees who is really unhappy although all the other consultees were happy, we have a skewed debate when we scrutinise the instrument. That is, therefore, a good idea.
When I was convener of the Local Government Committee, there were times when we had to link in with Westminster legislation as well. Often, we got the statutory instruments late but we could not disagree to them because the procedure had already started. That made it difficult for us to challenge anything, as we did not have the time. We are talking about EU legislation, but the experience of the Local Government Committee—I do not know about this committee—was that Westminster was regularly ahead of us. Somewhere along the line, the Executive should alert the committee that a statutory instrument is coming, to give members time to prepare.
Maureen Macmillan made a point about the jargon that is used in subordinate legislation. The impacts of the bills that we debate are relatively straightforward to grasp, but sometimes—even with the Executive note—everyone round the table struggles to work out exactly what subordinate legislation means and who will be affected by it. The instruments are drafted up with detailed intent, but consultation and scrutiny are not helped by the terminology that is used.
The background papers mention all the statutory instruments that do not have to come before a committee of the Parliament—guidelines, guidance and all that sort of stuff. Some of that material is quite important, and knowing what is going out might help us to decide whether we want to look at it.
Mark Brough's paper mentions things such as the order relating to the regulation of scallop fishing, about which the committee had a big and notorious debate a while ago. My understanding, from reading the paper, is that that issue will not come back to us because the regulation is now being implemented by another form of statutory instrument. Have I understood that correctly?
Yes. There have been a couple of such examples. When the Prohibition of Fishing for Scallops (Scotland) Order 2003 was lodged, in the early days of the committee—in the autumn of 2003—there was a motion to annul the instrument because it was creating some concern in the fishing industry. The order was part of a package of measures and, because of the way in which the parent acts worked, some other measures in that package were contained in instruments that were not subject to parliamentary procedure. They were to come forward at a later date and the committee would not scrutinise them or see what was involved.
We have tried hard to scrutinise what comes before us in a meaningful way, because we know that the legislation will have an impact on rural communities. We know that environmental non-governmental bodies will have strong views on the statutory instruments, and we want to air those debates rather than let the instruments slide through the Parliament. However, it is sometimes quite difficult for us to do that.
I was involved slightly in the scallop fishing debate, wearing a fisheries hat. The focus seemed to move towards health and David Davidson, who was the Conservative health spokesman, started to speak on the issue from a health viewpoint. I now know what has happened concerning the instrument, and many of the things that the committee said at that time about end-product testing and that sort of thing appear, at long last, to have been accepted. However, at the time, it was difficult for me to know which committee was the lead committee on the issue—the Environment and Rural Development Committee or the Health Committee. I found that confusing.
We are talking about a different scallops issue.
Sorry. I am talking about the closing down of the—
We were talking about whether there were any scallops to save. The issue was the management of scallop fisheries, on which we had a robust debate in the early days of the committee. In effect, we discussed only one of a raft of measures because only one measure came before us. We were scrutinising a little bit of the bigger picture, and the rest of the bigger picture was not put to us. We had a strange debate—as Mark Brough said, the same situation has arisen in relation to one or two other issues—in which we were unable to flush out all the issues because they would come out six months later. If it is hard for us to understand the issues, it must be even harder for people who are not actively scrutinising the subordinate legislation that is coming through.
Sorry. I was referring to the instruments on amnesic shellfish poisoning.
Mark Brough has volunteered to add a bit more light to the discussion.
The allocation of statutory instruments to committees is a matter for the Subordinate Legislation Committee. The instruments on amnesic shellfish poisoning went to the Health Committee because they were laid under the Food Safety Act 1990. Instruments that concern food safety, such as those that deal with the moving of animals on and off farms, are sometimes in a grey area, but any statutory instruments that have been laid under the Food Safety Act 1990 have gone to the Health Committee. The Environment and Rural Development Committee has considered the fishing industry side of things—stock management, and so on.
We have not discussed the issue of affirmative and negative instruments. We tend to have quite good discussions on affirmative instruments and we invite the minister to the committee. When we have had the time, we have taken evidence in advance or have invited submissions from outside bodies, especially if we have not seen the Executive's consultation documents and had a sense of what people have said.
If we want to debate negative instruments, we have to lodge a motion to annul, which is the nuclear option. There should be a better way.
It is a good way in which to raise the debate, but it does not necessarily deal with how we might want the instrument to be changed.
Yes. There is no way to amend a negative instrument: it is all or nothing.
That is one of the issues that the Subordinate Legislation Committee has come up with. It has talked briefly about the possibility of the Executive amending its own instruments when everybody agrees that the problem is merely a technical issue. It has also discussed whether, when the problem is a policy issue, the Parliament should be able to amend the statutory instrument. In effect, the Parliament has delegated the matter to the Executive to get it right, and by taking back that power we would be taking on a huge responsibility.
We would get bogged down in the detail unnecessarily.
I do not think that we would want to go down that route. The Subordinate Legislation Committee is trying to identify ways in which the final product could be better, in terms of policy as well as in terms of content.
The Subordinate Legislation Committee's consultation paper invites us to comment on whether
I very much support that view. Thinking about our discussions on the Environmental Assessment (Scotland) Bill, many elements of strategic environmental assessment practice will come under guidance, which we need to monitor carefully. I therefore support any opportunity to select appropriate guidance for us to debate. That will not be appropriate in all situations, but in some key areas we will want to look at issues in more detail, having already investigated them through our primary legislative scrutiny.
The access code would be a good example. We had extensive discussion on the code, not only in our committee but in the Justice 2 Committee. That was a major follow-up to the passing of the Land Reform (Scotland) Act 2003. It is a matter of timetabling. I would not want us to turn everything into a statutory instrument, which might be too legalistic. The important thing is that we pick up the main issues concerning the implementation of a bill and get them aired.
It is fine to leave the negative procedure as it is, but practical difficulties can be caused. Instruments come into force after 21 days, yet we have 40 days in which to annul them. In practical terms, that means either taking the nuclear option, which creates an awful lot of difficulty for an awful lot of people, or not doing anything. There needs to be some tidying up. There should be a practical way of dealing with such instruments without causing an inappropriate amount of difficulty for people.
We have managed to have a run round most of the issues that have arisen at the committee over the past few years. That gives us a good enough steer for the Subordinate Legislation Committee. That committee has invited me, as convener of this committee, to go along and discuss our experiences. I wanted to do that with the support of the committee and having ensured that I had picked up members' comments. I do not think that it is our job to solve all the issues around subordinate legislation, but we should raise our committee's experiences.
Meeting closed at 10:22.