Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (SSI 2006/88)
Item 3 is consideration of subordinate legislation. No member requested that anyone from the Scottish Executive attend to give evidence, so I assume that there are no questions.
We are seeing a huge number of Scottish statutory instruments under the Education (Additional Support for Learning) (Scotland) Act 2004 roll-out, not least because much of the legislation was to be made by statutory instrument. I am interested to know what the Parliament does to alert all interested parties that took part in the development of the legislation to the fact that we are considering those SSIs. One of the main arguments about the 2004 act was that so much would be covered by SSIs. My point is procedural.
The present rules replace ones that the committee considered previously. The Executive agreed to come back with alterations—it has now issued the rules in a single document, rather than just the changes to the rules. The Executive consulted extensively on the original practice and procedures rules. I remember receiving information on that when we considered the rules initially. I ask the clerk whether that is his recollection, too.
It is.
So the Executive has already consulted. The SSI is really a technical amendment to one that was issued previously.
I appreciate that the Executive has consulted. The issue is whether the committee has made a point of letting people who have an interest know about the rules, so that they can contact us if they want to.
The answer to that is probably no.
Would it be too cumbersome to do that? Do we expect the people who expressed a great deal of interest in and concern about how the tribunals will work to stay alert to what is happening in the Parliament, or should we alert them?
Because of the volume of SSIs with which the Parliament deals, it would be administratively burdensome to alert everyone who may have an interest in each one. The key point about the subordinate legislation on additional support for learning is that the Executive alerted various bodies and consulted before it was produced. As I said, the rules are simply a technical revision of the original ones, which the committee has already approved.
Right. Has the Executive done what we asked it to do?
I think that the issues were raised by the Subordinate Legislation Committee rather than by us.
That is fine.
Is it likely that the dispute between the Subordinate Legislation Committee and the minister's draftsmen will be resolved satisfactorily?
We have two sets of drafting lawyers arguing about where a comma should go, so I am not sure that the issue will ever be resolved satisfactorily. There is a difference of interpretation between the two sets of lawyers, but no significant issue of principle.
It is desirable for there to be a meeting of minds, if possible.
That is a matter for the Subordinate Legislation Committee, rather than us, to pursue.
The Subordinate Legislation Committee has drawn our attention to the fact that it believes that there is defective drafting, with the result that it will not be possible to apply one of the rules. Can the committee write to the Executive to express concern about that and to ask directly for the Executive's views on the matter? I cannot quite remember what the issue is, but it is to do with the procedures of the tribunals.
I am not sure that there is anything to be gained from this committee raising an issue that the Subordinate Legislation Committee has already raised—the Executive will just give the same response.
As far as I am aware, the Subordinate Legislation Committee's views have been drawn to the Executive's attention and there is a dispute between the two. We are interested in the matter, because it relates to the likely operation of the tribunals. Therefore, do we not need to seek clarification from the Executive or perhaps to consult another body? It is rather unsatisfactory to leave the issue hanging—one group tells us that the rules will work, while another says that they will not.
The Executive has said that, in effect, it accepts the Subordinate Legislation Committee's view and will introduce a relevant amendment to rule 15, as stated in appendix 2 to the Subordinate Legislation Committee report. There is nothing to be gained by pursuing the issue further. There is a slight disagreement in relation to rule 17.
That is the issue that I was raising.
If the committee wants to write to the Executive, we can do so. I am concerned only because I am not sure what the purpose of writing would be. We would be asking the Executive simply to reiterate what it has told the Subordinate Legislation Committee.
I presume that a gap will exist until the Executive produces a new statutory instrument, which is what will have to happen, during which period the rules that we are discussing will be in force and we will still have the problem. That may be challenged; I do not know. Could we have further clarification of the situation?
We can agree that we have nothing to report on the rules or we can defer our decision to a subsequent meeting, which would allow us to seek clarification from the Executive in the meantime. The question is whether the point is sufficient to require us to defer our decision. I am not sure whether it is, because the Subordinate Legislation Committee has addressed the matter. However, that is up to the committee—I am easy on the matter. We would have to deal with the instrument next week, because of the Easter recess.
There is something to be said for being absolutely certain that the Executive gets it right. Many statutory instruments pour through. If a dispute arose about what one of them meant, that would not reflect well on the process. Waiting a week will do nobody any harm.
A point of procedure arises. If we left it to the Subordinate Legislation Committee to have direct correspondence with the Executive on any points of concern, that committee would not need to report to us. The Parliament's procedures have been established to allow the Subordinate Legislation Committee to report to us, which allows us to take a view on whether we agree with it. To have a week's delay to ensure that the rules are right is correct. However, procedurally, there would be no point in our receiving reports from the Subordinate Legislation Committee if we wanted it just to deal directly and independently with the Executive.
The Subordinate Legislation Committee has drawn our attention to the defective drafting of rule 7(2), which the Executive has agreed to amend. My slight difficulty is that we would be asking the Executive about rule 7(1), to which the Subordinate Legislation Committee did not draw our attention. Paragraph 9 of the Subordinate Legislation Committee's 13th report of 2006 refers only to rule 7(2), whereas Adam Ingram's concern is about rule 7(1).
That concludes the public part of our meeting. Next week, we will deal primarily with stage 2 of the Scottish Schools (Parental Involvement) Bill. Amendments to all sections, apart from section 14, must be lodged by noon on Friday.
Meeting continued in private until 11:12.