Public Finance and Accountability (Scotland) Act 2000 (Access to Documents and Information) (Relevant Persons) Order 2003 (SSI 2003/530)
Members have paperwork before them that relates to agenda item 4, which is a rather tricky item. As the lead committee, we have to consider this order, but there has been some difficulty with regard to the timing. The Subordinate Legislation Committee is waiting for the Executive to respond to some queries that it had about the order. That committee met this morning and has relayed its decisions to us, which I now invite our clerk to explain.
The concerns of the Subordinate Legislation Committee are set out in the covering paper. There are three key issues. The first relates to the drafting of the order, in particular the use of the word "includes" when describing the class of person whom the order would affect in terms of the Auditor General having access to documents.
That means that some concerns will be brought formally to our attention. The difficulty is that, were we to go by our normal schedule, we would be discussing that piece of subordinate legislation after the point at which we could lodge a motion on it.
Having convened the Subordinate Legislation Committee, I have some knowledge of where it is coming from in this regard. I am surprised that there appears to have been no clarification in the communication that has taken place. I am not sure whether the Executive has simply not got back to the committee or whether it has done so, but in a way that the committee feels is unsatisfactory.
The latter is the case.
Usually, any failure to meet the 21-day rule is dealt with by way of a profuse apology and some forelock tugging on the part of the Executive. I think that we need to wait for a formal response from the Executive. We should be prepared to schedule an extra meeting if the Subordinate Legislation Committee is not satisfied. However, it might be pointless to commit formally to doing so. We should retain the flexibility to convene a brief meeting next Tuesday if matters are not resolved to the satisfaction of that committee but, if it is satisfied, we can leave things as they are. To some extent, we are in the hands of that committee. We are the ones who have to fire the bullet.
The difficulty that we faced was that we might have dealt with this agenda item before the Subordinate Legislation Committee had discussed the order this morning. That is why the clerk was sent to inform us of the decision. My understanding is that the committee has had a response from the Executive but that it is still not satisfied with it. However, my understanding is based only on a verbal communication. I agree with you that we need to retain flexibility until we are officially notified. However, if we take the concerns seriously, we will have to have a serious discussion. That would mean that we would have to schedule a short meeting at another time.
It would be interesting to find out what the position of the Executive is in relation to the breach of the 21-day rule. Can you clarify whether the Subordinate Legislation Committee has had anything in writing from the Executive in that regard? If it has, can we have a copy of that prior to any meeting that we decide might be required?
The clerk tells me that there has been a written response that can be relayed to us. Clearly, however, we cannot have it yet.
I think that we need to hear from the Subordinate Legislation Committee. There are two separate issues: one is procedural; and one is the substantive issue that is discussed in paragraph 1 of the covering paper. We need clarification as to whether the Executive's letter satisfies the committee's concerns about that substantive matter.
In the past, clarifying such matters has meant calling representatives of the Executive before us. That might be necessary in this case, too. However, I would hope that any such meeting would be relatively short.
I wonder whether the office of the Auditor General has a view. We could probably be satisfied with the situation as regards the breach of the 21-day rule or express our disapproval if we are not satisfied, but the fundamental matter is whether it is anticipated that there would be a problem with the definition of the relevant person. My reading is that that is probably unlikely and that, in any event, any such problem could be resolved by further subordinate legislation, which would simply be additional work for the Scottish Executive. Has the Auditor General at any stage had any legal advice on his take? At the end of the day, the matter boils down to whether he has adequate powers.
I will give a two-part response to that question. The short answer to whether we have a view on the legal drafting of the order is no. Our view is that it is for the Executive and the Parliament to devise such provisions in a manner that satisfies the legal requirements.
Thank you. I will try to wrap the item up. I suggest to the committee that we leave ourselves the flexibility to meet before 9 December. We can obtain the papers from the Subordinate Legislation Committee, including the Executive's response, circulate them to members and find out in the next couple of days whether they think a meeting is required. If the view that we should take the matter further is strong enough, we can have such a meeting. Otherwise, we can put the matter on the agenda for 9 December. Are members content with that approach?
Previous
Work Programme