Regulatory Framework
Good morning. The first item of business is a debate on motion number S2M-4502, in the name of Sylvia Jackson, on behalf of the Subordinate Legislation committee, on its 21st Report 2006, "Inquiry into the Regulatory Framework in Scotland—Draft Report".
I call Sylvia Jackson to speak to and move the motion. We have oodles of time this morning, so you may take as long as you like.
As convener of the Subordinate Legislation Committee, it is with great pleasure that I open the debate on the committee's draft report, which follows its inquiry into the regulatory framework in Scotland. The committee does not often have the opportunity to blow its own trumpet. Indeed, this is the first time in the life of the Parliament that there has been a debate in the committee's name. However, that fact should not diminish the work that it does. Subordinate legislation is extremely important, but it has a reputation for being technical and complex and for being written and scrutinised by people who don anoraks and are fluent in Latin.
And Greek.
Yes, and Greek. The committee's work is becoming more important as more legislation is delegated to secondary legislation. For example, in 2005-06 there were 19 bills, but the committee considered nearly 500 Scottish statutory instruments, which is an increase of around 40 on the previous year, 86 on 2003-04 and around 180 on 2002-03. That rate of increase shows no sign of slowing.
We published a report on phase 1 of our inquiry in June 2005. That report examined the wider issues of regulation and the better regulation agenda, including issues such as the understandability and accessibility of regulation, the use of plain language, electronic access to legislation and the Executive's improving regulation in Scotland unit.
Phase 2 of our inquiry considered how the Parliament handles and scrutinises subordinate legislation. We focused on the Parliament's procedures, the forward planning of subordinate legislation and timescales for scrutiny. We also examined consolidation, whether the Parliament should have the power to amend subordinate legislation and the current division of responsibilities between the Subordinate Legislation Committee and lead committees.
The current arrangements and procedures for subordinate legislation are contained in a transitional order and are based almost entirely on procedures that operated at Westminster before devolution. It was always the intention that the Parliament would develop procedures that were fit for purpose, and the report affords the Parliament a once-in-a-lifetime opportunity to set down its own procedures for subordinate legislation. We are now seven years down the road; we know what works and what does not.
To help us in our consideration, we took oral evidence from academics, Parliamentary committees, the Executive and users of subordinate legislation. We received written evidence from a wide range of people at home and abroad and we visited Westminster to speak to committees there that work with the same system as we do.
In our draft report, we recommend the replacement of all the existing procedures by what we have called the Scottish statutory instrument procedure—I am sure that somebody will shorten that. We want to know what people think about it; we genuinely want people to tell us. We could, of course, have published our final report now and recommended the drafting of a bill to replace the transitional order. However, we recognise how important it is to make the right decision, which is why we have taken the unusual step of consulting on a draft report.
I will take a moment to address some of the issues that influenced our recommendations. For a start, we feel that the current system is far too complex and unwieldy. There are eight different procedures for processing statutory instruments, some of which are rarely used. We have various timescales in place for the consideration of instruments: 20 days for this, 21 days for that, 28 days for something else and 40 days for other things—the list goes on.
There has been concern about the potential lack of full and proper scrutiny. Committees told us that they are concerned that they are not always able to give as much consideration to an instrument as they would like, simply because of the lack of time available. That issue has raised its head again this week, as it does before every recess, when a large number of SSIs are laid by the Executive. That impacts not only on members, but on the committee support structures, including the legal advisers, clerks and others. We must be able to scrutinise subordinate legislation properly. In order to do so, we need adequate time, and we need the Executive to plan better.
Another problem that arises is that some instruments are already in force when they are considered by committees, as will be the case with many of the instruments that have been laid this week. If a committee finds fault with an instrument, there tends to be a reluctance to recommend annulment, given the fact that people will already be working with it and the potential legal ramifications of that.
Committees are given no indication of what subordinate legislation is coming forward or when, unlike primary legislation, and they are therefore unable to plan that part of their workload properly.
The proposed Scottish statutory instrument procedure—SSIP—seeks to address all those concerns. It recognises that there will be exceptions to any rule, and it allows for those, for example in cases where an instrument must come into force immediately, perhaps for a public health reason. My colleagues may go into more detail about the features of the new SSIP and about how we arrived at our recommendations. I take this opportunity to thank committee members for the non-partisan way in which they conducted themselves during our inquiry. I also thank our special adviser, Iain Jamieson, to whom we are indebted for guiding us through a difficult subject and for his input to the draft report.
We believe that our recommendations will make a difference. We want to work with members and the Executive to improve the system that we have. I hope that members will contribute their views, if not today, then in the coming weeks. The draft report is already out to consultation, with a deadline for responses of 8 September, and we aim to publish a final report before Christmas.
I move,
That the Parliament notes the 21st Report 2006 (Session 2) of the Subordinate Legislation Committee, Inquiry into the Regulatory Framework in Scotland - Draft Report (SP Paper 564).
I will echo some of Sylvia Jackson's comments. I express my thanks to the clerking team, the legal advisers—who we could not do without—and particularly the adviser to the inquiry, who gave us an enormous amount of help throughout. I also thank both current and past committee members. One or two of them are here today, and I hope that they will contribute their thoughts on where we have ended up following an inquiry that has taken more than two years.
As Sylvia Jackson said, our committee operates under a transitional order. It has always been the case that we were going to consider the arrangements and design our own system for dealing with subordinate legislation. In effect, we aimed to design a system that was fit for purpose for this Parliament. It is of course no surprise that we have been operating under a transitional order, as there was simply not enough time for Westminster to consider new subordinate legislation rules between the 1997 election and devolution coming into effect two years later. Moreover, as I said, the committee has taken more than two years to reach this point, with a draft report and recommendations.
The system that we use is a direct copy of the Westminster system, not because we think that it is fit for purpose here, but because the transitional order was the quick and easy way to get the system in place by 1999. However, we have now been in operation for seven years, and it is time to replace the temporary system with something that will last into the foreseeable future.
The SLC has a bit of a reputation, as many members know. When I was first appointed to the committee in 2003, people asked me what I had done wrong. Who had I offended to end up on the gulag of committees? I think that that was unfair. [Laughter.]
It was a punishment.
Over time, Jamie Stone will come to love the committee, as others do.
That view is held not because of the work that the committee does or the broad range of subjects with which it deals—it deals with almost every subject that comes before the Parliament—but because of the system under which it has to operate. I certainly took a long time to get used to the process; there is a steep learning curve for those who join the Subordinate Legislation Committee.
It is no wonder that members steer clear of the committee when they hear about affirmative orders; negative orders; draft affirmative orders; draft negative orders; super-affirmative orders; the 21-day rule; the 40-day rule; the 28-day emergency rule; Henry VIII powers; and laying orders before making orders, unless they are made before they are laid. The list goes on; the process is complex and difficult to understand. The system is opaque, with archaic rules and language. It is designed to put people off, but it does not need to be that way. The report sets out the reasons why that is the case.
When we visited Westminster, we asked MPs whether, if they had the chance to design a system to deal with subordinate legislation from scratch, they would design the system that they have currently. After the laughter died down, they said "absolutely not". They are stuck with their system because it has been built up over a long time.
When we began our inquiry, most, if not all, members of the committee thought that what we had to do was fix the current system. We could tinker around the edges, make a few changes, add a few bits in and take a few bits away and end up with a system that was fit for purpose. However, as the inquiry progressed and we spent more time considering the issues, it became clear that we should go back to first principles and ask the fundamental questions: what is the purpose of subordinate legislation and why do we have it? Once we had addressed those questions, it became obvious that we had to design a bespoke system for subordinate legislation that was fit for the new Parliament and that such a system would not be an amended version of the current system but a new, simple, straightforward, clear and easily understood system. That led us to devise the SSIP.
One of the problems with the current system is that it forces the Parliament and its committees to waste time going through the motions—no pun intended—with some SSIs, while not allowing enough time to scrutinise those that are important. The SSIP will allow Parliament to concentrate on the instruments that matter. It will allow committees to see the upcoming instruments and focus their efforts on those that are controversial or of particular relevance or importance. At the same time, committees will be able to deal quickly with routine and uncontroversial instruments. Parallel consideration by the Subordinate Legislation Committee and the lead committee will mean that lead committees will have a maximum of 40 days, rather than the current 20 days, in which to do their work. The SSIP will also allow committees to deal with routine instruments in much less time than it takes at the moment.
The system will focus attention where it should be focused. It will free up the time of ministers and officials, who will no longer have to attend committees when it is not necessary to do so. How many lead committee meetings have we attended to which a minister comes along and makes a statement on an instrument, after which there are no questions and no debate and the instrument is just voted through? That is a waste of ministers' and officials' time. They should come to committees to discuss SSIs only when it is relevant and the committee thinks that it is appropriate to have a debate and ask questions.
One of the other great advantages of the SSIP is that all instruments will be laid in draft and will be able to be modified to remove technical and typographical errors without the clock stopping, although not to make policy changes, for a number of obvious reasons. Last week I asked the committee clerks, half jokingly, how many typographical errors we advised the Executive of informally in the past year. The number was about 400. I had thought that there were more than that, but it is still an incredible number of typographical and minor errors that could be corrected if we were allowed to modify the instruments without the clock stopping. Providing for changing the draft instruments for technical reasons is a good and sensible suggestion. It will result in a real saving in time and effort for everybody, because there will be no need to withdraw instruments and re-lay them or to introduce amending instruments in the future. I believe that that process will mean that—at the point of making the instruments—Scotland will have some of the most error-free instruments of any Parliament in the world.
On the face of it, it could appear that we are lessening parliamentary scrutiny procedures because every instrument is effectively a draft—or a negative, to use the old terminology. However, the opposite is the case: scrutiny will be increased. Last year, only 84 of 500 instruments were subject to the affirmative procedure. The rest were subject to the negative procedure, which means that they go through no real procedure in the Parliament. The SSIP will allow us to focus on the real instruments and deal quickly with those on which we do not need to spend time.
I am not sure that there is a cutting edge of subordinate legislation, but if there is such a thing, what is in the report is probably it. It will generate interest in Parliaments and legislatures around the world in what we are thinking and how we are developing the use of secondary legislation.
The SSIP is an example of better regulation in general. We want to sweep away from regulation the nonsense, bureaucracy and unnecessary rules and that is also what we want the proposed SSIP to do—we are sweeping away what is unnecessary and focusing on what is important.
The detail of the report is irrelevant in many ways; it will be the subject matter of a later debate. It is the bigger picture that is important—what we are doing and where we want to go. We will get into the detail as we go through the debate thereafter. That is why we have presented a draft report and why we framed it in that way.
I echo what the convener said: this new Parliament has a once-in-a-lifetime chance to put in place a system that is fit for purpose and designed for the needs of a 21st century Parliament, rather than a 19th century one. We should grasp that opportunity to get it right. I commend the report to the chamber.
I start by associating myself with the remarks of Sylvia Jackson and Stewart Maxwell about the work of the clerks and advisers to the committee.
In the first stages of his speech, Stewart Maxwell indulged in a bit of humour, which demonstrated to the chamber the camaraderie in adversity that tends to link present and past members of the Subordinate Legislation Committee. Those who serve on it in the future can be consoled by that thought.
That sense of a shared purpose has helped to inform the recommendations in the report, which is non-partisan, as the convener said in her opening speech. We do, of course, have our moments of political banter and teasing, but in carrying out this particular project we have attempted to concentrate on the task in hand, which is to deliver a better system of scrutiny. We sincerely believe that our proposed model will do that. We hope that the minister will regard it in that spirit and ultimately accept it.
Both Sylvia Jackson and Stewart Maxwell referred to the transitional order. I would like to start there as well, and reflect on why there is one. Under the Scotland Act 1998, there are transitional orders here and there that, during the first two sessions, we have slowly whittled away. Why did Westminster not define subordinate legislation procedure instead of covering it with a transitional order? Surely the explanation is that the ministers who framed the Scotland Bill in the first place knew, whether consciously or instinctively, that a system that had evolved at Westminster was ripe for reform and should be looked at again in the context of a newly devolved Parliament.
Paradoxically, although subordinate legislation is not intrinsically fascinating, does not the mere fact of transitional orders hark back to the excitement and radicalness of devolution—the sense that we could go back to first principles and build something from scratch that would work better and be distinctive? I think that we have done that. We have operated under the Westminster system by default, but we have been challenged to devise our own procedures. Can we do it better? I think that we have suggested how we can.
It is important to speak about what we have not challenged and what we have agreed is common ground. We have not challenged the concept of subordinate legislation. We accept that what is on the face of the bill is appropriate and that what is in subordinate legislation is the filling out of detail, the elaboration of policy and the arrangements for implementation—the practical nuts and bolts that do not need to inform the debates in principle when we pass a bill, but which are properly the subject of ministerial actions, subject to approval, in the years that follow the passage of the bill. Opposition and Executive members agreed that ministers should get on with the job. If policy is agreed, the task of the Executive is to develop the detailed regulations and implement the legislation. We are not in any sense attempting to interfere with the job that ministers do; rather we are attempting to help them interact better with the Parliament in the interests of better legislation.
Our role is to scrutinise subordinate legislation. Everyone agrees that ministers are responsible for subordinate legislation; however, when the distinction between primary and subordinate legislation was made, no one ever suggested that that meant that subordinate legislation should not be subject to scrutiny. Of course it should be: it should be subject both to the technical scrutiny of the Subordinate Legislation Committee and the policy scrutiny that lead subject committees undertake if they see fit.
That process is more important today, given that one of the unnoticed revolutions in Government over the past decade has been the move towards skeletal bills. Because such bills outline broad frameworks and principles, but leave more and more detail to be determined by subordinate legislation, there is more of a requirement for effective subsequent scrutiny of any regulations that might be issued. Evidence that we received from subject committees strongly suggests that they need more time to consider certain policy choices. After all, although many instruments might deal with routine administration matters, many others set out important policy choices that ministers have made. Sarah Boyack highlighted the best example of that, which related to regulation governing the less favoured areas support scheme. The Environment and Rural Development Committee, of which she is the convener, would have liked more time to scrutinise the detailed allocation of what I believe was £60 million of public money. Committee members saw some scope for carrying out work on the matter; however, the negative instrument was already in force by the time they came to discuss it and they felt that they had not been able to interrelate with ministers and satisfy themselves that the decisions that had been taken fully accorded with the policy.
Committees want that kind of improved scrutiny. They do not want to take every statutory instrument to bits and analyse it in fine detail; instead, they want to be able to be selective and say, "We feel that it would be useful to examine this matter and want some time to discuss it with ministers". Moreover, we in the Subordinate Legislation Committee are acutely conscious of the tight timetables to which we make hard-pressed staff work and would like to have more time to conduct our deliberations on those instruments. As a result, because the current process unduly constrains the scope of the subject committees, we have suggested that instead of reporting first to subject committees, our committee should work in parallel with them.
There are many reasons why we have proposed the new procedure, but one that I want to highlight is the amending of statutory instruments. I do so deliberately because, in the course of our deliberations and discussions with Executive officials, it became clear that they were very concerned about this matter. I think that it is important for everyone to understand what we are talking about.
When we took evidence on the principle of overall amendment, some suggested that committees should be able to amend statutory instruments. After carefully considering that proposal, we rejected it, because we did not think that, once Parliament had approved the principles of a piece of legislation, ministers who introduce regulations or orders should be made to re-open the whole matter by subject committees lodging amendments. There is simply no time for that, and we could see no justification for covering that ground again.
However, we think that technical amendments—manuscript amendments, if you like—that ensure that instruments are fit for purpose would improve the system. Stewart Maxwell referred to the number of typographical errors in subordinate legislation; sometimes there are also erroneous references to the parent legislation and other orders. Indeed, in response to our questions on an instrument, the Executive might accept many minor amendments that can be made if the instrument is at the right stage; however, the instruments are often unamendable and the Executive will simply say, "Yes, we recognise the problem, but we don't think it will affect the way the instrument works." Some errors can be so severe that the original instrument has to be withdrawn and a revised instrument issued later on. That cumbersome and unsatisfactory process means that stuff that is not correct is left on the statute book simply because we reckon that it will do. That is not a good way of governing or legislating.
Under our proposal, the amendment process would be initiated by the Executive. Although, technically, the Subordinate Legislation Committee would initiate amendments to an instrument by drawing the points to the Executive's attention, the Executive and the committee would have to agree that the instrument has to be amended. That process would allow us to get better legislation on to the statute book first time. That is not something that the Executive should be concerned about on procedural, policy or practical grounds.
The committee has also asked for the right to debate the annulment of an instrument. At the moment, that is open only to the subject committee. We have done that because we can conceive of occasions—during my time on the committee there have been two instruments about the vires of which we have worried seriously—when it would be appropriate to discuss the matter with the minister and to provoke a debate at committee, which, if it went satisfactorily, need not then be repeated in the chamber. Now and again there are vires issues or technical issues that lead us to say that, although the subject committee might be happy with the policy, the Subordinate Legislation Committee is rather worried that the instrument could be challenged on its vires. We therefore think that we should have that right to annul, but nobody on the committee intends that we should go round trying to annul instruments because they contain a reference to paragraph 6(d) when it should have been 6(e). We would rather sweep that kind of point—technically important but trivial in terms of our time—out of the way by using the power of amendment.
We have made recommendations on consolidation, on publication, on a forward work programme and on rules of court, all of which are designed to improve the flow of business, to increase transparency and to improve scrutiny. We think that ministers should go to committees to discuss statutory instruments when committees want to scrutinise those statutory instruments and do inquiries, but we do not think that there is much sense in ministers having to go to a committee 84 times in the course of a year because they have to be there to move an affirmative instrument to which nobody takes exception and about which no one wishes to create any debate. Let us use ministers' time more fruitfully as well.
My final point is about emergency and exceptional procedures. We were extremely sensitive to the importance of introducing a new procedure that would command everyone's support and would be seen by the Executive as fit for purpose. In our discussion with Executive officials, we were able to flesh out many areas where it was clear that the new procedure, as envisaged in outline form, would not be fit for purpose, because sometimes the Executive has to act quickly. An emergency instrument is a clear case in point, but there are other examples. For instance, a European directive may need to be introduced throughout the United Kingdom on an agreed date so that the system here replicates that in England. If I may say so, the fact that Scottish National Party members, who might have wanted to make a political point about that, accepted that that was valid within the existing constitutional framework points to the maturity and sense of shared purpose in the committee and to our commitment to getting things right.
The fact that we were careful to shape a procedure that accepts those legitimate targets of Government demonstrates that we are looking for something that will improve the system of government, for Executive action as much as for legislative scrutiny. It is for those reasons and within that framework that the committee has produced an important, radical and challenging report, but one that still accepts the overarching framework of subordinate legislation operating within a system of division between primary and secondary legislation. That system allows the Parliament to focus in its plenary time on policy debates, lets the committees get on with the scrutiny of those instruments that they think should be scrutinised, and allows ministers, members and those regulated to understand, appreciate and participate better in the process of formulating a most important body of work.
I have great pleasure in supporting the convener's motion and in indicating my support for the Subordinate Legislation Committee's report.
I woke up this morning and looked out the window, saw that it was a bright, cheerful day—and then remembered this debate. I joke. I am the newest member of the Subordinate Legislation Committee and I point out to members that I actually volunteered for the committee. That caused some shock among members of the Liberal Democrat parliamentary party—Margaret Smith had to take two pills and think about it—but here I am.
I do not have much to add to what has been said, save to say that Sylvia Jackson, Stewart Maxwell and Murray Tosh could not have done better in bringing to life an important subject. If one wants to understand the nuts and bolts of how the Parliament works, the Subordinate Legislation Committee is important, and I have found my involvement with the committee a most interesting experience. I was not sure what to make of it at first but, once one gets into it, it becomes extremely interesting.
Sylvia Jackson referred to the number of bills that the committee has scrutinised and to the fact that 500 instruments have been placed before the committee in the past year. That is a huge number.
I take on board the thinking that lay behind the transitional order arrangements that Westminster gave us. Perhaps Jim Wallace can enlighten us a little on the matter when he sums up for my party. What we have heard so far—that things were deliberately done in the way that they were in the hope and expectation that we would develop our own rules—is probably correct.
If primary and secondary legislation are to work, it is important that things are done in the simplest possible fashion. When I first appeared at the committee and heard about Henry VIII powers, I did not know what on earth they were.
I bet that made your eyes light up.
I hear what the minister says. Whether I understand what they are even now is debatable. I will not say anything about what I thought when I heard the word "laid".
On a serious note, I associate myself with what has been said about the clerks. I am new to the Subordinate Legislation Committee and value the support and advice that I have received from them. I also give credit to my fellow committee members, who have been patient with me and have drawn me into the committee. As Murray Tosh said, the committee has a very collegiate attitude. It is one of the most practical, let's-get-on-with-it, let's-try-and-do-things-together committees that I have come across.
Murray Tosh made interesting remarks about how we have whittled away—I think that was the expression he used—the transitional orders during the Parliament's two sessions. He was right to say that the challenge of devising our own fit-for-purpose procedures that will work is important.
We are rightly proud of the fact that people can go online to find out what we do, but what we say online must be understandable to members of the public. Expressions such as "negative instruments" and "Henry VIII powers" are meaningless to the public. The Subordinate Legislation Committee and the Parliament have a duty to make things as accessible as possible.
Does the member think that the document uses too many acronyms? Members of the committee may know what all the initials stand for, but could not things be made much easier, plainer and simpler for members of the public who go on to the website? Rather than there being a series of initials, what those initials stand for could be stated.
There is a lot in what John Swinburne says. He is probably going in the same direction as me. It is worth pointing out, as members have done, that the report is a draft report—it is work in progress. If we can improve it, that would be well and good. That is why we are going back to the Parliament and the Scottish people and saying, "Come forward with suggestions and answer the questions that we have put." We want to hone things.
Murray Tosh mentioned the point Sarah Boyack made, which is crucial. The importance of rules about how we treat emergencies has also been mentioned—there must be such rules.
I do not have much more to say. The report is interesting and worthy. I joined the committee fairly late in the report's development. Getting as many people as possible—members of the public as well as politicians—to give their opinions on it between now and the beginning of September will be invaluable.
We move to the open debate, in which I am not imposing any time constraints on members.
Some—although perhaps not all—members know that subordinate legislation is not used in every legislature. In fact, some of our European colleagues are shocked that we give ministers powers to make rules and regulations that implement primary legislation without any effective scrutiny by the Parliament. They believe that we are foolish—it happens in the Commonwealth nations, too—to allow our ministers such powers.
Jamie Stone referred to the Henry VIII principle, which involves the power to amend primary legislation by using secondary legislation and therefore gives ministers enormous power.
We have heard about the number of instruments that come before committees and the Parliament. I venture to suggest that—apart from members of the Subordinate Legislation Committee, or members who are particularly interested—nobody reads those instruments. Nobody knows what they say, what their impact is, who they will affect, or whether they make a major change to primary legislation.
Subordinate legislation is important: it puts the flesh on the bones of laws; it says what is allowed and what is not; and it deals with sanctions such as criminal penalties. In evidence to the committee, the Federation of Small Businesses said that it believes that subordinate legislation is extremely important, and I think it supported the committee in its view that changes should be made.
Regulation by subordinate legislation is one of the things business complains about most. I and some others in the chamber were lambasted at a Hansard Society event by representatives of the chemical industry about the plethora of regulations and the frequent and minor changes that are made and that are not explained to the industry in an understandable way. Such changes are sometimes like the amendments to motions that we consider in this chamber: one word, as many of us know, can make a great difference. Is it "may" or "shall", or "could" or "would"? The choice can wholly change the focus of a piece of legislation.
In 2003, when I came to the Parliament, I began on the Subordinate Legislation Committee—and I did not regard it as the gulag. In my previous life, I had worked with such rules and regulations and I knew how important they were. I knew how difficult life could be when they were wrong or not as effective as they might have been, or when they clashed with other regulations. We have all despaired over trying to implement policy when there is conflict between two sets of regulations, perhaps for two different pieces of legislation.
Regulations affect more people than just those in business. They affect the voluntary sector, public agencies, the environment and, ultimately, every person in Scotland. It is therefore important, in this second phase of the work of the committee—which, of necessity, focuses inwards on the technicalities—that we keep our eye firmly on the external effects on business, on the public agencies, on the voluntary sector and on our communities.
In 2005, the Hampton review into better regulation in Westminster said that
"different regulators find it hard to join their systems or operations"
and that that could
"result in missed opportunities".
The report also highlighted the inconsistencies in regulation that I have referred to.
With such points firmly in mind, the Subordinate Legislation Committee considered what might be good for Scotland. The major recommendation in its report is that the system should be simpler. Members have spoken of the complexities, of the different forms of instrument, and of the terminology. John Swinburne is quite right to talk about the acronyms, but it is not only the acronyms; it is all the terminology.
From my time on the committee, I remember Alasdair Morgan showing off his Greek.
His Greek what?
Well, I notice that he is dressed in furry lining and anorak colours today. Is that deliberate for such a technical discussion? I withdraw that question. It is a wonderful suit.
We should simplify the system and make it particular to Scotland—but do so while acknowledging that regulations are also made at Westminster and that they may sometimes support the same piece of legislation or the same European directive, which will have to be commenced at the same time and which will affect businesses or others that operate both north and south of the border.
We should keep policy and technical scrutiny separate, but work on them concurrently. I hope that the minister will consider that recommendation carefully, because it makes sense. It would allow the time—the 40 days or whatever—to be used much more effectively, and would greatly increase the Executive's ability to make any necessary changes.
The Executive should plan the process and publish that plan so that users know what is coming. That is one of the report's key recommendations. I am not surprised that most businesses have little knowledge of the technicalities of the process, but it is really important.
Consolidation and updating are important, too. On numerous occasions I have listened to the committee recommend unanimously that a piece of legislation is due for consolidation, only for the Executive to tell us that it does not have time to do that. I say to the minister that it is important that that issue be examined seriously and that time and resources be made available to tackle it.
There should be an exceptional procedure for emergencies. Every piece of legislation should include provision for emergencies and exceptional circumstances, because one size never fitted all. The system must be flexible.
Finally, I have a request that I am sure the minister will find easy to meet. The improving regulation in Scotland unit—IRIS—plays an extremely important role in liaising between Government and business, but two changes need to be made to it. First, its membership should be expanded to include non-business members because it is important that the voluntary sector and other organisations that are affected by subordinate legislation and regulation are represented. Secondly, it should be moved from the Enterprise, Transport and Lifelong Learning Department to the First Minister's office. That would reflect the position of the unit at Westminster—it is within the Cabinet Office—and give IRIS the status it deserves. It would send a clear message to users of subordinate legislation and the people who are affected by it that that area of legislation is as important as primary legislation.
I welcome the report and hope that members and others out in the wider Scotland will give their views on its recommendations. I am pleased to support the motion.
I apologise to Christine May, but I have not had time since she made her remark to rush out and change my suit, so she will have to put up with this one. In my defence, I do not think that I have ever shown off in a committee, but if a statutory instrument that contains Greek comes before us—as happened when I was a member of the committee—we should at least ensure that it is correct.
I suppose that my speaking in the debate shows the truth of the old adage that you can take the man out of subordinate legislation, but you cannot take subordinate legislation out of the man—or perhaps it just shows that I have a very sad personal life.
I congratulate the committee on the report, which represents a good step forward. The procedures that it suggests will be much fitter for purpose than those that we have at present. I also congratulate the members of the committee on their modesty because the report is one of the few committee reports that does not contain the names of the members of the committee—they must be blushing violets.
There is no doubt about the importance of subordinate legislation, as several members have said. The first paragraph of the report states:
"Most statutory law is not contained … in Acts of the Scottish Parliament or the Westminster Parliament, but in what is known as subordinate legislation".
It has already been mentioned that, as far as business in both rural and urban areas is concerned, the detail of statutory instruments is much more important and has a much greater impact than the provisions in the acts of Parliament that we pass.
The convener noted that there has been a vast increase in the number of statutory instruments that have been made, even since the Parliament was set up—I had not been aware that the number was so great. That should make us all pause for thought, especially given Christine May's observation that some legislatures manage to get away without having any statutory instrument procedure at all.
I want to deal with two particular areas that are mentioned in the report, the first of which is amendments to statutory instruments. The proposed procedure is important, particularly the provision that would allow the clock to stop ticking when the committee suggested technical amendments to a draft instrument so that the Executive could adopt them. Another significant proposal is that to allow parallel consideration of an instrument by the Subordinate Legislation Committee and the relevant subject committee. That would ensure that the 40-day consideration period was more likely to be a true 40-day period.
I am not particularly happy with the inability of subject committees to amend or to suggest amendments to statutory instruments. I know that I will not win the argument, but I want to put it anyway. In defence of committees' inability to amend statutory instruments, the Executive states:
"it is entirely possible for the Parliament to reject an instrument and, in doing so, to make clear that specific changes are required".
However, that flies in the face of the reality that we know. We know what arguments ministers will trot out when the instrument comes before the committee. They will say that the instrument must be approved because it is absolutely essential. Often, because instruments are quite complex, a committee may have problems with only a small part of a statutory instrument. The committee is then in a no-win situation. Should it reject the entire instrument and throw out the baby with the bath water? In truth, it never does.
We understand the point that is being made, but does Mr Morgan envisage the Parliament having the resource and the time to deal with amendments, possible amendments and probing amendments to 500 instruments per year?
That is the difficulty that we have. It is difficult to see what the alternative is. To a large extent, we must look to the Executive to play the game as well, because of the constraints that have been placed on committees in dealing with statutory instruments. Statutory instruments are a powerful tool that we give to the Executive. Part of the bargain in our giving the Executive that tool is that it should not abuse the privilege. None of us could put our hand on our heart and say that it is never abused by any Executive of any party.
Paragraph 133 of the report cites the following statement by the Executive, in which it defends the position that there should be no amendments:
‘We can envisage circumstances in which an instrument as amended does not necessarily reflect the policy intention of the original act'.
That suggests that only a committee might come up with wording of a statutory instrument that changed the policy intention of the original act. Surely the Executive is just as liable to do that, especially if the act was passed not in the previous week or month but 30 or 40 years beforehand.
In evidence cited in paragraph 134, the Executive states:
‘Parliament had agreed the policy decided by the Executive.'
The instrument was just about how that policy should be delivered.
I understand that, 40 years down the road, the Parliament and the Executive that is in power may have an entirely different view of legislation. Would not the appropriate way to deal with that be to amend the primary legislation to enshrine different policies in it, rather than to amend subordinate legislation?
Yes, but we are dealing with a situation in which a committee is presented with a statutory instrument to which it must say yes or no. That is the difficulty. As the Subordinate Legislation Committee points out in paragraph 137 of the report, and as Mr Tosh said earlier, acts are often simply frameworks for Government legislation. For that reason, I do not agree that the power to reject instruments is sufficient. We need to strike a balance. I see the difficulties in allowing every committee to lodge amendments to subordinate legislation, but if we are not to allow that, we must stop passing skeletal acts and must leave much less to be decided after bills are passed.
We should have much more detail within bills. If SSIs contained only detail that it was not appropriate to have in the relevant bill, all would be well—but I often have the feeling that details are not included in the bill not because that is not the place for them, but because ministers have not yet worked out what they want the detail to be. SSIs are simply a way of speeding up the procedure.
The second area that I want to cover is consolidation. Acts are complex and statutory instruments are complex. Five statutory instruments that amend each other and an act is even worse. It is wrist-slitting stuff. Nobody can ever work back through the chain of these things.
In paragraph 158, the committee says that it thinks that the Executive lawyers have a cut-and-paste version of the current legislation. In paragraph 161, the Executive says that it
‘would not want to share something that might not be wholly reliable.'
If the Executive's view of what it thinks current legislation is is not reliable—if no one actually knows what the up-to-date situation is—what does that mean for the ordinary people and businesses in this country that are meant to obey the rules and regulations? There is a strong case for consolidation to be an on-going process.
The Executive says that considerable resource implications might be involved in consolidating subordinate legislation. What would a Daily Mail editorial make of that? Effectively, the Executive is saying that we have so much legislation that we cannot keep pace with it and ensure that it is up to date. The Daily Mail would suggest that that means that less legislation should be passed. We should think about that. If we cannot ensure that the legislation that we are passing is consistent and clear and enables the people who have to obey it to know what it is that they are supposed to be obeying, we should think seriously about what we are doing.
Thank you for giving me the opportunity to speak, Presiding Officer. I was not planning to do so, but I am happy to make a contribution.
Are you really happy, Ken?
Well, one of the reasons why I argued in the committee that we should have this debate today was so that we might engage members who are not involved in the Subordinate Legislation Committee. Unfortunately, looking around the chamber, I see that we have comprehensively failed in that task.
The fact that we are having this debate means that the debate is not being held just in the confines of the Subordinate Legislation Committee and the various departments in the Executive. We are asking members from all parties to consider these bold, innovative and quite radical proposals.
My colleagues have already outlined many of the reasons why we have gone down this route. I do not wish to repeat what they have said, but I will say that there is a danger that, in the face of the complexity of the current system, we will end up dealing with subordinate legislation in a formulaic manner or, at least, we will fall into bad habits. Although we are dealing with more and more subordinate legislation, many of the instruments, following their scrutiny by the Subordinate Legislation Committee, receive little more than cursory examination by the lead committee—I know that from my experience of sitting on lead committees.
I believe that the Subordinate Legislation Committee spends far too much time correcting or flagging up all the typos, which Stewart Maxwell and Murray Tosh alluded to. We end up acting as some sort of quality control mechanism for the Executive, which should not be our role. If we are to scrutinise effectively matters ranging from the trivial to the serious, the attractions of this new system are many, particularly the potential for the Executive to amend instruments using the parliamentary process that Murray Tosh talked about.
The process could clearly be far more interactive and it should certainly be far better than the current, frustrating stand-off that we sometimes have between our committee, with our legal advisers, and the Executive, with its lawyers.
Having outlined my support for the proposals for the new, open and accessible system, I would like to strike a note of caution. Whatever the failings of the current process, it works. We need to improve the Parliament's ability to scrutinise the Executive and statutory instruments effectively, but we need to be careful that we do not create a new series of problems. This is already a slow and bureaucratic process. Is there a possibility that we might end up making it even slower?
There is a possibility that the new system could be abused by those who might wish to slow down the business of government. I do not think that ministers will be called to attend every meeting of the Subordinate Legislation Committee under the new system, but I imagine that the Executive will be slightly apprehensive that that is exactly what will happen.
This morning, we have made a virtue of the fact that the current system is not party political and that colleagues work together effectively across party boundaries to make subordinate legislation work. Is there a danger that, by introducing the new system, we could make it more party political? That would not be a step forward.
It is perfectly possible under the existing system to bring ministers to every committee to discuss every statutory instrument, simply by lodging a motion to annul, but nobody does that. Why should things change under the new system? Why should we fear that committees will start to harass ministers, given that there is ample opportunity to do so at present but nobody does it?
I agree with Murray Tosh. I believe that the new system will be a huge improvement on the current system. There are clear attractions in it, not just for the Parliament and the Subordinate Legislation Committee but for the Executive. It will benefit the business of government because we will spend time on the more important points of subordinate legislation rather than on the trivia.
I do not think that people will abuse the new system. What I am saying is that there must be doubt, if not in the Executive's mind then perhaps in the machine that is government and in the minds of civil servants. I do not want to give civil servants a bad name, but they are used to the current system and any step into the unknown creates anxiety.
The committee could have followed a different route. We could have made a series of recommendations to improve the current system incrementally. For example, whatever happens, we want parallel consideration of subordinate legislation by the lead committee and the Subordinate Legislation Committee and we want to place far more emphasis on prior consultation and planning so that Parliament knows what is coming up and things are not sprung upon us. In effect, our workload should be managed better.
The change is a step into the unknown, but it has many attractions—not just for the Parliament, but for the Executive and the business of government in Scotland. I hope that the minister will recognise that. We need to ensure that the Parliament and the Executive work together. The balance of power between the two bodies could change, but if we work together we can maintain the trust that currently exists and design a system that is better both for our new Parliament and for our new system of government in Scotland. I hope that the minister and members—including those who are not present this morning—will engage with the committee's draft report.
I must be the first member to speak in the debate who has not been a member of the Subordinate Legislation Committee. I am delighted to be able to take part in the debate, which has been constructive, and I congratulate the Subordinate Legislation Committee on the service that it has done not only the Parliament but the wider Scottish body politic by publishing its report.
Like Alasdair Morgan, I was a member of the Westminster Parliament that passed the Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999, which was secondary legislation. Perhaps Alasdair Morgan, with his classical background, can tell us the difference between a transitory provision and a transitional provision. Murray Tosh and Jamie Stone speculated about why that order was made. I believe the reason was that we needed to have some procedures in place when the Scottish Parliament was established. It is obvious from the committee's report and from members' speeches today that the flow of statutory instruments never stops, so when Parliament was established there had to be a procedure in place to deal with them.
Equally, however, it was recognised that it was important that our Parliament would in time devise its own means of dealing with secondary legislation. We have done that. That has not been rushed in any way and the experience that we have gathered in the past seven years has influenced the report. Many of the recommendations in the report would help to improve matters.
In spite of the fact that we inherited a system from Westminster, I can identify two areas in which we do things better. In the Scottish Parliament there is an opportunity to examine properly instruments that are subject to the negative procedure. At Westminster, the Joint Committee on Statutory Instruments does a technical job but, as I remember, if one wanted to debate such an instrument, one had to table a motion. The chances of such a motion's ever being debated are at the grace and favour of the Government of the day. I remember that the Opposition parties sometimes used to compete to table such motions first; members would keep going to the table office to find out whether the instrument had been laid, because if we were allowed to debate the motion, whoever had got in first to table a motion would have the chance to lead the debate. We deal better with legislation that is subject to the negative procedure.
I do not recall a piece of secondary legislation ever being withdrawn when I was at Westminster, but I know from my ministerial experience that secondary legislation has been withdrawn here, and not only for technical reasons. Gordon Jackson will remember that, in the early days of the then Justice and Home Affairs Committee, an order was produced that would increase the threshold for small claims and summary cause cases. It attracted technical objections and involved policy issues that led to its being withdrawn. As John Home Robertson has just pointed out, we still await its return.
I welcome simplification and parallel consideration, which would provide more time. I was sceptical about the Executive's having to produce a programme for statutory instruments in the next three months or six months—perhaps that feeling was born of experience—but a programme would provide discipline. If we had had such a programme back in 2001, we would not have missed the order to continue tolls on the Erskine bridge. If such a programme allowed the Subordinate Legislation Committee to identify issues on which to focus, it would be welcome.
The report is useful for reminding us of issues that arose from phase 1 of the committee's inquiry. They are set out in annex 2, which refers to the importance of regulatory impact assessments. Those are vital not just for business, but for others. A presumption should be made in their favour and some of the means of ensuring scrutiny of regulatory impact assessments should be imported into standing orders.
As many members may know, I am examining on the European and External Relations Committee's behalf whether the transposition of European Union directives is gold plated. It would be premature to give conclusions on that, but issues have been identified, such as consultation at early stages and at the time of transposition. If legislation must be introduced in the next session of Parliament to implement recommendations in the Subordinate Legislation Committee's report, I hope that that might be considered in the round and in relation to better transposition of European Union legislation.
The debate calls to mind the halcyon days that I spent discussing statutory instruments in the Subordinate Legislation Committee on Tuesday mornings during the previous parliamentary session in committee rooms on the Mound. I have a sense of nostalgia when I remember those days when we few, we happy few, we band of brothers and sisters joined together to discuss interesting subjects. [Interruption.] Murray Tosh suggests from a sedentary position that I want my old job back, but I think that I will leave that until later in my career, if I can.
Members who sit on the Conservative side of the chamber have a clear view of the public gallery—it has been interesting during the debate to watch people take their seats and leave quickly thereafter. It is clear that the debate has not attracted the level of public interest that some recent debates have.
The debate has been important, though. In the brief time that is available, I will highlight a few matters by drawing on the report and on my experience on the Subordinate Legislation Committee. One important point to which the report refers is that many errors appear in statutory instruments. Stewart Maxwell referred to the fact that the report says that 20 to 30 per cent of instruments that go before the committee have errors. It is interesting that the equivalent figure at Westminster is only about 5 per cent. There are two possible explanations for that: one is that our Scottish Executive drafters are poorer than those at Westminster, which is possible, and the other—which I suspect is more likely—is that the Subordinate Legislation Committee's staff are better at picking up errors than are staff at Westminster. It is only right that we give credit to the committee's staff. Anybody who has served on the committee will know that, were it not for the assistance of the committee's staff and legal advisers, committee members would find their work much more difficult.
The time pressures on staff are a serious problem. After instruments are laid, the legal advisers have only a short time in which to examine them in order to draw members' attention to any errors. That can be an issue, in particular towards the end of the parliamentary session or the week before a recess when dozens of instruments—up to 40 or 50—might be laid. That puts a lot of pressure on the staff, so the timescales should be ironed out. I am pleased that the report comments on that.
The Subordinate Legislation Committee is important to Parliament because it keeps technical issues separate from political judgments on instruments. There is nothing automatic about our having such a committee. I understand that the Northern Ireland Assembly does not have a committee that does such work; rather, it is done by a civil servant who reports to the lead committee. However, it is an advantage to have the Subordinate Legislation Committee; its decisions have more weight than if they were made by a civil servant.
I will comment briefly on the recommendations in the report. It makes sense to have a simplified procedure. I spent two years on the committee, but am none the wiser about the differences between affirmative and negative instruments—
Henry VIII provisions.
Or Henry VIII provisions.
I am sure that members who have not served on the committee are even more confused than I am. It would make sense to simplify the procedure. We should also reconsider timescales, which would be good for the staff who serve the Subordinate Legislation Committee. As Murray Tosh said, let us consider giving the committee the power to recommend amendments to instruments rather than simply to report to the lead committee, and let us also consider having it report in parallel with the lead committee, which would save time.
This has not been the liveliest debate for the people in the public gallery, but it has nevertheless dealt with some important points. I commend the committee's report.
Raising the subject of subordinate legislation, even among the political anoraks who occupy this building, tends not to get much response other than people's eyes glazing over rather quickly. I must therefore congratulate colleagues who have taken part in this morning's debate for at least holding members' interest—then again, all of us have probably paid our dues as members and former members of the Subordinate Legislation Committee of the Parliament.
The debate and the draft report could well mark a turning point in the life of the Parliament, and be the final break from a complex, arcane and archaic way of making legislation that we inherited from Westminster.
The committee had two options from which to choose in drafting the report. One was to go for improvements to the current system and, where it could, to streamline but maintain in essence the existing machinery. The other option was much more radical: it was to start again from first principles and devise a system for subordinate legislation that is not only fit for purpose for a new Parliament in the 21st century but, perhaps more important, which ordinary mortals might be able to access and understand. That is the committee's ambition for the Scottish statutory instrument procedure. It is to the committee's credit that it has taken the latter course, but we will have to weigh the issues raised during consultation on the draft report very carefully before we confirm our recommendations.
Sylvia Jackson highlighted the large volume of subordinate legislation that comes before Parliament and the considerable experience that members have gained. Now is therefore a good time to replace the transitional arrangements. She also pointed to the need for proper scrutiny and highlighted the fact that subject committees often struggle with time constraints when they carry out such scrutiny. Reform is needed.
Stewart Maxwell highlighted the fact that the SSIP will allow Parliament to concentrate on the instruments that matter and to get quickly through routine instruments. Murray Tosh underlined the non-partisan nature of the committee's reflections on the reforms that we are advocating and rightly emphasised that we are making no attempt to interfere with the Executive's ability to make subordinate legislation. His clarification of what we mean by being able to make amendments effectively with Executive approval should reassure the minister.
Similarly, Christine May rightly pointed to the considerable powers that ministers possess in being able to make subordinate legislation, and she indicated how such legislation significantly affects business in other organisations. Making the system simpler will lead to better and less burdensome regulation.
I hope and trust that the minister's response to the draft report will not be opposition to it. We are not trying to limit the Executive's ability to progress its legislative programmes—quite the opposite, in fact—but we want to ensure proper and efficient scrutiny. As other members have said, this is a once-in-a-lifetime chance to effect a truly modernising change in government. I hope that we take it.
I have never been a member of the Subordinate Legislation Committee, although I obviously have ministerial responsibility for it. I do not know whether that allows me to be part of the merry "band of brothers and sisters" to which Murdo Fraser referred, but the fact that I have found the debate interesting surely qualifies me for membership.
I should say on behalf of the Labour group that we do not regard membership of the Subordinate Legislation Committee as a kind of punishment for bad behaviour. I am sure that Gordon Jackson, who is just about to leave the chamber, would confirm that. [Laughter.] I turned round at just the right moment.
We welcome the debate and I hope that I will not strike a tone of opposition. Certainly, since I have been the Minister for Parliamentary Business, I have tried to engage constructively with the Subordinate Legislation Committee. I appreciate its non-partisan and professional approach—the committee works in the interests of the whole Parliament, which is greatly appreciated on our side of the table. I hope that such dialogue can continue.
I obviously have responsibility for ensuring that we keep the show on the road and get to the end result; it is not just about the process, but the outcome. I may raise doubts and questions in my speech, but I will do so from within a framework of wanting to hear the arguments and iron out the detail. We welcome many parts of the draft report and we will move on that once we get to the details. We suggest that we can continue the discussion, as time goes on, through the Executive officials and Subordinate Legislation Committee officials who are clearly engaged with the detail. I hope that what I say will be viewed in that context. I want to thank officially Sylvia Jackson and the committee for the work that they have done and the manner in which they have conducted discussions with the Executive.
The report is substantial and what it says is significant, so we must consider it in great detail. The report requires full consideration and careful study from our side of the table. We will engage in and continue with that work. As I said, however, I want to flag up a couple of issues; I hope that members will bear with me as I do that. Again, I emphasise that we do not dismiss what the committee has said in relation to the points that I will address. It is just that we believe that we must think through certain issues as we move forward.
In particular, we must think through the recommendation on the 40-day draft instrument laying period. We regard that as the main recommendation and will pay particular attention to it. A maximum normal laying period of 40 days for most draft instruments, even the most routine instruments, would add considerably to the work and timetables in making SSIs. Again, I am not saying that there are not things that we can do to improve our procedures or that we should not address issues in our internal working arrangements.
I just want to point out that for instruments that have little or nothing wrong with them, the period would be much shorter than 40 days.
I appreciate that point, which suggests the kind of detail that we need to iron out as we go forward. We need to think through the consequences of what Sylvia Jackson just said. However, our view is that the committee's 40-day proposal would subject a range of what we regard as routine instruments to an unnecessarily long period of scrutiny and delay.
I accept the point that Sylvia Jackson made in her opening speech about exceptions to the rule and the detailed procedure for amendments. We will seek clarification of what that would actually mean in practice, particularly in terms of the respective roles of the Executive and Parliament in making decisions. Again, the Subordinate Legislation Committee will appreciate that we think that the 40-day proposal needs more work to be done on it so that it can accommodate instruments that are also subject to procedures at Westminster or which are intended to progress in parallel with corresponding instruments at Westminster. We have a number of doubts about the practicality of the main proposal. We need to consider it in more detail and more work needs to be done on it before we can make a formal response to it.
However, the debate has flagged up significant issues that are mentioned in the report and which we need to address, such as the time for lead committees to scrutinise instruments and the lack of planning for SSIs, which leads to bulges in the workload and a lack of advance notice. We support a number of options to tackle those problems. For example, parallel working by the Subordinate Legislation Committee and lead committees or a short extension—to 28 days—of the period before an instrument comes into force could provide lead committees with more time to consider SSIs and the Subordinate Legislation Committee's comments on them. The implications of an extension to 28 days require more detailed consideration, but they are likely to be considerably less than the implications of the proposed 40-day period.
I accept the committee's points about bulges in the workload at certain times. If we can, we will seek to improve our planning procedures to address that issue and iron out, as Murdo Fraser suggested, a number of the associated problems. I do not dismiss the possibility of improvement. Jim Wallace made a compelling point about instruments in which mistakes have been made. If I could, I would try to avoid such mistakes with all human resource, but I am, simply because of the way in which financial years, parliamentary time and parliamentary business work, not sure that we can avoid all the log jams. However, we can discuss that point in detail.
The debate has been helpful for Parliament's scrutiny of subordinate legislation and for improving its procedures. It will, as Christine May said, improve the outcome of the process and the impact of subordinate legislation. When I work with other ministers, I take great pains to stress the Subordinate Legislation Committee's and, increasingly, lead committees' views about the range of subordinate legislation and the emphasis that is placed on it. That is now embedded into our procedures and thinking.
I look forward to continuing our discussions and the partnership working that we are developing and I hope that we will be able to come to an agreed resolution of the issues.
I am conscious that time has gone and everything has been said, so I will briefly say one or two things about the committee and what it is doing.
It cannot be said too often that the committee owes a debt to its clerk, legal advisers and special advisers. The work that they do is amazing.
I say again to the minister that the committee operates in good faith. Tory, Scottish National Party and Executive-party colleagues operate with one common motive: to get statutory instruments right. We are not about politics or policy, but procedure—the minister may laugh but, on this occasion, it is true. We suggest that the committee should have powers to amend instruments not to inhibit ministers, to stop them doing their jobs or to second-guess previously decided policy, but with a much more definite motive.
The committee has been accused of not blowing its own trumpet, so I will do that. We know what we are talking about; we have worked hard at the inquiry and we really understand our job. The convener said that we know what works and what does not, which is true, so I do not apologise for our making the proposals; we have thought about them carefully.
Our approach is simple: we want to make the procedures simpler and easier to understand. Murdo Fraser said that he had been on the committee for two years and still does not understand some of the differences between procedures. I mean no disrespect, but I suspect that if I were to ask members who have never been on the committee about the different forms of subordinate legislation procedure, I would find—if I could get them to wait until I had finished the question—that they did not have a clue what I was talking about. That is not a criticism of members; it demonstrates the point that the procedures are far too complex. We are anxious to simplify them, which is why our proposed new single procedure offers a way forward.
We also want to give Parliament a proper opportunity to scrutinise subordinate legislation. The present system is a problem in that regard. Some members might suggest that the proposed new system is a problem because all instruments would, in effect, be subject to the negative procedure but, as Stewart Maxwell suggested, the new proposal would actually enhance the ability of members to scrutinise instruments.
The suggestion to allow a laying period of 40 days, or less, has been raised. I appreciate that fine tuning is required on that, as with any proposal, but our suggestion would give lead committees and the Subordinate Legislation Committee the opportunity properly to scrutinise, which the lead committees have told us they need.
My main personal aim, which I think is also the aim of the Subordinate Legislation Committee, is that we produce better legislation, which is why we are interested in the power to amend instruments. I say to Alasdair Morgan that I do not think that we should give every committee the power to amend, although I understand why he referred to that idea. I think, as Murray Tosh thinks, that the practicalities would not work. The Subordinate Legislation Committee does not want the power to amend in order to cause the Executive bother or to second-guess policy; we genuinely believe that such a power would produce better legislation. We constantly find things that are wrong with instruments, and we are left with the choice either to stop an instrument completely or to let it get on the statute book wrong, which does not seem to be a terribly wise or appropriate system to me. As I said, our intention is to produce better legislation.
I am more encouraged than I thought I was going to be by what the Minister for Parliamentary Business said in her speech. We do not expect a rubber stamp to be given to our proposals. There is a sense that Governments are always conservative, but not as in the Conservative party. In their own way, all Governments tend to be conservative and might be afraid about changes such as the Subordinate Legislation Committee is suggesting.
There is a danger, however, of missing an opportunity. We have taken lots of evidence, and we are currently working according to what is only a transitional procedure. I have absolutely no doubt that the proposed radical changes would be a good thing for Parliament, its committees and, I believe, the Executive, even with respect to the freeing up of ministerial time.
Not everyone will be happy right away and things will need to be changed, so we have in a sense backed off a step, but in a wise way. As Sylvia Jackson said, the committee could have produced a bill and taken things to the wire, but we have no interest in doing so. We have taken the unusual steps of presenting our proposals, declining to draw up a bill and offering to reconsult. I am encouraged by what the minister said, and I think that we will re-engage on the issues that have been raised in the inquiry and take the opportunity to produce much better legislation in the future. I commend the committee's draft report to the Parliament.