“The Interpretation and Legislative Reform (Scotland) Act 2010 and other subordinate legislation Standing Order rule changes”
The next item of business is a debate on motion S3M-7733, in the name of Gil Paterson, on the Standards, Procedures and Public Appointments Committee’s report “The Interpretation and Legislative Reform (Scotland) Act 2010 and other subordinate legislation Standing Order rule changes”.
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I thank the whole Standards, Procedures and Public Appointments Committee team of officers, clerking staff and members. They have got down to their task and done the job very well, and it has been a pleasure to work with them. I include our two retirees, Angela Constance and Robert Brown. I thank all the people who have been in that team for the way in which they have conducted themselves and the amount of work that they have put in on behalf of the committee and the Parliament.
I am pleased to open this debate on the Standards, Procedures and Public Appointments Committee’s third report in 2010, which proposes changes to the standing orders in connection with the Interpretation and Legislative Reform (Scotland) Act 2010. Members will no doubt remember debating the Interpretation and Legislative Reform (Scotland) Bill last year.
The 2010 act provides for the replacement of three transitional orders made under the Scotland Act 1998 that deal with largely technical matters. The main focus of the report is on changes to reflect the provisions of the act relating to subordinate legislation procedures. The report makes recommendations of three types: it recommends changes as a result of the act; it recommends other minor changes to subordinate legislation rules; and it makes two recommendations that do not require changes to the standing orders.
I will first address changes arising from the 2010 act. The act introduces new terms relating to subordinate legislation, and the committee recommends that those terms should be included in rule 17.6 of the standing orders, which sets out how certain terms will be interpreted in the standing orders. The committee also recommends a change to rule 10.4, to include the new term “negative procedure” and to ensure consistency with the act by using the wording “the instrument be annulled” in relation to lead committee recommendations.
The 2010 act increases the period between an instrument being laid and its coming into force from 21 days to 28 days. If an instrument is to be brought into force less than 28 days after being laid, an explanation must be provided to the Presiding Officer. To ensure that such explanations form part of the consideration of instruments, the committee recommends a new rule that would require the lead committee to consider the explanation and, if appropriate, draw it to the attention of the Parliament.
The power to change the procedure to which an instrument is subject—for example, from the negative to the affirmative procedure or from the affirmative to the negative procedure—is possibly the most significant change that is provided for in the 2010 act. To provide for that in the standing orders, the committee recommends a new rule, under which the initial proposal to change the procedure would be made by the relevant subject committee, which would then report to the Subordinate Legislation Committee that a change was desirable. The Subordinate Legislation Committee would scrutinise the proposal and either agree or disagree with it. If the Subordinate Legislation Committee did not agree with the proposal, no further action would be taken, but if it was agreed to, that committee would put forward a resolution that would invite the Parliament to agree to the change. As set out in the act, it would then be for ministers to decide whether to bring forward the necessary order to allow for the change of procedure.
The committee also recommends a number of changes to the remit of the Subordinate Legislation Committee to link more closely with the terms of the 2010 act. Chapter 10 of the standing orders has not been reviewed properly since the first edition was published, so the committee took the opportunity to consider, with the Subordinate Legislation Committee, the general operation of the rules. As a result, we have proposed six other minor changes.
The first of those is to make it clear that all instruments will be referred to the Subordinate Legislation Committee, even if an instrument is to be considered by Parliament rather than a lead committee. That will ensure consistent technical scrutiny of all instruments.
Allied to that change, the committee proposes changes to rule 10.3.2 and a new rule—10.3.3—to clarify the reporting obligations of the Subordinate Legislation Committee for instruments referred to a lead committee and instruments considered by the Parliament. Under current procedures, the maximum time allowed for debate on motions to annul an instrument is three minutes for the person moving the motion and the Government speaker. The committee considered that that was too restrictive and would not be sufficient in all circumstances; it felt that such debates are unusual and are likely to need longer debate in most cases. The committee therefore proposes that rule 10.4 should be amended to allow the Parliamentary Bureau to allocate time for such a debate but that the bureau should ensure a minimum of three minutes each for the person moving the motion and the Government speaker.
The final three such changes that the committee proposes are intended to clarify the application of the rules. The changes clarify that rules 10.6.4 and 10.6.5 apply not only to draft instruments but to other affirmative instruments that have been made but which are subject to the approval of the Parliament, and that, under rule 10.8, only draft instruments can be withdrawn.
The final standing order change being recommended by the committee is to rule 10.11, which sets out the way in which the number of days, referred to throughout chapter 10, should be calculated. It is a previously overlooked consequential change related to the session 2 Procedures Committee’s 9th report in 2006, to provide that the Subordinate Legislation Committee has 22 days in which to report in certain circumstances.
Finally, I will mention two areas that were considered by the committee but in relation to which we concluded that no changes to standing orders were required. Rule 10.4 provides that there is a 40-day period within which an instrument can be annulled and that a member can lodge a motion to annul up to that point. In practice, as such a motion is for the lead committee to consider and make a recommendation on, it needs to be considered and reported on before the 40-day deadline. To assist lead committees in timetabling consideration of an instrument, an administrative deadline is provided by the clerks to ensure sufficient time for a bureau motion to be lodged if a recommendation to annul is made. To ensure that members who may be considering seeking to annul an instrument are aware of the deadline, the committee recommends that the administrative deadline should be published in section J of the Business Bulletin.
The committee also considered a possible conflict between rule 8.2, on motions without notice, and rule 10.4.2, which states that a minister in charge of an instrument is entitled to participate in proceedings on a motion to annul. A member may seek to lodge an annulment motion without notice for consideration by the lead committee. It would be for the convener to judge whether they wished to accept such a motion. However, the committee noted that accepting such a motion without notice might conflict with rule 10.4.2. The committee concluded that no rule change was required in relation to the possible conflict between those rules but recommends that additional guidance should be produced to highlight the issues that exist and to recommend best practice in relation to specific circumstances.
On behalf of the Standards, Procedures and Public Appointments Committee, I move,
That the Parliament notes the Standards, Procedures and Public Appointments Committee’s 3rd Report 2010 (Session 3), The Interpretation and Legislative Reform (Scotland) Act 2010 and other subordinate legislation Standing Order rule changes (SP Paper 465), and agrees that changes to Standing Orders set out in Annexe A to the report be made with effect from 6 April 2011.
As no other member wishes to speak, that concludes the debate on the Standards, Procedures and Public Appointments Committee 3rd report 2010.