In dealing with the next item of business, members should have the bill as amended at stage 2, which is SP bill 27A; the marshalled list, which is SP bill 27A-ML; and the groupings, which I, as Presiding Officer, have agreed.
The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for that division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after any debate. All other divisions will be 30 seconds.
Section 26—Service of documents
We come to group 1. Amendment 1, in the name of the minister, is the only amendment in the group.
Amendment 1 limits the presumption that documents that have been sent by post are delivered within 48 hours of being sent to documents that are sent to a United Kingdom address. Section 26 currently provides that documents that are sent by post are assumed to be delivered within 48 hours of being sent. That presumption would apply as the default position to documents that were sent to any address, whether in the United Kingdom or otherwise.
After further consideration, the Government believes that the presumption may be unrealistic for addresses outside the United Kingdom. The efficiency of postal services in countries in which documents might be served has to be taken into account. If provision is needed in respect of the presumed delivery of documents that are served outside the United Kingdom, it will be more appropriate to address that in the particular bill or Scottish statutory instrument. Consideration could then be given, in the context of the particular policy area, to the countries in which it is expected that documents will be served, and to the types of documents that will be served. That will ensure that a reasonable period is set for the presumption of delivery that is tailored to the legislation in question, thereby properly implementing the policy underpinning the provisions.
The Government believes that that is necessary because of the range of matters for which the provision would have to provide rules. For example, different provisions might be appropriate for notices or service of legal documents under contract law or in relation to family matters. That is why we propose to limit the current provisions to the United Kingdom.
I move amendment 1.
Amendment 1 agreed to.
Section 27—Definition of “Scottish statutory instrument”
We come to group 2. Amendment 2, in the name of the minister, is grouped with amendments 3 to 5 and 8.
The amendments make technical adjustments to the definition of statutory instrument. They deal with two main areas.
Amendments 3 and 5 deal with the rules of court, and are intended to simplify the route to classifying as SSIs acts of adjournal and acts of sederunt, which are types of instrument that are used to make court rules.
In its stage 1 report, the Subordinate Legislation Committee asked the Government about the classification of court rules as Scottish statutory instruments. At the moment, the bill provides for them to be SSIs, but to work that out, we would need to look to the parent act—the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966—and section 27 of and schedule 2 to the bill, which is unhelpfully convoluted. Amendment 3 simplifies the position by providing for every act of adjournal and act of sederunt to be an SSI. We have consulted the Lord President of the Court of Session on the changes and he supports them.
Section 27 currently provides that all orders, rules and regulations and all orders in council are to be SSIs automatically. In some cases, the legislature has provided—and, in future, this Parliament may wish to provide—an exception to the default rule. The bill already allows for that in relation to orders, rules and regulations by providing that they are not to be SSIs if the legislature makes provision to that effect. No such exception is currently made for orders in council. Amendments 4 and 8 will extend the exception to cover orders in council, acts of adjournal and acts of sederunt.
I move amendment 2.
Amendment 2 agreed to.
Amendments 3 to 5 moved—[Bruce Crawford]—and agreed to.
Section 28—Instruments subject to the negative procedure
We move to group 3. I call amendment 22, in the name of Helen Eadie. I was going to call Helen Eadie to move amendment 22—[Interruption.] Ms Eadie, you are late for this group of amendments, which is not helpful. You are due to speak.
I repeat: I call Helen Eadie to move amendment 22 and to speak to the other amendment in the group.
My apologies to the chamber.
The purpose of the amendments is to provide a procedure that enhances the opportunity for parliamentary scrutiny of SSIs that are subject to negative procedure while meeting the concerns of the Government that the procedure does not impede the effective and efficient delivery of Government business.
Amendment 22 would increase from 28 to 40 days the minimum period before such an instrument could come into force after being laid before the Parliament. Its effect is to ensure that the Parliament has an opportunity to annul the instrument before it comes into force. Amendment 24 is intended to meet the Government’s objection that that system would be impracticable, particularly during the summer recess, because it would mean that such instruments could not come into force, without breaching that rule, not just for the additional period of 12 days—that is, 28 days plus 12—but for the additional period of 76 days.
Amendment 24 is intended to address that objection by providing that, in calculating the 40-day period for this purpose, no account is to be taken of any period during which the Parliament is in recess for more than 16 days, and not just the four days that are currently provided for. The amendment would mean that, unlike in the present position, the 40-day period before an SSI can come into force would not stop running during the shorter recesses in February, at Easter, in October and, depending on the length of the holiday, at Christmas. As I pointed out at stage 2, that would mean that an SSI could come into force earlier than it could under the terms of the bill. However, the period would stop running after the 16th day during the summer recess. In effect, that would mean that the period of 40 days during the summer recess would be calculated in such a way as to achieve precisely the same result as would be achieved in calculating the period of 28 days under the terms of the bill.
In my opinion, the minister has not considered the combined effect of the amendments and has treated them as stand-alone. The minister also seems to have failed to realise that, in the case of the summer recess, amendment 24 would have precisely the same effect as his proposal to have a 28-day laying period. In the case of the shorter recesses, it would be more beneficial to the Government’s position because, as I stated at stage 2, SSIs could be brought into force slightly earlier than under his proposals in the bill.
14:15The only other argument is that it might be confusing to calculate the 40-day periods differently for different purposes. However, the key point is that this is being done for different purposes—one to calculate the period for annulment and the other to calculate the period before the instrument can come into force. As such, I question whether it is really as confusing as has been said.
It is necessary to take into account the reason for the difference: it is simply to accommodate the minister’s concern that, particularly over the summer recess, it would be impracticable for both periods to be the same. The amendments seek to minimise those concerns by devising a way of ensuring that, at least over the summer recess, the practical effect is the same as the minister’s proposal for 28 days. In an ideal world, the way of calculating the 40-day periods for both purposes would be the same.
The minister also stated at stage 2 that any move to a 40-day period would result in the constitutional irony of affirmative instruments progressing through Parliament more quickly than negative instruments. He said that members should view that with concern. However, the hard reality is that that could also be the case under the bill, because there are no time periods for affirmative instruments
It seems to me that what is fundamentally wrong with the minister’s arguments is that he has simply misunderstood the combined effect of the amendments. He has treated what is now amendment 22 on its own and made the same arguments against extending the laying period to 40 days as he used at stage 2, without realising that amendment 22 has to be read with amendment 24. He has also failed to realise that the effect of amendment 24 in the case of the summer recess would be precisely the same as his proposal to have a 28-day laying period. In the case of the short recesses, that would be more beneficial to the Government’s position because, as stated at stage 2, SSIs could be brought into force slightly earlier than under his proposals in the bill.
At stage 2, Dr Ian McKee stated that the Subordinate Legislation Committee, in its 12th report in 2008, came to the unanimous view that to extend from 21 to 28 days would be unworkable. That view was arrived at before the committee started its scrutiny of the bill, so I counter that argument by saying that the committee heard from witnesses, when we took evidence at stage 1, that the proposal would be workable.
The minister also said at stage 2 that the concept of subordinate legislation arose initially from a recognition of the need to allocate valuable parliamentary time to allow the Parliament proper control over how it focuses its scrutiny. He said that the amendments would cut across that approach without giving the Parliament or the Government proper opportunity to consider the consequences. This point is not understood: Parliament delegates its legislative power to the Government and has a constitutional right to supervise how it is exercised. The real question is how to maintain the balance between the Government and the Parliament.
I move amendment 22.
Helen Eadie might not find her explanation confusing, but I venture to suggest that the massed ranks of the Labour Party behind her find it extremely confusing—in fact, they probably still study the text before they come in to speak.
The matter that we are discussing could misguidedly be construed as an argument between the Government and the Parliament, but two points must be made. First, whatever we decide to do today will affect the process of government for many years. During that time, Governments might change. I hope not, but those who are in opposition today might form a Government in the future. Secondly, although it is not in the interests of the Parliament or the people of Scotland to have rushed legislation, it is also not in the public interest to have inordinate delays in the system—a sort of parliamentary constipation—or a confused system.
It was probably for this reason that the then Minister for Parliamentary Business, Margaret Curran, proposed in November 2006 that the 21-day period be extended to 28 days, a position that was accepted after extensive evidence taking, as Helen Eadie said, by the Subordinate Legislation Committee and which is contained in our report of 2008, which had the unanimous support of the committee, including Helen Eadie. That report was made after we took evidence from many witnesses. The witnesses who gave evidence on this bill were, to a large extent, the same witnesses whose account had been listened to and then discounted by our committee, including Helen Eadie. Furthermore, a sample of committee conveners consulted at the time all agreed that the 28-day proposal was very much to be welcomed.
Even on reflection, I am sure that the recommendations of successive Ministers for Parliamentary Business and of our own committee are still valid, so I oppose amendments 22 and 24.
Amendment 22, in the name of Helen Eadie, would, as she says, increase to 40 days the minimum period between laying before the Parliament an instrument that is subject to negative procedure and its coming into force. The minimum period at present is 21 days. The bill already provides for that period to be increased to 28 days. I must admit that I was surprised that Helen Eadie brought back these amendments, following the discussion at stage 2. As recognised by Ian McKee, having taken evidence and carefully considered the issues, the conclusion reached by the Subordinate Legislation Committee in its 2008 report, which formed much of the basis of this bill, was that increasing the minimum period to 40 days would probably be unworkable. In reaching that conclusion, the committee considered evidence that it received from the then Minister for Parliamentary Business, Margaret Curran, who said that a move to 40 days would cause
“considerable difficulties in keeping the show on the road.”—[Official Report, Subordinate Legislation Committee, 21 November 2006; c 2131.]
The idea of increasing the period to 40 days was raised again in the Subordinate Legislation Committee’s stage 1 report. Committee members were divided on the issue. I concede that there was some feeling that the evidence that the Government had given for opposing such a move reflected worst-case scenarios, and members called for further examples before stage 2. The Government responded properly and provided those examples. After reflection on them, an amendment with terms identical to those of the amendment that we are considering now was voted down by the committee at stage 2. Liberal Democrat, Conservative and Scottish National Party members voted against the amendment, with only Labour members being in favour.
Let me briefly set out again the robust and reasonable case that the Government—and, for that matter, previous Governments and Labour ministers—made for setting the relevant period at 28 days. The decision was taken after close consideration and analysis of the broader constitutional framework and the day-to-day, practical impact on stakeholders. A move to 40 days would significantly reduce the speed with which Governments and the Parliament can transact business. That would be to the detriment not of Governments, which do not make statutory instruments for their own good, but of the people of Scotland. Such a move would also damage the Parliament’s reputation.
The Government’s formal response to the committee’s stage 1 report offered what I consider to be a thorough, comprehensive and conclusive analysis of the practical difficulties that would arise. Increasing the period to 40 days would significantly reduce the speed and efficiency with which the Government and the Parliament can transact business. Although the difference between 28 days and 40 days is nominally only 12 days, obviously, it must be remembered that parliamentary recesses are not counted in the number of days.
If the proposal was applied in the current year, only instruments that were laid on 5 and 6 January, between 12 April and 16 May and between 25 October and 10 November could complete the necessary 40 days before the start of the next recess. On average, a negative instrument that was laid under a 40-day regime would take about 54 days to come into force. An instrument that was laid between 27 May and 28 June would take 103 days to complete scrutiny and an instrument that was laid between 29 June and 3 September would take anything up to 119 days to complete scrutiny.
As I explained in my letter of 12 February to the Subordinate Legislation Committee, such impacts cannot be addressed through improved management of Government business. It is the responsibility of any Government to ensure that its legislative proposals can be progressed without undue delay. Although it is true that amendment 24 seeks to make some attempt to lessen the impact by providing a complex mechanism for calculating the 40-day period, in practice it would alter only the points of the year at which problematic gluts of instruments would occur.
To Helen Eadie I say, as gently as I can, that I fully understand the implications of amendment 24. It would give rise to considerable complexity and confusion, and its illogicality is also revealed in the mechanism for lessening its otherwise absurd effects. There is no reason why, at some points of the year, 28 days is thought to provide sufficient scrutiny time while at others 40 days is required. Such an approach is frankly inconsistent with the bill’s entire ethos.
I am afraid that I must hurry you, minister.
As the bill’s whole purpose is to remove additional and unnecessary layers of complexity, I ask the Parliament to reject amendments 22 and 24.
Mrs Eadie, I can give you one minute to wind up and indicate whether you are pressing or withdrawing amendment 22.
I welcome the fact that the period is at least being increased from 21 to 28 days. That will be good news for the Subordinate Legislation Committee. I should also set the record straight for Ian McKee yet again: the committee did not reach a unanimous decision in the private session at stage 1. For a start, Margaret Curran and Jackson Carlaw were not present, there was a division, and, indeed, the convener of the committee supported some of the arguments that I advanced.
That said, I listened to what the minister said and I accept a great deal of it, although there are certain aspects that I will hold on to for another occasion. However, I am content to withdraw amendment 22.
Amendment 22, by agreement, withdrawn.
Amendment 24 not moved.
After section 28
We come to group 4. Amendment 25, in the name of Helen Eadie, is the only amendment in the group.
Amendment 25 seeks to remove another defect by allowing an instrument that is subject to negative procedure to be amended to address technical points that the Subordinate Legislation Committee has raised, without having to restart the clock on the 28-day period—or what would have been the 40-day period if amendment 22 had been agreed to—that is set out in sections 28(2) and 28(3).
One problem with negative procedure is that it does not readily allow for amendments to be made to an instrument to meet the vast number of technical points that the Subordinate Legislation Committee receives and raises. Such instruments cannot simply be withdrawn; they have to be revoked. A new instrument then has to be made and laid in compliance with both the 28-day period before it can come into force and the period for its annulment. An instrument that is subject to affirmative procedure does not suffer from such defects: because it is laid in draft form, it can be withdrawn and relaid without incurring any time penalty.
Amendment 25’s intention is to allow instruments subject to negative procedure to be revoked, remade and relaid without suffering such a penalty by providing that the new instrument effectively takes the place of the old instrument as far as the time periods are concerned. The only qualification is that only amendments that are intended to address technical points that the Subordinate Legislation Committee has raised, and which have been certified by the committee convener, can be made.
One might object to amendment 25’s reference to the Subordinate Legislation Committee, as it is not the practice to refer to named committees of the Parliament. However, the Subordinate Legislation Committee is a mandatory committee under standing orders and it is unlikely to change its name. It is not thought that there is any other way of restricting amendments to those that deal with the Subordinate Legislation Committee’s technical points and one might well argue that permitting policy amendments that address points that have been raised by, for example, subject committees would be going too far and might be undesirable.
I move amendment 25.
14:30
If I understand the position correctly, amendment 25 derives from recommendation 16 of the Subordinate Legislation Committee’s 12th report of 2008, “Inquiry into the Regulatory Framework in Scotland”, which is the precursor to the bill. Given the report’s contents, I understand the intention to create a procedure to deal with minor and technical changes—matters that do not relate to policy, do not affect the validity or meaning of the instrument and have no other substantive legal effect. As required by that report, the proposal was considered carefully and fully by officials representing both the Parliament and the Government, and their conclusion was that it was not possible to create a procedure to deal with this matter that was both proportionate and practical. As a result, the Subordinate Legislation Committee agreed that it should not be pursued as part of this programme of legislative reform.
Amendment 25 shows us why that was agreed. What the amendment proposes would be unduly onerous, would have little practical benefit and would create complication where none need exist. As I have said before, one of the bill’s main aims is to create a simple, workable regime for us to work with. Amendment 25 would cut across that aim. Its proposed procedure would be cumbersome and resource intensive for both the Government and the Parliament. It would require additional procedures for both and amendments to the standing orders for matters which, in any event, are normally dealt with as soon as practicable. Amendment 25 runs counter to the bill’s attempt to simplify and streamline subordinate legislation procedure, as it would introduce an unnecessary and entirely disproportionate level of complexity.
The simple fact is that the Government fully accepts, as did previous Governments, its responsibility to ensure that SSIs are competent and correct before they are laid before the Parliament. Where errors occur—I accept that they will occur from time to time—it is right and proper that any Government accepts the consequences. If we get something wrong, we are committed to correcting the mistake transparently and in a way that enables the Parliament, including both the lead committee and the Subordinate Legislation Committee, to give the revised instrument full consideration, so I do not favour a shortcut measure of the kind proposed in amendment 25, which would not assist the Parliament or make the system more effective or efficient. In short, what the amendment proposes is unnecessary, complex and disproportionate. I therefore urge members to oppose amendment 25.
I call Helen Eadie to wind up very briefly and either press or withdraw amendment 25.
I hear what the minister says and I welcome his acknowledgement that the issue behind amendment 25 was initially raised as a concern by the Subordinate Legislation Committee. It may well be that, by the time the Subordinate Legislation Committee’s next annual report is being prepared, the minister will be persuaded to look at the issue again. I feel certain that the monitoring that the committee is now establishing will illustrate clearly the extent to which errors occur every year. However, having heard what the minister said, I will accept his view for today. I therefore seek to withdraw amendment 25.
Amendment 25, by agreement, withdrawn.
Section 33—Combination of certain powers
We come to group 5. Amendment 6, in the name of the minister, is grouped with amendment 7.
Section 33(4) provides that where a statute imposes additional obligations on the person making an instrument—for example, a requirement to consult on a draft instrument before it is laid before the Parliament—those obligations remain. Amendment 6 is a straightforward drafting amendment that is intended to clarify the meaning of section 33(4) by improving its language.
Amendment 7 is intended to address an issue that Helen Eadie raised at stage 2. Members of the Subordinate Legislation Committee will recall that section 33 will allow powers that are subject to different parliamentary procedures to be exercised together in a single instrument. Helen Eadie asked whether section 33 goes too far and whether some procedures should not be displaced by the combination of powers. The only example that the Government has identified that might theoretically create a difficulty is class 3 instruments, which involve the so-called emergency procedure. Under emergency procedure, an instrument can come into force straight away, but can remain in force only beyond a certain period if the Parliament approves it.
It was never intended that section 33 should be used to combine powers subject to the emergency procedure, so amendment 7 will ensure that that can never happen, which I hope will put members’ minds at rest. I am grateful to Helen Eadie for bringing the point to my attention and, of course, for all of the careful consideration that she has devoted to such issues over recent months.
I move amendment 6.
Amendment 6 agreed to.
Amendment 7 moved—[Bruce Crawford]—and agreed to.
Schedule 2—Scottish statutory instruments: transitional and consequential provision
Amendment 8 moved—[Bruce Crawford]—and agreed to.
Schedule 4—Application of Part 2 to statutory instruments laid before the Parliament
We come to group 6. Amendment 9, in the name of the minister, is grouped with amendments 10 to 15.
This is a suite of technical amendments. They deal with the treatment of UK statutory instruments that are subject to procedure in the Parliament. Schedule 4 to the bill already provides that references to “Scottish statutory instrument” in sections 28 and 30 can be read, where required, as applying to UK statutory instruments. The amendments will provide for references to “Scottish statutory instrument” in section 31 to be read, where required, as applying to UK statutory instruments.
It might be helpful if I explain that section 31 sets out the consequences of failure to comply with the requirements for the laying of instruments that are provided for in sections 28 and 30. The consequence is a requirement that the responsible authority explain in writing to the Presiding Officer why the laying requirements were not complied with. Section 31 also provides that failure to comply with the requirements for the laying of instruments does not affect the validity of such instruments.
The amendments will ensure that the terms of section 31, which deals with the consequences of failing to lay an instrument, apply to UK statutory instruments in the same way as they apply to Scottish statutory instruments. That will ensure that UK instruments and SSIs are treated consistently in the Scottish Parliament.
From that easy and simple-to-understand position, I move amendment 9.
Amendment 9 agreed to.
Amendments 10 to 15 moved—[Bruce Crawford]—and agreed to.
Long Title
We come to the final group. Amendment 16, in the name of the minister, is the only amendment in the group.
I have lodged an amendment to the bill’s long title. The long title sets out the bill’s principal purposes and gives a general indication of its contents. Long titles can be, and have been, used as an aid to the interpretation of the operative provisions in legislation. It is therefore important that the long title properly reflects the content of the bill as passed by the Parliament.
Amendment 16 is a simple consequential amendment to ensure that the long title properly reflects the bill’s content following the removal of part 4 at stage 2. Part 4 would have provided the Government with a power to make minor changes to legislation to facilitate the consolidation of legislation. In its stage 1 report, the Subordinate Legislation Committee expressed concerns about that power and recommended that it be removed at stage 2. The Government accepted that recommendation and part 4 was duly removed at stage 2. Amendment 16 ensures that the bill’s long title reflects that change.
I move amendment 16
Amendment 16 agreed to.
That ends consideration of amendments.