Scottish Law Commission Reports (Implementation)
The next item of business is a debate on motion S4M-06693, in the name of Dave Thompson, on behalf of the Standards, Procedures and Public Appointments Committee, on implementing Scottish Law Commission reports. I call Dave Thompson to speak on behalf of the Standards, Procedures and Public Appointments Committee and to move the motion. You have around four minutes, please.
16:47
The Standards, Procedures and Public Appointments Committee recommends a series of standing order changes that will establish a procedure for the Parliament to consider bills that arise from Scottish Law Commission reports. In developing the new procedure, the committee drew heavily on a report of the law reform working group, and the committee is grateful for the evidence that it received from the conveners of the Justice Committee and the Subordinate Legislation Committee.
The Scottish Law Commission carries out a valuable role in recommending reforms to improve, simplify and update the law of Scotland, but the Scottish Government and the Scottish Parliament are responsible for deciding when and how to translate the commission’s reports into law. That can be challenging, given the many competing pressures on parliamentary time, but it is hoped that the new procedure will address some of those time pressures.
The new procedure defines a new kind of bill, to be referred to as a Scottish Law Commission bill, which can be used when the need for reform is widely agreed but no major or contentious political or financial issues arise. Under the procedure, such bills may be referred to the Subordinate Legislation Committee for scrutiny rather than to the relevant subject committee. Only a minority of Scottish Law Commission bills are likely to be suitable for scrutiny by the Subordinate Legislation Committee and, to give some flexibility, the proposed standing orders provide for the Presiding Officer to issue a determination that will specify what the criteria should be. We anticipate that that determination will be based on the proposals in the law reform working group report.
The Standards, Procedures and Public Appointments Committee considered how Scottish Law Commission bills should be referred to the Subordinate Legislation Committee and agreed that, in line with existing practice for bills, there should be a straightforward referral from the Parliamentary Bureau rather than a formal consultation with subject committees beforehand. That will avoid the addition of an unnecessary hurdle in straightforward cases, and will not prevent the bureau from taking informal soundings from committees when it feels that that is necessary to inform its decision.
The committee also agreed that the Subordinate Legislation Committee should be renamed the delegated powers and law reform committee in order to reflect more accurately the range of the committee’s new responsibilities. We are aware of concerns that that may lead to the setting up of a de facto second justice committee. However, the committee stresses that we have no intention of moving towards a second justice committee.
We consider that the criteria will operate to limit the number and nature of bills that can be referred to the delegated powers and law reform committee, and we want to make clear that the changes will not extend the committee’s remit beyond that limited proposal.
We acknowledge that the new procedure will solve only in part the problem of finding parliamentary time to implement Scottish Law Commission reports. However, we hope that the procedure will be a useful option that is open to the Parliament. We will review the new procedure later this session, either after the first two Scottish Law Commission bills are referred or, in any case, after two years. At that stage we will consider whether the new procedure is working as intended and whether any further steps are needed.
The motion in my name invites the Parliament to note the committee’s report and to agree that the changes to standing orders will be made with effect from 5 June 2013.
I move,
That the Parliament notes the Standards, Procedures and Public Appointments Committee’s 2nd Report 2013 (Session 4), Implementing Scottish Law Commission reports (SP Paper 307), and agrees that the changes to Standing Orders set out in the annexe of the report be made with effect from 5 June 2013.
16:51
I say to the convener and members of the Standards, Procedures and Public Appointments Committee that it was a delight to appear before them—and not as the accused, for a change.
I am relatively content, on behalf of the Justice Committee, that we have moved in this direction. Historically, I made and laboured the point to the Standards, Procedures and Public Appointments Committee and its predecessor committees that I certainly did not want to see another Justice 2 Committee. I fought—and lost—that battle as the Justice 1 Committee convener in session 2. Thankfully, the Justice 2 Committee was ditched in session 3. I am pleased to hear that we are not going in that direction.
The laudable purpose of establishing the Justice 2 Committee was to assist in processing legislation, but all that happened was that both committees—the Justice 1 Committee and the Justice 2 Committee—ended up with even more legislation, so it failed in that regard. However, I recognise that many deserving bills generated by the Scottish Law Commission have been left for years on the proverbial dusty shelf and that most of them—although not all—will be Justice Committee related. I continue to labour the point. It will not happen on my watch—I am looking the convener of the Standards, Procedures and Public Appointments Committee in the eye.
I am relatively content. I proposed option 2 on behalf of the Justice Committee, which was that bills should be referred by the bureau after introduction, but only after formal consultation with the relevant subject committee. I realise that there has been a bit of a compromise—I think that that is what politics is supposed to be about—in that informal discussions will be held between the convener of the newly named committee and the subject committee, to see whether any issues arise.
As we know, the thing about the unexpected is always to expect it. Paragraph 14 of the Standards, Procedures and Public Appointments Committee’s report makes clear that should new substantive issues arise on a bill that has been referred to the new committee, it will be referred back to the bureau. How many of us have been here?
I am looking at the criteria, which I will reprise. They include:
“where there is a wide degree of consensus”—
I am laughing—
“amongst key stakeholders about the need for reform and the approach recommended”.
Beam me up, Scotty. I am thinking back to the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, on which apparently there was a huge degree of consensus. When it came to the committee, lo and behold there was not.
Criterion C is:
“which does not have significant financial implications”.
How many of us have sat in a committee, taking evidence at stage 1, and said, “Wait a wee minute. We’re told that this is the bill’s financial implication, but we’ve unearthed other, unexpected, financial implications”? I am glad that there is that caveat.
I welcome the fact that the new procedure will be reviewed and appraised after two bills—I will not call them trial bills—have been referred. I have concerns—I keep those concerns here—that every time we are told that something is dead simple and that there will be no problems, as sure as eggs is eggs we find out that it is not simple and that there are problems. I put that down for my colleague, Nigel Don, the convener of the Subordinate Legislation Committee. We have a healthy working relationship, and I hope that it remains that way. The Justice Committee will ensure that its territory is not poached.
I call Nigel Don to speak on behalf of the Subordinate Legislation Committee.
16:54
I welcome the Standards, Procedures and Public Appointments Committee’s report. As that committee recognised, the Scottish Law Commission has an important role in recommending reforms to update the law in Scotland. It is important that those reforms are not lost and that Parliament has the opportunity to translate them into law. The committee also recognised, as did the law reform working group, which informed its work, that a number of factors impede the consideration of Scottish Law Commission-inspired bills, most notably the availability of committee time to consider them.
The Subordinate Legislation Committee has a busy work programme in dealing with secondary legislation, delegated powers provisions in primary legislation, legislative consent memoranda and Public Bodies Act 2011 consent motions. However, we recognise that there is some scope in our current work programme to consider bills that have been inspired by Scottish Law Commission reports, on the assumption that there will be no more than a few bills in any session.
In order to enable the Subordinate Legislation Committee to consider such bills, the report proposes a change in the committee’s remit specifically to enable it to consider certain Scottish Law Commission bills, provided that they meet criteria to be determined by the Presiding Officer. The criteria proposed for the referral of Scottish Law Commission bills, as suggested by the law reform working group, are that only bills on which there is already a wide degree of consensus—I take the point that colleagues have already made in that regard; that do not relate directly to criminal law reform, which is absolute, I think; that do not have significant European convention on human rights implications, as far as we can see; and on which the Scottish Government is not planning any wider work, which we can ask about, would be suitable for referral to the Subordinate Legislation Committee. It is critical to the committee that any bills that are referred to it should be referred on the basis of a strict application of those criteria, as determined by the Presiding Officer, and that, as such, only a minority of Scottish Law Commission bills will be suitable for referral to us.
Those criteria seem to be reasonable and appropriate. It is difficult to assess the impact that that approach will have on the implementation of Scottish Law Commission reports, but we have no doubt as a committee that it will effect an improvement.
The Subordinate Legislation Committee performs a unique role in undertaking technical scrutiny of delegated powers provisions and instruments, and as a committee, we would not want that role to be compromised. Extending the nature of the bills that the committee might consider beyond what the law reform working group envisaged could undermine that role, and the committee would not want that. I emphasise to members that we do not want to be a justice 2 committee or a justice 1A committee, and we do not want to encroach on policy committees’ remits. The proposed changes appear to strike the right balance between enabling Scottish Law Commission bills to be introduced and referred to the committee, and ensuring that the criteria are rigorously applied, thereby placing an appropriate restriction on what the committee might consider.
Mindful of the change in remit, the Subordinate Legislation Committee agreed to seek a change in name, and accordingly proposed that its name be changed to the delegated powers and law reform committee. The committee considered that the proposed name more accurately reflects the range of its responsibilities under its amended remit. In addition, the name reflects more accurately what the committee has been doing to date, as it has considered delegated powers rather than just subordinate legislation since its inception. We welcome the report’s acceptance of the proposed name change.
In welcoming the name change, I reiterate that the purpose of that change is merely to more accurately reflect the committee’s remit. It does not represent any aspiration on the part of the committee to widen its remit still further. Indeed, the committee is of the firm view that its remit should not be extended, and in particular that it should not be extended in any way that would mean its considering policy matters. The committee’s role is to undertake technical scrutiny of matters, and members of the committee do not want to see that change.
I again welcome the report and look forward to having an opportunity as convener of the Subordinate Legislation Committee or the delegated powers and law reform committee to contribute to an improvement in the implementation rate of Scottish Law Commission reports.