Official Report 371KB pdf
Agenda item 2 is our inquiry into post-legislative scrutiny. This is a round-table meeting, so I hope that everyone will participate as freely as possible.
It is hard to answer that question when we have not decided on or thought about the format that we might use. We have suggested in our submission that a dedicated committee could look at post-legislative scrutiny, which would need to be resourced with manpower, expertise and skills. How much resource will be required will depend on how we want to proceed.
The resource that will be required will also depend on what you want to scrutinise. The regulatory review group has had long discussions about how and what regulation to scrutinise. There is no doubt that a scrutiny industry could be created, but that would be worthless because there is no contention over much of the legislation.
In addition to that, there is the question of what you are scrutinising. Is it the overall effectiveness, which goes into issues of compliance as well as the structure of the legislation? Where does subordinate legislation fit in? If the parent act is just a skeleton, its effectiveness cannot be assessed without considering the subordinate legislation.
In addition to that, most of the acts of the Scottish Parliament include codes of practice, so such legislation cannot be scrutinised without scrutinising those codes. It might just be the code of practice that needs to be looked at and changed, without changing the legislation itself. There is sort of a snowball effect.
The resources that you are talking about are the ability to do research and gather information, and the time that is available to devote to it, which is fairly limited. Since 1999, Parliament has been able to do post-legislative scrutiny. To some extent, that is the point of inquiries. The committee can decide to take on a piece of work; a big part of that is examination of how legislation is working. It is just a case of deciding the extent to which you want to make that process systematic. Part of the problem that has been identified is that there is some good practice in some committees, but that is not the case throughout the committees.
Can I question Paul a wee bit further on that? I am sorry—Professor Cairney.
No—Paul is good.
I should be much more careful for the Official Report. You talked about a systematic process. One of the questions that has come up in discussions and written evidence is what would be the triggers of systematic specific post-legislative scrutiny. You talked about putting the burden on the Scottish Government, and I know that that suggestion was also in your written submission. We talked about it with the previous witnesses. I am slightly worried that we would, if we were to go down that route, be leaving it to the Government to decide what legislation to scrutinise and when, which could take power away from Parliament. We have considered what would trigger committee scrutiny of legislation, which might mean giving Parliament the power, rather than the Government. Do witnesses have thoughts about possible triggers?
I will build on the point that Jackie McCreery made. You can produce wonderful legislation, but all the guidance and everything else that goes along with it must be in place, or it will not work. It is about scrutinising not just legislation but everything that goes around it. For example, in the Licensing (Scotland) Act 2005, it was quite clear that the guidance did not match the act, so people were having to make decisions. It was the guidance that was wrong, not the legislation. Just looking at legislation without considering how it is implemented by whoever must implement it—in that case it was local authorities—is somewhat meaningless. Parliament could go round and round in circles; it could produce perfect legislation, but if the guidance is rotten, it will not work.
I will come back to Professor Cairney’s point. You said that committees make up their own work programmes, so a committee could decide to revisit legislation because members suggest it, or because someone from outside Parliament has seen, or believes that they have seen, that something is not working and has gone to the Public Petitions Committee to try to trigger post-legislative scrutiny.
That is possible in the system just now. The committees are flexible and can decide to do that, but it is not a systematic process. It depends on how we want to describe the process: we can say that it is ad hoc or that it is flexible. We do not want it to be too hard and fast.
We are talking about a bundle of things that are all interconnected. We started off with resources and went on to triggers, and now we are discussing what the Parliament should consider at stage 1. If one tries to separate some of those strands from the bundle, it is clear that the issue of resources is one that the Parliament and the Government must consider and decide on.
How would we go about designating
I think that the committee has recently been involved in discussions about Scottish Law Commission bills. In assigning treatment of Scottish Law Commission bills, the Scottish Law Commission is a substantial actor on the stage of post-legislative scrutiny. I think that the SLC’s submission to the committee indicated that that is something that it considers to be very much within its province.
If I were to recommend only one piece of resource to put into this area, it would be for someone to read a bill on the morning after it comes out of stage 3. On the afternoon of the last day of stage 3, when all bills go before Parliament to be passed after being scrutinised well by committee members, you all become politicians again and you throw in amendments and changes to this and that. It would be beneficial to have somebody at the end of that, when it has all been passed, to scrutinise what is there and ensure that it makes sense and will work.
Okay.
I think that Russell Griggs is on to something here, but I have difficulty accepting his suggestion in its entirety. We might know that there is a shocking gap in a bill after it has been passed at stage 3, but the bill is then on its way to the law officers for checking and on to the palace for royal assent, so it is just too late to do anything about it.
We are planning some work on legislation and how we process it, which is pencilled in for early next year, I think, so we could certainly pick up on that.
I will pick up on some points that have been made. The technical issues that the two previous witnesses raised would certainly be one of the triggers, to return to Fiona McLeod’s point. Some problems can be picked up early, but some will be missed and will become evident only as the legislation beds down and is implemented. The Law Commission in England and Wales has done some work on that. In our written evidence, we have summarised some of the triggers that the Law Commission came up with, and have added some of our own. There are many different triggers that might lead to a need for review.
On the point that Professor Griggs raised about mistakes that are made during a bill’s passage, I would like that to be quantified. I can understand how it would happen, but can you give us an indication of how many bills have errors? I have been here for six years and I am not aware that many substantial mistakes have been made.
No I cannot, is the answer to your question.
I can give an example. The Scottish Land Court literally had to add in its own words to the Agricultural Holdings (Scotland) Act 2003 because the legislation did not make sense as it was written. Professor Reid probably has other examples.
There is one piece of legislation—I cannot remember which it is—that has a dangling half-sentence that just does not make sense. I got in touch with Her Majesty’s Stationery Office, thinking that the version that I had seen was a mistake, and got a letter back that said, “No. That is what we got from Parliament, so we have just had to repeat it.”
So, there are a few obvious examples.
Yes.
I suppose it makes us look a bit silly when we end up with mistakes like that. Next week we will consider at stage 3 the Crofting (Amendment) (Scotland) Bill, which is intended to correct a problem that was created by the previous crofting legislation that was passed just a few years ago—
I am sorry to speak over you, convener, but the flooding legislation is another example; it was pointing in two directions at once.
It is obvious that there is an issue for us to look at. We can pick up on it not so much with regard to post-legislative scrutiny, but in terms of how we deal with legislation and with our legislators.
That brings us back to the gist of what we are talking about. Some of the need for post-legislative scrutiny could perhaps be avoided if there was a little extra time to scrutinise legislation as it goes through Parliament.
I was going to ask exactly the same question as John Lamont, so I will ask it again. Is there any way that we can get some figures on the amount of bills that have similar problems?
It is not just mistakes. When we finished our post-legislative scrutiny of the Alcohol etc (Scotland) Act 2010, I had a discussion with an MSP, who said to me, “I’ve read your report, Russel—you were absolutely correct, and it was my fault.” I said, “How was it your fault?”, and he said, “I lodged an amendment without realising what the impact would be.”
So, we need to get better MSPs. [Laughter.]
Can you name names?
Sometimes, the impact is not known until a number of years down the line. The mistakes may seem to be small typographical errors, but there are resource implications. We have had Land Court cases that have lasted years over a section from which there has been something missing or in which there is ambiguity.
Just to complicate things further, if I were putting resources into something I would say, “Do it a bit later.” Often, a key part of the stage 3 process is ministers saying to MSPs, “That amendment won’t work, but if you trust us we’ll go off and make regulations to address your points.” I do not get a sense that many members actually check what the minister has done to address those points and the extent to which the aims of the bill have been changed. If there is a stage 1 process that sets out the clear aims, how those aims might be achieved and how that will be assessed, it makes sense to check, after the legislative process, whether any significant change has been made to the bill and whether its aims and how they will be assessed in the future have changed.
We have problems just now with the proposed new European Union procurement directive in that local authorities are interpreting it differently from each other, which is impacting on smaller businesses being able to tender for work. That, I keep hearing, is down to each local authority’s interpretation of the procurement directive. Our procurement bill will go through Parliament soon, with the Infrastructure and Capital Investment Committee as the lead committee. Is there any way of testing the procurement bill, in its early stages, to get the local authorities’ interpretation and understanding of it before it goes to the next stage, in order to ensure that there is clarity and understanding?
We have made two recommendations—one on alcohol licensing and one on knife crime. If you are producing a bill that will, in the end, have to be delivered by somebody, please go and speak to the person who will have to deliver it at the consultation stage, in the pre-legislative period, so that the legislation will be deliverable and the words of the guidance absolutely clear. We do not do that currently. In a lot of cases, the licensing clerks, the planning officers or the procurement officials do not get involved in the consultation process as officials in the Scottish Government do. In my view, if you are producing something that you want somebody else to deliver, you should get them involved at the beginning. We could do a lot more to get people involved at the beginning, which would prevent the confusion. You may not have to change the legislation; it could be a matter of making the guidance more precise. In a lot of cases, for all sorts of good political and commonsense reasons, fairly loose pieces of legislation are passed that require strong guidance for their interpretation. To resolve that, you could utilise more practitioner expertise at the beginning, during the consultation phase.
At the end of the day, the courts can—
Hang on a minute, Jackie. I will take your comments after we have heard from John Lamont and Michael Clancy.
My comment is now a bit out of context. It is a response to what Professor Griggs said about the problem that politicians sometimes create by amending bills without understanding the consequences or how the courts will interpret the amendments at a later date. It strikes me that that is not new. As long as we have had parliaments, we have had politicians and there is always going to be a danger of our creating problems or making mistakes. Until we remove politicians from the equation, we will have that situation. It is very hard to see how we can have a foolproof system.
I am showing my age, but that comment puts me in mind of the fact that in 1426 the previous Scots Parliament decided that it would set up a commission to examine the law and to
An important point, which I think Michael Clancy has made, is to get the people who will be affected by the legislation involved in drafting the guidance. There should be consultation on the guidance so that, as far as possible, there is a consistent approach—if that is what is required—because guidance in itself can be ambiguous. The people who are affected should be involved.
I would like to separate the technical aspect from the point of principle.
That is interesting.
Having heard what we have heard, do you favour any particular new approaches to the scrutiny process, which could be piloted?
Last week, I was at a conference at which the Leader of the House of Commons, Andrew Lansley, was speaking about a project that the Office of the Parliamentary Counsel in Whitehall was proposing—the good law project. Everyone signs up to good law, and that department’s report discusses what happens when laws become too complex—part of the issue that we are dealing with—as well as changes to parliamentary procedure in Westminster.
Scottish Land & Estates has suggested—whether as a pilot or not—that one or two areas of law could be chosen per session, or per year, for a complete review. For example, nature conservation law is now massively complicated. There are pre-devolution acts that have been amended in different ways north and south of the border, with subsequent legislation, secondary legislation, guidance and codes of practice. That area of law is ripe for a total overview and possibly some consolidation.
I pick up on Jackie McCreery’s example to show where there is a lack of political will. I have given evidence on the various nature conservation bills that have gone through Parliament. Committees and witnesses have consistently said that the law is a mess and needs consolidation. The Government has said, “Yes, we’ll think about it—we appreciate the issue and we’ll do something about it,” but 10 years on there has been no progress.
On the point that Jackie McCreery and Colin Reid have made, is it up to the Law Society of Scotland, to Scottish Natural Heritage or to other organisations to suggest to Parliament that it scrutinise or review an act? As Fiona McLeod said, the Parliament has passed hundreds of bills, but many acts date way back—maybe not as far back as 1426, but to the 1900s. When people say things such as, “It’s under the 1937 act,” I think that we should be looking at those acts to upgrade or amend them. We would have to agree how many we could do. As Jackie McCreery has said, we could not do hundreds, but we could do three or four a year.
Part of the remit of the Scottish Law Commission is to keep consolidation up to date and to tidy up the statute book, but it struggles to find the resources to do that, partly because even the commission needs support from within the departments and directorates of the Government.
We have ranged over a number of topics. I would like to focus for a while on the issue of having a dedicated committee—perhaps the Delegated Powers and Law Reform Committee, which is the new title for the Subordinate Legislation Committee—as a means of ensuring that some post-legislative scrutiny is carried out.
First, I agree with John Lamont’s view that we do not want politicians to stop being politicians, as that is what they are elected to be. However, we must accept that we will always find mistakes when we conduct post-legislative scrutiny.
I will give you a balanced, academic view, which means that I will contradict myself.
That is this committee.
Or the Delegated Powers and Law Reform Committee. [Laughter.]
A dedicated committee would need a status and prestige that ensured that people actually listened to it. If it were a graveyard committee, that could be a problem. I guess that I am suggesting that you should not change the committees too much but, to contradict myself, I can give the opposite argument.
The idea of reporting is coming into legislation nowadays. There are many examples in the Climate Change (Scotland) Act 2009 of things that the Government must report on at certain stages. The Wildlife and Natural Environment (Scotland) Act 2011 added the duty for the Government to report every three years on compliance with the biodiversity duty.
It is clear that, if some mechanism for post-legislative scrutiny was built into the legislation when appropriate, time would have to be allocated, as the Parliament would then be bound by the law. We are talking about whatever the legislation says. The minister might have to provide a report within a certain period of time, or there might be a sunset clause that brings the legislation to a close, pending a report.
So the approach could be tailored, depending on the bill. Am I right in thinking that, normally, it would be the Government that is asked to do something?
Normally, yes.
Would that approach be appropriate for all bills or at different levels for different bills? If the Government had to review every bill, I could see the legislative programme after a few years consisting of reviews of bills and nothing else.
As I was saying, the process would be tailored, and a review would not be required for every bill. One could be carried out because some issue of considerable controversy had come up during the passage of the bill—perhaps from what witnesses had said at stage 1. It might have been ascertained that Parliament wanted to find out how a provision was operating in practice after three years.
Does the panel think that a combination of things might be the best way forward? That could involve building a review period into bills when appropriate; designating a particular committee and giving it a remit to set aside some of its time to choose certain acts; and leaving all committees with the power that they have at the moment to carry out legislative reviews.
I totally agree with what you have just described. We need some flexibility, so it is definitely right to have more than one avenue for approaching the matter.
I would add a fourth option. All the bills that the Parliament passes must be implemented by somebody, whether that is a regulator, a local authority, the police or somebody else. Perhaps you could also ask the body in question to have it as part of their remit—as a non-departmental public body, for instance—to review legislation in specific cases, to ascertain how it is operating and to report back to Parliament. It would become a statutory duty for the body to report back to Parliament on how pieces of legislation are working. You would not be doing all the work yourselves.
On the question of having a separate committee, you could learn from your colleagues in equivalent committees. It is not the Subordinate Legislation Committee anymore—
It is the Delegated Powers and Law Reform Committee.
There is a similar argument for delegated legislation: not only can subject committees consider it; there is also a dedicated committee. It would be worth finding out from people on that committee whether that is what happens.
Having conferred with the clerk, I can confirm that all delegated legislation goes to both the Delegated Powers and Law Reform Committee and the relevant subject committee.
I have a slight worry about the idea of subject committees undertaking post-legislative scrutiny while there is also a dedicated committee or an enhanced remit for the Delegated Powers and Law Reform Committee. That would take away time for subject committees to conduct inquiries. It could mean that while a subject committee carries out post-legislative scrutiny on an act—it may even look only at a specific part of an act—the dedicated committee is looking at the same act.
The problem is that one cannot really draw a division between post-legislative scrutiny and an inquiry into a subject in which one or two acts are particularly important. The same work will be done; it just depends on how it is labelled. I have problems with the idea that post-legislative scrutiny is completely free standing and separate from the rest of a committee’s work.
I can imagine a circumstance in which the inquiry comes up against an issue that relates to post-legislative scrutiny. It is at that time that the dedicated committee should be brought in and told, “Here you are. Our inquiry has thrown up an issue about this statutory provision. Remit to you.”
My final point is that, if we had a dedicated committee, we should not forget that it should also look at good practice. Its work should not be all about looking at what has gone wrong; it is important that it looks at what has worked well, including particular techniques of implementing law, and can share good practice.
Does anyone else have any points to make before we wind up?
To oblige Governments to state clearly what their aims are and how they can be assessed is easier said than done. A good way to demonstrate the benefit would be for this committee to set out its aim in making recommendations on post-legislative scrutiny and how the success or failure can be measured. That would show how complicated such a thought process is and would put in mind the extent to which Governments can set out their aims and how they can be assessed in each circumstance.
Thank you all very much. That was useful. Your contributions, along with those made at our previous evidence session, have given us plenty of food for thought. You will all get a copy of the committee’s report; it will keep you riveted for days on end.
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