Chamber and committees

Thank you for joining us. I have only a few questions.

First, you observed that your spending projections are based on current policies and do not take account of an additional main challenge—climate change. It would be useful to understand why your projections do not include any consideration of mitigations or adaptations. I am sure that there are several very good reasons for that. What would need to happen in order for you to give at least some consideration of climate change mitigation, given the significant anticipated public sector spend in that area?

The Supreme Court has clarified the law, which is an absolute when compared with our simply having guidance, whether it be interim or otherwise. Having to wait until the summer to tell public bodies that they must act where they are able to do so seems highly risky, given the absolute clarity contained in the Supreme Court’s 88-page judgment. What assessment has the Scottish Government made of the risk of further court actions being initiated in the interim and of the associated cost to the public purse?

Participants in the debate now have the chance to get their own back.

I welcome the debate, and I congratulate the DPLR Committee on a detailed, well-evidenced report. I elected to speak in the debate as a member of the Finance and Public Administration Committee, which, it is fair to say, has been vexed about the issues that have arisen from a financial perspective as a result of the use of what I will term “framework bills”. We know that public sector expenditure is considerably constrained. I will not labour the reasons for that, but surely that must mean that there is an imperative for as much efficiency and effectiveness in public spend as possible—we cannot waste public money. However, based on my experience thus far, if we had applied that test to some of the financial memorandums for framework bills, they would have fallen short.

The report notes that the FPA Committee suggested that

“co-design processes to finalise exact policy during and beyond the passage of the relevant primary legislation presented significant challenges for effective financial scrutiny.”

That is an understatement. Kenneth Gibson MSP, who regrets that he cannot be here today, said:

“although we are not particularly keen on them,”—

framework bills—

“if they are to be used, all the co-design work and stakeholder engagement should be done prior to the bills coming to the committee, so that we can fully analyse the costs.”—[Official Report, Delegated Powers and Law Reform Committee, 21 January 2025; c 4.]

I am interested in the minister’s view on the extent to which that can be done—and, if it cannot, why not.

Our committee also made commentary about the quality of some of the financial memorandums for framework bills. I will take the same approach as Stuart McMillan and not name them, for that is not the point. However, it is fair to say that we felt that they were below par when it came to our job of scrutinising them. I might have asked—somewhat tartly—in a committee meeting whether members would commit their own money on the basis of the information provided, as a way of demonstrating that.

The member and I sat on opposite sides on the consideration of that particular bill. My recollection is that the concern at that time was from a purely financial perspective. We accept that all financial memorandums are best guesses at the best of times, but I am talking about being presented with a financial memorandum that has a vast range and considerable complexity and uncertainty. In those circumstances, we are virtually guaranteeing that we will write a blank cheque. That carries significant risks from a scrutiny and good governance point of view. It is about overcoming those risks. What does the member think about that?

The public administration section of the Finance and Public Administration Committee recently met the outgoing permanent secretary. It was clear from evidence to the committee that Scottish civil servants are being subjected to internal policies that have not adhered to the public sector equality duty, with women’s networks allowing men to self-identify into membership and policies being developed on private spaces where no input was sought around sex as a protected characteristic. The First Minister has made it clear that considerable work is under way, but will he personally ensure that that work puts women’s voices—as 57 per cent of the Scottish civil service—at the heart of such policies and that the public sector equality duty is met?

In some respects, the gentle challenge is, does it really matter? Many of the considerations that we are covering off today are about the efficiency and effectiveness of that type of legislation. Therefore, surely we should be equally concerned if there are just a few pieces of framework legislation; we should not just be concerned about the number of them.

[Made a request to intervene.]

I completely agree. In my further remarks, I was going to pay respect to the Scottish Government for responding to the Finance and Public Administration Committee and addressing our concerns, so I happily agree with that.

As someone with considerable experience in assessing business cases, estimates of costs for larger programmes and so on, I am concerned when considering this from a technical perspective. We know that financial memorandums include educated guesses, but the point that I made to Lorna Slater earlier is that range is an important indicator of how tight the scoping of the policy is. Generally speaking, a massive range of costs from X to Y tells us something about how tightly scoped the policy work has been, and that raises a concern. Going back to my point about efficiency and effectiveness, if, under challenge, in front of the committee, the member or the minister is able to clearly articulate the basis of every measure, that gives us confidence. In fairness to all the ministers and members, where they have not been able to do that, that illustrates my concern.

A point that has been made by a number of members is that, even with good scrutiny up front, we have an issue with secondary legislation when we look at it through a purely financial spend lens against the backdrop of a shortage of public sector money. One key question—I do not know whether this has been mentioned enough—is how on earth we are meant to carry out post-legislative scrutiny, especially from a financial perspective, when we are using a framework bill with absolutely massive ranges, considerable uncertainty and considerable complexity. I do not see how that can be done. We need to own up to that fact and be aware of it.

I will finish quickly, because I made a lot of my points during my interventions on everybody.

I completely agree with the committee’s view that

“powers allowing flexibility ‘just in case’ are unlikely to meet the test for the necessity of the power”.

I also completely agree with its point that

“consultation and ‘co-design’ on a Bill’s provisions should take place”

up front.

Its last point is that,

“as a general rule, a lack of policy development is not an appropriate justification for introducing framework legislation”.

I suspect that the minister would want to intervene on that point if I was not running out of time. I am not saying that that is being done, but I am saying that there is the potential for that to occur, and we need to be alive to that.

I was very interested to hear the definition that the member just gave. Indeed, it probably concurs with the definition that the FPA Committee would have given, had it been asked to give one, because that is what we have seen, too. We are both coming to this with a different steer, because, perhaps, the DPLR Committee’s focus is on the absolutism of standing orders, but I would say that the practical effect, as the member has described it, is the same as we in our committee would describe it.

Even if something is included in a bill, there is no guarantee that that means that it is accurate. I distinctly remember it being mentioned in a conversation on gender recognition reform that, if a certain provision was included in the Gender Recognition Reform (Scotland) Bill, that would in no way affect the Equality Act 2010. I am not sure how that worked out.