Chamber and committees

Again, that is a matter of on-going discussion with the UK Government. I understand that the Chancellor of the Duchy of Lancaster has written to your committee on the issue, and both Administrations are aware of the Scottish Parliament’s desire to have a scrutiny role with regard to those matters. I am also desirous of that, where that is sensible and proportionate to do so. I have made a commitment that we will continue to press that case with the UK Government. I have already made the point that I am looking to meet my counterpart in the Scotland Office, Kirsty McNeill, and I will make that point to her as well.

I am sorry, I should add that I am happy to write in due course with more details about when more lengthy SSIs will be laid.

I do not have any significant opening remarks, convener, other than to thank you for the opportunity to be with you once again. Douglas Kerr, Steven MacGregor and I are very happy do our best to answer any questions that the committee has, and, if required, we are also happy to follow things up in writing.

The committee could do that now. I am aware that the committee has looked at the Land Reform (Scotland) Bill, and—if I am correct—when discussing the bill, the committee made an assessment that it could fall into that category. The Government disagrees with that.

On your point about the Scottish Elections (Representation and Reform) Bill, I was not for a moment suggesting that the bill suddenly became a framework bill by process of further deliberation and amendments. However, if we accept your hypothesis, if a bill that was not determined to be framework legislation at the outset, when it was introduced, proceeded to have lots of secondary legislation-making powers added to it as it progressed through Parliament, and it was suddenly felt that it had become a framework bill, what would that mean in terms of guidance and our processes?

I understand that a cynical point of view would hold that such guidance would not be helpful to the Government because it would restrict and confine the manner in which we could draft bills—I have to concede that—but the question gets to the heart of the point that I am trying to make: what would be the utility of having defined what a framework bill might be? In this instance, I am not convinced that it would be helpful to the Parliament either, so to get to the nub of the issue, what is the specific concern, and what would be the purpose of having a strict definition of what constitutes a framework bill? That is not yet clear to me.

Broadly speaking, no, because the parameters of how any form of secondary legislation should be utilised is set out in the bill, so, in that sense, I am do not have concerns about its misuse. If such a concern was to emerge, the executive is accountable to the legislature, and the Parliament could determine to have a look at that piece of legislation and change it through primary legislation. I am not aware that there is substantial concern around that.

More broadly, subordinate legislation is so called because it is subordinate in terms of the process used to pass it, but it is not—if I could say it in a euphemistic sense—subordinate in terms of making law. The law has the same effect and it still has to come to the Parliament. The Parliament retains the ability to either pass or reject subordinate legislation in its affirmative form or Parliament can pass a motion to annul statutory instruments in their negative form. Therefore, it is not as though it creates broad sweeping powers for the Government, with no recourse to the Parliament.

Can you just clarify that you mean the National Care Service (Scotland) Bill?

I have seen little to suggest that the fact we live in a faster-paced world and in the age of social media is dictating that more things are determined by secondary legislation.

I think we all accept that, when we considered legislation on Brexit and in relation to the emergency response to Covid—I was there and you were, too, Mr Balfour—a substantial amount of law had to be made by secondary legislation. We could not meet the requirements in the normal format. You will recall that, during Covid, there was a restriction on the number of people who could come into the Parliament building. I certainly accept that, in that period, more had to be done by secondary legislation.

That does not necessarily mean that more framework bills overall were coming forward. In some cases, there were framework bills, but, looking across the piece, I have seen little evidence to suggest that there are substantially greater numbers of what could be felt to be framework bills now than was the case previously.

We could look at the history of these things. Since the early days of devolution, it has been a feature of our legislative process that ministers seek to bring forward something that sets a framework. That was laid out in the letter to the committee from my predecessor, George Adam, but I will make the point again. In 2000, in relation to the Adults with Incapacity (Scotland) Bill, Iain Gray said that it would

“set a framework that would allow us”—

that is, the then Scottish Executive—

“to take cognisance of such developments quickly, without taking up parliamentary time unnecessarily.”—[Official Report, Justice and Home Affairs Committee, 29 February 2000; c 836.]

In 2006, Johann Lamont, speaking to the Planning etc (Scotland) Bill, talked about the bill establishing a framework. In the same year, Ross Finnie, speaking to the Animal Health and Welfare (Scotland) Bill, talked about the bill providing an “essential flexible statutory framework”.

So, it is not a new phenomenon, but I have heard members assert in the Parliament that it is. It seems to have permeated out there to become almost accepted fact that there are more so-called framework bills than there were in the past, but no one has presented any evidence to me that suggests that that is the case.

First, I do not think that I am underplaying the issue at all. There might be a difference of opinion between us, in which case Mr Balfour will just have to live with that.

I have responded—I am using the dictionary definition of “responded”—to the convener of the finance committee. I have written to him to reassure him that we have taken steps to improve the information that can be provided. As I said in response to Mr Kidd, if there is more that we can do, I will be happy to listen to suggestions and consider them.

I cannot remember precisely which bill it was about—it might have been the Police (Ethics, Conduct and Scrutiny) (Scotland) Bill—but the finance committee had some concerns that it would not receive updated information until after stage 2 of the bill process. I will stop there and quickly check that point with Steven MacGregor. Is that the right bill?

I think that it should be the latter. Once again, the ultimate reassurance is that people have recourse to the courts. It is true of any function that has been delegated to the Government—it is certainly true in relation to so-called Henry VIII powers—that the courts would take a dim view of the Government trying to use its powers in a way that had not been intended or agreed by the Parliament.

It has been interesting to see the evidence that the committee has gathered, and I know that the committee rightly went to London to look at the experience there. The manner in which those functions are exercised in the Scottish Parliament is different from how they are exercised in the UK Parliament. The UK Government has far more discretion than the Scottish Government about the powers that it can exercise. I have seen nothing to suggest that there is any substantial concern here.

I go back to a point that I have made already. If there was any concern, it would be perfectly possible for the Parliament to prescribe that there should not be that function or that the function should be exercised differently, probably—I hazard a guess—by using another form of secondary legislation-making power.