Chamber and committees

It is, because it is not just a matter of the legislation coming before the chamber. A considerable amount of work has to go into the creation of legislation in advance.

I would throw it back at you, Mr Balfour. You are taking forward a member’s bill. How would you fancy taking forward five in a year? I think that you should be well cognisant and well apprised of the substantial amount of work that has to go into the crafting of a bill, its consideration by a committee and the Parliament’s capacity to support members.

That takes us back to my point. Candidly, yes, there are pressures on Government. There is the idea that the Government is gargantuan and has a million people working for it, but there are only so many people there to support ministers to take forward amendments to legislation. Also, there are only so many people in Parliament to support Opposition members and back-bench members of the party in Administration to take forward amendments. That is just a reality. If Parliament wants to enhance its capacity, that is for Parliament to consider, not the Government.

You are quite right to say that we are not doing a stage 3 every week. I hazard a guess that Parliament would not want us to do a stage 3 every week.

That would very much depend on the context. I can give a hypothetical example of something that I do not think we would do but which could lead to concern about the appropriate use of those powers. An executive or a Government might decide that it had better use a power that it will soon no longer be able to use, just to circumvent a sunset clause. That might be a cynical view, and I suggest that we would not do that. It comes down to the purpose of the sunset clause and why we would use such a clause just because a power existed in a particular form. I am not clear what the purpose would be.

Surely, the counterpoint to that would be to ask, “What’s deficient about the scrutiny process thus far?” I am unclear as to whether there are substantial deficiencies in the strict basis on which we scrutinise legislation right now. I was sitting here listening to the committee consider two statutory instruments before this discussion, and I heard that one was withdrawn and relaid because Parliament raised concerns about the initial drafting. That very much sounds to me like process and scrutiny being effective.

Are you asking about the actual use of secondary legislation, rather than the definition of framework legislation?

That is a good question, convener, and it is, earnestly, not one that I have considered in great detail. There is clearly a correlation between the two, and I suppose that it depends on what stage the bill is at. Good consultation should happen in advance of the introduction of any bill. In essence, that can lead to greater interaction with stakeholders and to the co-design of certain legislation.

Consultation and co-design are closely related. There could be differences between them, but I suggest that both should be a substantial exercise.

It could be. If the Government thought that that could be achieved and a committee of the Parliament thought that it would be helpful, we could look at that, but it would not be possible in every case. I go back to the point that I made earlier about some things being determined on an on-going basis, which is the purpose of having that defined in secondary legislation. That will not be true in every instance, but the purpose of secondary legislation is to be able to make changes to the law, when circumstances change and with the consent of the Parliament, more quickly than we could through primary legislation. However, if we had a substantial amount of detail, it probably would be put in primary legislation.

I have already made the point that that could be possible in some situations, but whether we need such a requirement is another matter. When that can be done and when it would be sensible to do it, let us look at that but, in other circumstances, that will not be possible.

We constantly look at the statute book. The very purpose of making primary legislation is to look at the effectiveness of the existing law of the land and consider whether it requires to be changed. I will not sit here and earnestly suggest that we will undertake that exercise across the board, because we probably will not, given the point that I made about capacity in the organisation and the need to focus on what we need to focus on. However, if a particular issue emerged at a particular time, we would, of course, look at it. If the Parliament makes recommendations about any aspect of the law, it is incumbent on the Government to consider them.

It is the right bill. The committee had concerns that it would not get updated information until after stage 2. However, that is what the Parliament has asked for as part of its defined processes. If the Parliament wants to change those processes and say that enhanced information should be available before stage 2, although obtaining that might pose a challenge to the Government, we need to listen to that request and see how we can meet it.

However, that could have the consequence of delaying consideration of legislation. Convener, I noted that, when you went to speak to your equivalent committee in the House of Lords, one point made—albeit in the Westminster context—was that, between the Government and the Parliament, effort should be made to speed up the consideration of primary legislation. I am very much up for that. We can identify that, in the current session, the Scottish Parliament is taking longer to consider such legislation. We often provide more information between stages 1 and 2 already, but if we were to make that a formal part of the process, it could have that consequence.

Again, we would need to look at the specific recommendation if one were to emerge, and consider how it might impact the progress of any legislation.

I think that there is an issue around capacity in Parliament. To be candid, that is for Parliament, and not necessarily the Government, to consider. There are capacity issues in Government as well, of course, but it would not be for the Government to tell Parliament about its capacity to consider such matters. If it is felt that there needs to be enhanced capacity in Parliament, that is for Parliament to deliberate on. On the question of whether there should be any change to our process, we would need to consider the specific recommendation.

To go back to the premise of the question, in some cases, it will be more possible than in others to set out what will be determined by secondary legislation. I have already given the example of social security. The uprating of benefits will happen on an on-going basis, so it is not possible to say what a particular benefit might be five years hence.

Some setting of registration fees, for example, is determined by secondary legislation. I think that I am right in recalling that from my time as health minister in the dim and distant past—it might have changed since, but I suspect not. We also use secondary legislation to set registration fees for social workers, because we cannot say what those fees will be five years hence.

By contrast, we might have in mind a clear idea, subject to refinement, of how a specific power to make secondary legislation might be used imminently. In those circumstances, it would be fair to provide that detail.