Chamber and committees

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.

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.