Chamber and committees

Clearly, if the committee makes a recommendation that there should be some guidance, it would be incumbent on us to, first of all, reflect on the report and reply to it. If there was some determination that there should be guidance, we would need to consider how we might interact with that.

However, to go back to my earlier point, in the process of determining what legislation is introduced, the Government comes up with a policy proposition, and the bill team that is assigned looks at that and starts to draft a bill. We interact with the SGLD and the PCO on drafting the finer points of the bill. As we seek to introduce it, we then have to justify the delegated powers that we want to take forward through a delegated powers memorandum.

In so far as there is a process that is under way, you could argue that guidance already exists. If the question is whether guidance should be created to say when the Government can and cannot introduce a bill in a certain way, I would probably respectfully push back on that, because ultimately it should be for Parliament to determine the nature of a bill as we move forward.

Bills change as we consider them. I have just taken the Scottish Elections (Representation and Reform) Bill through Parliament—which, incidentally, one of your former committee members, Daniel Johnson, asserted was a framework bill at stage 1 consideration. The committee convener pushed back and said that it was not a framework bill, so there was a difference of view among the Opposition, let alone between the Government and the Opposition. That bill changed, and secondary legislation-making powers were added to it as we moved through the process.

The creation and passing of a bill is an iterative process. Trying to limit the manner in which a bill can be drafted before it is even introduced would not be as helpful to Parliament as people might think.

I know that that has been an issue of concern for the Finance and Public Administration Committee, and I have certainly raised and emphasised the point to my colleagues that the quality of the financial memoranda should always be sufficient for the purpose of the finance committee’s consideration of any legislation or, indeed, subject matter. That should be a thorough and proper exercise.

It goes back to the point about on-going deliberation and consideration of legislation, whether it be in primary or secondary form. My expectation is that, if a committee of the Parliament is looking for more information, colleagues should provide it.

I go back to the point about parliamentary scrutiny that I emphasised earlier. The finance committee has raised a concern and has written to me about it. I have heard that concern and I have acted on it. I have communicated to all ministerial colleagues, and to all senior civil servants who are involved in the consideration of any financial memoranda, that they should ensure that they go through the rigorous process that the Parliament rightly expects. We could also update the Government’s handbook on the bill to that effect.

If the Parliament considers that we can do more, it need only ask. If it asks for something that we can do, I will be happy to implement it. If it asks for something that we cannot do, I will be happy to set out why that is the case.

There will be a mixture of reasons. The overall approach that we take is that there will be co-design through the process of engagement with relevant parties in advance of introducing legislation. That will happen, but sometimes it will be appropriate to set out in the bill the high-level principles under which the law should function. Thereafter, as part of the various functions that are determined through secondary legislation, that should also be done by co-design. I do not see anything illegitimate about that. It will depend on the specific proposition that is before the Parliament.

Let us take one of your areas of interest, Mr Balfour. I have observed you in the Parliament for many years, and I know that you are interested in how our social security system should operate. I do not think that anyone would suggest that it would be appropriate to set out in great detail how specific benefits might function in primary legislation each and every time. Social and economic circumstances change, and we might need to change the manner in which a form of benefit operates, and it would be entirely appropriate to do that through secondary legislation. I expect that you would, rightly, be the first person to say that we should co-design that with the people who would stand to benefit from any form of benefits payment, or those who would have to administer such payments.

In certain circumstances, therefore, it is entirely appropriate for laws to be passed or for issues that are to be determined by secondary legislation to be subject to co-design, as much as primary legislation should be.

It will be different from bill to bill. I respectfully suggest that there might always be a sense that more people might like to be at the table. Sometimes, the reality is that you can have only so many seats around the table. That goes back to the point about having good, meaningful consultation that enables as many people and organisations to take part as want to. From there, if you are engaging in a co-design process, you can identify those who have the most direct relation to the legislation that you are seeking to take forward. Then you can involve in an active co-design process the people who are most likely to be directly impacted or most likely to be administering any element of legislation that you are seeking to take forward, which, with respect, cannot be everybody.

It depends on what “enhanced” means. I go back to the point that I made in answer to an earlier question. Today, two statutory instruments were before this committee for consideration. It was pretty clear that the two instruments that happened to be considered on the day that I am here did not require substantial scrutiny, based on the committee’s assessment, but the committee could have taken a different view—it could have determined that more scrutiny was required, written a report and made recommendations.

The committee is able to do that now. If there is a sense that something beyond that is needed, we need to consider what that might be. If there is a recommendation, we will consider it.

I am always open to every proposition.

They are helpful in so far as the NFUS has set out how it conceptualises what framework legislation is. On whether it would be helpful to have an agreed definition, I cannot help but go back to the point that I have made already: it does not strike me that setting a definition would, in and of itself, take us much further forward. What would be the point, the purpose and the efficacy of coming up with a strict definition of a framework bill? Why would we do it? How would that definition be used?

I concur with the first point, on the need to adapt and be flexible. That is the purpose of secondary legislation-making powers, although I do not know whether having those powers constitutes the creation of a framework bill.

On the third point, about indicating the purpose of secondary legislation-making powers—I am definitely paraphrasing; I tried to take a note but I could not keep up with your rate of speech, convener—as I said earlier, we already do that. There are delegated powers memorandums. I respectfully suggest that a lot of the things that people are looking for are already built into our system. That might speak to my point about whether we need a definition of a framework bill. Frankly, a lot of the things that people have identified are already part of our system.

I am certainly aware of that having happened in advance of stage 2, when it has been indicated that changes are going to be proposed. That happened with the Scottish Elections (Representation and Reform) Bill, for example. I would need to cast back and see whether it has ever happened between stages 2 and 3, depending on the time agreed. I make the point that, in contrast with the United Kingdom Parliament, where the Government has much more power over the timing of the process for consideration of legislation, timings here are agreed by the cross-party Parliamentary Bureau. If a committee raised a particular issue, the bureau would have to consider that and set the stage 3 deadline accordingly.

I am not convinced that there is not scope within the current process for that to happen. To go back to the point that I have just made, if we were to make that a routine part of our process, we would need to go into it with eyes wide open. That would do nothing other than elongate the process for considering legislation that is before Parliament.