Chamber and committees

On a practical basis, that happens, albeit occasionally. I do not know whether it is just good fortune that I have come to committee today, convener, but one of the instruments that you considered earlier was relaid because concerns were raised about the initial draft. The Government reflected on that and took it away. We heard what Parliament had to say and the instrument was redrafted accordingly. I am less convinced that we need to make that a formal part of our process. We have a system that, by and large, works effectively in that way.

If we started to get to the stage whereby secondary legislation could be amended, that would take us down the line of some form of primary legislation making that is probably not as substantial as passing primary legislation is just now.

The point at which Parliament has to consider whether it is appropriate that, generally, a certain area should be determined through secondary legislation or subordinate legislation-making powers is when it considers the bill and entrusts that power to the Government to draft the regulations accordingly, knowing that it will still have the opportunity either to approve or to annul them.

By its very nature, the scrutiny of proposed primary legislation is a longer process, and I accept that that leads to a certain form of scrutiny in the sense of gathering evidence, which you might not see with secondary legislation, although it is perfectly possible. I have been a member of Parliament for more years than I care to remember—for as long as Mr Kidd and Mr McMillan have been—and I remember sitting on committees where we were able to take evidence on secondary legislation. Committees can do that right now. It is a process of Government working with Parliament to accommodate concerns, and I would expect Government to do so.

Largely, yes. I refer back to the points that I have just made about the diversity in what bills seek to achieve and the process that we must go through in laying out, in a delegated powers memorandum, the basis on which we seek to proceed.

In the letter that my predecessor, George Adam, sent to the committee in April last year, he conceded that there could be some merit in developing a shared understanding of what is meant by the term “framework bill”. However, we need to understand the practical effects, the efficacy and the purpose of determining what could be viewed as a framework bill. Why would we say that something is a framework bill? What utility would that have? What purpose would coming up with a definition have?

I say respectfully that, having looked at the evidence to the committee thus far, I have not seen anything that strongly suggests that there would be an actual purpose in determining what a framework bill might look like and having some form of set definition.

I think that it is a moot point. Defining a bill as a framework bill would not enhance scrutiny per se. It is more important that we go through the normal scrutiny process for any form of proposed legislation, which, for a Government bill, means first putting it through our own consideration process and then laying it before the Parliament.

Of course, collectively, as a legislature, we should be willing to consider how we can improve and refine that process, but I have not seen anything to suggest that there is anything fundamentally wrong with it. In so far as the framework bill issue affects secondary legislation, I go back to my earlier point that part of the process is that we lay a delegated powers memorandum before the Parliament. This committee should consider it and make recommendations that should then be considered by the lead committee. If the lead committee has concerns about those, they will be flagged. The Government will have to consider them in the usual way—perhaps by making changes to the bill or by defending its position—and then it is for the Parliament to consider them through the process of amending the bill and deliberating on it as it proceeds in its normal fashion.

It can be a bit of both. I alluded to that point at the outset and, in response to a question, I talked about the process that the Government goes through in crafting a bill. Consideration will, of course, be given to the appropriate balance between what should be in the bill and what should be determined by secondary legislation. We go through that process, and then—to go back to a point that I have made already—we have to justify our approach through a memorandum at this committee, which subject committees will consider thereafter.

Sometimes, the approach will emerge as the bill proceeds through Parliament. It is not unusual or abnormal for powers to be added, often at the request of the committee that has looked at a bill at stage 1. Committees will make recommendations for things to be added or, sometimes, as a result of interaction between the Government and other members of Parliament, measures have to be added to a bill. That might involve the addition of secondary legislation-making powers.

I disagree with that perspective. I have seen no evidence to suggest that it is being used more frequently. To be candid, we are almost in danger of coming to the conclusion that that is the case because it is repeatedly asserted to be so. I have not seen anything to suggest that there is greater frequency.

The issue might come down to the fact that we have no strict definition of framework legislation. However, in so far as what we have considered might fall into that category, I do not think that there is evidence to suggest that framework legislation is happening more frequently. I am certainly aware that members assert that that is the case, and I have noted some witnesses saying the same, but I have yet to see anyone setting out a specific amount of legislation that would suggest that it is happening more frequently in comparison with previous sessions.

We are not going to get everything right every time, but we certainly aspire to do so. That is my expectation.

In effect, what we have done—and, obviously, there are difficulties in seeking to do this—has been to look back over the legislation that has been passed over the history of the Parliament, and we have not seen anything that would suggest that there is more use of so-called framework bills now than there has been in the past.

In fact, in this parliamentary session, over the four programmes for government, we have announced the intention to introduce 57 bills—not all of which have necessarily come to light, for various reasons—and we could perhaps identify six of those 57 bills as framework bills in character. Therefore, I do not think that there is any greater frequency in the use of framework bills.

I perfectly accept that you have flipped the issue on its head and asked me to disprove it, but I respectfully suggest that it is usually those who make the charge that have to prove it rather than those who do not.

Again, I respectfully say that Maree Todd made a statement to the Parliament just last week or the week before—I cannot remember which—in which she laid out the Government’s intended way forward for that bill. That came on the back of parliamentary scrutiny. By my estimation, that—if nothing else—shows that parliamentary scrutiny is effective in so far as Parliament can determine and command what legislation should say. To be candid, that bill has gone in a direction that the Government did not want. However, I go back to what I said in my opening statement: in a parliamentary democracy, the Parliament should retain that power. I very much consider that bill to have been determined by the process of scrutiny.

On your point about looking at things in retrospect and with hindsight, of course, we need to learn from every circumstance. We have gone through that experience, and we will seek to learn from it, just as we would in passing any form of legislation.

I am grateful for the opportunity to be with you this morning.

The Scottish Government takes seriously the implementation of legislation that is passed by this Parliament. The work that is involved in implementation varies enormously and can be particularly complex. Some provisions have little or no cost, whereas others give rise to significant costs. In addition, the implementation of legislation can rely on other organisations and agencies that we need to work with. The three acts that we are discussing today involve some significant operational issues for a number of agencies—in particular, justice agencies. In addition, in some areas, rules of court may be needed.

Many of the substantive provisions of the Children (Scotland) Act 2020 are already in force. Work is on-going on the regulation of child contact centres. We aim to lay Scottish statutory instruments next year to put the Care Inspectorate in place as the regulator. We also plan to lay commencement regulations for further provisions of the act next year, and have reconvened a working group on child welfare reporters.

We also remain committed to implementing the Domestic Abuse (Protection) (Scotland) Act 2021. Part 1, when implemented, will provide the police and the courts with new civil powers to issue domestic abuse protection notices and domestic abuse protection orders. The scheme of protection notices and orders is intended to protect people from the abusive behaviour of their partner or ex-partner. We continue to engage with justice partners and other stakeholders, including Scottish Women’s Aid, which officials met recently, to talk through the operational challenges that have emerged as a consequence of the legislation’s provisions for the protection orders scheme. Some of the challenges that have been identified include clarity on the estimated number of cases and, in turn, the costs of implementing the scheme and the short timescales required to process and implement a DAPN and a DAPO, which have been identified by justice partners as extremely challenging.

There are also wider challenges as to how the views of children will be gathered. That area has been discussed with justice partners and outlined in discussions with Scottish Women’s Aid. We are endeavouring to find a workable and sustainable way forward. At this stage, it is not possible to provide an informed estimate of when that will be completed, although, of course, it remains a priority for us.

Colleagues in the United Kingdom Government and other devolved Administrations, whom officials meet regularly, have faced similar concerns. The UK Government has just launched a pilot, having chosen not to resolve some of the issues that we are wrestling with—for example, how best and how quickly to take the evidence of a child.

We aim to bring into force next year part 2 of the act along with sections 2 and 3 of part 1, to provide additional protection to those who are at risk of domestic abuse. Part 2 will help to protect victims by giving social landlords the ability to apply to the court for an order that, if granted, will have the effect of allowing the landlord to transfer a tenancy to a victim survivor. However, court rules will need to be updated, which might affect the timetable. We are taking forward the wide range of tasks that are necessary to commencing the social housing tenancy provisions in part 2 of the act, including secondary legislation, changes to court procedures and work with stakeholders to develop statutory guidance. The process has taken longer than we anticipated, which is why there has been a delay in implementation. We also need to ensure that the provisions operate as intended.

We have committed to implementing the Female Genital Mutilation (Protection and Guidance) (Scotland) Act 2020 within the equally safe delivery plan. Once implemented, the protection orders will provide a fast and responsive mechanism to reduce the risk to potential victims of female genital mutilation, and the creation of statutory guidance will help to address knowledge gaps and offer clarity and certainty for practitioners and organisations working with victims of female genital mutilation.

To ensure the effective implementation of the act, we are working closely with external stakeholders including local authorities, Police Scotland, the Scottish Courts and Tribunals Service and our addressing violence against minority ethnic women and girls network.???

In conclusion, we are committed to commencing legislation passed by the Parliament. Those are complex pieces of legislation to implement but work is on-going.

I am happy to answer questions from the committee. Given that the acts all relate to quite specific areas of policy, I will also seek to bring in Jeff Gibbons, Simon Stockwell and Nel Whiting as appropriate.