Holyrood committee calls for streamline of secondary legislation

18/03/2008

The Subordinate Legislation Committee of the Scottish Parliament has called for a Scottish Government bill to streamline and improve the scrutiny of secondary legislation in a report published today.

The committee's report follows an inquiry into the regulatory framework in Scotland. It calls for a bill to be developed in a partnership between the Parliament and the Scottish Government. The committee makes a number of detailed recommendations to improve current procedures and to simplify a process which it believes is unwieldy and complex.

Committee Convener, Jamie Stone MSP said:

"We believe that the scrutiny of subordinate legislation is one of the most important functions of the Parliament. This is, after all, the nuts and bolts of legislation - there are around 500 statutory instruments every year which may impact on all of us as citizens. It is vital therefore that the levels of scrutiny the Parliament applies to the different rules and regulations submitted by the Scottish Government are appropriate and that the system is fit for purpose.

"Our predecessor committee in session 2 recommended introducing a completely new system of scrutiny. We have looked at their recommendations carefully and concluded that most of what they wanted to achieve can be delivered effectively through improving the present system. We believe that our recommendations will deliver a simpler, more transparent system which improves scrutiny."

The committee's recommendations include -

  • Reducing the number of procedures so that only the most useful are retained.
  • Introducing new procedures for dealing with emergency instruments and consolidations.
  • Extending the period for scrutiny before instruments can come into force from 21 to 28 days.
  • Allowing some changes to be made to instruments to improve drafting or correct mistakes without delaying their implementation.
  • Requiring the Scottish Government to provide the Parliament with a 6 week forward programme of subordinate legislation on a monthly basis to allow for improved planning by parliamentary committees.

Background

The Subordinate Legislation Committee plays a key role in scrutinising subordinate legislation and delegated powers in Scottish Bills.

In order to implement the detail of an Act of Parliament, specific legislative powers are often delegated, usually to Ministers. These are known as enabling powers and often contain details of the implementation, timing and updating of provisions.

The rules, orders and regulations made under enabling powers take the form of statutory instruments. This kind of statutory law is variously known as delegated, secondary or subordinate legislation. More commonly, they are referred to as regulations.

The Scotland Act 1998 (Transitional and Transitory Provisions) (Statutory Instruments) Order was made before devolution by the UK Government in order to provide a procedure for dealing with secondary (or subordinate) legislation. It was only intended to make transitional provision until the Parliament itself had time to consider and devise its own procedures.

The session 2 Subordinate Legislation Committee agreed in January 2004 to undertake an inquiry which would examine the regulatory framework in Scotland including devolved, UK and EU aspects. Phase 1 of the inquiry sought to determine the main characteristics of the framework, comparing it to best regulatory practice elsewhere. The committee's report on phase 1 was published in July 2005.

The second phase of the inquiry involved detailed consideration of the current system of scrutiny and handling of subordinate legislation within the Scottish Parliament with a view to making recommendations to improve or replace current procedures.

The session 2 committee concluded that rather than seek to improve the current system, which was based on Westminster procedures, the current system should be replaced. The committee published its report in February 2007; however because of the proximity of the Scottish Elections, the Parliament did not have time to consider the committee's recommendations. The committee therefore asked its successor to consider its report and make its own recommendations to Parliament in session 3.

The current committee considered its predecessor's report and took evidence from previous committee members, others who had previously given evidence, and from the Scottish Government. The committee considered that whilst the new system recommended by its predecessor would offer a number of benefits, it also had some disadvantages. It concluded that the most workable outcome both for the Parliament and the Scottish Government would be to improve procedures within the existing framework.

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