Meeting of the Parliament 24 April 2025
I am grateful for the opportunity to discuss the work of the Delegated Powers and Law Reform Committee’s inquiry into framework legislation and Henry VIII powers. The genesis of the inquiry was a genuine desire of the committee to look at the issue of framework legislation. We hoped that, by taking a step back from any particular bill, with its detail and policy context, we would be able to look at the bigger picture. We hoped that that was a way to slightly depoliticise the issue, recognising that framework legislation has been used by Governments of all stripes over the years, and not just in Scotland.
Indeed, the chair of the House of Lords Delegated Powers and Regulatory Reform Committee, Lord McLoughlin, whom we met on our committee fact-finding visit to London, said that the change in views in relation to framework legislation—between being in opposition and being in government—was akin to Damascene conversion. Whichever political party is in charge, Oppositions are generally against legislating in such a way, and Governments are in favour of it. However, we also recognised that some members in the Parliament hold a genuine concern about framework elements in bills that have come forward this session, and that there is a perception that those are becoming more common.
We set out to examine a number of key questions including, first, whether framework legislation can be defined; secondly, whether it is, indeed, becoming more common; and thirdly, what might be done to improve scrutiny. That was in relation to both framework primary legislation and framework powers being used to make secondary legislation.
In seeking to explore those questions, the committee was indebted to the thoughtful and interesting responses to our work that we received. As members will know, we heard directly from the convener of the Finance and Public Administration Committee, Kenneth Gibson, and the convener of the Rural Affairs and Islands Committee, Finlay Carson. I am pleased that Finlay Carson will speak in the debate as the convener of that committee.
We also heard from other legislatures across the world, including from Commonwealth Parliamentary Association colleagues. As members know, I highly value the work and engagement of the CPA. The committee was also greatly helped in its work by views from key stakeholder organisations that are at the heart of Scottish policy making; leading academics and think tanks; and eminent legal bodies.
On behalf of all the committee members, I thank everyone who gave their time by providing the committee with written responses, and by speaking with the committee, both informally and as a witness. Although issues that are related to delegated powers might not be widely understood or discussed outside of the political, legal and policy bubbles, the level and quality of the engagement clearly demonstrate how important the scrutiny of delegated powers is. That should impress on all parliamentarians the need to carefully consider delegated powers in the context of scrutinising a bill.
I will repeat a comment that I have made in the past in the chamber: I recommend that every member spends time on the Delegated Powers and Law Reform Committee, because it clearly increases the understanding and appreciation of how legislation and our Parliament work. In delegating a power, the Parliament is giving away the power to create law in a certain area. Achieving the right balance—by ensuring that powers are only delegated appropriately and that appropriate safeguards are in place—is an important undertaking, and we were glad to see that that significance is understood by many colleagues and stakeholders.
There has been a lot of discussion about what we mean by framework legislation. During the evidence session on 21 January 2025 with Finlay Carson and Kenneth Gibson, Mr Carson highlighted the difficulty perfectly as he alluded to two different definitions of framework legislation. That highlights the key challenge that politicians face when it comes to framework legislation.
After listening to stakeholders, the committee concluded that, although there might not be a single definition and that, even with a definition, there is still scope for reasonable disagreement and grey areas as to whether a provision in a bill meets that definition, it is possible to set out what framework legislation is. In our report, we concluded that it is:
“legislation that sets out the principles for a policy but does not include substantial detail on how that policy will be given practical effect. Instead, this type of legislation seeks to give broad powers to ministers or others to fill in this detail at a later stage”.