Meeting of the Parliament (Hybrid) 22 December 2020
I thank all those who have worked with the Government to try to improve the bill since its introduction. The bill today is significantly better than when it was introduced. I do not find it difficult to say that—that is the purpose of parliamentary scrutiny. I am glad, for example, that we have been able to look at the issue of purpose, which we will come to later on, and issues of delegation, which Alex Rowley raised in the early part of stage 2, and we have considered issues that have been raised on reporting and consultation, which Liam McArthur raised.
By dint of discussion, looking at drafts and working together, we have amendments on which we can agree. Regrettably, Michelle Ballantyne has never raised with me the issues that she mentioned in her contribution, so I am slightly surprised that she has a new-found and certainly intense interest in the functioning of delegated powers. I will not accept her amendments and I will give my reasons for that in a moment.
I pay tribute to Dean Lockhart, who discussed some possible amendments with me, although other amendments then appeared, which is entirely his right. Some of his amendments are carry-overs from stage 2. There could be a debate about that because those amendments were significantly rejected at stage 2, and we have to ask ourselves why that was. Perhaps that would save us time.
Amendment 4 seeks to remove the current wording in section 1(2)(f)(ii) and replace it with wording similar to that in section 1(2)(a). I acknowledge that the functions or restrictions that may be conferred or imposed under section 1(2)(f) would have to make sense in the Scottish context, but there is an awkwardness in the wording of amendment 4 and the implications of the amendment are unclear from the perspective of a positive power to confer functions or impose restrictions, whereas the wording in section 1(2)(a) makes sense where it is, as it is being applied to something omitted from regulations. The cut-and-paste job has not worked. It is less clear that it makes sense when applied to a positive power. I am concerned that the proposed drafting of amendment 4 could cause considerable difficulties by adding awkward and unnecessary complications.
The wording “appropriate to retain” that is currently in section 1(2)(f)(ii) offers flexibility to deal with unforeseen circumstances, and given the continued unforeseen circumstances that we find ourselves in as a result of Brexit, which is supported by Michelle Ballantyne, maintaining that flexibility is important and sensible.
It is completely unclear whether amendments 5 and 6 are intended to work together or as alternatives. I am therefore unclear on exactly what Michelle Ballantyne hopes to achieve by lodging them. Whether taken together or separately, the effects of amendments 5 and 6 would, as is the case with amendment 4, be to remove the flexibility needed to deal with uncertainty. The uncertain nature of Brexit and what might yet come leads to section 1(3) in its current form being necessary and expedient as it will allow the Government, with the support of members—many of the changes that we will agree to in the bill require the support of other parties—to ensure that where the power is used, it is workable at an operational level. That is the essence of sub-delegation—making sure that whatever happens the legislation that arises is workable at an operational level.
In the absence of such a provision, the Government would become involved in complex workarounds and arrangements, or it would even have to resort to primary legislation, but that would be wholly disproportionate. That would not otherwise have been the case if section 1(3) was available to us in the form currently provided.
15:30Let me give a hypothetical example. It might be more appropriate for that power to be exercised independently of political control when a body or regulator would be required to make a substantial number of technical corrections to standards. However, without section 1(3) in its current form, the section 1(1) power simply could not be used.
In another example, in agreeing to either or both of those amendments, the Parliament is deciding that the power to give a Scottish public authority the power to provide funding to others where that might be appropriate without passing primary legislation cannot be used.
I do not believe that stage 3 is the time to introduce that type of uncertainty over the scope of the power or of workable legislation. To be clear, the Government will support the amendments in Liam McArthur’s name that are to be taken in group 5. I am aware that members of the Delegated Powers and Law Reform Committee did not have the benefit of considering the changes that those amendments will bring about when writing its report. However, if they are agreed to, when they are considered alongside the bill’s existing provisions, members of the Delegated Powers and Law Reform Committee should be assured that any regulations that are made under that power will be subject to thorough scrutiny. Scrutiny was at the heart of the discussions that I had with other members. Therefore, I must urge members not to support amendments 4, 5 or 6, as they undermine the flexibility that is inherent in the essential purpose of the bill.
Amendment 8 in Michelle Ballantyne’s name seeks to restrict the scope of the power under section 1(1), so it cannot be used to make provisions implementing significant new policy developments. That is contrary to the recommendations that were made by the Delegated Powers and Law Reform Committee, of which Michelle Ballantyne is a member. Dean Lockhart said that the amendments promoted the decisions because the committee said in its report that it recognises
“that it would be difficult in law to exclude significant new proposals from the scope of the keeping pace power”.
The difficulty of specifying what is meant by “significant” in that context was debated at stage 2, as people will have different views as to what is significant. Therefore, such a proposal would inevitably lead to uncertainty and likely challenge.
Members across the chamber have worked together, as I have said, to produce a package of amendments which, when considered as a whole, ensure a robust role for the Parliament in scrutinising the Government’s proposals for lodging regulations. Those will be debated further throughout the stage 3 debate, but what is important in the context of group 1 is that those amendments ensure the continued workability of the central power in the bill. Amendment 8 is unacceptable to the Government for those reasons and we cannot support it.