Meeting of the Parliament 24 April 2025
In this session, we have found that, in some cases, how guidance or good practice guidelines are set out in secondary legislation is crucial, but often those things do not come under scrutiny. In some instances, particularly with the likes of NatureScot, there are some who believe that, because of guidance, certain legislation goes above and beyond the spirit of what was passed and what was intended by Parliament.
The Rural Affairs and Islands Committee agrees that there is a place for such legislation, but we need long-term flexibility, too. One example in that respect is the Agriculture and Rural Communities (Scotland) Act 2024, which gave ministers powers to provide agricultural support. In order for that support to be fit for purpose over the longer term, we needed flexibility via regulations. However, without having much detail about how the powers will be exercised and how much the legislation will cost the public purse, the Parliament found it very difficult to take a view on the general principles of that framework legislation.
So, what solutions did we put forward to the scrutiny challenge? We suggested that there be detailed information about the appropriateness, impact and cost of proposed powers or laid documents in primary legislation and/or accompanying documents. The DPLR Committee also recommended consideration of the wider use of the super-affirmative procedure or other opportunities for enhanced scrutiny for proposed powers and framework bills, although that option should be used carefully.
We also suggested a lighter-touch scrutiny process at stage 1, as long as it would enable parliamentarians to take a view on the general principles of legislation. There should be a presumption that placing statutory duties on Scottish ministers to produce a plan should be accompanied by a requirement to lay the documents in Parliament for a certain number of days to allow for parliamentary scrutiny.
Our committee believes that it would be appropriate for some laid documents to be made subject to parliamentary approval. In this parliamentary session, we have found a wide variation in the requirements for laid documents, and setting out some consistency—or, at least, providing explicit logic to explain those variations—would inform our scrutiny. A commitment to co-design with key stakeholders is also important. Finally, as the DPLR Committee also recommended, there should be a presumption that Scottish ministers must review the effectiveness of regulations or other laid documents made under framework legislation.
I will finish my contribution by complimenting the DPLR Committee’s report from the perspective of a subject committee tasked with scrutinising the output of framework legislation. In our submission to the inquiry, we set out the challenges of scrutinising regulations within the 40-day period and called for the accompanying policy notes to set out better financial information. I would have liked to see the challenges that Parliament faces being explored in more detail in the report.
I will conclude by making a point that I have raised a number of times, especially in the Conveners Group, about the lack of oversight or co-ordination of regulations or other laid documents. At its heart, the issue is about how Parliament scrutinises—and, thus, legitimises—the Government’s exercise of statutory powers. Such scrutiny is being squeezed or compromised by a lack of time and a lack of control over when business is timetabled. The problem is exacerbated at the end of each session when an unusually high volume of legislation emerges, as is happening at the moment, and it will be further exacerbated in the future as more powers are exercised via regulations or laid documents. As more legislation pushes the detail of implementation into regulations, or policy detail into laid documents, committees will face even greater pressure on their time.
The Rural Affairs and Islands Committee currently faces such a challenge. We have agreed not to scrutinise two key laid documents this autumn, as we do not have time in our work programme to do so. Such a lack of provision for parliamentary scrutiny and approval risks undermining the fundamental aims and objectives of those policy initiatives, as well as compromising the time that the Parliament and stakeholders can give to scrutinising and approving the framework legislation in the first place. I wrote to the Minister for Parliamentary Business about that on 1 April, and I would appreciate it if he could pick up on that concern in his comments.
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