Meeting of the Parliament 24 April 2025
I am delighted to open this committee debate on behalf of the Scottish Conservatives and to note the report that the Delegated Powers and Law Reform Committee produced following its inquiry into framework legislation and Henry VIII powers. I know that it has been said that this is a dry and dusty topic, but I actually find it extremely interesting.
I thank everyone who took the time to respond to the call for views or to provide evidence for the inquiry. As the convener has said, our thanks also go to the clerks and the legal team for their support and hard work throughout the process.
The inquiry came about because there has been a steady rise—or the perception of such a rise—in the utilisation of secondary legislation as a convenient way of passing laws. It has been suggested that it provides supposed flexibility in allowing legislation to be amended without the lengthy process of ensuring that every detail is written in the bill, and in making it more adaptable to societal change and helping with delivery. However, that comes with the downside of less Parliament scrutiny and a vagueness in the accompanying financial memorandum.
Most people who gave evidence to the committee pretty much agreed that there had been a steady increase—or a supposed increase—in the number of framework or skeleton bills, which was certainly an interesting starting point. We heard evidence along the lines of, “We don’t know how to define it, but we know it’s happening and we think it probably shouldn’t,” or, “We have concerns that it produces bad law, but we know it works some of the time.” Some told us, “We think framework bills should have a narrow scope but, equally, allow for flexibility.” Finally, some said, “We don’t really know how best to change it, but we think it needs changed.”
Members have to admit that that is an interesting remit at the commencement of an inquiry. Given that starting point, I am delighted with the work that the committee managed to do to get into the minutia and to reach the roots of problems that stem from the lack of detail in bills and from the inadequate funding set out in financial memorandums as a result of that lack of detail. The committee has made some very sensible and achievable recommendations for the Scottish Government.
I will highlight a couple of notable suggestions. First, the committee considers that legislation should, except in very limited circumstances, be set out in a high degree of detail. The minister mentioned that. In the very limited circumstances when a framework approach is taken, it is essential that, when the bill is introduced, there is a full justification of why framework provision is appropriate.
Secondly, the committee suggested that all financial memorandums should include an estimate of any costs arising from delegated powers provisions, based on how those powers are expected to be, or might be, used by the Administration, and it called on the Scottish Government to keep committees updated throughout the legislative process about the estimated costs arising from a bill.
I will expand slightly on the financial memorandum issue, which is one not only for the Finance and Public Administration Committee, whose convener, Kenny Gibson, highlighted in his evidence how framework legislation presents a significant challenge to effective financial scrutiny. That point was echoed by Lloyd Austin of Scottish Environment LINK, who spoke about how the lack of detail in financial memorandums for framework legislation presents a scrutiny challenge for stakeholders. If we cannot adequately scrutinise the money needed for legislation, we run the risk of passing laws simply without there being sufficient funds to achieve the outcomes that they are designed for. All the policy decisions, discussions, debate and amendments throughout the legislative process will be for naught if insufficient funds are allocated. I see that recommendation by the committee as sacrosanct.