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European and External Relations Committee, 26 Sep 2006

26 Sep 2006 · S2 · European and External Relations Committee

Item of business

Legislative and Regulatory Reform Bill

Lyon, George LD Argyll and Bute Watch on SPTV

I thank the committee for its patience and understanding on this matter. Since we last discussed the issue, a substantial amount of time has elapsed and there has been significant movement on the bill at Westminster. We always felt that, when we returned to the committee, we should be able to answer its questions fully, but to date the legislative process down south has been something of a moveable feast. With those remarks, I thank the committee for inviting me to give evidence this afternoon.Yesterday, in light of discussions on the bill down south and our own discussions with the United Kingdom Government, an amendment was tabled to strengthen the preconditions applying to the making of regulatory reform orders to exclude provisions of constitutional significance.I must apologise to the committee, but the tabling of that amendment has left us with insufficient time to prepare a detailed written briefing that would have addressed the committee's concern, which it expressed on 14 March, that the matter should be placed beyond all doubt. However, because of the timescales, the option of postponing consideration of the legislative consent memorandum is not open to us. I remain of the view that the measures that the Scottish Executive considers to be the subject of the legislative consent memorandum increase Scottish ministers' flexibility in implementing their EU obligations. Not having those powers would mean that the process of drawing up Scottish statutory instruments might take longer, which would in turn impact on transposition timescales. I therefore hope that the committee will bear in mind the following points in considering whether it believes that the Scottish Executive is right to pursue the LCM.Members will be aware that the bill has already been extensively revised by both the House of Commons and the House of Lords at Westminster. I believe that the changes that have already been made to the bill, and the more recent amendment on constitutional matters, should satisfy the concerns that were expressed by this committee and the Subordinate Legislation Committee.I will outline the general changes that have been made to the bill and then highlight the changes that meet the committee's specific concerns. First, I should emphasise that clauses 1 and 2 now set out powers to make orders in very specific circumstances: first, to remove or reduce burdens from legislation; and, secondly, to promote regulatory principles. Those tightly focused powers replace the more general formulation of the power to reform legislation that was in the bill as introduced and which attracted such widespread comment.The committee will also note that the power to implement by order recommendations by any of the UK law commissions has been removed from part 1 of the bill to maintain the narrow scope within which the powers set out in clauses 1 and 2 might be exercised.That fundamental recasting of the bill to emphasise that the main purpose of the powers is to provide for regulatory reform orders for tightly drawn purposes should reassure the committee that the bill itself does not give the UK Government the wide-ranging powers that have been described.Clause 8 also contains a specific exclusion that directly meets the committee's concern that the bill could be amended using its powers in order to remove safeguards in devolved areas. It is now clear that the powers under the bill cannot be used to amend the bill itself.The most recent amendment, which was tabled yesterday at Westminster, will require ministers who exercise the power to satisfy themselves that the order is "not of constitutional significance". The amendment is intended to protect the devolution settlement and is in response to questions that the committee and others raised. The test that must be met is added to other preconditions in clause 3. In our view, the amendment should protect the devolution settlement and the Scotland Act 1998 from being amended by these powers, particularly given the narrow focus of the powers that remain.The committee was also concerned about three other detailed technical points: whether the tests in the bill give ministers wide subjective discretion; whether the provisions allowing ancillary changes to Scots law should be subject to an LCM; and whether the bill should contain a statutory requirement for Scottish ministers to be consulted if provisions are to be made in devolved areas. I am happy to answer those points today but, recognising their technical nature, I intend to write a full response that the committee will receive by tomorrow morning. We will try to answer the technical questions today, but it will clearly be to the committee's advantage to have a written submission as well.In summary, the bill has changed considerably since the committee last considered it, partly in response to the committee's comments. I think that the changes meet the concerns that the committee expressed previously. Clearly, our legislative consent motion does not affect the issue. We should support the LCM as the bill will lead to better implementation in Scotland of EU legislation.On a separate issue, both the Executive and the committee were concerned that the bill had wider implications for other legislation, including the Scotland Act 1998. I am pleased that the UK Government has tabled an amendment on that issue. We are confident that the amendment gives us what we need and will protect the position in that act. Unless we get any convincing arguments to the contrary or have any doubt whatsoever, we will proceed with a legislative consent motion in the near future.Having made those few remarks, my officials and I will be pleased to answer any detailed technical questions. As the committee will be aware, the bill has changed substantially over the months. That has been part of the problem for us in trying to get a definitive position that would enable us to return and speak to the committee directly.

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European and External Relations Committee, 26 Sep 2006

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