Committee
Standards, Procedures and Public Appointments Committee 27 March 2014
27 Mar 2014 · S4 · Standards, Procedures and Public Appointments Committee
Item of business
Legislative Procedures
Members will be well aware from sitting on other committees that they routinely consider statutory instruments, which are documents that are signed by a Government minister and which say something like, “By the power vested in Scottish ministers” in whatever act it might be, “I am changing the rules on this, that or the other”, or “I am changing the court fees”, for example—that is one of the instruments that comes through routinely every year. That is a statutory instrument, which has a number. However, if legislation gives a minister a power simply to direct somebody to do something, that does not require a statutory instrument and it is a delegated power. As I said, a delegated powers memorandum addresses the former but does not address—and is not required to address; that is important—the delegated power, and it routinely does not. The Delegated Powers and Law Reform Committee goes back to the Government and asks it to give us the reasons and the purpose for every delegated power. Our purpose as a committee is to ensure that the Parliament is being asked to give powers for good reasons. It seems to us that it would be sensible if the rules were changed so that the Government had to address that in the delegated powers memorandum. It will have to address it at some stage because we will keep asking it until it does, so why not just address it in the original document? If something is introduced at stage 2, there will be a supplementary delegated powers memorandum. However, the same rules apply, so if the Government does not tell us about delegated powers, we will, again, have to go back and ask it what those are about. Sometimes, as I think happened a couple of weeks ago, I have had to ask that question of the minister at stage 3 because we have not finished the process beforehand. That comes back to timing, again, but all that could be avoided if something simply had to be included in a delegated powers memorandum. That is what we would suggest. In the context of members’ bills, there is no requirement to introduce the bill with a delegated powers memorandum and to us that seems to be a defect. A requirement to provide a delegated powers memorandum might be seen as an added barrier to a member introducing a bill, but the member will have to address that at some point because, again, we will not let them away with it. It might therefore be more sensible if that delegated powers memorandum were one of the required documents at the introduction of a members’ bill or any other public bill. I also put on record what it is that we need. It is worth distinguishing between the purpose of a power and the reason for a power. I hope that an example might help. If I were to come up with a purely hypothetical education bill—I do not think that there is an education bill before Parliament at the moment—it might seem perfectly reasonable if that hypothetical bill introduced a power for the minister to maintain school buildings. However, on a moment’s reflection, we would think, “Hang on, a local authority normally does that. Why would a minister want to do that?” The reason might reasonably be that where local authorities have failed to carry out their duties, it is relevant that the minister has a power to do it for them. That would be a good reason, but we would want to know what the reason was. We would also want to know the purpose of the power, because if that power were ever to be invoked, it would be perfectly reasonable that the purpose might be to provide our children with adequate places where schooling could take place. On the other hand, it would be pretty clear that it would not be appropriate for the minister to exercise that power to, for example, preserve a building that was no longer in use because it was an ancient monument and the minister wanted to look after it. That would not be the purpose of the original power, so that is why we need to know not only why the Government wants to give a minister a power, but what the purpose of that power is. That is why quite a lot of detail is required in these things, so that we can see where the Parliament is giving the right powers for the right reasons to the right people.
In the same item of business
The Convener
SNP
Agenda item 2 is our inquiry into procedures for considering legislation. We are taking evidence from our panel: Claudia Beamish MSP; Nigel Don MSP, the conv...
Richard Lyle (Central Scotland) (SNP)
SNP
Good morning, lady and gentlemen. I have three questions to pose to you. First, the legislation process in the Scottish Parliament has three stages. In princ...
Nigel Don (Angus North and Mearns) (SNP)
SNP
I seem to have been deputed to go first. The model is perfectly workable and a fairly good one. I have not seen any evidence or come across any thinking in ...
Kenneth Gibson (Cunninghame North) (SNP)
SNP
I agree with a lot of what my colleague Nigel Don said. First, I should say thank you very much for inviting me to your committee. It is very strange to be a...
Claudia Beamish (South Scotland) (Lab)
Lab
Good morning. I, too, am pleased to have been invited to give evidence, which will be brief, as it is about a specific area of concern in relation to only on...
The Convener
SNP
Before we move off that subject, I wonder whether I am being led by what I have just heard to the idea that stage 3 is in fact two stages. There is the Parli...
Nigel Don
SNP
I take what Claudia Beamish has just said. The final part of the process probably should be ratification, more or less. We have had our fingers burned by mak...
The Convener
SNP
Perhaps I should be more specific. Is the debate not actually stage 4?
Kenneth Gibson
SNP
I sometimes wonder whether there is any real purpose to that debate. It can be a big anti-climax. Often, we have battled through a load of stage 3 amendments...
The Convener
SNP
Would the debate be of greater value if the Parliament had the amended bill before it when it had that debate?
Kenneth Gibson
SNP
That would certainly be better than having the debate immediately after consideration of amendments, because the dust would have settled and that would give ...
The Convener
SNP
I do not want to put too much of my personal bias into my questioning, but you might see some of it.
Kenneth Gibson
SNP
I think that it is quite obvious and blatant, convener.
Cameron Buchanan (Lothian) (Con)
Con
As a relatively new member, I find it rather baffling when we get to the mass of amendments at stage 3 and we are given a piece of paper telling us how to vo...
The Convener
SNP
To be clear, I was simply suggesting that we rename the debate as stage 4, not that we change what is done.
Kenneth Gibson
SNP
You have opened a can of worms, convener. We are all thinking on our feet about how we would like to change that. I am here to talk about the Finance Committ...
The Convener
SNP
Right. I will return the questioning to Richard Lyle.
Richard Lyle
SNP
I want to go back to a point that Cameron Buchanan just brought up. In the debate on a grouping, one member might speak on behalf of other members. That is w...
Kenneth Gibson
SNP
Again, I speak in a personal capacity, but I think that the issue with that is the complexity of the bill. The Presiding Officer has to get the amendments th...
Richard Lyle
SNP
To what extent does the legislative process encourage engagement from interested parties?
Kenneth Gibson
SNP
You are giving me the stare, Richard; I suppose that means you want me to answer. I think that it does. There is certainly an issue in that the Parliament h...
The Convener
SNP
Ms Beamish does not have 15 years of entrenchment, so she might bring a new perspective. Would you care to comment?
Claudia Beamish
Lab
The Rural Affairs, Climate Change and Environment Committee tries to ensure that we look at new groups, such as new charities like Nourish, which works acros...
Nigel Don
SNP
I should make the point that, although I am here in a personal capacity, I will not attempt to separate my being a convener from my position as an MSP, altho...
Richard Lyle
SNP
We have strayed into the territory of my final question, which is mainly on timescales. What are your views of the timescales that are allowed for stages 1, ...
Kenneth Gibson
SNP
I do not think that stage 1 scrutiny is given enough time. In this parliamentary session, the Finance Committee has been the lead committee on four pieces of...
Nigel Don
SNP
I do not disagree with anything that has just been said. However, my perspective is more about the time between stage 2 and stage 3, which has considerably c...
The Convener
SNP
You say that we may not need to change the standing orders but, if we were to do so, we would be able to suspend them if Parliament judged that that was nece...
Nigel Don
SNP
It depends which way we want to do it. If the standing orders were changed to make more time available, they could be suspended in order to bring things forw...
The Convener
SNP
You referred to the Delegated Powers and Law Reform Committee’s timetable for getting engaged in what is happening. Do you think that the process provides su...