Meeting of the Parliament 21 March 2018
The member changed his mind, but I said that we were unanimous at the meeting, which we were. I am sorry that the member has raised the issue, but I will address that in my summing up.
The amendments relate to section 14A as amended at stage 2. Amendment 44 seeks to replace the section. Section 14A and amendment 44 provide different approaches to the creation of a sifting process, whereby a parliamentary committee—my committee in the case of amendment 44—can decide that the procedure attached to a Scottish statutory instrument made under sections 11, 12 or 13 is incorrect, and that a different procedure should be attached. The committee has a longstanding interest in the issue. The idea of Parliament having a role in the setting of the procedure for regulations is one that the committee recommended in its report on the EU withdrawal bill.
When the committee met yesterday morning, it could see the merits in the approach taken in section 14A. It provides that regulations made under sections 11, 12 and 13 should be subject to a pre-laying sifting process of 15 days, during which a committee of Parliament can decide that the procedure attached to regulations should be different from the one proposed by Scottish ministers. Section 14A(7) provides that Scottish ministers are required to change the procedure attached to the regulations if a committee has made such a recommendation.
In that regard, section 14A is a welcome improvement on the approach taken in the EU withdrawal bill, under which ministers are not bound to proceed in accordance with the decision of the Parliament.
Amendment 44 would replace the section with a new section 14A and would put in place a new sifting process while retaining some of the section’s features, such as the binding nature of the committee’s recommendation. The crucial difference in approach is that the sifting process would take place once the amendment had been laid. That would mean that, if an instrument is subject to the negative procedure, that could be changed to the affirmative procedure, if that is what the committee recommended, within 20 days of laying.
Amendment 44 would also establish a new process at proposed new section 14A(10) that would allow instruments to be categorised as urgent and therefore not subject to the sifting process. When it looked at that provision yesterday, the committee accepted that there might be a need for such an urgent procedure, but it was not otherwise persuaded by the new approach that is taken in amendment 44. Specifically, the committee was concerned about the loss of the pre-laying period for scrutiny that is provided for in section 14A. The committee was concerned that undertaking the process during normal scrutiny of an instrument would damage the quality of parliamentary scrutiny—this is the important point—because members will be using the first 20 days of scrutiny to consider whether the right procedure has been attached to an instrument rather than considering the content of the instrument. Changing the procedure would not mean restarting the clock so that there would be a new 40-day period for scrutiny once the instrument was subject to a higher level of scrutiny. The instrument would continue to progress through the same 40-day period while being subject to a different procedure. The change in procedure could also be accompanied by a change to the instrument, which would make parliamentary scrutiny even more challenging in the reduced time period.
The committee was also concerned about the effect of amendment 44’s proposed new sections 14A(6), 14A(7) and 14A(8). They provide that the resolution of the Delegated Powers and Law Reform Committee changing the procedure attached to a negative instrument implies that the instrument has been revoked and that nothing further may be done under the regulations. The committee was concerned about the absence of public notice of such a revocation and the impact that that might have on those affected by the relevant law. How would those who are affected know that the instrument had been revoked?
With those concerns in mind, the committee considered that section 14A as amended at stage 2 was preferable, subject to the addition of the urgent procedure that is provided for in amendment 66. The committee agreed yesterday to encourage Parliament to retain that approach.
Amendments 65 and 44A amend section 14A and amendment 44 to provide for the sifting process that I have described to apply to regulations made under section 19. Section 19 provides Scottish ministers with a power in relation to fees and charges. The bill provides that the first exercise of this power—[Interruption.] I wonder whether Mr Arthur could stop chattering. It is rather distracting.