The next item of business is a debate on motion S6M-17074, in the name of Stuart McMillan, on behalf of the Delegated Powers and Law Reform Committee, on its inquiry into framework legislation and Henry VIII powers. I invite members who wish to participate in the debate to press their request-to-speak buttons now or as soon as possible. I call Stuart McMillan to speak to and move the motion on behalf of the committee.
14:55
I am grateful for the opportunity to discuss the work of the Delegated Powers and Law Reform Committee’s inquiry into framework legislation and Henry VIII powers. The genesis of the inquiry was a genuine desire of the committee to look at the issue of framework legislation. We hoped that, by taking a step back from any particular bill, with its detail and policy context, we would be able to look at the bigger picture. We hoped that that was a way to slightly depoliticise the issue, recognising that framework legislation has been used by Governments of all stripes over the years, and not just in Scotland.
Indeed, the chair of the House of Lords Delegated Powers and Regulatory Reform Committee, Lord McLoughlin, whom we met on our committee fact-finding visit to London, said that the change in views in relation to framework legislation—between being in opposition and being in government—was akin to Damascene conversion. Whichever political party is in charge, Oppositions are generally against legislating in such a way, and Governments are in favour of it. However, we also recognised that some members in the Parliament hold a genuine concern about framework elements in bills that have come forward this session, and that there is a perception that those are becoming more common.
We set out to examine a number of key questions including, first, whether framework legislation can be defined; secondly, whether it is, indeed, becoming more common; and thirdly, what might be done to improve scrutiny. That was in relation to both framework primary legislation and framework powers being used to make secondary legislation.
In seeking to explore those questions, the committee was indebted to the thoughtful and interesting responses to our work that we received. As members will know, we heard directly from the convener of the Finance and Public Administration Committee, Kenneth Gibson, and the convener of the Rural Affairs and Islands Committee, Finlay Carson. I am pleased that Finlay Carson will speak in the debate as the convener of that committee.
We also heard from other legislatures across the world, including from Commonwealth Parliamentary Association colleagues. As members know, I highly value the work and engagement of the CPA. The committee was also greatly helped in its work by views from key stakeholder organisations that are at the heart of Scottish policy making; leading academics and think tanks; and eminent legal bodies.
On behalf of all the committee members, I thank everyone who gave their time by providing the committee with written responses, and by speaking with the committee, both informally and as a witness. Although issues that are related to delegated powers might not be widely understood or discussed outside of the political, legal and policy bubbles, the level and quality of the engagement clearly demonstrate how important the scrutiny of delegated powers is. That should impress on all parliamentarians the need to carefully consider delegated powers in the context of scrutinising a bill.
I will repeat a comment that I have made in the past in the chamber: I recommend that every member spends time on the Delegated Powers and Law Reform Committee, because it clearly increases the understanding and appreciation of how legislation and our Parliament work. In delegating a power, the Parliament is giving away the power to create law in a certain area. Achieving the right balance—by ensuring that powers are only delegated appropriately and that appropriate safeguards are in place—is an important undertaking, and we were glad to see that that significance is understood by many colleagues and stakeholders.
There has been a lot of discussion about what we mean by framework legislation. During the evidence session on 21 January 2025 with Finlay Carson and Kenneth Gibson, Mr Carson highlighted the difficulty perfectly as he alluded to two different definitions of framework legislation. That highlights the key challenge that politicians face when it comes to framework legislation.
After listening to stakeholders, the committee concluded that, although there might not be a single definition and that, even with a definition, there is still scope for reasonable disagreement and grey areas as to whether a provision in a bill meets that definition, it is possible to set out what framework legislation is. In our report, we concluded that it is:
“legislation that sets out the principles for a policy but does not include substantial detail on how that policy will be given practical effect. Instead, this type of legislation seeks to give broad powers to ministers or others to fill in this detail at a later stage”.
I compliment the committee on its report. Does Stuart McMillan agree that having a definition of framework legislation, however flawed it might be, is very valuable in enabling us to consider the different steps that might need to be taken with regard to the scrutiny of framework bills as opposed to other bills?
Yes, I do. The fact that we managed to arrive at some kind of definition is an indication of that. We recognised how challenging it is to arrive at a definition. That is understandable, given that some of the evidence that we heard in that regard was conflicting.
As parliamentarians, we think that most of our colleagues will know a piece of framework legislation when they see one, but we hope that, by setting out our understanding of what constitutes framework legislation, we can help to inform debate. It is worth acknowledging that the Scottish Government noted in its response to our report that the committee’s definition
“reflects a broad consensus of views amongst academics and practitioners.”
On the issue of the frequency with which framework legislation is used, the committee heard a variety of views. There is a general acceptance that the occurrence of framework legislation is not diminishing, but in the absence of a universally agreed definition of framework legislation or a single way of counting it over time, it is not possible to give a definitive answer. On balance, the committee considers that, across jurisdictions, it is likely that the occurrence of framework legislation has increased. If we take the 1932 report of the Donoughmore Committee on Ministers’ Powers as our starting point, the trend seems to be increasing.
Speaking of the Donoughmore committee, which was established in 1929 and reported in 1932, it was reassuring to learn that members of the DPLR Committee are not the first parliamentarians to concern ourselves with the issue of ministers’ powers. We do not know whether our report will be considered in 93 years’ time, but the age of the Donoughmore committee’s report on what is substantially the same subject speaks to the fact that this is not a new issue or one that is peculiar to Scotland.
In relation to the scrutiny of bills, the committee agreed that its preference, wherever possible, is for the detail of legislation to be spelled out in the body of the bill, to allow for transparency and proper democratic engagement, and to ensure that stakeholders and parliamentarians can engage with and scrutinise solid proposals. That said, the committee recognised the need, in some cases, for primary legislation to provide flexibility by allowing for laws to be updated without requiring further bills.
This might be an unfair question to ask Stuart McMillan, but he said that the Scottish Parliament is no different as regards members’ experiences of dealing with framework legislation. However, does the structure of the Scottish Parliament, which has some unique features, make it weaker from the point of view of members’ ability to scrutinise the secondary legislation that comes about because of the nature of framework acts?
I can give you back the time for the interventions, Mr McMillan.
Thank you, Presiding Officer.
Today, I am speaking on behalf of the committee. I said earlier that we wanted to depoliticise elements of the issue that we are discussing. I have my own views, which I will be happy to speak to Mr Kerr about after the debate. However, the committee did not go into great detail on the functions and structure of the Scottish Parliament. I can have a chat about that with Mr Kerr afterwards—that would be no bother.
The report sets out in detail the steps that the committee supports being taken by the Government and fellow parliamentarians to help to strengthen the scrutiny of delegated powers in primary legislation and the secondary legislation that is subsequently made under those powers. Such steps include the use of the so-called super-affirmative procedure for subordinate legislation and the Scottish Government setting out the overarching justification in instances in which it decides to take a framework approach.
The committee concluded that, although it expects so-called Henry VIII powers—powers that allow primary legislation to be amended by secondary legislation—to be appropriately limited in scope, it considers them to be a necessary and efficient tool when they are used suitably. At present, the committee is generally content with the drafting of most Henry VIII powers in Scottish Government bills, and it is content that they are subject to appropriate parliamentary procedures. Speaking personally, I do not like the idea of Henry VIII powers, but I recognise and agree with the committee’s unanimous finding in that regard.
I hope that the committee’s report proves to be helpful to the Parliament and beyond, in the longer term, and that it has formed the basis for an interesting and informative debate this afternoon. I thank my committee colleagues for the way that they worked throughout the inquiry, and I look forward to hearing contributions from other members. I also put on the record my thanks on behalf of the committee members to the excellent clerking team and the legal advisers of the Delegated Powers and Law Reform Committee. Their assistance during the inquiry was invaluable, and we all appreciate everything that they have undertaken to help us.
I move,
That the Parliament notes the conclusions and recommendations contained in the Delegated Powers and Law Reform Committee’s 21st Report, 2025 (Session 6), Inquiry into Framework Legislation and Henry VIII powers (SP Paper 762).
Before I call the next speaker, I advise members that we have quite a bit of time in hand, so members can assume that generosity will be baked into the speaking time allocations.
With that—and with some trepidation—I call Finlay Carson to speak on behalf of the Rural Affairs and Islands Committee for around six minutes.
15:05
I welcome the opportunity to speak in this important debate on the DPLR Committee’s recent report on framework legislation and its impact on parliamentary business and, crucially, effective committee scrutiny. I should also say that I was pleased to give evidence, along with Kenneth Gibson, for the inquiry.
I will begin with a quick summary of the Rural Affairs and Islands Committee’s submission to the inquiry. As Stuart McMillan has already set out, the DPLR Committee outlined what framework legislation is as part of its inquiry, but I should point out that the Rural Affairs and Islands Committee used a slightly broader definition. It defined framework legislation as
“primary legislation which sets out broad powers with the details of how these powers would be used and implemented to be set out at a later date either through secondary legislation or through other documents to be laid in Parliament.”
The reason for using that broader definition in our submission is that it encompasses primary legislation that requires Scottish ministers to lay a document before Parliament that may be subject to parliamentary scrutiny and approval. I understand why the DPLR Committee’s inquiry focused on primary and secondary legislation, but from a broader parliamentary and subject committee perspective, the Rural Affairs and Islands Committee feels that other laid documents that set out the detail of Government policy are equally important.
The Rural Affairs and Islands Committee agrees that there is a place for framework legislation where the legislative powers will be required for the long term, but flexibility is required as to how they will be exercised.
I was very interested to hear the definition that the member just gave. Indeed, it probably concurs with the definition that the FPA Committee would have given, had it been asked to give one, because that is what we have seen, too. We are both coming to this with a different steer, because, perhaps, the DPLR Committee’s focus is on the absolutism of standing orders, but I would say that the practical effect, as the member has described it, is the same as we in our committee would describe it.
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.
15:12
I am grateful to have the opportunity to respond to the debate on behalf of the Scottish Government. I welcome the remarks of the conveners of both the Delegated Powers and Law Reform Committee and the Rural Affairs and Islands Committee. The Government has published its response to the DPLR Committee’s report, from which I hope it is clear that it broadly supports the committee’s conclusions and recommendations.
I will focus my remarks on certain key points in the Government’s response. However, before I do so, I want to acknowledge the way in which the committee approached its inquiry. I recognise that the inquiry came against a backdrop of concern about the volume of so-called framework legislation in this parliamentary session, on which several members had commented. Some had suggested that the introduction of such legislation is a more frequent phenomenon than it was previously. I hear what was said about the Donoughmore report of 1932 and the concern about ministers’ powers having been a long-standing issue. I cannot respond on behalf of Ramsay MacDonald’s national Government of that year, but I will respond on behalf of the current Scottish Government.
I respectfully suggest that, although it has been asserted that so-called framework legislation has recently been introduced with greater frequency, I have yet to see any evidence, in the form of numbers, to demonstrate that there has been such a phenomenon. I have been an elected representative in this place for the same length of time as the Deputy Presiding Officer—18 years—and I say earnestly that I have not noticed such an increase in recent years.
In some respects, the gentle challenge is, does it really matter? Many of the considerations that we are covering off today are about the efficiency and effectiveness of that type of legislation. Therefore, surely we should be equally concerned if there are just a few pieces of framework legislation; we should not just be concerned about the number of them.
I will come to process, because the point that Michelle Thomson makes speaks to the point that this is about our processes and how things are scrutinised in this place. I am always up for discussing how things can be improved, but I was merely making a point about whether there has been an increase in frequency of the use of what is referred to as framework legislation. That was referred to by the convener of the Delegated Powers and Law Reform Committee, and I am responding to that point; it has also been referred to in the report and in wider discourse in the chamber. I am merely responding to the assertion. Although it has been asserted that there has been an increase, I have seen very little evidence to justify that being held to be the case.
I will turn to the issue at hand, which is the appropriateness of and the manner in which we utilise secondary legislation-making powers and the process. Before I come to that, I thank the committee for the work that it has undertaken on the issue during this parliamentary session. It has been a useful exercise for the committee to take away the issue, look at it in the round and then to gather evidence, hear from a variety of sources and bring forward a report. I commend the committee and the clerks who have supported it on that work and, of course, the people who went to the committee with their evidence.
The issues that have been raised in the report could be felt to be rather arcane, dry or dusty technicalities around the legislative process, but it is about more than that. It speaks to the responsibility that we as a Government carry for bringing forward proposals to Parliament for its approval in order to make good and effective law and for explaining as clearly as possible not just what the immediate impact of any proposed legislation will be but the ways in which that legislation might be used in the future. I take that responsibility seriously, the Scottish Government takes that responsibility seriously, and it informs how we approach every bill that we take forward.
It is also important to recognise that we live in the real world, where things change, and that, by necessity, it is sometimes sensible to take delegated powers so that we can adapt to circumstances quickly. Indeed, I think that that was the point that the convener of the Rural Affairs and Islands Committee made. It is appropriate for us to introduce legislation that sets out the broad principles but then relies on us to put things into effect through secondary legislation—I refer, for example, to the payment of benefits, the uprating of benefits, the provision of charges and the registration costs for certain professions. No one would suggest that we come back on a regular basis to set those things by primary legislation, so of course it is sensible that we use secondary legislation to do so.
I appreciate the anger that stakeholders have that we do not have time in our parliamentary calendar to look at the good food nation plan laid before the Parliament. My committee spent a significant amount of time on that during the pre-legislative process of putting the bill in place, but it is now being dealt with by another committee. There needs to be capacity in the Parliament for us to scrutinise the secondary legislation that underpins the primary legislation that we passed more than a year ago.
Mr Carson mentioned earlier that he had written to me. I have responded to that letter, but I do not know whether he has seen my response yet. To be fair, it was sent only this week, but he has had a response from me, and I hope that it is useful.
The capacity issue relates to the point that Stephen Kerr made about the need for the Parliament to consider a range of matters. The Government has a role to play in that respect, in so far as we try to bring forward a manageable case load of legislation before Parliament.
Indeed, we also engage with the Delegated Powers and Law Reform Committee on how many statutory instruments we will lodge, and we try to ensure that we manage that process. Fundamentally, if there is an issue with the Parliament’s capacity, woe betide the Government if it suggests how the Parliament should address it. The convener of the Standards, Procedures and Public Appointments Committee is in the chamber and it looks as though he is going to contribute to the debate. His committee is undertaking an inquiry into committee effectiveness; it is not for the Government to dictate or set out to the Parliament how it should undertake its work, especially in scrutinising the activities of the Government.
I understand what the minister is saying. He speaks in the debate as a minister of the Scottish Government, which I respect, but I am sure that, as a parliamentarian, he must have deep-seated concerns about the capacity of Scotland’s Parliament to deal with the issues that I and other members have raised. Does he appreciate that, because of the Scottish Parliament’s unique structures, we need to be alert to the issues that might undermine its ability properly to scrutinise a powerful executive?
Of course, I may have a perspective on those matters, but I think that it is important to acknowledge that I stand in the chamber as a Scottish Government minister, as Mr Kerr recognises. I do not think that it would be appropriate for me to use the platform to set out how the Parliament should go about scrutinising the Government—frankly, that would be a rather obtuse position for me to take.
I observe—although it relates to different subject matter—that some time ago, we were debating the Scottish Elections (Representation and Reform) Bill. Daniel Johnson, who is not in the chamber for this debate, spoke about the appropriateness of the executive taking forward some of the propositions in the bill and asked whether it would have been better for the legislature to have done that. In response, I made the point that that was in the hands of the Parliament. I respectfully suggest that those are things that the Parliament is capable of looking at, and I note the Standards, Procedures and Public Appointments Committee’s work on such matters.
I should probably address the committee’s report, so I will return to it. The report offers a definition of framework legislation. There is nothing that I find particularly objectionable about its definition—it broadly reflects the definition that the Government proffered. However, I am very clear that it is rather more important that in future the focus should not be on whether any particular bill is defined as framework legislation; it should be on the quality of the justification for and the information on any proposed powers provided by the Scottish Government to the Scottish Parliament to enable it to undertake its scrutiny role.
The benefit of having a definition is that it would allow there to be much greater agreement before a piece of legislation was presented that it would follow the path that fits that piece of legislation, be it framework legislation or otherwise. Does the Scottish Government agree that there is great benefit to having a definition, even though, clearly, it cannot apply to every legislative vehicle in the Parliament?
I will be candid: I am not entirely convinced of that. I appreciate the committee’s report, but, with the best will in the world, it has not crystallised how a definition would be used, nor has it laid out what the benefits of a definition might be. I am not entirely clear that investing time and energy in defining whether a bill is a framework bill is as important as undertaking scrutiny of the Government’s justification of the appropriateness of using powers in a secondary format—rather than having a procedural debate about whether those powers are caught by the definition of framework legislation.
Will the minister take an intervention?
The Presiding Officer said that we had a lot of leeway. I have extended quite a lot of it and I have still not got through the committee’s report. I am more than happy to give way if it will be possible to do so.
We have not exhausted the generosity, but we are getting closer to it.
I am grateful, Presiding Officer, and I thank the minister for giving way. There is a clear advantage to knowing whether a bill is a framework bill, and whether a piece of legislation is setting forth principle rather than acting as the means of delivery of a particular policy, and that advantage is that, with that knowledge, the Parliament can design and adjust the way in which it scrutinises the secondary legislation that comes from ministers. That is the fundamental issue with framework legislation. The issue involves the ability, in particular of our Parliament here at Holyrood, to properly scrutinise legislation.
I say to the minister—I hope that he will take this in the spirit that I offer it, because one day he might sit where some of us are currently sitting—that it is in the interests of good government that we get this right. A lot of the things that are produced in this Parliament become unnecessary, unforced errors that would have been caught and corrected if we had a stronger, scrutinising approach to secondary legislation.
First, I assure Mr Kerr that I have no intention of sitting where he is at any time. I think that he makes the point that I am trying to make. Are we going to say that any bill with secondary legislation-making powers in it is defined as a framework bill? I do not think that we are—I do not think that anyone is suggesting that. The question then is, are we suggesting that secondary legislation that is taken forward through something that has not been defined as a framework bill should not be subject to the same level of scrutiny as something that has been taken forward through a framework bill?
That is what happens. The advantage—
Mr Kerr suggests that that is the case, but I am less convinced that that is a sensible way forward, because there will be plenty of important matters that we take forward through pieces of secondary legislation that have not come about due to a framework bill and which, frankly, in the interests of good governance, should be just as thoroughly scrutinised as those that have. That is where I stand on the matter.
The Government’s position is that we should provide a clear justification at all times for the proposed inclusion of any delegated power that we plan to take in a bill, Of course, our processes should always be subject to reconsideration, refinement and improvement, and, effectively, that is the system that we have now. Alongside every bill in which we say that there will be secondary legislation-making powers, we have to publish a delegated powers memorandum to justify and make the case for powers to be delegated to the Scottish Government to make and amend law by secondary legislation. If any member or committee considers that what is set out in such a memorandum falls short of expectations, I would expect them—frankly, I would encourage them—to raise that with the relevant minister at the earliest opportunity and seek the additional information and justification that they consider to be necessary. My expectation of ministerial colleagues is that they should respond in kind and provide as much detail and information as members require, in the interest of good scrutiny of our legislative proposals.
I will respond to some of the specific recommendations in the report. One recommendation says:
“The committee considers that legislation should, other than in very limited circumstances, set out a high degree of detail on the face of the Bill.”
The Scottish Government agrees with that.
Another recommendation says:
“Financial Memoranda should include an estimate of any costs arising from delegated powers provisions”
and that the Scottish Government should
“ensure it keeps committees updated throughout the legislative process on the estimated costs arising from a Bill”.
Again, the Scottish Government accepts those points and, at the request of the Finance and Public Administration Committee, I have already ensured that the advice to the Scottish Government’s bill teams is revised to re-emphasise the need for committees to be kept abreast of changes to estimated costs in financial memoranda.
Another recommendation says:
“Where a Scottish Government Bill proposes the delegation of a broad power it should consider adding an appropriate super-affirmative procedure to enhance parliamentary scrutiny.”
The Scottish Government will take that recommendation into account in taking forward its legislative programme.
The report also has recommendations relating to Henry VIII powers—I have not had a chance to say much about Henry VIII powers, so I will try to say a little bit more about them in my closing speech, because I can now see that I have used up 16 and a half minutes of my allocated seven minutes, Presiding Officer, and I acknowledge that I am taxing your patience.
You are redefining the meaning of generosity.
You have been very generous, Presiding Officer.
In relation to Henry VIII powers, the committee says that the Scottish Government should
“consider what more it can do to ensure it consistently sets out such powers’ ability to amend primary legislation in a clear and accessible way.”
The Scottish Government is happy to accept that recommendation.
I welcome the committee’s report and am glad that it has undertaken its work and that we are having this debate. The Government will, of course, continue engaging constructively with any suggestions for improving the scrutiny of legislation in the Scottish Parliament, whether that comes from the Delegated Powers and Law Reform Committee or from any other committee of this Parliament.
15:30
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.
I will mention this in my speech, but there is a challenge when it comes to framework legislation. For example, the Circular Economy (Scotland) Act 2024, which we can imagine will be in effect for decades, can be used to manage items such as single-use cups, and a similar act was used to manage single-use vapes, but how could any committee of the Parliament, or any Government minister, predict what single-use items might be in use 30 years from now and how much funding might be needed to manage them?
I thank Lorna Slater for her question, which highlights the concerns that exist about the use of framework legislation. There is absolutely a question about how far into the future we will have to use our crystal ball to work out financial constraints. However, we will not be able to introduce proper legislation that we know will work and will lead to the outcomes that we require if we do not have the right financial memorandum attached.
Interestingly, is it not the case that, as the Scottish Government says in its response to the report, the Parliament must consider when to give delegated authority? If a crystal ball was required to see into the future, perhaps we would not give delegated authority in those circumstances.
I cannot really disagree with that statement, and I thank Martin Whitfield for making it.
I appreciate that the minister provided a speedy response to the report and gave his commitment that the Scottish Government will ensure
“that the Scottish Parliament is provided with sufficient information to understand why a proposed delegated power is considered to be appropriate and proportionate, and how that power is expected to be used.”
That is certainly welcome.
I am pleased to see that the Scottish Government fully accepts the financial memorandum recommendation and is working with the Finance and Public Administration Committee on how it will address the financial consequences of bills.
The evidence shows that providing a definition is difficult, but the report has provided a sensible one. Framework bills should be the exception rather than the rule. Flexibility is essential, but thorough communication at the inception of a bill is also essential. The financial implications should be as detailed as possible and provided up front.
Given the encouraging letter from the minister, I look forward to seeing how the recommendations progress to ensure that the Scottish Parliament produces the best laws possible for the people of Scotland.
15:37
It is a pleasure to contribute to the debate, although I feel that, sadly, few are probably watching it. However, the issue goes to the heart of one of the challenges of this parliamentary session. As others have done, I genuinely thank the committee, the clerks and all the witnesses who gave evidence so that the report could be drafted.
I find the report to be very interesting and important. I think that the convener does his committee no justice by suggesting that it will not be read in 93 years’ time if the matter is looked at again. I deeply hope that it will be.
We have already had quite a lengthy interaction on the need for a definition of framework legislation. With the greatest respect, I disagree with the minister—I think that a definition will be of assistance. If there is a definition, people know what they are looking for. They know when the definition has been crafted to avoid including something and, more important, they know when it has been crafted to allow what is being proposed to be approached in a different way.
On Henry VIII powers, we must remember that, although secondary legislation can relate to matters such as increasing the fees or the licence costs of something, as the minister suggested, it can also empower ministers to change primary legislation. Giving such a range of powers to a Government must be done carefully. There has been a discussion about whether the use of such secondary legislation has or has not increased. Interestingly, the name “Henry VIII” is attached to those powers in reference to a king who would rather pass legislation by declaration than by agreement.
I made that point at the evidence session with the committee. I wonder whether Mr Whitfield would agree with me and with Andrew Tickell, one of the other witnesses who appeared before the committee, who talked about the pejorative language that is sometimes used. Does Mr Whitfield agree that the term “Henry VIII power” is not entirely helpful, because it leads to odd conclusions about what a Government might do with such a power?
That is an interesting question, given the round-table meeting that the First Minister held yesterday and the long discussions that we have had, when considering electoral law and other topics, about our approach to the use of language. It is interesting to pick up on something that Roz McCall said in her speech and that the convener mentioned—the use of language such as “skeleton”, “headline” and “enabling”. A lot of the language that is used to describe something is chosen according to where one sits on the argument.
That brings me to an important point. Putting aside party politics, there is a great danger that power corrupts and that absolute power corrupts absolutely. I do not in any way level that accusation against the current Scottish Government—yet—but the acquisition of power can become very comfortable and very easy. When we are able to read the Covid inquiry reports, we might well see indications of that having happened. One of the Parliament’s duties is always to hold against the growth of power of the executive.
Mr Whitfield quotes the age-old maxim that absolute power corrupts absolutely, but the fact of the matter is that we, as a Government, do not have absolute power. We are responsive and responsible to this legislature.
In relation to the subject matter that we are debating, whether we accept the notion, idea or concept of a framework bill, the Parliament has to agree to Government proposals to have powers through secondary legislation and delegated powers. It is for the Parliament to delegate powers to the Government, and it is in the Parliament’s hands whether to agree to such a proposition.
That intervention speaks to the intervention that I made on Roz McCall and to another point that was raised previously: at the end of the day, the Parliament’s structures and procedures must support scrutiny. As the Government freely admits, it might well be that the Parliament should, on occasion, say no to the Scottish Government receiving delegated powers because of—insert good reason here.
There was a discussion earlier about the appropriateness of using the term “Henry VIII”, who was, of course, an English king—we should make that point very clear. I think that that language is appropriate, because should this Parliament not be very jealous of the delegated powers that it gives to ministers? Should it not demand a clear line of sight of accounting? Does Mr Whitfield, as the convener of his committee, agree that the structures and processes of our Parliament might not be sufficient to manage that delegation appropriately?
I will use another convener’s approach to a very similar invitation and say, “Not with my convener’s hat on, I won’t”.
I am conscious of the time, Presiding Officer. There are a number of other things that I want to highlight—
Will the member take another intervention?
Okay.
Before the interventions, Martin Whitfield spoke about Covid. It is fair to say that we, as a committee, recognised that Covid was a unique situation, so our report did not focus on that period. We spoke about it, and it came up in evidence, but we were very conscious that that was a very different time compared with normal parliamentary time.
I whole-heartedly agree with the convener on that. I compliment the convener, the committee members and the clerks for the language that they have used about when and why such powers would be needed. There is clear sensitivity to the fact that there are circumstances in which actions have to be taken. However, we have to exercise care that those powers do not remain with the Government. The committee—rightly, I think—chose not to go there, but the questions that the committee raised and considered are very important for the rest of this parliamentary session.
I am now desperately conscious of the time, but I invite the minister to expand on a few interesting responses that the Scottish Government made to the report. I will use the numbering of the recommendations that the Government used in its response.
First, when the committee invited the Government to talk about the limited circumstances in which framework bills should be used, it specifically used the words “very limited”—language that the Government had accepted in a previous recommendation. However, interestingly, in the Government’s response, it talked about a “flexible approach”. I wonder whether the Government could tie itself down further by agreeing that such bills should be used in incredibly limited circumstances.
I am conscious of the time, but I will talk for a minute or two longer to facilitate a changeover of those in the Presiding Officer’s chair. I will briefly mention two other things.
The Government seems to be resistant to post-legislative scrutiny and the concepts of sunset clauses and reporting clauses. It pointed out that those things are acceptable, but it then drew attention to the fact that they should be used by committees only in a very limited way. I think that the Government said that because of the bureaucratic problem of monitoring things going forward. However, one of the great powers that Parliaments around the world are developing relates to the use of post-legislative scrutiny—not necessarily even by the Parliaments themselves—in order to continue to hold to account those for decisions that were made. When errors or omissions in legislation—or, indeed, its brilliance—should be highlighted, that can be done through post-legislative scrutiny. I wonder whether the minister could articulate whether there are concerns about post-legislative and pre-legislative scrutiny.
I am conscious that I am well over my time, for which I apologise. I will draw my comments to a close for the moment, but, in my summing-up speech, I will perhaps invite the minister, without notice, to come in on one or two of the matters that I have mentioned. I apologise to the minister for that.
Thank you, Mr Whitfield. I call Lorna Slater to open on behalf of the Scottish Greens.
15:46
I am glad that this debate has been brought to the chamber. Continuous improvement in how we operate as a Parliament is a worthy goal. I am pleased to be able to contribute.
I have heard from members across the chamber, in particular when I was working on the Circular Economy (Scotland) Bill, their reasonable concerns about framework bills. My position today is largely in support of that mechanism, with the caveat that I recognise and agree with much of what is in the committee’s report—although I do not agree with all of it.
There are good reasons why framework legislation might be used. I will use examples in the circular economy space, because that is the area that I am most familiar with. Every member in the chamber is aware of some of the problems created by the large number of single-use items that are currently used in our society. We have all participated in beach cleans and seen litter in our parks, and we should understand by now, I hope, the carbon impact of manufacturing items that are only used once and then disposed of.
Without framework bills, separate primary legislation would have to be introduced for every different type of single-use plastic that we want to put in place measures to manage. One can imagine how onerous that would be on parliamentary time and how much less the Parliament would be able to do on health, education, food security and so on if it were painstakingly passing separate primary legislation for every type of plastic item that we want to manage.
Will the member give way?
Certainly.
I believe that the issue is not necessarily about framework bills; it is about the safeguards that accompany framework bills. It is also about the Parliament’s ability to scrutinise secondary legislation when it is introduced, as it is incredibly difficult at the moment to do that scrutiny.
Maybe we should look at requiring the approval of the Parliament before secondary legislation under framework legislation is put forward. For example, the good food nation plan will be laid, but there is no role for the Parliament in approving it or amending it in any way.
I am glad that the member raises that point. I will come on to exactly that issue, because I agree with him that improvements to the scrutiny of secondary legislation are possible.
To continue with my thought, I hope that it is obvious that it makes sense to use framework powers to manage single-use items. Secondary legislation would allow the Parliament to prioritise the items that cause the most problems and to react quickly when items such as single-use vapes constitute an urgent issue.
One of the reasonable issues that was raised with me during the consideration of the Circular Economy (Scotland) Bill was the frustration of the Finance and Public Administration Committee that it could not adequately scrutinise the framework elements of the bill, because I was unable to tell it how the powers that the bill conferred might be used by future Governments, as I mentioned in my intervention on Roz McCall. We can imagine that a bill might have a lifetime of several decades, and who knows what sort of single-use items or novel materials might become problematic in the future? There is a good case to be made for a mechanism for financial scrutiny of secondary legislation to mitigate that concern, and I would hope that the Parliament would consider changing processes to allow that.
The member and I sat on opposite sides on the consideration of that particular bill. My recollection is that the concern at that time was from a purely financial perspective. We accept that all financial memorandums are best guesses at the best of times, but I am talking about being presented with a financial memorandum that has a vast range and considerable complexity and uncertainty. In those circumstances, we are virtually guaranteeing that we will write a blank cheque. That carries significant risks from a scrutiny and good governance point of view. It is about overcoming those risks. What does the member think about that?
I absolutely identify with the problem that the member has raised. That is why there need to be suitable instruments for managing the scrutiny of the financial costs at the secondary legislation stage. That is a proposal that I am suggesting that the Parliament looks at in order to allow that secondary legislation to move forward.
In 20 or 30 years, when we are trying to ban another plastic or to manage it in some way through a deposit return scheme or some other mechanism, there will absolutely need to be adequate scrutiny at the time—this Parliament would never be able to adequately scrutinise that, but that scrutiny must be there. Equally, the introduction of entirely new powers to manage a single item in the future does not make sense either. I am suggesting that we improve processes around secondary legislation, particularly on that financial point, which is the area that Michelle Thomson and Finlay Carson identified.
I make another assertion, which is that I am not wholly convinced by arguments that secondary legislation—even negative instruments—cannot be adequately scrutinised. I assert that such legislation can be scrutinised, should members choose to do so.
The member might want to develop this in a moment. One of the problems for Opposition members is that, when secondary legislation is made, we have to either accept it all or reject it all—there is no ability to amend. To take the argument that the member referred to, she might introduce a list of 20 products that she wants to ban, but the Parliament might say that it actually likes 18 of them, but not two of them. The Parliament is then left in the impossible situation of having to say either yes or no. I do not think that the member has identified that difficulty yet.
I was not using that particular example, but if we are talking about single-use plastics, we would not be able to introduce a list with that many items in one go, because they must all be managed differently and would require different schemes. The example therefore does not really apply. However, I understand what the member has said, which is that secondary legislation requires a yes or a no. However, the Parliament has the chance to say no, and can use it.
Secondary legislation often comes back repeatedly to committees—we saw that with the tied pubs legislation and, indeed, the deposit return scheme, for which secondary legislation repeatedly came back to committees as it was adjusted and changed. We do not get just one shot at secondary legislation—it can be brought back over and over again. We know that that can happen.
I want to give an example of effective scrutiny of a negative instrument. Edward Mountain demonstrated that very ably in relation to secondary legislation on deer management, as some members might recall. He identified that the legislation was coming to a committee. It was not even his committee, but he arranged to be at that committee to ask extensive questions of the minister, who, in that case, was me. He then initiated an effective media campaign to bring the matter to the attention of the public and subsequently forced a short debate in the chamber on the matter. That shows how a member who is not even on the responsible committee can bring effective scrutiny to secondary legislation when they choose to. We could all choose to do that more often. We do not have to give the Government a free pass on secondary legislation; that is up to members.
Finally, in respect of the committee’s report, I am not supportive of the idea of the Parliament having a “think again” or “conditional approval” option. It gives Opposition parties an easy option that prevents progress without them having to take a firm stance on an issue, allowing them to play both sides of the argument with voters. We are all free to vote against legislation, but members should not be given additional powers to sit on the fence and hold up legislation that has been extensively consulted on. Part of being an effective politician is being courageous in saying both what you stand for and what you stand against. Politicians should not be able to stand in the way of progress by way of cowardice. As I have repeatedly said, secondary legislation is often brought back and amended repeatedly, going through the committees and through the chamber several times, as can be seen with the tied pubs legislation, the deposit return scheme and others.
Finlay Carson °ů´Ç˛ő±đ—
Ms Slater is, I hope, bringing her remarks to a close.
By its nature, secondary legislation is more flexible and dynamic, and we are called upon as members to keep up and keep on top of the scrutiny role, using Edward Mountain as our role model for that.
15:55
As a substitute member of the Delegated Powers and Law Reform Committee, I am pleased to speak in today’s important debate. On the face of it, it seems like a dry, somewhat technical subject, but it is hugely important to the integrity of Scotland’s democracy and the efficiency of the Parliament.
The DPLR Committee’s recent inquiry into framework legislation and Henry VIII powers was an important and necessary piece of work relating to devolved powers and drafting legislation. As we have heard, framework or skeleton legislation sets out the principles for new law but without much detail as to how it will be given practical effect. Instead, broad powers to fill in the detail at a later point are given to ministers and, occasionally, to other bodies.
Henry VIII powers—the term is unfortunate, in my opinion—allow ministers to amend acts of Parliament by secondary legislation, which may concern minor matters but be very necessary.
Delegated powers are an essential part of the legislative toolkit. The Scottish Government and the Parliament would not be able to function if we relied solely on primary legislation. That is the reality.
During my nine years in the Scottish Parliament, and as a member of the Criminal Justice Committee and, previously, the Justice Committee for all that time, powers in delegated legislation have been used to good effect to update and amend legislation to address changing circumstances—and always, in my opinion, to strengthen it. However, some people consider the use of such powers to be too wide, so the DPLR Committee inquiry was keen to explore any safeguards that can be put in place to address those concerns.
The Scottish Government is happy to recommit itself to ensuring that the Scottish Parliament is provided with sufficient information to understand why a proposed delegated power is considered to be appropriate and proportionate and how that power is expected to be used. What is more, the committee saw no evidence to suggest that framework legislation is being used more frequently, as the minister articulated earlier.
The evidence that Andrew Tickell gave to the committee talked about pejorative language in the context of framework or skeleton bills. In reality, we should remind ourselves that the process is used for fairly straightforward matters.
The Scottish Government does not routinely set out to introduce framework bills. Bills are always considered on a case-by-case basis, and that is a sensible way to legislate. To be honest, as a small Parliament whose powers are, thankfully, increasing, I think that we do pretty well.
It is also important not to lose sight of the mechanisms and processes that are already in place in Parliament to scrutinise proposed powers in bills and how they are used.
I am grateful to Rona Mackay for being generous with her time. My intervention is about the monitoring of secondary legislation, which was mentioned in the previous contribution. The Scottish Government’s response is that perhaps committees should take part in the consultation on the development of secondary legislation. Do you think that it is appropriate that the body that is going to scrutinise something should take part in the consultation on creating it?
Always speak through the chair.
My apologies.
I do not see any real problem with that. The subject matter should be considered by everybody who is involved in it.
There is a delegated powers memorandum that must explain the nature of each and every power in a bill, and it must include the reason for taking the power and the choice of scrutiny procedure for that power.
As we know, at stage 1, a bill is subjected to careful scrutiny from stakeholders and civic society. It then passes through stages 2 and 3, with the Parliament holding it to account at each stage. In that way, the Parliament retains the ultimate authority in determining whether secondary legislation-making powers should be in place in any piece of legislation in the first instance.
Similarly, when the Government exercises powers, including Henry VIII powers, to amend primary legislation, the Parliament has a key role in scrutinising both the technical and policy elements of the use of those powers. Ultimately, the Parliament retains the power to determine secondary legislation by either approving it or not under the affirmative procedure, or by deciding whether to annul it under the negative procedure. In a parliamentary democracy, that is, of course, how it should be.
It is clear to see that the committee conducted the inquiry rigorously and that the Government welcomes the overall direction of the report. It is also clear that considerable effort went into ensuring that the committee obtained a wide range of opinion and experience, hearing different perspectives and viewpoints, which were represented in what is a comprehensive report. I am very happy to support the motion.
I call Edward Mountain, who joins us remotely.
16:01
I thank the committee, its clerks and all the people who gave evidence, because the report is excellent.
Having been used as a role model by Lorna Slater, I am nervous now; if my parliamentary career was not coming to an end next year, it would have been ended by those remarks.
Let us see whether I can build on some of the comments that have been made. Developing legislation is rather like a journey that someone goes on with their family: they work out why they are doing it, where they are going, how they will get there, what they will do when they get there and what the costs will be. It is exactly the same when setting out to do something in business: the person works out why they are doing it, what they are going to do, when they will do it and how they will deliver it. It is the same for legislation.
I do not agree with the Minister for Parliamentary Business that there has not been a proliferation of bills with little detail in them; I believe that there has been. In the eight years in which I have been a committee convener, I have seen more bills come through with less detail in them.
Jamie Hepburn: [Made a request to intervene.]
In a minute, Mr Hepburn.
I looked at the names that the committee identified as being given to such bills; they include headline bills, shell bills, enabling bills and framework bills. Those are all great names, and they are used by people to promote the bills for what they are: skeletal bills and jellyfish bills.
I will not cite Mr Mountain as a role model any time soon—I hope that that reassures him.
On Mr Mountain’s point about the proliferation of framework bills—or bills described by the range of pejorative terms that he has just used—he suggests that there has been a vast increase in the number of such bills. I wonder whether he can give me a number. Can he tell me the number of such bills in this parliamentary session, by comparison with the previous session, the session before that or even the session before that? Can anyone give an actual number to justify that claim?
That, of course, Mr Hepburn, could be one of the failings of the report. If members read the report in detail, as I did, they will see that the number of shell bills or skeletal bills in the United Kingdom Parliament has gone up threefold in the past seven years, and that the number in the Welsh Parliament has gone up by 43 per cent. What we have not seen is a figure for the Scottish Parliament; that is one of the failures of the report, and I wish that we had seen that. Perhaps the committee has details on that which were not included in the report.
I have to ask myself why we have these bills. The committee identified that they are used when there is a need for flexibility and the ability for co-design, and when there is a lack of policy development in the subject area when the bills are developed. It seems to have come on the back of a lot of the Covid legislation, which was fairly wide ranging.
My response to that is the example of the Land Reform (Scotland) Bill. There has been a lot of criticism that the lead committee is being asked to design the bill as it goes through the committee stage. We will have to see what happens at stage 2. If policy development has not been carried out before legislation is introduced to the Parliament, that is a failure in the legislation. We ask too much of committees, which are heavily committed, especially in the final year of a parliamentary session, to get all the legislation through.
As I have said, I believe that those bills need to be much more tightly drafted. It shows weakness on the part of Governments to argue that they need to co-design legislation as it is going through the Parliament. To me, that shows that there is a lack of detail in the information that they put forward. Frankly, it is bad for parliamentary scrutiny
We have little time to carry out that scrutiny. I am grateful to Lorna Slater for highlighting the time and trouble that I took to go through the deer management consultation, but it should not have come to that. That should have been discussed long before the secondary legislation was introduced to the Parliament. When the issue was debated, I think that I was entitled to a three-minute slot. It was hardly enough time for something that I considered so important and in which I had invested so much time.
Also, when we talk about the scrutiny of legislation after it has been introduced, we talk about the super-affirmative procedure. I think that we should say the super-affirmative procedures, because the procedure that is laid out in legislation can be considered for up to 60, 90 or 120 days. Does it require consultation? Does it require to come back to the Parliament to be approved? Can it be approved by the committee? There is no standard way of doing it, which makes it really difficult for committees to understand and to get those levels of super-affirmative scrutiny detailed out.
My belief is simple. If we are going to have these skeletal, framework or jellyfish bills—whatever people want to call them—they should have a mandatory sunset clause, and they should allow a super-affirmative procedure that requires the legislation to go back out to consultation to all those who will be affected by it. We should make it as difficult as possible for the Government to introduce such bills, so that the detail is there in the first place. If we get that detail right, we will not face the problems that we had with the deposit return scheme.
16:07
I am pleased to contribute to the debate. It is an important debate, because it allows members to express their views and opinions about how we operate in this Parliament and how we pass legislation. That is perhaps not something that we always have the opportunity to pause and do. That is why both today’s debate and the Delegated Powers and Law Reform Committee’s work is important.
For the work on its framework legislation and Henry VIII powers report, I thank not only the convener and members of that committee, but all the clerks and all those who have supported the work that Stuart McMillan spoke about in his opening remarks.
We have already heard that many members have experienced frustrations, as I have, during our time in Parliament, when we lodge amendments and attempt to put what we consider to be important details or provisions into a bill, only for ministers to respond that they do not consider those issues to be important enough to put into primary legislation.
I will perhaps reflect on areas where that has happened. For example, we have already heard about the challenges that were posed in pieces of legislation such as the National Care Service (Scotland) Bill.
I hope that the member would reflect that the Government is not obliged to agree with him when he brings forward an amendment. We are perfectly entitled to respond and say that we do not think that it needs to go in the bill. However, to return to my earlier point, if the member can persuade a majority of Parliament, he will be successful, the Government will not prevail and his amendment will be part of the primary legislation.
That is a typically collegiate approach from the minister.
In a Parliament of minorities, which we are told about so often, of course the Government has a right to introduce its legislation. Edward Mountain referred to skeleton bills and jellyfish bills. All too often in this Parliament, legislation turns into Christmas tree bills. When something is not set out in the bill, we end up in a situation in which we go through various amendments to get to the point that could have been better established had we had that more collegiate approach that I am calling for in my speech, which I am sure that the Government will take note of.
Even if something is included in a bill, there is no guarantee that that means that it is accurate. I distinctly remember it being mentioned in a conversation on gender recognition reform that, if a certain provision was included in the Gender Recognition Reform (Scotland) Bill, that would in no way affect the Equality Act 2010. I am not sure how that worked out.
I will resist the temptation to relitigate that legislation, but Ms Thomson has put her point on the record. It is an important broader point in the context of the discussion that we are having about what should be included in bills.
When detailed provisions are not included in a bill, that presents a challenge, because the people with whom we discuss legislation, the people whom we consult and the people whom we help to draft amendments that they wish to be made to bills—as is their right as constituents and people who are engaged in public life in Scotland—often say that they are unclear about what the Government’s intention is in its proposed legislation and that they do not know what the Government’s thinking is in the area in question. Even at stage 1 of the bill process, it can be hard to get that out of ministers, to have a proper debate and to reach a consensus. The issue is not simply one of me getting my own way or colleagues getting their own way; it is about the more important question of the sorts of amendments that we seek to lodge on behalf of the people whom we represent.
Will the member take an intervention?
I am feeling very generous, so I will give way to the minister once more.
It is not particularly helpful to say that it is not a question of people getting their own way. Mr O’Kane suggested, rather superciliously, that I was being “typically collegiate”. The point that I was trying to make is that the breadth of any legislation is in the hands of Parliament, collectively. Sometimes the Government’s position will prevail, and sometimes it will not. Sometimes Mr O’Kane’s position will prevail, if he can persuade Parliament that that should be the case.
I am pleased that the minister has given me the opportunity to say that I have successfully amended bills in this Parliament.
Well, there you go.
I am not sure that the minister is listening to the substantive point that I am making, which is that the Government, in particular, should set things out in a bill to avoid confusion or uncertainty about what is the intention behind that bill. The criticism that the Government has not done that in framework bills is levelled throughout the committee’s report, and I think that the minister must take cognisance of that point.
I accept that there has been a focus in the debate on ministers saying that there is a need for flexibility in legislation. It is, of course, important that there is flexibility, but that cannot simply be an excuse for not going through the more detailed process that I have outlined, or for queueing policy up to come in at a later date, rather than dealing with it immediately in the bill that has been presented to Parliament.
Although flexibility and broad powers might be required for legitimate purposes, I encourage the Government to pay particular attention to paragraphs 264 and 265 of the committee’s report, on the use of mechanisms such as the super-affirmative procedure, which Edward Mountain mentioned. The use of such mechanisms is necessary not only to provide adequate scrutiny of secondary legislation but to push the Government to move faster to deliver the action that has been promised through the use of framework powers.
You will need to bring your remarks to a close.
Having been generous to other members, I will now conclude. I again thank the Delegated Powers and Law Reform Committee, and I hope that the Government will listen to what has been said. It is important that members can express their views about what happens in this Parliament and how we can make legislation more robust for the people of Scotland.
I always encourage members to be generous, but I point out that, from now on, if a member wishes to accept an intervention, they will need to do so within their allocated time.
16:14
Participants in the debate now have the chance to get their own back.
I welcome the debate, and I congratulate the DPLR Committee on a detailed, well-evidenced report. I elected to speak in the debate as a member of the Finance and Public Administration Committee, which, it is fair to say, has been vexed about the issues that have arisen from a financial perspective as a result of the use of what I will term “framework bills”. We know that public sector expenditure is considerably constrained. I will not labour the reasons for that, but surely that must mean that there is an imperative for as much efficiency and effectiveness in public spend as possible—we cannot waste public money. However, based on my experience thus far, if we had applied that test to some of the financial memorandums for framework bills, they would have fallen short.
The report notes that the FPA Committee suggested that
“co-design processes to finalise exact policy during and beyond the passage of the relevant primary legislation presented significant challenges for effective financial scrutiny.”
That is an understatement. Kenneth Gibson MSP, who regrets that he cannot be here today, said:
“although we are not particularly keen on them,”—
framework bills—
“if they are to be used, all the co-design work and stakeholder engagement should be done prior to the bills coming to the committee, so that we can fully analyse the costs.”—[Official Report, Delegated Powers and Law Reform Committee, 21 January 2025; c 4.]
I am interested in the minister’s view on the extent to which that can be done—and, if it cannot, why not.
Our committee also made commentary about the quality of some of the financial memorandums for framework bills. I will take the same approach as Stuart McMillan and not name them, for that is not the point. However, it is fair to say that we felt that they were below par when it came to our job of scrutinising them. I might have asked—somewhat tartly—in a committee meeting whether members would commit their own money on the basis of the information provided, as a way of demonstrating that.
Michelle Thomson says that she will not name the specific bills, and I understand why, because it is obviously a general issue. However, does she accept that what she describes is a good example of the scrutiny process? The Finance and Public Administration Committee wrote to the Government, asking us to improve and refine our process in relation to financial memorandums and the quality of them, and that is what we have done. That shows the Parliament holding the Government to account.
I completely agree. In my further remarks, I was going to pay respect to the Scottish Government for responding to the Finance and Public Administration Committee and addressing our concerns, so I happily agree with that.
As someone with considerable experience in assessing business cases, estimates of costs for larger programmes and so on, I am concerned when considering this from a technical perspective. We know that financial memorandums include educated guesses, but the point that I made to Lorna Slater earlier is that range is an important indicator of how tight the scoping of the policy is. Generally speaking, a massive range of costs from X to Y tells us something about how tightly scoped the policy work has been, and that raises a concern. Going back to my point about efficiency and effectiveness, if, under challenge, in front of the committee, the member or the minister is able to clearly articulate the basis of every measure, that gives us confidence. In fairness to all the ministers and members, where they have not been able to do that, that illustrates my concern.
A point that has been made by a number of members is that, even with good scrutiny up front, we have an issue with secondary legislation when we look at it through a purely financial spend lens against the backdrop of a shortage of public sector money. One key question—I do not know whether this has been mentioned enough—is how on earth we are meant to carry out post-legislative scrutiny, especially from a financial perspective, when we are using a framework bill with absolutely massive ranges, considerable uncertainty and considerable complexity. I do not see how that can be done. We need to own up to that fact and be aware of it.
I will finish quickly, because I made a lot of my points during my interventions on everybody.
I completely agree with the committee’s view that
“powers allowing flexibility â€just in case’ are unlikely to meet the test for the necessity of the power”.
I also completely agree with its point that
“consultation and â€co-design’ on a Bill’s provisions should take place”
up front.
Its last point is that,
“as a general rule, a lack of policy development is not an appropriate justification for introducing framework legislation”.
I suspect that the minister would want to intervene on that point if I was not running out of time. I am not saying that that is being done, but I am saying that there is the potential for that to occur, and we need to be alive to that.
16:19
I, too, have already made a number of contributions—some of them quite lengthy—therefore I wish to be circumspect, given the time that has been allocated to me to speak. I thank Stuart McMillan and the DPLR Committee for producing an excellent report. There have been a number of really good contributions in the debate, including, if I may say so, those of Michelle Thomson, to which we have just listened, and my colleague Edward Mountain, who gave us an excellent class on the shortcomings of the current set-up.
We are considering a matter of huge constitutional significance that ought to concern every one of us as parliamentarians. We are discussing the shifting balance of power between the Parliament and the executive. At times, the minister has been a little too thin skinned about this, but I suggest that, based on our own experience, most of us believe that there has been a growing tendency towards introducing framework legislation—bills that set out broad principles but leave ministers to fill in the details later, through secondary legislation.
Will the member give way?
I would prefer to make some progress, because I think that I can predict what you are about to say. [Interruption.] Okay—if you will be very tight.
I am always kind to Mr Kerr, of course, although I think that he uncharitably described me as thin skinned. I would not say that I am. I am frustrated, though, because, yet again, it is being asserted that there has been an increase in the number of such bills and no evidence for that has been presented. [Interruption.] Mr Kerr is taking issue with me from a sedentary position, but I ask him to say how many such bills there have been. Can he give me some numbers?
Edward Mountain highlighted the fact that an actual number was one aspect that was perhaps missing from the report. However, I think that there is absolutely clear evidence that members’ experience is that there has been such an increase during this parliamentary session. Frankly, the report highlights that fact in saying that framework bills are no longer the exception but are, increasingly, the norm.
I will not argue with what Lorna Slater, who is not currently in her place, said about the importance of framework legislation. However, I would not have objected to anything that she had to say about the place of such legislation. Edward Mountain absolutely summed it up when he mentioned the important safeguards that need to be put in place around such bills. We must be careful that it does not become our standard approach to legislating, which I think is what members are concerned about. As parliamentarians, we ought to have such concern. We ought to be jealous of the power that the Parliament delegates to ministers, and we ought to be extremely careful about and attentive to the way in which they use the powers granted to them through legislation.
At the end of the day, we are talking about the Parliament’s scrutiny of a powerful executive. When we say that the Scottish Parliament is the most powerful devolved Parliament in the world, we mean that the Scottish Government is probably one of the most powerful devolved Governments anywhere in the world. The bottom line is that our structures for scrutinising secondary legislation are simply not strong enough.
During my recent trip to the Georgia General Assembly, in Atlanta, I met the local minister for economy, who pointed out that all oil and tax takes accrue to the bottom line there and that it has unlimited borrowing powers. Therefore Mr Kerr’s remark about the Scottish Parliament being the strongest in the history of humanity is not true.
I did not say that it is the strongest in the history of humanity; I made it clear that it is one of the strongest and most powerful in the world, which is a view that stands scrutiny.
I simply do not consider that our Parliament’s design is adequate. Time and time again in the debate, the way in which we produce secondary legislation has been shown to be lacking by colleagues who have brought a vast wealth of experience to the time that they have spent here. We must examine the unique aspects of our Parliament and how its ability to hold the executive to account and to scrutinise its actions properly is being limited.
We cannot get into the game of acquiescence. I am sorry, but I do not agree that the Covid situation should be seen as an exception. It is during the most severe test of a parliamentary system that a Parliament must assert its authority, not give it away. That, to me, is acquiescence, as I said a moment ago. I therefore share the view, which was strongly held by many who gave evidence to the committee, that, when secondary legislation stems from framework legislation, our procedures must be up to the task. That is why all members seem to agree that it is important that we know such a bill when we see one. That is the consensus view—Stuart McMillan just about said those words.
The reality is that, if it is the judgment of the Parliament that a bill is a framework bill, the post-legislative scrutiny and secondary legislative scrutiny needs to be different.
Will the member give way?
Mr Kerr is concluding his remarks.
We need to talk about what we really mean when we talk about super-affirmative procedures and pre-laying scrutiny—mechanisms that empower the Parliament and do not allow the Government to take advantage of the perceived weakness of the design of the processes in order to impose the will of the executive. I do not think that those ideas are very radical.
Mr Kerr, you need to conclude, please.
I will conclude now. To members of the party of government, I say that, one day, they will not be the Government, so they occasionally need to put themselves in the position of being parliamentarians first, so that they can see that the best interests of good governance and the future of our country are best served by modernising the procedures of this Parliament.
16:25
I will start where Mr Kerr ended. There are emergency circumstances in which the Government should be able to process laws and regulations that impact citizens without the standard parliamentary scrutiny. At all other times, Parliament judiciously exercises what is a time-limited power granted to us by the citizenry. However, I stress the word “emergency”. The Covid emergency was the most recent example. Some of us fear that the Government’s tendency at that point has continued into this parliamentary session.
Stephen Kerr °ů´Ç˛ő±đ—
I want to make some progress, Mr Kerr.
When extending the powers of Government, the issue lies not with how we might perceive the current Government to be using those powers but with how any future Government might use them. That is the question that Mr Kerr just put to colleagues in the Government.
The Scottish National Party is asking us to assume that every Government will always act with good faith. I would say that such an assumption is at best naive. The potential for future Governments of any stripe to misuse powers should in itself be the reason to have the highest level of safeguards.
History and, increasingly, the present day, are replete with warnings against the removal of legislative standards and breaches of long-standing political norms. Indeed, the First Minister has spent the entirety of the past week talking to the country as much as he possibly can about the possible threats in that regard. He hosted a taxpayer-funded meeting in Glasgow yesterday, warning against the rise of anti-democratic forces in Scotland, so we should take him at his word in that regard.
I will be very brief. The problem with the Covid situation is that the Government still has all those emergency powers, with no sunset clauses whatsoever.
I certainly take that point on board. That is part of the reason why today’s report is important. As deputy convener of the Parliament’s Finance and Public Administration Committee, I have witnessed many issues with legislation that has been lodged by the Government in this parliamentary session, particularly in relation to financial memorandums.
On 23 January 2024, a civil servant, much to the embarrassment of ministers, told our committee that the cost envelope for the national care service framework bill was not the ÂŁ1.2 billion that was originally set out in that financial memorandum but was, in fact, upon revision, an eye-watering and mind-boggling ÂŁ3.9 billion. The previous minister, Kevin Stewart MSP, on 8 November 2022, came to committee and quibbled with a Convention of Scottish Local Authorities estimate of ÂŁ1.5 billion, apparently entirely unaware that the real cost was nearly three times that.
The nature of that bill—legislation first and any policy detail to be included much later, if at all—made it in effect impossible for the civil servants who were provided with the bill to cost it. Thank goodness that the Finance and Public Administration Committee, prior to my involvement in it, rejected the original estimates as being incompetent. They were certainly proven to be so in the subsequent evidence that was received by the committee. Had the committee not rejected that original financial memorandum, Parliament would have risked passing a bill that would have left the taxpayer on the hook for nearly £4 billion. I gently say to the minister—I know that he is particularly keen to make the point about the amount of bills—that the £4 billion cost for the taxpayer that would have resulted from one bill is reason enough to look at the matter very carefully.
The national care service saga is one illustration of the fact that this Government has no grip on the finances in its legislation, but there are many more examples, including the Children (Care and Justice) (Scotland) Bill, the Circular Economy (Scotland) Bill, the Police (Ethics, Conduct and Scrutiny) (Scotland) Bill and the Agriculture and Rural Communities (Scotland) Bill. The issues that have been raised through the scrutiny of those financial memorandums were laid out in part by my colleague Michelle Thomson and in part in the letter that was sent to the minister.
The minister rightly responded that the Government accepted the recommendations in the letter regarding some of the technical means on which to judge some of those areas. I highlight to the minister that there remain issues with the standard procedures for when revised financial memorandums might be provided to the Parliament and at what stage that will be done, whether that is before or after stage 2. It is absolutely critical for civil servants to have clarity on that.
In its submission to the inquiry, the Finance and Public Administration Committee also raised the issue of co-design—it seems that we pass a law and then decide what it might, could or should mean later, which is a recipe for an unholy mess. In my view, that tendency is about politics first and headlines at all costs. It is what you do when the thinking has not been done but you need to say something about a policy area that must be progressed. Nobody has ever been able to explain to us why there cannot be co-design before legislation is lodged and we know what we are legislating for.
[Made a request to intervene.]
I am afraid that I am running out of time, otherwise I would have gladly given way to Michelle Thomson.
The Government’s attempt to bypass the Parliament is an issue of democratic principle as well as an issue of financial responsibility. In the past three years, we have had three emergency budgets in the Parliament, with massive in-year cuts of up to £1 billion, and we have an emerging fiscal gap that is in the billions, with apparently no plan whatsoever from the Government to get a grip of it. In this financial year alone, the social security budget is overcommitted by £1.3 billion.
This week, Mairi Spowage of the Fraser of Allander Institute told the Finance and Public Administration Committee that the Government’s last few budgets have been “chaotic”. The chaos is down to the decisions that have been taken by the Government. The means by which the Government’s legislative agenda impacts the growing financial chaos is, or should be, entirely in the control of the Parliament. We must ensure that that responsibility is defended and upheld in the face of a Government that has entirely lost control of the public’s money.
We move to closing speeches. I ask members to stick to the speaking time that they have agreed to.
I call Lorna Slater to close on behalf of the Scottish Greens.
16:31
I have enjoyed the debate, and I join Roz McCall, Martin Whitfield and others in self-identifying as a bit of a process nerd. I note the concerns expressed in the chamber and elsewhere about a perceived increase in framework legislation. There are similar concerns that the number of framework bills have been increasing in Westminster, with both the Conservative and Labour Governments finding that type of bill useful.
My impression is that Governments in Scotland and elsewhere are becoming more ambitious. Governments are being expected by voters to do more and are becoming more interventionist, which I support, as we face collective challenges such as the climate and nature emergencies and chronic issues such as child poverty, which will require significant and increasing Government intervention. However, the number of parliamentary sitting days and parliamentarians are not increasing in proportion to the work that needs to be done. Something has to give if we are going to be able to make timely interventions using legislation and, indeed, if the nation is going to be able to react to the complex challenges that are ahead of us.
One of the fears that I often hear voiced by Opposition parties about framework bills is that they do not know what the Government might do with them. That has always seemed to me as though it is an admission of a lack of ambition. If Opposition parties seriously imagine themselves ever being in Government, they might have a good think about how they would use those legislative powers.
Will the member take an intervention?
I am sorry—I have to stick to time.
Of course, it is a worry for all of us that framework legislation might be used in subsequent parliamentary terms to do things that we might not agree with, or even undo work that we have supported, but such is the nature of the democratic process. Certainly, there are concerns in the environmental sector that the so-called Henry VIII powers in the Natural Environment (Scotland) Bill could be used to roll back environmental protections. Other members may have the opposite concern that they might be used to overrule the concerns of a different set of stakeholders for the purposes of nature restoration or protection. In either case, I am not sure that the Government is being entirely transparent about its intentions. A future Government may use those powers with substantially different intentions, which concerns me.
I am disappointed by Edward Mountain’s disdain for co-design, which I understand has led to better outcomes in agriculture reform for Scottish farmers than their colleagues in England.
Briefly, I do not think that Mr Mountain is against co-design. He is asking why co-design cannot take place before a bill is brought to the Parliament so that the Parliament can vote on it, rather than the co-design being done after the bill is passed, when there is no democratic scrutiny of it.
I understand the question, and Michael Marra raised the same point. I guess that the challenge is, how can we co-design something when we do not yet know what powers we will have? Setting out a process to deal with that is challenging, and we are discussing one approach. The process that the member suggests, which involves doing everything in one go, would definitely be more challenging to do in terms of getting the timing right. The process of taking the powers and then agreeing with the stakeholders who are going to be affected seems to me to be sensible, because gone are the days when Parliaments can be ivory towers that impose legislation that is difficult to change.
I recommend that Lorna Slater, and all members, have regard to what Jonnie Hall of the National Farmers Union Scotland said about co-design when he gave evidence to the Delegated Powers and Law Reform Committee.
Thank you for that.
I will continue my point about imposing powers by primary legislation that can be difficult to change in these fast-moving times. For example, with regard to Holyrood park, we are in the absurd position that we cannot even charge for parking or make basic changes to improve accessibility without changing primary legislation that was passed in the 1970s. Primary legislation that contains too much detail can lack flexibility, which can hurt communities, and it is difficult to get time in a crowded parliamentary schedule to change such legislation.
In conclusion, I would welcome new processes to allow the Scottish Parliament to scrutinise secondary legislation and undertake effective post-legislative scrutiny of it, especially in order to resolve concerns around finances, but I welcome framework legislation as a useful tool, in some circumstances, to allow the Parliament to react effectively to a changing world.
I call Martin Whitfield to close on behalf of Scottish Labour. Up to five minutes, please.
16:36
On the point that Lorna Slater has just raised about co-design and the period of time in which it happens, one of the interesting challenges that we have seen, particularly in this session of Parliament, concerns the changing nature of bills as they go through the passage of scrutiny. It is perhaps necessary to consider what it is that we want to legislate on—as articulated by Edward Mountain—and how we intend to get there before the bill is drafted and lodged for scrutiny.
I want to spend a couple of minutes on that scrutiny point. As I raised with Rona Mackay, in its response to the committee, the Government has suggested that parliamentary committees should take part in the consultation in respect of secondary legislation as well as bills. That is the position of a Government that rightly distances itself from influence over and involvement in parliamentary process of change and amendment, and I absolutely respect that. However, I would be interested to hear the minister’s views on why a scrutiny committee that is charged with holding the Government to account and expressing suggestions, ideas and opinions about a piece of drafted legislation should participate in either the co-design process or the earlier consultation, and I would ask whether involvement in that consultation could prejudice proper scrutiny.
A number of other matters appear in the Government’s response. I welcome the significant acceptance by the Government of a lot of points in the report. I know from earlier contributions to the debate that the Government has changed, in essence, the instructions around the production of financial memoranda. I hope that, even in the relatively short period of time that we have left in this session—during which time, as Finlay Carson pointed out, we may see an unexpected level of parliamentary scrutiny—we see the benefit of those better and more meaningful financial memoranda.
Although I disagree with some of what Lorna Slater articulated about the need for framework legislation, there are issues that we should consider with regard to secondary and subsequent legislation—I use that language carefully. I think that there is a need for an improvement in the process, particularly where we have identified framework legislation and in areas in which post-legislative scrutiny of issues including sunset clauses—
Will the member take an intervention?
I am happy to do so, if it is brief.
One of the key issues is the lack of clarity in primary legislation around the co-ordination of the secondary legislation and other laid documents coming forward. In relation to the Agriculture and Rural Communities (Scotland) Bill, a former NFUS president told the Rural Affairs and Islands Committee that co-design was
“a fig leaf for not doing anything.”—[Official Report, Rural Affairs and Islands Committee, 12 March 2025; c 18.]
That is exactly what we are seeing with regard to that bill.
That intervention speaks to the requirement for scrutiny, which goes back to where I began in speaking about the definition of framework legislation and about whether we need to identify framework legislation so that we can put in place different approaches for scrutiny in the weeks, months, years or even decades afterwards. I strongly support the Government’s response that we should very carefully consider when we devolve powers to the executive to bring in legislation further down the line.
There have been a significant number of good contributions—far too many to go into—which once again speaks to the importance and value of this committee inquiry. I note that one of the Government’s recommendations is for the committee to consider whether guidance should be produced. It will be interesting to see what the committee decides in due course.
This has been an interesting and beneficial debate, but one that is perhaps only the start of work in this or future sessions to provide better, higher-quality and more timely scrutiny of both framework legislation—for which I think we have a definition—and of the legislation that comes from it.
I call Jeremy Balfour to close on behalf of the Scottish Conservatives.
16:41
I begin by thanking my fellow committee members, the clerks and all those who gave evidence to the committee during an interesting process.
I confess that today’s debate has not gone quite where I expected it to go. It felt at some points as if I was 40 years back, studying first year law and having some great debate about jurisdiction; at other times I was glad that I was not a member of Edward Mountain’s family, because his holidays seem to be run like military operations and not much fun.
This has been a helpful debate and I will reflect briefly on some remarks. Before he jumps to his feet, I say that I am not going to take an intervention from the minister. All the evidence, across almost every jurisdiction in the western world, is that more framework bills are coming forward. That is happening not only in this Parliament but at Westminster, in Northern Ireland and Cardiff, and in other parts of western Europe. As much as the minister wants to see numbers and figures, that is just the reality. One reason for that, as was mentioned by Lorna Slater, is that we live in a society that is different from that which existed 30 or 40 years ago. We have 24-hour news and there is an expectation that people will respond more quickly, although I am not sure that that is a justification for going down the road that we have taken.
I have concerns about framework bills and absolutely agree with Michael Marra’s remarks. I am not against consultation or involving stakeholders in legislation—in fact, I think that we should do more of that—but we go wrong when we do that consultation after passing legislation. That happens partly due to laziness and is a wee bit to do with not wanting to be held accountable by this Parliament. I would much prefer to see the Government doing consultation, getting all its ducks lined up and then bringing forward a bill that Parliament can properly scrutinise, so that we can decide what to amend and what to take forward. That would give far more assurance regarding financial memorandums—a point made by Roz McCall and others—and would also allow Parliament to make choices, rather than the Government.
I will concentrate most of my remarks on the subject of secondary legislation and Parliament’s inability to amend the regulations that come before us. I think that the next session of Parliament should look at that again and that, to pick up a remark made by the previous speaker, today may be the start of the journey, rather than its end.
During the passage of the Social Security (Scotland) Act 2018—I have reflected on it over the past few days—we made the decision that the criteria for who would get benefits would be set out by regulation rather than by having it in the primary legislation, as is the case at Westminster. That was done to provide for flexibility and consultation—the usual remarks that we get from Government. The problem now is that, if any changes are to be made to who can get disability benefit here in Scotland, as a Parliament, we must agree to them all or we must reject them all. There is no way for any Opposition MSP, or even Government MSP, to amend those regulations.
I absolutely accept that the evidence that we took suggested that it would not be easy to design a process that would allow amendment of regulations, but it is possible. It should not be allowed in every circumstance—there would have to be quite a high threshold for it to happen—but it is worth a committee of the Parliament considering whether we can move forward to allow members to amend secondary legislation rather than just have the ability to make a yes or no decision, which is a negative way to do it. I would welcome further discussions on that.
What is clear—again, I say this with due respect to the minister—is that Governments will always love secondary legislation and bills that have little detail in them, because it means that the Government is not held to account. The reverse of that is those of us in Opposition do not like and will never like skeleton bills. That is the reality of life. However, there must be a point at which we can come together and seek a way forward for the good of this Parliament and for the sake of Scotland and the legislation that we pass.
In the words of the Scottish Government’s bill handbook, the super-affirmative procedure involves “bolt-on” measures that allow additional powers. Perhaps we could invite the Government to allow amendable secondary legislation that uses the super-affirmative procedure to see whether that works.
That is one possibility, among others. It would probably take greater minds than mine to design it, but it is worth looking at.
I thank all the other members for taking part in the debate, which has been interesting. I hope that whoever forms the next Government in a year’s time will not simply forget about the report for another 60 years, but will look at some of its recommendations and take them forward, for the sake of this Parliament and for Scotland.
16:47
I can assure Jeremy Balfour that it will be the SNP that will form the next Government after the election.
I am glad that we have had some time in hand during the debate. Ordinarily when we are told that, it gives an indication that the debate is vastly undersubscribed, and that I—or if I fail to turn up, Mr Whitfield or another member of the Parliamentary Bureau—might be asked to move a motion to bring forward decision time. It appears that we have avoided that, which indicates that there has been great interest in Parliament in the matter. I congratulate the committee on drafting a report that has captured the Parliament’s imagination—as well it should, because these are important matters.
I assure Mr O’Kane that I will certainly take on board everything that has been said during the debate. I do not necessarily agree with all of it, but I will reflect on it. I have already said that I welcome the report, and I hope that people can see that reflected in the manner in which the Government has responded.
I turn to what has been claimed about the volume of framework legislation. I have yet to hear any empirical evidence that suggests that we are seeing a substantial increase in the amount of framework legislation in this session compared with previous sessions. Jeremy Balfour was rather dismissive of the notion that I should request such evidence but, if someone makes a claim, it is important they can stand up and justify it.
Mr Mountain laid out some figures that relate to the UK Parliament but, as members in this place are all too wont to point out—indeed, as Stephen Kerr often points out—this is the Scottish Parliament and not the UK Parliament. It might be the case in other jurisdictions—I cannot speak to that—but I do not feel that, in my 18 years in Parliament, there has been a substantial increase in the amount of what we seem to be defining as framework legislation.
What does the minister say to the point that I made when I asked him to set that number aside and consider the figure of ÂŁ2.7 billion, which was the underestimation of costs for the framework bill for the national care service, due to the fact that the proposals in the National Care Service (Scotland) Bill were completely uncostable? Does that bill alone not demonstrate the significant risk that Parliament should be guarding against by revising the procedures and reducing the number of framework bills?
I was going to come to that point by Mr Marra, because I think that it shows that our procedures are effective. That is the epitome of why we have parliamentary scrutiny. That bill went to the committee for scrutiny, and the committee raised its concerns about the financial memorandum. I do not think that I need to rehearse the history of where we reached with that piece of legislation.
You are kidding. Will the member give way?
I will not, because I gave way a number of times in my opening remarks. I went to about 16 and a half minutes then and I have only four minutes left now, and I want to respond to the debate.
I again make the point that it is rather more important that we focus on our process. Most members have laid out their views on that, rather than, by contrast, obsessing over what is or is not a framework bill. I am happy to engage with Parliament on how we might consider refining our process.
Let us reflect on what the process is now. In relation to any bill in which the Government asks Parliament to delegate its authority to take forward and exercise powers, we must lay a delegated powers memorandum in which we seek to justify that request. It is incumbent on Parliament to agree or disagree with that request. The power remains in the hands of Parliament. Parliament can reject or agree to that proposition.
I disagree with Jeremy Balfour when he says that the utilisation of secondary legislation does not allow for scrutiny. When those powers, where they have been granted by Parliament, are exercised, the Delegated Powers and Law Reform Committee—which Jeremy Balfour sits on, so he should be aware of this—and subject committees can scrutinise any instruments that they are interested in and hold ministers to account on them. The Scottish Parliament can also reject or annul instruments and require the Scottish Government to think again, which, I should say, is not a feature in every parliamentary system. Therefore, I do not agree that the balance between the executive and the legislature in this place is disproportionate.
Without pushing my point, does the minister recognise that the Parliament has a simple yes or no vote on those? There is no way that it can say that it likes most of an instrument but not all of it.
I recognise that, but ultimately that has to be a decision for the committee or Parliament to take in the round. If, ultimately, that is part of the reason why a committee or the Parliament rejects what is laid before it, the Government has to reflect on that. On a number of occasions, our instruments have not even gone to a vote because a committee has raised such concerns that the Government has gone away and thought again.
I want to talk about the appropriateness of the approach that we take with secondary legislation. Lorna Slater made the point that the circular economy is an example of where it makes sense to use secondary legislation. There are multiple examples, such as when we look at the rate of benefits or where we are considering some form of charges, registration fees or payments, as Mr Carson’s committee regularly has to do. Those things might change on an annual or, at least, on a regular basis. Are we seriously suggesting that we bring that back for primary legislation in each and every instance? That would not be an appropriate use of our time.
I did not get to speak about Henry VIII powers previously, but I want to focus on that. I agree that that is pejorative terminology, which I do not think is helpful. Mr Kerr remarked that the term is appropriate, because it refers to an English monarch and it pertains to Westminster. I might suggest that that is an interesting, and perhaps unintentional, recognition of the nature of Westminster.
Will the minister give way?
I have very little time to give way.
You have very little time.
I have very little time, so I am afraid that I am unable to do so.
I suggest that the terminology is unhelpful. If there is concern about defining such things—since we are seeking to define a framework bill—perhaps we could look for a better definition for such powers. However, when they are put in place in a bill, that must be agreed to by Parliament. Fundamentally, power remains in the hands of Parliament.
The powers must not be used for major matters. Invariably, they relate to small things, such as lists of organisations that the primary legislation might have prescribed as having to be statutory consultees. Some of those organisations may no longer exist—are we seriously suggesting that we introduce primary legislation to change the list again?
Will the minister give way?
The minister is concluding.
I apologise. I genuinely would have been happy to give way to Mr Kerr and Mr Carson, but my time is running out.
I assure the Parliament and the Delegated Powers and Law Reform Committee that we welcome the report. We will continue to respond to any concerns that the Parliament has about proposed powers and we will take forward the commitments that we have made in response to the committee’s report.
I call Bill Kidd to wind up on behalf of the Delegated Powers and Law Reform Committee. If he could take us to decision time at 5 o’clock, that would be most helpful.
16:56
Right—thank you, Deputy Presiding Officer. I thank the DPLR Committee’s excellent clerking team and the legal team. I also thank everyone who has taken part in what has been a really thoughtful and engaging debate. I am going to save everyone’s thigh and buttock muscles, because I am not taking any interventions—so do not even try.
I thank the Minister for Parliamentary Business for his response to the committee’s report, and the Scottish Government for the constructive and collaborative way in which it has approached the matter with the committee. There is clearly a lot of common ground, which is always a good place to start from.
This afternoon’s discussions have been really interesting, and I hope that the committee’s report will prove useful for colleagues across and outwith the chamber as we continue to scrutinise legislation, particularly in relation to the increasing use of framework powers. We in the committee have been listening closely to what has been said today; we will take it away with us and reflect on how we can continue to support the Parliament in its role not just when a bill comes in but throughout the life cycle of legislation—including when subordinate legislation is made under these broader powers.
One of the key points in the report is that, as has been mentioned, we are seeing more framework legislation than we did even a few years ago. In fact, that trend seems to be picking up pace. As we have set out, framework legislation is legislation whereby the bill sets out the broad principles but leaves a lot of the detail to be filled in later by ministers or others. There can be a case for that approach, in very limited circumstances. Flexibility is important—we all understand that. The committee is saying that, as a general rule, primary legislation should set out as much detail as possible up front, so that parliamentarians, stakeholders and the public can see clearly what is being proposed and engage with it properly. That is about openness and accountability. We believe that, when a framework approach is used, it is essential to provide a clear justification right at the start for why that is necessary in the particular context of a bill.
Some good points have been made today about the idea that “just in case” powers—those that are included simply for flexibility down the line—probably do not meet the test of necessity. That is something that we should all reflect on.
The committee has highlighted the importance of consultation and co-design before a bill is introduced. If a policy is not fully developed, that is not a reason to default to broad enabling powers. We should be aiming for detail, not deferring it.
We have looked at how to improve the scrutiny not just of primary legislation but of the regulations and other instruments that follow from it. That includes recommending that broad powers should be backed up by proper justification in the delegated powers memorandum. When there are concerns, committees might look at adding reporting or review provisions to bills, so that we as a Parliament can keep track of how powers are being used.
When it comes to subordinate legislation, we know how frustrating it can be that we cannot amend it. That is a real concern, especially in relation to significant regulations that are made under framework powers. That is why we suggest that further work might be needed to explore whether some sort of “think again” power could help to address those concerns. We will flag that in our legacy report.
The committee is generally content with how Henry VIII powers have been drafted in Scottish Government bills, and we are satisfied that the parliamentary procedures around them are appropriate. However, it is all about getting the balance right between flexibility and accountability.
The Parliament has a duty to ensure that the laws that we pass are not only effective but transparent and democratically sound. The DPLR Committee’s work is just one part of that, but I hope that the report and today’s debate have helped to move us all a step forward in strengthening that process.
I would like, again, to thank everyone involved. It has been a pleasure to take part.
That concludes the debate on the inquiry into framework legislation and Henry VIII powers.
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