Interpretation and Legislative Reform (Scotland) Bill: Stage 1

– in the Scottish Parliament at 2:35 pm on 13 January 2010.

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Photo of Alex Fergusson Alex Fergusson None 2:35, 13 January 2010

The next item of business is a debate on motion S3M-5428, in the name of Bruce Crawford, on the Interpretation and Legislative Reform (Scotland) Bill.

Photo of Bruce Crawford Bruce Crawford Scottish National Party 3:06, 13 January 2010

I take this opportunity to thank the Subordinate Legislation Committee and the Standards, Procedures and Public Appointments Committee, and their officials, for the hard work and considerable thought that they have put into scrutinising the Interpretation and Legislative Reform (Scotland) Bill.

The stage 1 report provided a comprehensive review of the provisions in the bill. The Government welcomes and agrees with many of the comments and recommendations that were made by the Subordinate Legislation Committee. Inevitably, we have yet to find agreement with the committee on some matters that were raised in the report, although I am hopeful that that can be remedied.

The bill deals principally with interpretative and procedural matters, providing the fundamental legislative architecture that is required for a modern Scotland. The bill modernises, where appropriate, the Scottish interpretation code; it streamlines the scrutiny procedures for Scottish statutory instruments, replacing more obscure procedures with one of three standardised procedures; and it updates the provisions for the publication and preservation of SSIs. Broadly speaking, the approach that we have taken is to restate the content of the existing transitional orders on interpretation and special parliamentary procedures. However, after 10 years, we have rightly taken the opportunity, where appropriate, to modernise our interpretation code.

Part 1 contains provisions that will apply only to the interpretation of future acts of the Scottish Parliament. Existing acts of the Scottish Parliament and instruments will continue to be governed by the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc of Acts of the Scottish Parliament) Order 1999. Westminster legislation will continue to be interpreted in accordance with the Interpretation Act 1978.

I confirm that I agree with the committee's recommendation that it is important to put beyond doubt that acts of sederunt and acts of adjournal fall within the definition of "Scottish instrument". I shall, therefore, as the report recommends, lodge an amendment clarifying that acts of sederunt and acts of adjournal will fall within that definition.

Part 2 serves as an excellent example of the constructive relationship between the Government and the Parliament. The thrust of the policy for part 2 stems from the Government's support for recommendation 1 of the Subordinate Legislation Committee's report, which said that, subject to some improvements, the current arrangements and procedures for scrutinising SSIs should be retained.

The bill also provides for the minimum period between the laying of negative instruments and their coming into force to be extended from 21 to 28 days. However, the committee's stage 1 report has called for further consideration to be given to the merits of further extending that period to 40 days. The Government has already provided the committee with information on the potential difficulties arising from such a move, particularly the introduction of delay to the smooth passage of the Government's legislative programme. The previous Administration agreed with our position that an increase to 40 days would be inappropriate. In evidence to the Subordinate Legislation Committee in November 2006, the then Minister for Parliamentary Business said that such an increase

"would cause us considerable difficulties in keeping the show on the road" and would

"create gluts in the system".—[Official Report, Subordinate Legislation Committee, 21 November 2006; c 2131.]

She then proposed the compromise of increasing the time period to 28 days. A move to 40 days could prove problematic in respect of a couple of policy areas in particular. Obvious examples would be SSIs implementing European Union obligations or those that update the frameworks for eligibility to legal aid in consequence of Her Majesty's Treasury announcements on the retail prices index. I add that I have yet to see evidence that the current process is causing difficulties. If it is not, why would we want to fix something that is not broken?

The committee also recommends the inclusion in the bill of a maximum time within which the maker of an instrument could revoke it. I appreciate the committee's desire for clarity and certainty, but I reiterate that such a provision could cause practical difficulties. Much will depend on the circumstances of the instrument. It may not be possible to make appropriate arrangements within the given timeframe, especially if it is short.

In addition, I have considerable reservations about the proposition that, on the annulment of an instrument, its maker should make an order restoring the original position. As the committee recognises, that will not always be possible or desirable—for example, when EU obligations are being implemented, or when a body corporate has been dissolved. As the annulment of an instrument is a rare event that is more likely to be prompted by policy considerations than by technical drafting concerns, I suggest that political, as opposed to technical, solutions are appropriate.

However, on both those issues, I will give further careful consideration to the points that the committee made and will respond to them fully in the Government's response to its report.

The provisions in part 3, on the publication of acts and instruments, raise important issues about the accessibility, publication and preservation of Scottish legislation. I confirm that, as the committee suggests, the Government will lodge amendments that will oblige the keeper of the records of Scotland to preserve all SSIs and the Queen's printer for Scotland to provide a printed copy of every SSI to the National Library of Scotland.

The pre-consolidation modification power in part 4 is intended to simplify and speed up the consolidation process. We are of the opinion that the provisions in question would aid the maintenance of Scots law, but the Subordinate Legislation Committee and the Standards, Procedures and Public Appointments Committee still have concerns about them. I will consider those concerns further and will provide my views on them as part of the Government's formal response to the report.

Part 5 sets out the procedure for instruments that by virtue of their parent act are subject to the Scotland Act 1998 (Transitory and Transitional Provisions) (Orders subject to Special Parliamentary Procedure) Order 1999, which made transitional provision for such special procedure until an act of the Scottish Parliament could provide for it. The provisions in the bill replicate those in the transitional special parliamentary procedure order.

The Government notes that the committee has concerns regarding section 55, to which we are giving serious consideration. The issue at stake is technical and complicated. We will provide the committee with the results of our consideration before stage 2.

There are a few more points that I want to deal with at this stage. On the service of documents by electronic means, which is dealt with in section 26, I want to pick up on the concerns that have been expressed by certain sectors of the legal profession, including the Law Society of Scotland, which I know wrote to all MSPs yesterday on the matter. As I promised in oral evidence to the Subordinate Legislation Committee, the Government will lodge an amendment to clarify that prior written agreement of the parties concerned would be required before documents could be serviced through the use of electronic communications.

I again thank the members of both committees for their work on the bill, which has been a fine example of the Government, the Parliament and civic Scotland working together for the good of Scotland. There are some issues that I have not had time to deal with, but I hope that I will have time to address them in my closing remarks. I look forward to listening to the views and comments of members.

I move,

That the Parliament agrees to the general principles of the Interpretation and Legislative Reform (Scotland) Bill.

Photo of Jamie Stone Jamie Stone Liberal Democrat 3:14, 13 January 2010

As the convener of the Subordinate Legislation Committee, I am very pleased to take part in the debate. Ten years into devolution, the bill ties up the several loose ends that were bequeathed to us, inter alia, by the Scotland Act 1998. In the limited time that is available to me, I will comment on several aspects of the committee's report, to which I earnestly refer all members. I, too, thank past and present members of the Subordinate Legislation Committee, the Scottish Government and the minister for their co-operative approach, and all those who gave evidence to the committee either orally or in writing.

On part 1, on interpretation, the committee received representations from witnesses that schedule 1 did not include a range of words and expressions that are defined in section 127 of the Scotland Act 1998. The missing expressions include "reserved matters", "legislative competence" and even, believe it or not, "the Parliament". The committee accepted that what to include in schedule 1 is a matter of judgment, but we have asked the Scottish Government to review the list of words and phrases that are currently included in it with a view to extending the list by amendment at stage 2.

On part 2, we welcomed the provision in section 28 that will extend from 21 to 28 days the minimum period before an instrument that is subject to the negative procedure can come into force. The minister alluded to the fact that the committee also explored whether that period should be extended further to 40 days. In terms of scrutiny, we believe that extending the minimum period before a negative instrument can normally come into force will strengthen the Parliament's hand. To be fair, some members believed that an extension from 21 to 28 days was sufficient; others were in favour of an extension to 40 days; I am duty bound to say that there was no unanimity on that. However, we noted that the Scottish Government remains opposed to a further increase in the period and to extending the period in which a negative instrument can be annulled by the Parliament. We recognised that the Government has valid concerns about potential delays to the lawmaking process that a further extension would create, but we were not convinced by the worst-case scenario that the minister put forward, as it included the Parliament's summer recess. I expect that we will return to the matter at stage 2—the minister confirmed that we would. I look forward to that.

Also on the negative procedure, we considered that it is desirable to have a high degree of certainty about what should happen following a resolution of the Parliament for the annulment of a negative instrument, and concluded that section 28 is currently lacking in that respect. We believe that an appropriate maximum time within which the Scottish Government must revoke an instrument should be included in the bill.

Part 4 is on pre-consolidation modifications of enactments. We had a concern. The provisions in part 4 will give the Scottish ministers an order-making power to enable them to make amendments to legislation prior to its being consolidated or codified. We fully support the objective of maintaining and modernising Scots law in order to ensure that it is up to date, accessible and as user friendly as possible; indeed, we have said many times that we want to encourage consolidation of the law. However, we concluded that the proposed order-making power is extremely wide, if not too wide. As an alternative, we were attracted by a suggestion from the Scottish Law Commission that a consolidation procedure should be available to incorporate amendments proposed by the commission that are considered necessary for or that would facilitate proper consolidation of the existing law. It would make clear that such amendments could be subject to expedited procedure but would require matters of policy to be the subject of primary legislation rather than affirmative order. That is also our position on a restatement of the common law or codification.

On balance, therefore, we have recommended that part 4 should be amended to remove the power for the Scottish ministers to make pre-consolidation modifications of enactments by order. As an alternative, we recommend that the Scottish Government explore an enhanced role for the Scottish Law Commission.

I have touched on several issues in the time that is available to me. I expect my committee colleagues to discuss other aspects of our report.

I pay tribute again to the inclusive attitude that the minister and his colleagues in the Scottish Government have shown to us. The bill is an example of how, through working in the interests of good governance in the Parliament and the Government, there can be a meeting of minds. We set out our thoughts in our report and we look forward to engaging again with the Scottish Government at stage 2.

I look forward with great interest to what other members will say. We give a cautious welcome to the bill but, as I have said, we consider that additional work requires to be done to ensure that it is fit for purpose for the years to come.

Photo of Paul Martin Paul Martin Labour 3:19, 13 January 2010

Since May 2007, I have made a number of front-bench speeches on justice issues on behalf of the Labour Party. I would not call this an exciting comeback to the front benches, but it is important to recognise, as members do, that the bill is fiercely technical. To be serious, it is extremely important. Its proposals have been debated over many years—those debates are available for scrutiny in the Official Report .

As a member of the Justice Committee, I remember being concerned about the volume of SSIs, in particular, that were debated at the committee—there always seemed to be concerns about the lack of full and proper scrutiny. I also felt that a large number of SSIs were considered prior to the recess. Today's debate affords us an opportunity to make progress in a practical sense.

However, it is important for us to recognise that the Subordinate Legislation Committee has highlighted a number of important issues. As the minister said, we have regulated those matters under the three transitional orders that were made under the Scotland Act 1998. The minister was right when he told the committee on 3 November that, 10 years on, it is the right time for us to move on.

I note that the Crown will now be bound by the terms of an act of the Scottish Parliament or instruments under such acts, unless it is expressly exempted. I suppose that that move is considered to be part of the modernising agenda. However, it is important to highlight the concerns that have been expressed by the judiciary, advocates and the Scottish Law Commission. On behalf of the Labour Party, I share the Subordinate Legislation Committee's concerns about some of the challenges that may be faced in connection with the future drafting of acts of the Scottish Parliament and Scottish statutory instruments. A constructive tone from the minister would be welcome, to ensure that further consideration is given to those concerns and to provide reassurances on how they can be addressed.

As the minister indicated, in paragraph 157 of its report the committee welcomed section 28, which will extend from 21 to 28 days the minimum period before an instrument that is subject to the negative procedure can come into force. That move is to be welcomed, but I understand the concerns that the committee expressed on the issue. Although the committee recognised the validity of the minister's concern that extending the period further could lead to delays in the lawmaking process, it made the point that he was painting a worst-case scenario that included the summer recess. It is not unprecedented for politicians in the chamber to paint the worst-case scenario. I do not necessarily criticise the minister for doing so, but it would be welcome for objective consideration to be given to other scenarios. Perhaps the Scottish Parliament information centre could provide that information. Jamie Stone made the point that the hand of the Parliament should be much stronger and that members should be afforded more opportunity to scrutinise instruments.

In the limited time available, I have been able to highlight only a couple of issues. However, I have been afforded the fortunate position of being allocated the closing slot in today's debate, so I will have an opportunity to raise other issues on behalf of the Labour Party, which will be helpful.

Photo of Jackson Carlaw Jackson Carlaw Conservative 3:23, 13 January 2010

There are watches to be won in the Parliament, which are to be found in the nuggets that are the appointments in the gift of our political leaders. They manifest themselves in many ways, and none more so than in the committees on which we find ourselves asked to serve. Surely there can be no greater honour than to spend the lifetime of this Parliament in the service of the Subordinate Legislation Committee; Jamie Stone and Ian McKee stand alongside me as witnesses to that fact. So great is the competition to contribute—such is the elbow jostling for the honour—that our Labour colleagues tend to be able to spend but a few months each amid our number.

Week after week, month after month, we toil. Just when the excitement has become all too unbearable, we find that we have been asked to lead the examination of a bill all by ourselves. Given its racy title—the Interpretation and Legislative Reform (Scotland) Bill—who could contain their pride or excitement? Which of us speaking today has not suddenly found themselves an expert on the subject matter in hand, at least in the minds of their colleagues? How the clerks must laugh.

Scottish Conservatives welcome the bill and will support it at stage 1. I welcome the minister's opening speech. There are detailed issues that arise. It is right for me to say at the outset that, even when the subject matter may be characterised as being as dry as dust, important principles are often at stake. As unlikely as it seems, well-intentioned legislation that is sometimes characterised as being sensible housekeeping can conceal ambitions beyond those that have been generally supposed.

Certainly, the committee had an exceptional series of evidence-taking sessions. Rarely have both the answers to the questions and the questions themselves not always been understood both by those to whom the questions were addressed and by those doing the asking.

For those of us who have enjoyed Hilary Mantel's Booker prize-winning novel, "Wolf Hall"—a magnificent account of the relationship between Henry VIII and Thomas Cromwell—it was a surprise to find so many references back to King Henry as we contemplated the bill. Colleagues from across the chamber will take their own positions on this, but I mention the former monarch of England only because section 20 seeks to redefine the status in law of the present monarch of the United Kingdom in a way that will be different for laws made in this Parliament compared with laws made at Westminster. Although I do not support that provision, I understand the curiously primitive need of some to strain every sinew to diminish the residual role and position of the Crown. However, ministers are also invariably keen to quote the experts, who in this case were surprisingly unequivocal. The Scottish Law Commission, the judges of the Court of Session and the Faculty of Advocates all believe that the proposals might well lead to considerable confusion in law. That was acknowledged even by those who welcome the proposal. I welcome Paul Martin's comments in that regard.

It seems to me that now is not the moment to beat the breast in some great quest for egalitarianism or for ministers to pander to their desire to be able to claim some great advance for democracy; pragmatism must have its place. There seems to me to be no case for creating unnecessary confusion, which will be the practical implication of the proposed change in the status of the monarchy. Therefore, we urge the minister to resist those baser instincts and to leave well alone.

In his evidence, the minister fell back on the defence that the sovereign had not yet found the time to phone him up from Balmoral to complain. In practice, I suspect that the sovereign has probably not found the time to phone him up about anything from anywhere, but what a way to contemplate celebrating Her Majesty's forthcoming diamond jubilee. Are we to inform her of the Scottish National Party's intention—to paraphrase Rodgers and Hammerstein—to "Cut you off at the knees, Your Majesty"? We will lodge amendments at stage 2, on which we hope to enjoy the support of practical-minded unionists and others from across the political parties.

The Subordinate Legislation Committee report details what came to be the most likely area of disagreement. Indeed, on any other day the outcome of the committee's discussion might have been different. I refer to section 28, which will extend the minimum period before an instrument that is subject to the negative procedure can come into force from 21 to 28 days. I, too, have the honour of summing up for my party and I will detail the Conservatives' position on that when I do so.

In conclusion, we will support the bill at stage 1. We look forward to the rest of today's debate and to stage 2.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat 3:27, 13 January 2010

I enjoyed Jackson Carlaw's four minutes in the sun, but the bill is, as has been pointed out, a largely overdue and very technical measure that is designed to update and reform the legislative process for statutory instruments. As such, the bill is largely uncontroversial, so the minister will not be surprised to hear that the Liberal Democrats, too, will support the Government in tonight's vote on the general principles of the bill.

However—there is always a "however"—as today's debate comes just one week after the highly controversial stage 1 debate on the Public Services Reform (Scotland) Bill, through which ministers seem to be determined to take to themselves more powers from our Parliament, the Liberal Democrats approach the Interpretation and Legislative Reform (Scotland) Bill with justified scepticism about part 4, which is entitled "Pre-consolidation modifications of enactments". That title might seem innocuous enough—although what a description in a title—but the Liberal Democrats are grateful to the Subordinate Legislation Committee for bringing Parliament's attention to what the Government seeks to do under part 4. For consolidation bills, the Government intends not only to ingather powers that have already been granted by Parliament but to go further than simply restating the law in a more consolidated fashion. Oh, yes. Scottish ministers wish the power to alter the law.

I understand that, as an example of what he wants the power for, Bruce Crawford told the committee that he wants to be able to change the penalties for offences that have already been outlined in existing acts of Parliament and which have been decided by MSPs. In the Liberal Democrats' view, such a power is not only unnecessary but is exactly the sort of thing that should be opposed. Too often, ministers come to Parliament seeking to curtail the powers of Parliament, but twice in two weeks in two bills is too much.

I am not at all keen to see powers being taken from Parliament and handed over to the Government at any time. I warned against that during the Parliament's first two sessions, and I now hear those who were then in opposition and who are now—some might say temporarily—in government, arguing the opposite.

I do not always trust Governments to handle such issues in an entirely unpartisan way. If the minister truly believes that the powers are necessary and would be used in an unpartisan way, he can have no objection to—for instance—giving the role of recommending changes to the law in such circumstances to the Scottish Law Commission, thereby taking the power of initiating the changes out of ministers' hands. There is no question but that part 4 should therefore be amended at stage 2; it would be bad legislation.

I will move on to one other issue of importance in the bill, which is in part 3, entitled "Publication of Acts and Instruments". I am aware of the importance of our national written records. The national libraries of the four UK nations keep copies of our acts of Parliament and statutory instruments, and should continue to do so. I am aware, however, that there are no national standards for holding digital records, so I was pleased to hear from the minister this afternoon that he will amend the bill to ensure that our written records are properly kept. He has recognised that, at least.

We in the Liberal Democrats will support the bill at stage 1, but our support should not be taken for granted. I have outlined our concerns about part 4, which we believe is anti-parliamentarian. We trust that the minister will lodge amendments at stage 2 to address those concerns and, thereby, much improve the bill.

Photo of Ian McKee Ian McKee Scottish National Party 3:31, 13 January 2010

As a proud member of the Subordinate Legislation Committee, I join other members in thanking the clerks and the legal team for their skilled input to scrutiny of the important bill that is before us today. I also thank the bill team for their efforts.

As we have heard, since the inception of the current Parliament, the publication, interpretation and operation of our acts and the making and publication of subordinate legislation and procedure around orders that are subject to special parliamentary procedures have been regulated by transitional orders that are made by the UK Government under the Scotland Act 1998. Although that system has served us well, 10 years is long enough for us to decide here in Edinburgh how we wish to regulate our procedures, so the legislation is timely.

A speech of four minutes in a debate that is to last for only an hour will obviously not cover many aspects of the bill, so I will limit myself to discussing only a few. I turn to the section entitled "Instruments subject to the negative procedure", which has been the subject of vigorous debate. The debate is often characterised as being between Government and Parliament, with the Government wanting to advance its legislation with minimum delay while Parliament, on the other hand, desires to subject legislation to detailed scrutiny for as long as possible. Unless the Opposition secretly feels that it will remain in opposition for a long time indeed—some remarks today have betrayed that fear—that aspect is not a party political matter.

Photo of Ian McKee Ian McKee Scottish National Party

I would normally take an intervention, but I have only four minutes.

Any advantage that an Opposition might achieve by altering legislation to slow down the passage of legislation excessively would come back to bite it if and when it was to form a future Government. The public interest is not served if legislation is not subject to appropriate scrutiny, but nor is it served if that scrutiny is so inordinately long that valuable legislation is inappropriately delayed. A balance must be struck.

What must exercise us is how long the period should be before a non-emergency instrument that is subject to negative procedure can come into force. As Bruce Crawford told us earlier, the former Minister for Parliamentary Business, Margaret Curran, told the predecessor Subordinate Legislation Committee in November 2006 that she was happy for the period to be extended from 21 to 28 days, but that proposals to extend it to 48 days

"would create a real difficulty."—[Official Report, Subordinate Legislation Committee, 21 November 2006; c 2131.]

Bruce Crawford, on behalf of the present Government, took exactly the same message to the Subordinate Legislation Committee in November 2009, three years after Margaret Curran did so. He explained that an instrument that was laid on 29 May would not have been able to come into force until 11 September if the 40-day rule was in effect. I appreciate that that is the worst possible scenario, but worst possible scenarios occur from time to time and we have to plan for them. Mr Crawford's opinion that a delay of that magnitude is undesirable is not unreasonable.

In its 12th report of 2008, the Subordinate Legislation Committee unanimously agreed

"that to require even the most routine instruments to be laid for 40 days is probably unworkable."

We went on to recommend an extension to 28 days, but there are still siren voices urging an extension to 40 days.

For my part, I am persuaded by the argument of Margaret Curran and Bruce Crawford and share the view of the other authors of the report—Jamie Stone, Richard Baker, Jackson Carlaw, Helen Eadie, John Park and Gil Paterson—that 28 days is the appropriate period to elapse before a laid instrument that is subject to the negative procedure comes into force, and that a period of 40 days would not only be unnecessarily long but would risk inhibiting the democratic process.

I have another 10 interesting points to make, Presiding Officer, but in view of the time constraints that we face, I will have to leave them for another occasion.

Photo of Helen Eadie Helen Eadie Labour 3:35, 13 January 2010

Given what Jackson Carlaw said, I point him to the fact that I am probably one of the longest serving members of the Subordinate Legislation Committee, at least from the Labour Party and perhaps even among members of other parties. However, I enjoyed his speech immensely, as ever.

I agree with some of the points that Jamie Stone made, particularly those about the way in which the Minister for Parliamentary Business handled the committee's approach. He has been helpful and constructive. I say in a non-partisan way that we welcome the constructive attitude that he has taken to the matter.

In considering the Interpretation and Legislative Reform (Scotland) Bill, we must be mindful of the fact that there were only 17 respondents to the consultation. However, they included academics, legal practitioners and representatives from the Scottish Parliament, the Scottish Law Commission and the Scottish Government. I do not mention the number of responses in order in any way to diminish the importance of the matter; in fact, the bill is highly important, and I sometimes think that we have not given it the space that it should have had. It is a great pity that we do not have time today to do justice to the many provisions that it contains.

I want to focus on a matter that has been discussed by other members—whether to move to a period of 40 days or 28 days for instruments that are subject to negative procedure. In that regard, I point members to the particularly important evidence that was given by Iain Jamieson. We should all bear in mind his important point that, although a 28-day period will help the subject committees, the whole point of everything that we do is for the procedures to be helpful to the Parliament as a whole. In this case, they should enable the Parliament to consider whether to annul an instrument before it comes into force. I believe—I know that other members support the view—that the example that the minister chose to illustrate his point represents the worst-case scenario because it includes the Parliament's summer recess. The committee considers that if the relevant period were to be extended, the Government could adapt its internal procedures for the making and laying of instruments in order to avoid such a situation occurring in practice.

There is clearly a strong case for extending the period to 40 days—we should do it if we truly believe in scrutiny. As a member of the Parliament for some 10 years, I can probably count on the fingers of both hands the number of times when we have annulled an instrument. I could be wrong about that, but it has not happened often. It is not something to get too worked up about, but it is a fundamental point of principle that we should enable the Parliament—not just the committees—to have a voice in the process. That is the essence of the evidence that we considered.

It is a great pity that we do not have time to concentrate on a variety of other topics. I agree with the points that Mike Rumbles made on consolidation. We received evidence on that, particularly from the Scottish Law Commission, whose view is that consolidation should not be used to promote policy alterations to legislation. I support the view that any consolidation should be based on recommendations by the Scottish Law Commission. In responding for the Scottish Government, Mr Crawford said that he did not believe that it would be acceptable to leave the changes to the commission, but I believe that there is a way round that.

The Parliament should support the view that Mr Layden expressed in evidence, which is that a consolidation committee should be given the Scottish Law Commission's proposals. There would then be a process between the Scottish Law Commission, that committee and the Parliament, as there was in 2003, and the committee would work out its views. Mr Layden spoke as a draftsman of the previous consolidation bill. He found that process to be perfectly acceptable, as I do. The committee that oversaw the consolidation was very careful in respect of what it accepted as being necessary, because it was conscious that anything more would have to be debated by the Parliament. As that was not going to happen, it took a more restrictive approach. As a result, I am very glad that the Subordinate Legislation Committee has agreed that the Scottish Government should explore the possibility of giving the Scottish Law Commission an enhanced role, or consider what further provision might be necessary to give effect to the committee's recommendations on consolidation.

Photo of Bob Doris Bob Doris Scottish National Party 3:40, 13 January 2010

I am grateful for the opportunity to speak in this debate. As a member of the Subordinate Legislation Committee during stage 1 and the publication of the stage 1 report, I must pay tribute to my fellow committee members, the committee clerks, the legal team and the Scottish Government bill team for their hard work and co-operation. I have to say that I found the task to be rather dry, unglamorous and challenging, so I must apologise to members on the committee who have been secretly enthralled by the process and those on the legal team who cannot get enough of this bill. To be honest, it is not really for me.

However, dry though the whole matter might have been, the bill is still very important. In a small yet significant way it represents a spreading of the Scottish Parliament's wings away from the three transitional orders that empowered it to make and interpret acts of the Scottish Parliament. As those transitional orders were based on the UK Interpretation Act 1978, it is only right that, after 10 years of devolution, we review the situation and introduce new legislation.

As members have already pointed out, in its stage 1 report the committee could not reach a clear consensus on a number of aspects. One of the key elements of part 2, which seeks to implement the recommendations of the 2007 inquiry into the regulatory framework in Scotland, is the increase from 21 to 28 days in the period after which a negative instrument should come into force. I welcome the Scottish Government's acceptance of that recommendation; however, at committee, some members decided that we should go further than 28 days. Indeed, as we have heard, 40 days was suggested. Like other members, I was somewhat surprised by the proposal, given that the recommendation to increase the period to 28 days had been made in 2007.

I believe that a 40-day period would completely knock out of kilter the delicate balancing act between the Scottish Government's need to act with purpose and effectiveness and the need for strong parliamentary scrutiny. As Margaret Curran said, it would make it difficult to keep

"the show on the road"—[Official Report, Subordinate Legislation Committee, 21 November 2006; c 2131.]

in ensuring effective use of subordinate legislation. Given that there appears to be no real evidence of the benefits of a move to 40 days, I suggest to Parliament that a 28-day period strikes the right balance.

Neither was there consensus in the committee about the period within which a negative instrument can be annulled. When, in response to a wish that was expressed by certain members to extend the period from 40 to 50 days, ministers outlined the kind of parliamentary timetabling problems that such a move might throw up, the same members said that the Government was deliberately picking worst-case scenarios. However, it was that very line of argument from some Opposition members that made me move towards the Government position. Put simply, I would expect any Government of whatever party to take account of worst-case scenarios and to take steps to avoid such situations. For that reason, I am minded to back the Government's current position, although I want to hear what members have to say as we go through the rest of the parliamentary process.

I have also been led to believe that under the previous Executive as well as under this Government, the spread of subordinate legislation has been rather uneven, with a glut of activity after recesses resulting in a pile of SSIs being sent to the Subordinate Legislation Committee. I do not accept that the previous Executive was, or that this Government is, incapable of improving the timetabling of subordinate legislation to avoid such surges of activity, particularly after the summer recess; indeed, the Subordinate Legislation Committee in the second session highlighted the same problem. A move to 50 days would only make matters worse.

Although I have drawn attention to differences within the committee, I have to say that members largely united around the bill's general principles. I will give it a fair wind this afternoon, and hope that Parliament will come together to support it.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat 3:44, 13 January 2010

I have a couple of points to make. My SNP friend, Dr Ian McKee, strangely and all too predictably makes the assumption that the current Government will be in power for some time. A lot us are doing our utmost to ensure that that does not happen next year. He said that those who criticise the shift of power from Parliament to Government, like me, must think that they will always be in opposition, but I made the very opposite point. I am amazed by the short-sightedness of some MSPs. Governments come and go; that is the point. We should safeguard the proper role of Parliament—not circumvent it.

I hope that, as the responsible minister, Bruce Crawford, will recognise that when he or his ministerial colleagues are in the process of consolidating legislation, it is not and should not be up to him or them to alter the major policy in that legislation without proper parliamentary scrutiny. It is not good enough just to bring an order to Parliament and say, "Take it or leave it". That is completely wrong. It was wrong for the bill that we discussed last week, and it is wrong for the bill that we are discussing today. This Government seems to be going through a trend of wanting to consolidate more power for itself and taking it away from Parliament. That is wrong in principle. We should not be doing it. It is the role of back benchers of any and all parties, including independents, to focus on that and to say that the Government is going too far in one direction.

I hope that members take on board what I have said and that, as the responsible minister, Bruce Crawford will take it on board, have another think and lodge amendments at stage 2 to put the bill right and improve it, because it is a good bill.

Photo of Jackson Carlaw Jackson Carlaw Conservative 3:46, 13 January 2010

This has been a short but fairly technical debate. I correct the omission from my earlier speech in overlooking Helen Eadie's contribution to the Subordinate Legislation Committee throughout the current session of Parliament.

It is clear that a considerable amount of work remains to be completed before we understand the final scope and shape of the bill. I congratulate Jamie Stone on his opening speech on behalf of the committee, and endorse his appreciation of the Government's constructive attitude throughout.

In my earlier remarks, I dealt with the Crown's position. As anticipated, others have referred to section 28 of the bill, and some members favour an increase from 21 days to 40 days, rather than 28 days. Scottish Conservatives have a unique perspective on that point. Of Scotland's four major political parties, only we have yet to take charge of the devolved Government of Scotland. In passing, I accept that that is a rather generous tribute to the influence of the Liberal Democrats in the previous parliamentary sessions, but so be it. I wish to reassure members that it can be only a matter of time before the happy day when Scottish Conservatives lead Scotland's Government again. Some may say that it will take a long time, but I am confident that I shall be here to see it.

Nonetheless, the point is that since the suggestion first emerged in the legacy report of the previous session's Subordinate Legislation Committee—how my friend Murray Tosh used to salivate over procedural complexities—the position of the parties that have been in government has flip-flopped and about-turned sharply, depending on whether they were in or out of office. That is not to denigrate the sincerely-held convictions of some members. Although I sympathise with the sentiment that recommendations should at all times favour the power of Parliament, I am struck that that argument could equally be deployed in support of a suggestion to increase the time not from 21 to 28 or 40 days, but to 50, 60 or even 90 days. It seems to me that we should establish what a fair test is.

I accept that Government has to be challenged, but equally, Government has to be able to progress legislation. Although ministers might construct an overly lurid case example of the delays that might arise if the 40-day suggestion is agreed to, they have a legitimate point. It is the same point that the parties of the previous Administration made when they were in office. For that reason, Scottish Conservatives will support the Government's proposal to settle on 28 days.

Throughout the bill, there are other occasions on which the Government might be thought to be taking upon itself not so much proposals that modernise or tidy up procedure, but that potentially extend the Government's powers. That is not an unexpected crime, but surely it should generally be resisted. No doubt those proposals will be further interrogated at stage 2.

Two issues of clarification arise on the position of the Crown and the compatibility of change with respect to legislation arising in Westminster or Brussels. An unlikely, but in the event, quietly important discussion also elevated the issue of the Office of the Queen's Printer for Scotland beyond a level that an initial reading of the bill might have suggested would be likely.

Dry the bill might be, but after enactment its provisions will, if appropriately amended, modestly improve the Parliament's legislative arrangements. I, too, pay tribute to my colleagues on the committee and to the clerks, who have worked tirelessly. As I said, we will support the Government at decision time, but we serve notice that work remains to be done.

Photo of Paul Martin Paul Martin Labour 3:50, 13 January 2010

I have never been a member of the Subordinate Legislation Committee—

Photo of Paul Martin Paul Martin Labour

Yes, there might be time. Punishment sometimes comes late.

I have taken time to peruse the stage 1 report. I pay tribute to the committee's hard work, particularly that of Helen Eadie, who is a long-serving member. It should be recognised that the committee is not afforded the headline-grabbing opportunities that other committees have but, as we have said on many occasions, its work is crucial to the workings of Parliament. I commend the committee for its work.

I will touch on a couple of issues that have been raised during the debate and during the committee's consideration of the bill at stage 1. Part 3 raises important issues about accessibility, publication and the preservation of acts of the Scottish Parliament and Scottish statutory instruments. In relation to publication and accessibility, the committee acknowledges that legislation is now most readily accessed online and accepts that print copies should no longer be the primary means of making available Scottish legislation. I note that we have made progress. The Scottish Government has given a commitment to make clear the requirement to publish all SSIs online. That must be welcomed, but I agree with the committee that the

"provisions of the Bill as introduced appear to fall short in terms of preservation of Scottish legislation."

The minister commented on that earlier, which is to be welcomed, but further consideration of the provisions is required.

I make those comments as someone who fully supports the digital revolution. I practise what I preach, as I run a paperless constituency office. However, the argument is not about the modernising agenda, but about how we preserve digital material. There is great merit in the committee's point that

"in the absence of an internationally agreed standard for preservation of digital material, there should be a statutory duty on the face of this Bill for the Queen's Printer for Scotland to deposit printed copies of all ASPs ... with the National Library".

I welcome the commitment from the minister to make progress on that. We should pay particular attention to the details and give careful consideration to preservation of digital material for future generations.

In evidence to the committee, issues were raised relating to the implementation of Scottish Law Commission reports. In particular, I refer to the powerful evidence from Mr Iain Jamieson, particularly his reference to a statement from the chairman of the Scottish Law Commission, who said that there is a

"danger ... that Scots law will fall behind the rest of the world's legal systems in responding to the challenges of an era marked by rapid technological and economic change."

We should take such concerns seriously and consider how to make progress.

Given the significant public resource that is invested in the preparation of Scottish Law Commission reports, we believe that it is imperative that a logical approach be taken to ensure that the Government considers them properly. As the committee said, there seems to be merit in the system that has been adopted at Westminster when Law Commission reports are considered.

A wide range of comments have been made. As Bob Doris said, the debate is not the most addictive viewing for people in the public gallery or for our constituents in Glasgow. However, the technical nature of the bill requires us to consider the issues seriously. I hope that in the minister's closing remarks he will continue the constructive tone that has been set so far and refer to some of the issues that have been raised. I look forward to supporting the bill at stage 1, with the proviso that at stage 2 we will have to consider carefully the issues that have been raised.

Photo of Trish Godman Trish Godman Labour

As there appears to be a bit of competition about who has been on the Subordinate Legislation Committee the longest, I will throw in my tuppenceworth. I was on the committee for four years in the first session of Parliament. I still do not know why I was on it, and I left not knowing very much about it, so I appreciate this debate.

Photo of Bruce Crawford Bruce Crawford Scottish National Party 3:55, 13 January 2010

I am glad that someone so experienced in this matter is in the chair for this debate.

In case I do not get the chance later, I genuinely thank all members in the chamber for their constructive remarks on the bill. I will try to cover as much ground and rattle through as many of the arguments as I can. First, however, I am more than happy to take an intervention from the former Minister for Parliamentary Business, who has been referred to a number of times this afternoon.

Photo of Margaret Curran Margaret Curran Labour

I thank the minister very much for taking an intervention—I do not intend to hold him back too much. I cannot pretend that I jumped for joy when Paul Martin told me that I was going to be a member of the Subordinate Legislation Committee, but I am even more surprised that I have been a star turn in this debate without having said a word, which is quite an achievement for me.

I want to refer briefly to what other members have said, because there is a serious point to make, which Mike Rumbles referred to, about the perspective shifting depending on whether members are in government or opposition. Irrespective of who is in government or opposition, the Parliament has to have consistency. We must give that central point great consideration.

I made many appearances when I was a minister and, given my past, I did not expect my time as the Minister for Parliamentary Business to be the controversial one. It is important that the Subordinate Legislation Committee looks at the serious representations that we have heard from members who have been back benchers and who are on committees, particularly Mike Rumbles and Helen Eadie, who have said that we need to make a change. I say, from a ministerial perspective and given the comments that I have made in the past, that their arguments are substantial and not to be dismissed.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

I appreciate and understand the points that Margaret Curran makes, but I refer also to what Jackson Carlaw said in his speech: it is strange how people flip flop from one side to the other, depending which side of the fence they are on. I am not saying that Margaret Curran was doing that with regard to the issues around part 4 of the bill, to which I know that she was referring.

I will refer in particular to the 28 or 40-day period. We heard from Jamie Stone and Helen Eadie, among others, that they continue to discuss the potential for moving the minimum time before a negative instrument can come into force from 28 to 40 days after it has been laid and that there should be specific provisions for reversing the effect of negative instruments following annulment. The Government remains opposed to both those proposals, but I hope that further discussion during the passage of the bill will serve to deliver an effective outcome. On both counts, I believe that there are persuasive arguments that the current system works well and that we would be ill advised to make changes that would certainly limit existing flexibility and may well have a negative impact. Even after much deliberation today, the perceived practical difficulties that it was feared might arise have not been identified. Indeed, Helen Eadie said that there have not been many annulments of negative instruments.

This Government, like the previous coalition, believes that for the bill to provide that all negative SSIs cannot come into force for a full 40 days after they are laid is unwieldy, disproportionate and impractical. I heard it said that I described the worst-case scenario. If I remember correctly, it was the scenario painted by the previous coalition. However, I will try to provide a fuller menu of issues that provide a better picture in that regard. In my opening speech, I talked about another two areas in which I thought the issue was important: EU regulations and legal aid changes, which would have an impact. I will work with the committee to try to find a solution that will be acceptable to all.

I turn to the points made by Jamie Stone and Mike Rumbles about the pre-consolidation modification of enactments. A number of members called for the removal of part 4, which provides for the pre-consolidation modification of enactments and the introduction of provisions similar to those in the Law Commission Act 2009. I think that Margaret Curran was alluding to that in particular when she referred to Mike Rumbles. Although the Government agrees with the committee's comments on the role of the Scottish Law Commission in the consolidation of legislation, we are still of the opinion that the proposed power to make pre-consolidation amendments in part 4 would aid the maintenance and modernisation of Scots law. However, I will consider that recommendation further and provide the committee with my views prior to stage 2. I hope that my approach shows that I am trying to look for compromise and to find a good way forward. That is why I will consider further the recommendation that similar provisions to those in the 2009 act be included in the bill.

As for the application of legislation to the Crown, in response to our consultation and to the Subordinate Legislation Committee and the Standards, Procedures and Public Appointments Committee, the judiciary, the Law Society of Scotland, the Scottish Law Commission and the Faculty of Advocates all expressed the concerns that Jackson Carlaw outlined about the Crown's position being reversed and suggested that the Crown's position should remain untouched. However, the majority of consultees agreed that the Crown should be in the same position as the public, unless specifically exempted from being bound by legislation, so we are reflecting the consensus of responses in the consultation process.

One small point that I did not have the chance to mention in my opening speech is that I will lodge a stage 2 amendment on exempting local instruments. People who have read the report will understand what that means.

I thank all members for acknowledging the Government's approach—I certainly acknowledge the approach that the Subordinate Legislation Committee has taken. I will always try to find a way to reach agreement, if agreement can be achieved. However, with the proposed change from 28 to 40 days, we are in danger of having change for change's sake and of fixing something that ain't broke, so I will continue to resist that. I hope that members understand that I have already proposed several amendments in response to the Subordinate Legislation Committee's report.

Finally, I say to Mike Rumbles that if he is doing his utmost to ensure that the Government is in a position of responsibility for as little time as possible, I encourage him to try even harder, because I guess that that approach will ensure that we are in government for even longer.