LEG(2) 13-06

LEGISLATION COMMITTEE
Date:   2 May 2006
Time:   9.30 to 10.30
Venue:   Committee room 1, Senedd, Cardiff Bay
Title:   Subordinate Legislation Committee. Inquiry into the Regulatory Framework in Scotland (Consultation Paper)

Subordinate Legislation Committee

Inquiry into the Regulatory Framework in Scotland

 

Consultation Paper

1. Nature of supervision by the ParliamentProcedure1.1 At present, the Subordinate Legislation Committee supervises both the legality of the instrument (Scottish Statutory Instruments - SSIs) and the way in which it has been drafted, in order to ensure that the delegated power is being exercised properly and within the limits authorised by the Parliament. The subject or lead Committee examines the policy matter of the instrument. 1.2 The subject Committee for any instrument is the Committee which is designated as covering the policy matter of the instrument and this Committee is responsible for reaching a recommendation on an instrument. The SLC reports to this Committee its findings in relation to the technical aspects or problems with an instrument. 1.3 The parent Act may subject a SSI to a certain form of parliamentary control. This control falls into two main types: affirmative and negative.Affirmative procedure means that an instrument/draft instrument must be approved by the full Parliament, following consideration by both the SLC and the subject Committee.Negative procedure usually means that the instrument can be made and come into force but can be annulled by a resolution of the Parliament. Negative instruments are considered by the SLC and the subject Committee. Any member may lodge a motion to annul an instrument and the motion is debated by the subject Committee.1.4. Whether an SSI is subject to affirmative or negative procedure depends upon what is stated in the parent Act and does not necessarily depend upon the importance of the subject matter, although account should have been taken of its importance when the bill which became the parent Act was being considered.Comments are invited on—The current negative and affirmative procedures and whether they should continue to exist for the Parliamentary consideration of subordinate legislation.The role of the subordinate legislation Committee and the subject Committees in examining subordinate legislation.Whether the procedure chosen should rely on the parent Act or whether the Parliament should consider a procedure which allows the significance of the instrument to dictate the procedure adopted.Amendment1.5 At present the Parliament cannot make or propose an amendment to an instrument or a draft instrument. The Parliament’s subject Committees and, in the case of affirmative instruments, the full Chamber of the Parliament, has to decide whether to approve an instrument or find no fault with it in its entirety or recommend that it is not approved or nothing further is done under it.1.6 There does not seem to be a reason in principle for the Parliament, as the body delegating the legislative power, not to be able to amend an instrument. It could be argued, however, that giving the Parliament this kind of power would be inconsistent with the purpose for which it had originally granted the power to the Executive or another body to make such legislation.1.7 There may be problems if the Parliament was given the power to amend an instrument directly. This would make the Parliament, to some extent, responsible for making the instrument and this may be argued to run counter to the assumption, made in the Scotland Act 1998, that subordinate legislation would be made by the Scottish Ministers or by bodies responsible to the Parliament and not by the Parliament itself.1.8 However, the Committee wishes to consider the options to recommend that an instrument is amended by the Executive, rather than, as at present, the Parliament voting simply on whether an instrument should be approved or not. Comments are invited on—Whether the Scottish Parliament should be given powers to amend instruments or drafts, or to recommend such amendments; andWhether the Scottish Parliament should be given the power to recommend certain changes being made to an instrument, before the instrument will achieve Parliamentary approval. 2. Consultation2.1 There is currently no general provision for the Parliament to be consulted on a draft of an instrument before it is made or laid before Parliament for approval. In particular cases, there may be provision made in the parent Act for consultation and the SLC has examined this matter in a number of its bill considerations. However, even in cases where there is a consultation requirement for the subordinate legislation, it is not usually provided that the Parliament should be consulted.2.2 The SLC has made recommendations in relation to a number of bills that a type of "super-affirmative" procedure should be adopted in cases where the Parliament may wish to be consulted on an area of particular significance. This procedure involves a draft instrument, or a proposal for a draft, being laid before Parliament and the Parliament being given the opportunity to comment on the proposal before the instrument begins its Parliamentary process. There is also a requirement that Ministers, when formally bringing forward the draft should make a statement on how the Parliament’s comments have been reflected in the instrument. This was recently adopted at section 8 of the FE and HE Bill during its stage 3 consideration.Comments are invited on—Imposing a general requirement to consult the Parliament on draft instruments. The use of "super-affirmative" procedure and examples of where it could be used effectively. 3. Definition of SSIs3.1 Existing procedures only apply to certain types of delegated legislation which are Scottish Statutory Instruments (SSIs). These are mainly powers which are authorised by the parent Act to be exercisable by a statutory instrument and are exercised by the Scottish Ministers and other Scottish bodies. In practice, this tends to cover rules, regulations and orders as they are regarded as being of "legislative character". 3.2 However, there are other kinds of instruments made under delegated powers which are not subject to any procedures at all, such as directions, schemes, codes of conduct, guidelines etc. Some of these can be regarded as being instruments of a legislative character and the Parliament is frequently not given the opportunity to subject them to any form of supervision.Comments are invited on—Whether all instruments of a legislative character, for example, guidelines and codes of conduct, should require to be SSIs. 4. Existing Parliamentary procedures4.1 The table below sets out the main types of procedure that SSIs are subject to in the Scottish Parliament. There are three types of affirmative instrument and two types of negative instrument procedures. Super-affirmative procedure is an enhanced affirmative procedure which allows comments on a draft affirmative instrument to be made by the Parliament and responded to by the Executive.4.2 The other procedures (class 6 and 7) concern instruments which are not subject to Parliamentary procedure but which the SLC considers. Various classes of SSI and types of parliamentary control

Legislation Committee | NAFW

Class	Procedure
	Affirmative procedures
1	Instrument is laid before the Parliament in draft and cannot be made until the draft is approved by resolution of the Parliament
2	Instrument is laid before the Parliament after making but cannot come into force unless and until it is approved by resolution of the Parliament
3	Instrument is laid before the Parliament after making and may come into force but cannot remain in force after a specified period (usually 28 days from the date on which it was made) unless approved by resolution of the Parliament within that period
	Negative procedures
4	Instrument is laid in draft before the Parliament and cannot be made if the draft is disapproved by the Parliament within 40 days after the draft is laid
5	Instrument is laid before the Parliament after making, subject to being annulled in pursuance of a resolution of the Parliament passed within 40 days after laying
	Other procedures
6	Instrument is laid before the Parliament after making but there is no provision for further parliamentary procedures
7	Instrument is not required to be laid before the Parliament
	Super affirmative procedure
8	This is a variant of Class 1. It generally involves (i) a draft instrument being laid before the Parliament (ii) an opportunity for comments to be submitted to the Executive on the draft (iii) if Ministers decide to proceed with the proposals, they then lay before the Parliament a draft in the normal way for affirmative procedure (as in Class1) , together with a statement of whether and how the comments have been reflected in the draft.

Timing of negative and affirmative consideration4.3 The transitional SI Order reference provides that the Parliament may annul a negative instrument within 40 days after it is laid. Currently, there is no statutory provision which lays down the time within which a draft affirmative instrument has to be approved but the Parliament’s Standing Orders limit the timescale to 40 days in line with that given to negative procedure. 4.4 Within the total of 40 days allowed to consider these types of instruments, the SLC is given 20 days to consider them and make their report to the Parliament and the subject Committee. The remaining 20 days are given to the subject Committees and, in the case of draft affirmatives, the full Chamber of the Parliament, to consider the instruments.4.5 This strict timetable allows little time for the SLC to consider and report on the instruments, particularly at peak times. Subject Committees can also find themselves in difficulty when scheduling the consideration of instruments into their work programmes, particularly where an issue is contentious and the Committee wishes to take evidence.4.6 With instruments subject to negative procedure there is the additional issue of the 21 day rule. This rule is set out in the SI Order and states that a negative instrument cannot come into force less than 21 days after an instrument is laid. Should the Executive not be able to meet this requirement it must explain its reasoning to the Presiding Officer in writing. This rule allows time for the SLC to consider the instrument before it comes into force. Subject Committees, however, are frequently in the position of considering an instrument that is already in force. There may be severe logistical problems if an instrument is annulled after it has come into force.Comments are invited on—The existing procedures for scrutinising SSIs.Increasing the time allowed for the Parliament to consider SSIs.Extending the 21 days given for a negative instrument to come into force to something that would allow the Parliament to consider all negative instruments before they came into force. Instruments not subject to procedure4.7 As detailed above table (class 6 and 7 procedures), there are instances where instruments are not subject to parliamentary procedure. The Class 6 procedure allows an instrument to be laid, which in practice allows the instrument to be brought to the attention of the Parliament. The Class 7 procedure simply allows the SLC to consider and report on the instrument and the wider Parliament may not know of the existence of these types of instruments.Comments are invited on—The use of these procedures.Whether the use of class 7 should be discontinued, with class 6 being used so that general instruments should be laid before Parliament in all cases. 5. Numbering, classification and publication of SSIs5.1 The current SI Order makes provision for SSIs to be numbered, classified and published. The maker of the instrument sends it immediately after it is made to the Queen’s Printer for Scotland (QPS). The maker also certifies whether it is local or general in nature and local instruments are not usually printed or put on sale.Comments are invited on—The current publication system of SSIs.Whether there should be a requirement for the QPS to publish drafts of SSIs which are laid before Parliament and subject to affirmative procedure. 6. Consequences of not laying6.1 The Committee has noted that it is not currently clear whether an instrument is invalidated if there is a failure to lay the instrument/draft instrument.Comments are therefore invited on—Whether an instrument should be required to be laid as soon as practicably possible.Whether failure to lay an instrument, when this is required to be laid, should make the instrument invalid.