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 (Background Paper)

Subordinate Legislation Committee

Inquiry into the Regulatory Framework in Scotland

Background paper

Introduction

1. The Scotland Act 1998 confers upon the Scottish Parliament power to legislate within certain limits in Acts of the Scottish Parliament. Those Acts frequently contain provisions which delegate power to make legislation to the Scottish Ministers and others. In doing this, the Scottish Parliament is following the Westminster practice of delegating, where appropriate, its legislative power to the Executive. This practice is also followed by several Commonwealth countries but not by other European countries which adhere strictly to the doctrine of the separation of powers and which would regard such a practice as unconstitutional.

2. It is, however, considered important that delegated legislation should be subject to parliamentary scrutiny so that the public can be confident that it is not being subjected to laws unsupervised by the Parliament.

3. The Subordinate Legislation Committee ("SLC") is therefore conducting an inquiry into such matters. The inquiry falls into two parts -

Phase 1 has been concerned with the regulatory framework in Scotland and with what is required to improve the quality of new and existing devolved regulation and to bring it up to the standards of best international practice. The Committee has reported on this phase and some of the issues will be carried over into Phase 2; and

Phase 2 will examine the supervision which the Parliament should exercise over delegated legislation, most of which is made by Scottish Ministers, and to make recommendations in relation to the making, publication and parliamentary control over such legislation

4. The Committee aims to report upon Phase 2 around January 2006. If approved by the Parliament, then it is intended that the Committee’s report will form the basis of a Committee Bill to replace the current provisions which are set out in a transitional order made under the Scotland Act, namely the Statutory Instruments Order ("SI Order").

Points for Discussion

Nature of supervision by the Parliament

5. At present, the nature of the supervision exercised by the Parliament over SSIs has a dual aspect. The Parliament supervises both

the legality of the instrument 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. This technical scrutiny is carried out by the SLC which reports to the lead committee and to the whole Parliament, and

the substance of what the instrument provides. This scrutiny is carried out by the lead committee. The nature of this scrutiny, however, depends upon the form of parliamentary control.

6. The parent Act may subject a SSI to a certain form of parliamentary control. The different forms of parliamentary control are described below but basically they distinguish between those which require the instrument or the draft to be approved by resolution of the Parliament ("affirmative procedures") and those which enable the instrument or the draft to be disapproved or annulled by a resolution of the Parliament ("negative procedures"). This affects the procedures for scrutinising the SSI.

7. Affirmative procedure affords the Parliament a greater opportunity to scrutinise the SSI or the draft because the instrument or draft must be approved. The Standing Orders make provision for the lead committee to decide, after a debate lasting not more than 90 minutes, whether to recommend that the instrument or draft be approved and to report its decision to the Parliament not later than 40 days after the instrument or draft is laid. A motion for approval is then considered by the whole Parliament.

8. With negative procedure, there need be no debate upon the instrument or the draft but the SI Order provides that the Parliament may resolve, within 40 days after it is laid, that it is annulled, that is that "nothing further is to be done" under it or that is not made. 9. The Standing Orders provides that any MSP may, within that period, propose a motion to the lead committee that the lead committee recommends that the instrument or draft be "annulled". Such a motion is in practice always debated but there is no requirement that it should be. The lead committee is then required, within the period of 40 days, to report its recommendation to the Parliament. If the Committee recommends that the instrument should be "annulled", the debate in plenary is restricted - only 3 members may speak for 3 minutes each. The SI Order spells out what is the effect of such a resolution being passed by the Parliament.

10. Whether a SSI or a draft is subject to affirmative or negative procedure depends upon what is stated in the parent Act. It does not necessarily depend upon the inherent importance of the subject matter of the instrument or the draft, although account should have been taken of that when the Bill which became the parent Act was being considered. This has led the Procedures Committee of the House of Commons to consider whether the distinction between affirmative and negative procedures should be abolished in favour of some "mechanism for determining which [instruments] required positive approval based on their inherent significance rather than their statutory basis". However, that Committee did not recommend any such change at present.

Amendment

11. At present, there is no general provision which would allow the Parliament to make or to propose an amendment to an instrument or a draft instrument.

12. It may be argued that giving the Parliament a power to amend delegated legislation would be inconsistent with the purpose for which it had originally granted the power to make such legislation. However, there seems to be no reason in principle why the Parliament, as the body delegating the legislative power, should not be able to amend an instrument made by its delegate. It would simply be taking back to itself the legislative power which it has delegated to another.

13. There may, however, 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. There would also be practical problems about the Parliament amending an instrument which had already been made or which may already be in force.

14. These difficulties would not arise, however, if, in the case where an instrument is laid in draft before the Parliament for approval under the affirmative procedure, the Parliament was given the power to approve the draft subject to conditions, whether specified amendments to the draft or amendments designed to achieve a particular outcome. It would then be for Scottish Ministers to decide whether to relay the draft with amendments which give effect to those conditions. This is similar to what was recommended by the Procedures Committee of the House of Commons

15. There would be more difficulties about doing something similar in the case of instruments which are made but subject to annulment under the negative procedure. If, however, the instrument was annulled, the debate would presumably make it clear why the Parliament was unhappy with the instrument and it would be for Scottish ministers to take that into account if they bring forward a new instrument.

16. There would, in any event, be less need for the Parliament to amend or to propose amendments to instruments if the Parliament was given the opportunity to comment upon a draft of the instrument before it is made - see Consultation below.

Consultation

17. There is no general provision for the Parliament to be consulted on a draft of an instrument before it is made or laid before the Parliament for approval. In particular cases, there may be provision made in the parent Act for consultation but, even in those cases, it is not usually provided that the Parliament should be consulted.

18. This means that there is generally no opportunity for any detailed parliamentary examination of, or effective parliamentary input into, proposed delegated legislation which can be taken into account by the Executive before the instrument is made. The comments which the Parliament might wish to make could either be on the policy behind the instrument or technical points of the kind considered by the SLC.

19. This has led to the use, in particular cases, of what is called "super-affirmative" procedure. This is described below but it generally involves (a) a draft instrument, or proposal for a draft, being laid before the Parliament (b) an opportunity for the Parliament to comment upon the draft (c) if Ministers decide to proceed with the proposal, they lay before the Parliament a draft for approval under the affirmative procedure, together with a statement of whether and how the comments have been reflected in the draft.

20. The super-affirmative procedure is used only in cases where it is considered that the instrument is of particular significance. However, in other cases and particularly in cases where the instrument is subject to the negative procedure, there may be an argument that there should be a general requirement to consult the Parliament and public less formally on a draft instrument and, if they do not, for Ministers to explain why not when they lay the instrument.

Scottish statutory instruments (SSIs)

21. The existing procedures regarding the making, publication and parliamentary control of delegated legislation are mainly regulated by the SI Order which is based upon the Statutory Instruments Act 1946. They are similar to the procedures which apply at Westminster.

22. Those existing procedures only apply to certain types of delegated legislation which are SSIs. These are mainly instruments which are expressed in the parent Act (that is, the Act authorising the delegated legislation to be made) to be exercisable by a statutory instrument and which are exercisable by the Scottish Ministers or by certain other Scottish bodies. In practice, rules, regulations and orders are usually expressed in an Act to be exercisable by a statutory instrument. This may be because they are regarded as instruments of a legislative character but there is no express requirement that all instruments of a legislative character have to be exercisable by statutory instrument.

23. If there was to be such a requirement, it may be necessary also to consider whether there should be a definition of what is meant by "legislative character" and, if so whether that should be along the lines of that used in section 5 of the Australian Legislative Instruments Act 2003;

24. There are, however, 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 may be regarded as being instruments of a legislative character. These instruments are sometimes not even published and it may be very difficult for the Parliament or the public to ascertain whether they exist or where copies can be obtained. The Parliament is frequently unaware of their existence and is denied the opportunity of subjecting them to any form of supervision.

Forms of parliamentary control

25. As mentioned above, the parent Act may subject a SSI to a certain form of parliamentary control. There is no statutory list of the forms of parliamentary control but in practice they tend to follow established models. It is possible to distinguish 8 different forms or classes of parliamentary control which are summarised in the following table -

Various classes of SSI and types of parliamentary control

Class 1 procedure: instrument laid in draft for affirmative resolution

26. There is no statutory provision in the SI Order which lays down any time within which the draft has to be approved. However, the Standing Orders adopt similar timescales as for Class 5 instruments (instruments subject to annulment) by requiring the SLC to report upon the draft within 20 days, and the lead committee to report to the Parliament on whether the instrument should be approved within 40 days, after the draft is laid.

27. It is thought that these timescales can cause real practical difficulties. This might be solved by amending the Standing Orders to increase the periods within which—

the SLC should report upon the draft from 20 to 30 days,

the lead committee should report to the Parliament on whether the instrument should be approved from 40 to 60 days after the draft has been laid before the Parliament.

Class 2 procedure: instrument laid after making but cannot come into force until approved

28. This procedure is rarely used in modern Acts. It seems to achieve nothing which could not be achieved by the Class 1 procedure. The Standing Orders make it subject to the same timescales as for Class 1 instruments.

Class 3 procedure: instrument laid after making and may come into force but ceases to be in force unless approved within a specified period, usually 28 days, after being made ("28 day orders")

29. This procedure is generally used to deal with some emergency, such as an emergency prohibition order dealing with food under section 1(1) and (8) of the Food and Environment Protection Act 1985. The usual procedure for such an order is that the instrument is made and is expressed to come into force at a specific time after being made. It is then laid as soon as practical thereafter which usually means 2 to 4 days after making. It ceases to be in force at the end of a specified period, usually 28 days, after being made unless it is approved before then by the Parliament.

30. The Standing Orders require the lead committee to report upon such an instrument before the end of the specified period (usually 28 days) after being made. However, the Standing Orders also require the SLC to report upon the instrument to the Parliament and to the lead committee not later than 20 days after the instrument is laid. This causes practical difficulties in relation to the SLC to considering and reporting upon the instrument within that timescale.

31. Some Acts avoid these problems by making provision for emergency orders to be subject to class 5 procedure (instrument laid after making but subject to annulment), such as emergency control orders relating to food under section 13 of the Food Safety Act 1990.

32. It is, therefore, a matter for consideration whether there is any need for these instruments to require an affirmative resolution within the specified period and whether negative procedure under Class 5 would be sufficient. This would, however, diminish Parliamentary control. If they were to become Class 5 instruments, it would also require to be recognised that such instruments would have to breach the 21 day rule and may require to come into force immediately after making and before even being laid.

Class 4 procedure: instrument laid in draft subject to annulment

33. This procedure is no longer used in modern Acts and Acts which provide for such a procedure could be amended to provide for a Class 5 procedure (instrument laid after making but subject to annulment).

Class 5 procedure: instruments laid after making but subject to annulment

34. There are three main problems in connection with this procedure concerning the 21 day rule, the period of annulment, and the consequences of annulment.

(a) 21 day rule

35. The SI Order requires an instrument subject to Class 5 procedure to be laid before the Parliament not less than 21 days before it is due to come into force. If this is not possible, the Executive has to give explanation to the Presiding Officer.

36. The purpose of this rule is to give the Parliament some opportunity of commenting upon the instrument, and the Executive some opportunity of revoking or amending it, before it comes into effect. This is to avoid the problems which might be caused if the instrument requires to be revoked after it had come into effect.

37. However, at present, there is nothing to prevent an instrument from coming into effect at the end of the 21 day period and before the expiry of the period of 40 days during which the instrument may be annulled. As is mentioned below, there may well be problems if the instrument is annulled after it has come into force. This may make the Parliament reluctant to annul such an instrument. This would render the Class 5 procedure an even less effective system of Parliamentary control than it might otherwise have been.

38. This problem would be resolved if the 21 day rule was extended to cover the whole period when the instrument may be subject to being annulled. This would mean that an instrument would not come into force until the whole of that period had expired, unless the Executive had given some explanation as to why this was not possible.

(a) Period of annulment

39. The SI Order provides that the Parliament may annul an instrument subject to Class 5 procedure within 40 days after it is laid. The Standing Orders then divides this period into half and requires the SLC to report upon the instrument within 20 days and the lead committee within the 40 day period.

40. Experience has shown that the time allowed by the Standing Orders for the SLC to consider and report upon the draft or the SSI is too short. This is particularly so because the SLC does not report adversely upon an instrument without giving the Executive an opportunity of commenting upon the criticism. There is usually only time to have two meetings of the Committee held in consecutive weeks. The typical timetable runs something as follows

Tuesday, week 1. The Committee considers instruments laid up to noon of the previous Thursday, together with briefing given by the Committee staff. Any comments made by the Committee are sent to the Executive on Tuesday afternoon with responses requested by the following Thursday;

Tuesday, week 2. The Committee considers the Executive responses, together with briefing given by the Committee, and determines whether to report the instrument. The report has to be made by the 20th day after laying.

41. This is a punishing timetable and the problem could be solved by increasing the period of annulment from 40 days to 60 days after the instrument is laid, with the SLC having 30 days after the instrument is laid to make their report.

42. However, simply increasing the period when the instrument may be annulled, without ensuring that the instrument does not come into force during the time when it may be annulled, may merely render it even less likely that the Parliament would ever use this sanction. Accordingly, any extension of the period of annulment could be accompanied by an extension of the 21 day rule..

43. The Procedures Committee of the House of Commons recommended that the period of annulment in these cases should be increased to 60 days after laying. This was to allow the sufficient time to enable a debate to be had upon the instrument.

Consequences of annulment

44. In the case of Class 5 procedure, the parent Act provides that the SSI is "subject to annulment in pursuance of a resolution of the Scottish Parliament".

45. However, the resolution for annulment in the Parliament does not mention "annulment". It is simply a resolution "that nothing further is to be done under the instrument after the date of the resolution".

46. What happens if the Parliament passes such a resolution? The consequences are spelt out in the SI Order, namely-

(a) the resolution stops anything further being done under the instrument. Accordingly, even if the instrument has come into force, no further action can be taken under it; and

(b) the instrument requires to be revoked. It requires to be revoked by an order made by the Scottish Ministers, unless it is an Order in Council or an order made by the Privy Council, in which case it requires to be revoked by an Order in Council; but

(c) this is without prejudice to the validity of anything previously done under the instrument; and

(d) it is also without prejudice to the making of a new SSI. In other words, there would be nothing to prevent the Scottish Ministers from making the same instrument in exactly the same terms again, although whether this would be politically possible is another matter.

47. There is a difficulty about interpreting what is the effect of (c) in particular cases. Take, for example, the case of an instrument which has what might be described as a "once and for all effect", such as to provide that some corporate body is dissolved on the date of coming into force of the instrument. If the instrument is annulled after it has come into force, what is the effect of the resolution? No further action can be taken under the instrument but arguably no further action needs to be taken. The instrument is spent as soon as it comes into force. Its revocation also appears to achieve nothing because this does not revive the pre-existing law and does not mean that the body has ceased to be dissolved.

48. There may also be difficulties in deciding whether an instrument has this "once and for all effect". An instrument which revokes another may be said to have this effect but what about an instrument which textually amends another - x "shall be amended". Is the amendment effected as soon as the amending instrument comes into force so that the amending instrument is then spent? Or does the amending instrument need to continue to be in force to have the amendment continue in force? Although there has been no judicial case about this, the view which seems to be taken in practice is that the amending instrument requires to continue to be in force in order to breathe life into the amendment.

49. It is difficult to see how these problems can be resolved. It would be preferable to avoid them arising by ensuring that the instrument is annulled before it comes into force, by extending the 21 day rule.

50. Paragraph (d) above has not caused any problems. However, in Australia, it appears that there was a problem when the Parliament continually disallowed (their expression for annul) an instrument which the Executive remade. Accordingly, they provide that it is not possible to remake a regulation the same in substance as that disallowed within 6 months of the disallowance unless the disallowance resolution has been rescinded. It is not suggested that anything similar is required.

Class 6 procedure: instrument laid after making but no provision for further parliamentary procedures

51. This procedure is sometimes criticised because it does not make it clear what the Parliament is to do with the instrument after it has been laid.

52. Such an instrument is, however, subject to the scrutiny of the SLC and there seems to be no reason why the SLC should not report it to the Parliament for it to take whatever action it thinks fit.

Class 7 procedure: instrument not required to be laid

53. The disadvantage of this procedure is that the Parliament may never know of the existence of any instrument which is not required to be laid before it and is therefore unable to supervise the way in which the legislative power has been exercised.

54. In recognition of this difficulty, the remit of the SLC was extended to enable it to consider and report upon any SSI which is not laid before the Parliament but which is classified as general. It is understood that, in practice, arrangements exist to ensure that all general SSIs are brought to the attention of the SLC. However, this depends upon the continuation of those informal arrangements.

55. Informal arrangements could be formalised so that all SSIs, which are not subject to any other form of parliamentary procedure, would require to be laid before the Parliament after being made, provided that they are classified as having a general and not a local character. This would mean in effect using Class 6 procedure instead of class 7.

Class 8 procedure; super-affirmative procedure

56. This procedure has been described in paragraph 19 above.

The numbering, classification and publication of SSIs

57. The SI Order makes provision for SSIs to be numbered, classified and published. In particular, the Order requires—

the maker of the instrument to send every SSI, immediately after it is made, to the Queen’s Printer for Scotland (QPS) for numbering. An SSI is numbered consecutively in the series of the calendar year in which it is made.:

the maker of the instrument to certify whether a SSI is local or general. This depends upon whether the provision made by the SSI is in the nature of a local and personal or private Act (such as orders stopping up certain roads) or in the nature of a public general Act. Local instruments are not usually printed or put on sale; and

every general SSI, as soon as possible after the QPS has numbered it, to be printed and sold by or under the authority of the QPS

Consequences of not laying

59. It is not clear whether an instrument is invalidated if there is a failure

to lay the instrument or draft if this is all that is required;

to lay the instrument or draft which is subject to negative procedure.

60. It could be provided

that, when an instrument which is made requires to be laid, it is should be laid as soon as practically possible after making. In this connection, it should be noted that it is possible to lay an instrument any time that the Office of the Clerk of the Parliament is open. The Office is open Monday to Friday throughout the year between 9.30 and 4.30; and

that failure to lay the instrument or the draft as required invalidates the instrument

61. It is thought that it would only be in very exceptional cases that an instrument would have come into force before it was required to be laid. .However, even the 21 day rule recognises that, in very exceptional cases, an instrument may have to come into force as soon as it is made. If it does and there is subsequently a failure to lay, this would mean that anything done under the instrument is also invalid. This may necessitate an ASP being passed to validate what has taken place. In such a case, it may be thought appropriate to provide that the instrument simply ceases to have effect as from the date when it should have been laid but that it should be deemed to be valid before that date.

62. In Australia, there is such a provision but the position is slightly different. There is a requirement that all legislative instruments have to be tabled in the Commonwealth Parliament within 6 (previously 15) sitting days after making which may mean that they are in force before being tabled and, in the case of a Parliamentary recess, they could have been in force for some time. At common law, failure to table by the due date invalidated the instrument which invalidated anything done under it when it was thought to be in force. However, section 38(3) of the Legislative Instruments Act 2003 now provides that the effect of failing to table by the due date is that the instrument ceases to have effect as from that date, with the implication that it was valid before that date.