Draft legislation should generally set out a high degree of detail to ensure proper democratic engagement, Committee finds

In a new report, the Committee said that draft legislation in the Scottish Parliament should generally set out a high degree of detail on the face of a bill to allow for proper democratic engagement by both stakeholders and parliamentarians.

The report comes as the Committee concludes an inquiry into how framework legislation and so-called Henry VIII powers are used in Scotland and elsewhere.

There is not a single, precise definition for framework legislation. The Committee described it as legislation which sets out the principles for a policy, but without substantial detail as to how it will be given practical effect. Instead, broad powers are given to ministers or others to fill in this detail at a later stage.

While there was a lot of consensus around what this sort of legislation is in practice, the Committee recognised that, within this description, there will be a spectrum of framework provision, grey areas, and scope for reasonable disagreement.

The Committee recognised the need for framework legislation in appropriate and very limited circumstances, mainly to allow for flexibility. Although each bill needs to be considered on its own merits, flexibility is more likely to be needed in areas which need to be updated frequently, in ways which cannot reasonably be foreseen.

The Committee found that any framework provisions should be as clear and as narrow in scope as possible. Where a bill proposes the delegation of a broad power, the Scottish Government should think about using an appropriate super-affirmative procedure to improve parliamentary scrutiny of how the power is used.

Considering the balance of evidence across jurisdictions, the Committee concluded it is likely the occurrence of framework legislation has increased since 1932 when the Report of the Donoughmore Committee on Ministers’ Powers was published, and that the trend seems to be accelerating.

Framework powers that allow flexibility “just in case” are unlikely to be considered appropriate, the Committee also found, and consultation and “co-design” on a bill’s provisions should take place before it is introduced to enable sufficient policy detail to be provided.

Stuart McMillan MSP, Convener of the Delegated Powers and Law Reform Committee, said:

“Proper scrutiny is vital to the work of the Scottish Parliament to improve the quality of legislation and ensure that laws are well considered and effective.

“Our Committee agreed that, where possible, parliamentarians and stakeholders should be able to engage with solid proposals to make it easier for them to consider the impact of legislation, set out views or advocate for a particular outcome.

“Where a framework approach is being taken, we see it as essential that a full justification is given at the bill’s introduction as to why the framework provision is appropriate in the circumstances.

“We hope our report is useful, by sharing our views on how to strengthen the scrutiny of primary legislation that delegates framework powers, and the secondary legislation made under them.

“We are keen to hear the Scottish Government’s response to our report.”

As part of its inquiry, the Committee was also interested in hearing views of how Henry VIII powers are used. These powers allow Ministers to amend primary legislation by secondary legislation

The Committee concluded that Henry VIII powers can be a necessary, efficient tool when used suitably but should be appropriately limited in scope.