Seòmar agus comataidhean

It depends on what “enhanced” means. I go back to the point that I made in answer to an earlier question. Today, two statutory instruments were before this committee for consideration. It was pretty clear that the two instruments that happened to be considered on the day that I am here did not require substantial scrutiny, based on the committee’s assessment, but the committee could have taken a different view—it could have determined that more scrutiny was required, written a report and made recommendations.

The committee is able to do that now. If there is a sense that something beyond that is needed, we need to consider what that might be. If there is a recommendation, we will consider it.

I am always open to every proposition.

They are helpful in so far as the NFUS has set out how it conceptualises what framework legislation is. On whether it would be helpful to have an agreed definition, I cannot help but go back to the point that I have made already: it does not strike me that setting a definition would, in and of itself, take us much further forward. What would be the point, the purpose and the efficacy of coming up with a strict definition of a framework bill? Why would we do it? How would that definition be used?

I concur with the first point, on the need to adapt and be flexible. That is the purpose of secondary legislation-making powers, although I do not know whether having those powers constitutes the creation of a framework bill.

On the third point, about indicating the purpose of secondary legislation-making powers—I am definitely paraphrasing; I tried to take a note but I could not keep up with your rate of speech, convener—as I said earlier, we already do that. There are delegated powers memorandums. I respectfully suggest that a lot of the things that people are looking for are already built into our system. That might speak to my point about whether we need a definition of a framework bill. Frankly, a lot of the things that people have identified are already part of our system.

I am certainly aware of that having happened in advance of stage 2, when it has been indicated that changes are going to be proposed. That happened with the Scottish Elections (Representation and Reform) Bill, for example. I would need to cast back and see whether it has ever happened between stages 2 and 3, depending on the time agreed. I make the point that, in contrast with the United Kingdom Parliament, where the Government has much more power over the timing of the process for consideration of legislation, timings here are agreed by the cross-party Parliamentary Bureau. If a committee raised a particular issue, the bureau would have to consider that and set the stage 3 deadline accordingly.

I am not convinced that there is not scope within the current process for that to happen. To go back to the point that I have just made, if we were to make that a routine part of our process, we would need to go into it with eyes wide open. That would do nothing other than elongate the process for considering legislation that is before Parliament.

On a practical basis, that happens, albeit occasionally. I do not know whether it is just good fortune that I have come to committee today, convener, but one of the instruments that you considered earlier was relaid because concerns were raised about the initial draft. The Government reflected on that and took it away. We heard what Parliament had to say and the instrument was redrafted accordingly. I am less convinced that we need to make that a formal part of our process. We have a system that, by and large, works effectively in that way.

If we started to get to the stage whereby secondary legislation could be amended, that would take us down the line of some form of primary legislation making that is probably not as substantial as passing primary legislation is just now.

The point at which Parliament has to consider whether it is appropriate that, generally, a certain area should be determined through secondary legislation or subordinate legislation-making powers is when it considers the bill and entrusts that power to the Government to draft the regulations accordingly, knowing that it will still have the opportunity either to approve or to annul them.

By its very nature, the scrutiny of proposed primary legislation is a longer process, and I accept that that leads to a certain form of scrutiny in the sense of gathering evidence, which you might not see with secondary legislation, although it is perfectly possible. I have been a member of Parliament for more years than I care to remember—for as long as Mr Kidd and Mr McMillan have been—and I remember sitting on committees where we were able to take evidence on secondary legislation. Committees can do that right now. It is a process of Government working with Parliament to accommodate concerns, and I would expect Government to do so.

Largely, yes. I refer back to the points that I have just made about the diversity in what bills seek to achieve and the process that we must go through in laying out, in a delegated powers memorandum, the basis on which we seek to proceed.

In the letter that my predecessor, George Adam, sent to the committee in April last year, he conceded that there could be some merit in developing a shared understanding of what is meant by the term “framework bill”. However, we need to understand the practical effects, the efficacy and the purpose of determining what could be viewed as a framework bill. Why would we say that something is a framework bill? What utility would that have? What purpose would coming up with a definition have?

I say respectfully that, having looked at the evidence to the committee thus far, I have not seen anything that strongly suggests that there would be an actual purpose in determining what a framework bill might look like and having some form of set definition.

I think that it is a moot point. Defining a bill as a framework bill would not enhance scrutiny per se. It is more important that we go through the normal scrutiny process for any form of proposed legislation, which, for a Government bill, means first putting it through our own consideration process and then laying it before the Parliament.

Of course, collectively, as a legislature, we should be willing to consider how we can improve and refine that process, but I have not seen anything to suggest that there is anything fundamentally wrong with it. In so far as the framework bill issue affects secondary legislation, I go back to my earlier point that part of the process is that we lay a delegated powers memorandum before the Parliament. This committee should consider it and make recommendations that should then be considered by the lead committee. If the lead committee has concerns about those, they will be flagged. The Government will have to consider them in the usual way—perhaps by making changes to the bill or by defending its position—and then it is for the Parliament to consider them through the process of amending the bill and deliberating on it as it proceeds in its normal fashion.

It can be a bit of both. I alluded to that point at the outset and, in response to a question, I talked about the process that the Government goes through in crafting a bill. Consideration will, of course, be given to the appropriate balance between what should be in the bill and what should be determined by secondary legislation. We go through that process, and then—to go back to a point that I have made already—we have to justify our approach through a memorandum at this committee, which subject committees will consider thereafter.

Sometimes, the approach will emerge as the bill proceeds through Parliament. It is not unusual or abnormal for powers to be added, often at the request of the committee that has looked at a bill at stage 1. Committees will make recommendations for things to be added or, sometimes, as a result of interaction between the Government and other members of Parliament, measures have to be added to a bill. That might involve the addition of secondary legislation-making powers.

Surely, the counterpoint to that would be to ask, “What’s deficient about the scrutiny process thus far?” I am unclear as to whether there are substantial deficiencies in the strict basis on which we scrutinise legislation right now. I was sitting here listening to the committee consider two statutory instruments before this discussion, and I heard that one was withdrawn and relaid because Parliament raised concerns about the initial drafting. That very much sounds to me like process and scrutiny being effective.