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Are you asking about the actual use of secondary legislation, rather than the definition of framework legislation?

That is a good question, convener, and it is, earnestly, not one that I have considered in great detail. There is clearly a correlation between the two, and I suppose that it depends on what stage the bill is at. Good consultation should happen in advance of the introduction of any bill. In essence, that can lead to greater interaction with stakeholders and to the co-design of certain legislation.

Consultation and co-design are closely related. There could be differences between them, but I suggest that both should be a substantial exercise.

It could be. If the Government thought that that could be achieved and a committee of the Parliament thought that it would be helpful, we could look at that, but it would not be possible in every case. I go back to the point that I made earlier about some things being determined on an on-going basis, which is the purpose of having that defined in secondary legislation. That will not be true in every instance, but the purpose of secondary legislation is to be able to make changes to the law, when circumstances change and with the consent of the Parliament, more quickly than we could through primary legislation. However, if we had a substantial amount of detail, it probably would be put in primary legislation.

I have already made the point that that could be possible in some situations, but whether we need such a requirement is another matter. When that can be done and when it would be sensible to do it, let us look at that but, in other circumstances, that will not be possible.

We constantly look at the statute book. The very purpose of making primary legislation is to look at the effectiveness of the existing law of the land and consider whether it requires to be changed. I will not sit here and earnestly suggest that we will undertake that exercise across the board, because we probably will not, given the point that I made about capacity in the organisation and the need to focus on what we need to focus on. However, if a particular issue emerged at a particular time, we would, of course, look at it. If the Parliament makes recommendations about any aspect of the law, it is incumbent on the Government to consider them.

It is the right bill. The committee had concerns that it would not get updated information until after stage 2. However, that is what the Parliament has asked for as part of its defined processes. If the Parliament wants to change those processes and say that enhanced information should be available before stage 2, although obtaining that might pose a challenge to the Government, we need to listen to that request and see how we can meet it.

However, that could have the consequence of delaying consideration of legislation. Convener, I noted that, when you went to speak to your equivalent committee in the House of Lords, one point made—albeit in the Westminster context—was that, between the Government and the Parliament, effort should be made to speed up the consideration of primary legislation. I am very much up for that. We can identify that, in the current session, the Scottish Parliament is taking longer to consider such legislation. We often provide more information between stages 1 and 2 already, but if we were to make that a formal part of the process, it could have that consequence.

Again, we would need to look at the specific recommendation if one were to emerge, and consider how it might impact the progress of any legislation.

I think that there is an issue around capacity in Parliament. To be candid, that is for Parliament, and not necessarily the Government, to consider. There are capacity issues in Government as well, of course, but it would not be for the Government to tell Parliament about its capacity to consider such matters. If it is felt that there needs to be enhanced capacity in Parliament, that is for Parliament to deliberate on. On the question of whether there should be any change to our process, we would need to consider the specific recommendation.

To go back to the premise of the question, in some cases, it will be more possible than in others to set out what will be determined by secondary legislation. I have already given the example of social security. The uprating of benefits will happen on an on-going basis, so it is not possible to say what a particular benefit might be five years hence.

Some setting of registration fees, for example, is determined by secondary legislation. I think that I am right in recalling that from my time as health minister in the dim and distant past—it might have changed since, but I suspect not. We also use secondary legislation to set registration fees for social workers, because we cannot say what those fees will be five years hence.

By contrast, we might have in mind a clear idea, subject to refinement, of how a specific power to make secondary legislation might be used imminently. In those circumstances, it would be fair to provide that detail.

In the first instance, I will make this point about the inclusion of a so-called Henry VIII power. I say “so-called” because I found the evidence that Andrew Tickell gave to the committee interesting. He talked about “pejorative” language in the context of “framework” bills or “skeleton” bills. I can think of no more pejorative term than “Henry VIII power”. The first thing that we think of regarding Henry VIII is that he married six wives and beheaded two of them, so “Henry VIII power” could be felt to be quite a pejorative term.

Putting that to one side—I have got that off my chest—such a power is subject to agreement by the Parliament. The Parliament agrees, through the process of determining any legislation, whether a so-called Henry VIII power should be part of it. It is not a mystical power that the Government has without recourse to legislation. It has to be defined in any bill that is passed. If the Parliament considers that it is not appropriate for such a power to be included, it is perfectly possible for the Parliament to reject such a proposition.

We should remind ourselves that the power is used in fairly straightforward manners. For example, it may be prescribed in primary legislation that, in taking forward or exercising any power, there is a statutory list of consultees to be consulted. When an organisation’s name changes or a new organisation emerges, do we really want to go through a process of adding the new name to that statutory list? Do we really want to start again and go through the process of introducing primary legislation to change that list, or is it appropriate to say that the Government can use the power to update the list? Incidentally, if it was not done by that means, it would be by some form of other secondary legislation-making power but, to all intents and purposes, the outcome would be the same.

I have certainly not seen any evidence to suggest that the power is being used in an inappropriate manner. You had evidence from senators of the College of Justice, who talked about the appropriateness of utilising those powers. With respect, I do not think that such a suggestion has come through in the evidence that you have gathered. It is down to the fact that “Henry VIII power” is such a pejorative term. Far be it from me to say what the committee’s recommendations should be, but you could perhaps come up with nicer terminology than “Henry VIII power”. That would be tremendously helpful.

I do not think that that has come through in the evidence that you have gathered thus far. It is, in effect, another agreed form of secondary legislation-making power through the process of considering primary legislation. It is not some sweeping power, as was the case when we had absolute monarchs, which is where the terminology comes from.

It could be, but it would depend on what the guidance said.

I am not convinced that that is absolutely required, partly based on the frequency with which we prescribe the ability to exercise such a function and, more fundamentally, based on the frequency with which we exercise it. However, if the Parliament considered that some form of guidance would be useful, we would look at that. It is for the Parliament to consider that, and it might feel that it would be beneficial to consider the inclusion of such guidance, although the reason why the powers exist is probably well understood.