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No. I appreciate the opportunity to speak with the committee about the matter, and I look forward to seeing your conclusions.

I am grateful for the opportunity to speak to the committee, to offer some evidence in relation to your inquiry and to make this opening statement. I thought it might be worth while to take a moment to set out the Government’s general position on the issues that the committee is considering. No doubt, we will get into some of the detail over the course of this evidence session.

First, delegated powers are an essential part of the legislative toolkit. The Government and the Parliament would not be able to function if we relied solely on primary legislation—the capacity simply does not exist to legislate in that way every time we need to update the law. On that basis, we need a legislative system that balances efficiency and effectiveness, and the appropriate use of secondary legislation is a key element of achieving that.

Secondly, the Government does not set out routinely to introduce what have been described as framework bills. Bills, and the nature, form and function of the delegated powers that are in them, are considered on a case-by-case basis. Ultimately, the approach that is taken to delegated powers is driven by what makes sense in the specific context of each bill. It is the sheer variation in the subject matter of bills and what they seek to achieve that makes it difficult—as I think most people who have given evidence to the committee have acknowledged—to draw a neat dividing line between what should be in a bill and what should be determined by secondary legislation.

That is why I believe that it could be difficult to come up with a simple and straightforward definition of what constitutes a framework bill. Further, that may not in itself take us much further forward although, doubtless, we will get into that in our coming exchanges.

Thirdly, it is important not to lose sight of the mechanisms and processes that we already have in place in Parliament to scrutinise proposed powers in bills and how they are used. This committee will understand better than any other that every bill that the Government introduces must be accompanied by a delegated powers memorandum. For each and every power in a bill, that memorandum must explain the nature of the power, the reason for taking the power and the choice of scrutiny procedure for that power.

Parliament can and does subject the proposed powers of a bill to careful scrutiny during stage 1. I know that this committee does so in relation to almost all bills that come before it and that there can also be consideration by the lead committee. Parliament can and does challenge the Government on how some powers have been framed, which can result in changes to bills as they pass through their consideration at stages 2 and 3.

In that way, Parliament retains the ultimate authority in determining whether secondary legislation-making powers should be in any piece of legislation in the first instance. Similarly, when Government exercises the powers, including so-called Henry VIII powers to amend primary legislation, Parliament has a key role in scrutinising both the technical and policy elements of the regulations.

Ultimately, Parliament retains power to determine secondary legislation by either agreeing or disagreeing to it in its affirmative form, or determining whether to annul it in its negative form. In a parliamentary democracy, that is, of course, as it should be.

I hope that you have found those initial thoughts and opening remarks useful. Steven MacGregor, Alison Coull, Fraser Gough and I will be happy to do our best to field your questions.

Clearly, if the committee makes a recommendation that there should be some guidance, it would be incumbent on us to, first of all, reflect on the report and reply to it. If there was some determination that there should be guidance, we would need to consider how we might interact with that.

However, to go back to my earlier point, in the process of determining what legislation is introduced, the Government comes up with a policy proposition, and the bill team that is assigned looks at that and starts to draft a bill. We interact with the SGLD and the PCO on drafting the finer points of the bill. As we seek to introduce it, we then have to justify the delegated powers that we want to take forward through a delegated powers memorandum.

In so far as there is a process that is under way, you could argue that guidance already exists. If the question is whether guidance should be created to say when the Government can and cannot introduce a bill in a certain way, I would probably respectfully push back on that, because ultimately it should be for Parliament to determine the nature of a bill as we move forward.

Bills change as we consider them. I have just taken the Scottish Elections (Representation and Reform) Bill through Parliament—which, incidentally, one of your former committee members, Daniel Johnson, asserted was a framework bill at stage 1 consideration. The committee convener pushed back and said that it was not a framework bill, so there was a difference of view among the Opposition, let alone between the Government and the Opposition. That bill changed, and secondary legislation-making powers were added to it as we moved through the process.

The creation and passing of a bill is an iterative process. Trying to limit the manner in which a bill can be drafted before it is even introduced would not be as helpful to Parliament as people might think.

I know that that has been an issue of concern for the Finance and Public Administration Committee, and I have certainly raised and emphasised the point to my colleagues that the quality of the financial memoranda should always be sufficient for the purpose of the finance committee’s consideration of any legislation or, indeed, subject matter. That should be a thorough and proper exercise.

It goes back to the point about on-going deliberation and consideration of legislation, whether it be in primary or secondary form. My expectation is that, if a committee of the Parliament is looking for more information, colleagues should provide it.

The committee could do that now. I am aware that the committee has looked at the Land Reform (Scotland) Bill, and—if I am correct—when discussing the bill, the committee made an assessment that it could fall into that category. The Government disagrees with that.

On your point about the Scottish Elections (Representation and Reform) Bill, I was not for a moment suggesting that the bill suddenly became a framework bill by process of further deliberation and amendments. However, if we accept your hypothesis, if a bill that was not determined to be framework legislation at the outset, when it was introduced, proceeded to have lots of secondary legislation-making powers added to it as it progressed through Parliament, and it was suddenly felt that it had become a framework bill, what would that mean in terms of guidance and our processes?

I understand that a cynical point of view would hold that such guidance would not be helpful to the Government because it would restrict and confine the manner in which we could draft bills—I have to concede that—but the question gets to the heart of the point that I am trying to make: what would be the utility of having defined what a framework bill might be? In this instance, I am not convinced that it would be helpful to the Parliament either, so to get to the nub of the issue, what is the specific concern, and what would be the purpose of having a strict definition of what constitutes a framework bill? That is not yet clear to me.

Broadly speaking, no, because the parameters of how any form of secondary legislation should be utilised is set out in the bill, so, in that sense, I am do not have concerns about its misuse. If such a concern was to emerge, the executive is accountable to the legislature, and the Parliament could determine to have a look at that piece of legislation and change it through primary legislation. I am not aware that there is substantial concern around that.

More broadly, subordinate legislation is so called because it is subordinate in terms of the process used to pass it, but it is not—if I could say it in a euphemistic sense—subordinate in terms of making law. The law has the same effect and it still has to come to the Parliament. The Parliament retains the ability to either pass or reject subordinate legislation in its affirmative form or Parliament can pass a motion to annul statutory instruments in their negative form. Therefore, it is not as though it creates broad sweeping powers for the Government, with no recourse to the Parliament.

Can you just clarify that you mean the National Care Service (Scotland) Bill?

I have seen little to suggest that the fact we live in a faster-paced world and in the age of social media is dictating that more things are determined by secondary legislation.

I think we all accept that, when we considered legislation on Brexit and in relation to the emergency response to Covid—I was there and you were, too, Mr Balfour—a substantial amount of law had to be made by secondary legislation. We could not meet the requirements in the normal format. You will recall that, during Covid, there was a restriction on the number of people who could come into the Parliament building. I certainly accept that, in that period, more had to be done by secondary legislation.

That does not necessarily mean that more framework bills overall were coming forward. In some cases, there were framework bills, but, looking across the piece, I have seen little evidence to suggest that there are substantially greater numbers of what could be felt to be framework bills now than was the case previously.

We could look at the history of these things. Since the early days of devolution, it has been a feature of our legislative process that ministers seek to bring forward something that sets a framework. That was laid out in the letter to the committee from my predecessor, George Adam, but I will make the point again. In 2000, in relation to the Adults with Incapacity (Scotland) Bill, Iain Gray said that it would

“set a framework that would allow us”—

that is, the then Scottish Executive—

“to take cognisance of such developments quickly, without taking up parliamentary time unnecessarily.”—[Official Report, Justice and Home Affairs Committee, 29 February 2000; c 836.]

In 2006, Johann Lamont, speaking to the Planning etc (Scotland) Bill, talked about the bill establishing a framework. In the same year, Ross Finnie, speaking to the Animal Health and Welfare (Scotland) Bill, talked about the bill providing an “essential flexible statutory framework”.

So, it is not a new phenomenon, but I have heard members assert in the Parliament that it is. It seems to have permeated out there to become almost accepted fact that there are more so-called framework bills than there were in the past, but no one has presented any evidence to me that suggests that that is the case.

First, I do not think that I am underplaying the issue at all. There might be a difference of opinion between us, in which case Mr Balfour will just have to live with that.

I have responded—I am using the dictionary definition of “responded”—to the convener of the finance committee. I have written to him to reassure him that we have taken steps to improve the information that can be provided. As I said in response to Mr Kidd, if there is more that we can do, I will be happy to listen to suggestions and consider them.

I cannot remember precisely which bill it was about—it might have been the Police (Ethics, Conduct and Scrutiny) (Scotland) Bill—but the finance committee had some concerns that it would not receive updated information until after stage 2 of the bill process. I will stop there and quickly check that point with Steven MacGregor. Is that the right bill?

I think that it should be the latter. Once again, the ultimate reassurance is that people have recourse to the courts. It is true of any function that has been delegated to the Government—it is certainly true in relation to so-called Henry VIII powers—that the courts would take a dim view of the Government trying to use its powers in a way that had not been intended or agreed by the Parliament.