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Thank you.

I would like to know whether other witnesses think that guidance or a concordat is a practical solution. I also wonder whether the conclusion of the discussion that we have had this morning is that not just principles, but counterfactual tests, would be required. That is, is what will be done foreseeable and predictable? Are boundaries and parameters set?

Principally, do the other members of the panel agree that some sort of published document on how framework legislation or secondary powers will be used would be a helpful way forward, both at Holyrood and elsewhere?

There are some interesting points about other procedures that could be applied, such as requiring the Government to make explicit statements.

There was also an interesting suggestion made by Dr Grez Hidalgo that the committee should have the power to delay a stage of a bill. I am interested in that because I think that committees in this Parliament have that power. In the previous session of Parliament, I sat on the Education and Skills Committee. The committee refused to publish a stage 1 report on the Children and Young People (Information Sharing) (Scotland) Bill, the purpose of which was to correct the issues around information sharing regarding the named person policy.

First, I would be interested to know whether it would be helpful for committees to have the ability to undertake greater stage 2 scrutiny. Secondly, I wonder whether some of these points are actually about parliamentarians’ awareness of what we are seeking to do. That relates to Dr Tickell’s earlier point about interrogating the legal consequences and the parameters of bills, not just the policy that is being presented in them.

Do the witnesses think that codifying that kind of greater stage 2 scrutiny would be helpful, and that parliamentarians need to alter how they view legislation—and therefore scrutinise it as it progresses—in order to deal with that?

Dr Fox, it sounds as though you are saying that secondary legislation instruments that come before Parliament should be treated as mini-bills, almost by default. Are you saying that they should be scrutinised and deliberated on in much the same way as primary legislation? If so, is that because, in essence, there is no clear distinction between primary and secondary legislation now?

In summary, the broad set of recommendations about looking at specific powers propose that we sift the instruments and that we consider taking more evidence on secondary legislation and scrutinising it in more detail. In the Scottish Parliament, we have the advantage that we do not have a distinction between bill committees and select committees so, in a sense, we have already addressed that bit. However, if you look at how we scrutinise secondary legislation, you will see that, by and large, the minister will come to a committee to present the instrument and the process is pretty much done at that point.

The suggestion seems to be that there should be a sift and that the length of time for which an instrument has to be laid should be elongated so that committees have the option to take evidence. There has been a bit of scepticism about whether procedure will cut it in this area, but is that roughly the consensus view on what Parliament should do to improve the scrutiny of statutory instruments?

I can just weave it into my main body of questions, which follows on pretty closely from some of the things that have been discussed.

I have seen tidying-up clauses that enable Government ministers to alter any enactment. I really object to that.

Just to play devil’s advocate on the point that both Dr Tickell and Dr Grez Hidalgo raised about potentially legitimate Henry VIII powers, what stops those things from being done through one-line bills or, indeed, through more regular tidying-up bills, whereby there is a list of little tidying-up measures that should, in theory—if they are just tidying up—sail through Parliament but would at least have parliamentary scrutiny? Surely that is an alternative way of dealing with those points.

That is a very useful clarification. My observation is that these things work much better if you have clear guard rails, even if you leave the operation to legislation.

I will ask essentially the same question about the so-called Henry VIII powers, which are powers to amend primary legislation. With those powers, do you take broadly the same approach, or are different approaches, principles or even practices set out in your guidance with regard to those sorts of powers?

I was going to ask whether it is helpful to think about the question in terms of being about framework legislation, or whether it is about how powers are framed, but you have answered that, in a sense. There may be a follow-on question.

I think that we can all frame a spectrum where, on the one hand, legislation provides the power to set a rate or value, which can change over time, and at the other end, there are powers that could give ministers the ability to criminalise certain actions, which we can see would be problematic. Are there particular features of powers—they might be in the one delegated power in a bill—that we should look at? That could be about the type of power or about whether something is framework legislation.

I am also concerned that powers to make secondary legislation should have guardrails. Is the issue the type of power or the way in which it is framed? Should we have a taxonomy for identifying potentially problematic clauses? Andrew Tickell seems to be nodding most, so I ask him to respond.

Exactly.