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Delegated Powers and Law Reform Committee
Meeting date: 7 January 2025
Jeremy Balfour
That was helpful.
I have one further question. This particular Government’s justification is that it wants to involve as many stakeholders and as much of the community as possible, so it says, “We’ll get the framework bill passed and then we’ll go and do the consultation so that everybody can be involved in it.” As an Opposition politician, I suppose that my question is this: why not do the consultation first and then bring the bill forward? From a policy perspective, is it justifiable to say, “We want to get this right, so let’s involve as many people as possible, and it’s easier to do that once we’ve got the primary legislation passed”? I am just interested in hearing what you think of that from an academic perspective—and particularly from a social perspective, too.
Delegated Powers and Law Reform Committee
Meeting date: 7 January 2025
Jeremy Balfour
Thank you.
Delegated Powers and Law Reform Committee
Meeting date: 7 January 2025
Jeremy Balfour
Good morning, and thank you for coming. I just want to pick up on a couple of points that have already been made.
We are told that one of the reasons for having framework bills in Scotland is that the Government wants to consult further once the primary legislation is in place. Does it help you as a drafter to have the information from a consultation when you draw up primary legislation, or is it more helpful to have it when you are working on secondary legislation—or does it make no difference?
Delegated Powers and Law Reform Committee
Meeting date: 7 January 2025
Jeremy Balfour
It is coming up to 40 years since I started working in the law, which is a bit frightening, but one of the things that I remember from my first year of jurisprudence is that the point is to make good law—which means, in other words, that it can be understood by as many people as possible and implemented by the courts, if required. From a drafting perspective and given your vast amounts of experience, do you think that secondary legislation gives good law and clarity so that people know what the Government of the day is trying to do?
Delegated Powers and Law Reform Committee
Meeting date: 7 January 2025
Jeremy Balfour
Do you not think that, when we are dealing with an area of law—say, criminal law—if it is all in the statute, it is easier for people to find and interpret the information, instead of their having to look at the primary legislation and then X amount of secondary legislation?
Delegated Powers and Law Reform Committee
Meeting date: 7 January 2025
Jeremy Balfour
Thank you.
Delegated Powers and Law Reform Committee
Meeting date: 7 January 2025
Jeremy Balfour
“Don’t touch what we’ve done!” [Laughter.]
Delegated Powers and Law Reform Committee
Meeting date: 7 January 2025
Jeremy Balfour
That is a fair point. Perhaps I am just showing my age here.
Moving on slightly, I think that you have answered this already, but just for clarification, am I right in saying that policy development is not really your area and that you get sent instructions that say, “This is what we want. Turn it into legal language”? Is it correct to say that you are not really involved in what lies behind the policy?
Delegated Powers and Law Reform Committee
Meeting date: 7 January 2025
Jeremy Balfour
Would sunset clauses help with these types of legislation? Have we looked at saying “we will grant this but for a limited period of time” to force the executive—whether a new Government or the same Government—to at least justify their use? Would that be a possibility or would it simply add more administration to a busy timescale?
Delegated Powers and Law Reform Committee
Meeting date: 7 January 2025
Jeremy Balfour
Are we in agreement on that, or is anyone a Henry VIII fan?