Subordinate Legislation in the Scottish Parliament

Edinburgh Law Review

Volumn 6, Issue 3, 2002, Pages 356-379

  Himsworth, Chris ^a  

^a UNIVERSITY OF EDINBURGH   (United Kingdom)

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EID: 84865367012     PISSN: 13649809     EISSN: 17551692     Source Type: Journal    
DOI: 10.3366/elr.2002.6.3.356     Document Type: Article

References (130)

1. There is an early terminological point to be resolved here. It is not, of course, conceptually inaccurate to regard Acts of the Scottish Parliament themselves as a form of secondary (or subordinate or delegated) legislation, with regulations made by the Scottish Ministers under powers conferred In ASPs (but not the regulations they continue to make under Westminster Acts) all dubbed tertiary (or subdelegated) legislation. For its own purposes, the Human Rights Act 1998 does define ASPs as secondary. To extend this usage would, however, be clumsy and unhelpful. In this article ASPs, like Acts of the Westminster Parliament, are referred to as primary legislation.
2. Scotland's Parliament: Scotland's Right (1995). Similarly, there was a silence in the Constitution Unit's Scotland's Parliament: Fundamentals for a New Scotland Act (1996) and, despite their focus on the importance of committees in the Parliament and on the need to depart from Westminster practices, in B Crick and D Millar, Making Scotland's Parliament Work (1991).
3. Cm 3658: 1997.
4. Cmd 4060: 1932. The Committee was chaired initially by Lord Donoughmore and then, on his resignation, by Sir Leslie Scott.
5. Lord Hewart of Bury. The New Despotism I L929).
6. The fullest account, in the period to 1965, is to be found in the three editions of C K Allen, Law and Orders: An Inquiry into the Nature and Scope of Delegated Legislation and Executive Powers in England (1945,1956,1965). See also AW Bradley and K D Ewing, Constitutional and Administrative Law. 12th edn (1997) ch 27; H W R Wade and C F Forsyth, Administrative Law, 7th edn (1994) ch 22.
7. Cmd 4060: 1932, section II, para 4.
8. Cmd 4060: 1932, section II, para 11.
9. Cmd 4060: 1932, section II, para 12.
10. The Committee acknowledged a distinction between the law of England and Scotland in this respect— see Cmd 4060: 1932, section II, para 12, footnote 177.
11. Cmd 2842: 1927.
12. Section II, para 15, VIII and XII.
13. Section II, para 15, XIII.
14. Section II, para 15, XIV.
15. The Committee started life in 1944 as a House of Commons Select Committee on Statutory Rules and Orders. For discussion, see Allen, Law and Orders, 3rd edn (1965), note 6 above, at 136-142. See also K C Wheare, Govenunent by Committee (1955) ch 8.
16. See C M G Himsworth, “The delegated powers scrutiny committee” (1995) PL 34,
17. The creation of a Commons committee for this purpose was rejected by the Procedure Committee in 1996, see Fourth Report, Delegated Legislation (199.5-96) HC 152. It would be an unnecessary duplication and would not influence debates which already took place in the course of the consideration of Bills (para 14).
18. A Beith, “Prayers unanswered” (1981) 34 Parliamentary Affairs 165.
19. For recent proposals, see Delegated Legislation (1995-96) HC 152, note 17 above; and Delegated Legislation, First Report of the Procedure Committee (1999-2000) HC 48.
20. See Shifting the Balance: Select Committees and the Executive, First Report of the Liaison Committee (1999-2000) HC 300; Shifting the Balance: Unfinished Business, First Report of the Liaison Committee (2000-2001) HC 321, paras 83-84. But functions in relation to delegated legislation appear to have been omitted from the more recent report of the Modernisation Committee in their proposals for a “clearer remit” and that of the Liaison Committee on “core tasks”. See (2001-02) HC 224 para 31-35, and (2001-02) HC 692 paras 8-11 respectively. On the other hand, the memorandum submitted to the Modernisation Committee by the Leader of the House (Robin Cook MP) in December 2001 did mention a role for select committees in relation to delegated legislation. See (2001-2002) HC 440 paras 24-25.
21. See A House for the Future, Cm 4534: 2000, para 7.38; and The House of Lords—Completing the Reform, Cm 5291: 2001, paras 31-33. See also the Report from the Leader's Group appointed to consider how the working practices of the House can be improved (2001-02) HL Paper 111 paras 16-17 and HL Deb, 21 May 2002 at, inter alia, cols 645, 677, 684 , 693 and 700.
22. No doubt useful comparisons will, in due course, be drawn with the developing position under the Northern Ireland Act 1998. The circumstances under the Government of Wales Act 1998 are quite different.
23. Scotland Act 1998, ss 28-30 and Schs 4, 5.
24. Although conferring powers which could, on their face, be used by the Scottish Ministers both within and outwith devolved competence would probably be saved by s 101 of the Scotland Act 1998.
25. But note, e.g., the US Congress. For discussion, see R B Stewart, “The reformation of American administrative law” (1975) 8 Harv LR 1667.
26. A position reinforced by, e.g., s 101 of and Sch 4 para 1(1) to the Scotland Act 1998, which assume a general power to delegate.
27. The Scotland Act 1998 (Transitory and Transitional Provisions) (Standing Orders and Parliamentary Publications) Order 1999, SI 1999/1095.
28. Those Standing Orders have subsequently been amended. See note 41 below.
29. Section 3.5, paras 27-33.
30. The Parliament marked its first 1,000 days on 26 March 2002 with the production of a film A New Voice in the Land. Although the issue of subordinate legislation may not be expected to loom large, it should be noted that the Procedures Committee is currently undertaking an inquiry into the implementation of the Consultative Steering Group Principles.
31. Scotland Act 1998, ss 52-53.
32. See especially, the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 1999, SI 1999/1750.
33. See Scotland Act 1998, s 118.
34. Or “super-affirmative” procedures. See text at note 73 below.
35. The Parliament has adopted the Westminster habit of calling these “Henry VIII clauses”. That terminology is used throughout the deliberations of the Subordinate Legislation Committee and, for instance, in the Parliament's Guidance on Public Bills (Annex B). It may, however, be seen as a matter of regret that the Parliament has continued to invoke the name of an English king. Perhaps the term “Macbeth clauses” could have been adopted?
36. See J A G Griffith, “Common law and the political constitution” (2001) 117 LQR 42.
37. See note 20 above.
38. It has already been noted that practice at Westminster has itself been subject to change and to reforming proposals. See notes 19-21 above. One specific source of change, not so far regarded as very significant, has been the consequences of devolution not for the devolved institutions but for Whitehall and Westminster. See Joint Committee on Statutory Instruments, Twenty-seventh report (1997-98) HC 33 xxvii, HL 88, Appendix 1 (Memorandum by the President of the Council) Delegated Legislation and Devolution; HC Procedure Committee, Fourth Report, The Procedural Consequences of Devolution (1998-99) HC 185 paras 36-38 and Appendix 18 (Memorandum by the Clerk of the House) paras 54-88; HC Procedure Committee (1999-2000) HC 48 paras 29-31.
39. The Scotland Act 1998 (Transitory and Transitional Provisions) (Standing Orders and Parliamentary Publications) Order 1999, SI 1999/1095, r 6.11.
40. And, since the Standing Orders were amended when remade by the Parliament itself in December 1999, Scottish Statutory Instruments which are not laid before the Parliament but which are classified as general according to their subject-matter.
41. This last function was added by amendment of the Standing Orders on 23 November 2000.
42. See Scotland Act 1998, ss 44 and 52.
43. Also subject to procedures in the Scottish Parliament are certain UK orders under the Scotland Act. See Sch 7 to that Act.
44. Scotland Act 1998, s 52(1).
45. The first ASP, the Mental Health (Public Safety and Appeals) (Scotland) Act 2000 contained powers to make subordinate legislation and many others have followed.
46. See, e.g., the Pollution Prevention and Control Act 1999, s 5.
47. See, in particular, the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers, etc) Order 1999, SI 1999/1750.
48. See, e.g., Transport Act 2000, s 208 (Directions and guidance to the Strategic Rail Authority).
49. Scotland Act 1998, especially s 129, and the Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999, SI 1999/1096.
50. See arts 5-9.
51. Art 10(2), subject to exceptions explained to the Presiding Officer under art 10(3).
52. Art 13(1), subject to exceptions where the instrument is subject to special parliamentary procedure or an instrument which is required to be laid for any period before coming into force.
53. The Parliamentary Bureau is the multiparty business committee of the Parliament established under eh 5 ol the Parliament's standing orders.
54. If more than one, the Parliament may, on a motion of the Parliamentary Bureau, designate a lead committee.
55. Rule 10.3.
56. Similar provision is made in respect of motions that draft instruments he not made or submitted.
57. See, e.g., Transport Act 2000, s 208. Note 48 above.
58. NB also Scotland Act 1998, s 28(7).
59. See, for instance, the debate on the Sewel motion in respect of the Police Reform Bill 2001-02, Scottish Parliament Official Report (henceforth “ SPOR”) 30 Jan 2002, col 5888.
60. On the Police Reform Bill, see HL Delegated Powers and Regulatory Reform Committee, 12th Report (2001-02). On Scotland, see paras 10, 12. On Sewel motions in general, see B K Winetrobe, “Counter-Devolution? The Sewel Convention on Devolved Legislation at Westminster” (2001) 6 SLPQ 286.
61. As one MSP, Bristow Muldoon, said, “We need to consider very carefully any major Bill that brings in a range of new powers to introduce subordinate legislation.” SPOR 21 Sept 1999, col 36.
62. SPOR 9 Jan 2001, col 392.
63. Gordon Jackson MSP, SPOR 9 Jan 2001, col 390.
64. 3Oct2000.
65. Annex to 17th Report (2001) of the Local Government Committee.
66. See the Marriage (Scotland) Act 2002, s 1(3) inserting a new s 18A into the Marriage (Scotland) Act 1977.
67. See Annex to the 21st Report (2001) of the Health and Community Care Committee.
68. Annex to the 21st report (2001) of the Health and Community Care Committee, paras 12-14.
69. A(1n99e9a)r.ly' example was in the Public Finance and Accountability (Scotland) Bill: see SLC 10th report
70. A Group, associated with the CSG, which was set up by the Scottish Office prior to devolution to advise on financial procedures.
71. See SLC, 1 Feb 2000.
72. E.g., Marriage (Scotland) Act 2002 above.
73. See, e.g., SLC, 16 May 2000, when discussing the Education and Training (Scotland) Bill.
74. See National Parks (Scotland) Act 2000 s 6.
75. A similar procedure has been incorporated into the Convention Rights (Compliance) (Scotland) Act 2001, s 13; and the Protection of Wild Mammals (Scotland) Act 2002, s 6.
76. See, e.g., annex to 1st report of Audit Committee, 1999.
77. SLC, 21 Nov 2000.
78. See SLC discussion of the Education (Graduate Endowment and Student Support) (Scotland) (No 2) Bill, 9 Jan 2001, cols 390-393.
79. SLC, 9 Jan 2001, col 391.
80. If, indeed, even that is necessary. For an intervention to challenge one instrument in a group, see note 112 below.
81. The SLC recently referred to how heart warming it was to see the changes made by the Executive to the Freedom of Information (Scotland) Bill. See SLC 26 March 2002, col 846.
82. Quite apart from their specific contribution on delegated powers, these reports provide useful systematic commentary on the progress of Bills in general.
83. See SLC, 20 June 2000, col 249.
84. See inter alia Procedures Committee 12 Sept 2000, cols 438-445.
85. The SLC's annual report for 2000 recorded that it had considered 182 instruments during the year and submitted twenty-seven reports.
86. SLC proceedings have not lacked a certain humour of their own. It has been proposed that those instruments attracting no points (nul points) for comment by the Committee should be dubbed “Norways”! SLC, 26 Feb 2002, col 811. (Unrelatedly, those orders made under s 2(2) of the European Communities Act 1972 have been labelled “Desmonds”. SLC, 16 April 2002, col 863.)
87. Sometimes the delay has been explained by the need to synchronise the timing of implementation with that in England and Wales. There have also been problems caused by the need to coordinate the use of language north and south of the border—see SLC 26 Feb 2002, cols 802—803—in relation to a draft Renewables Obligation (Scotland) Order. See also 45th Report (2001).€
88. There have been many examples. A recent interesting instance was the SLC's criticism of the definition of “usual good fanning practices” including, adopting similar Joint Committee criticisms, the adoption of a definition by reference to a revoked provision: 21st Report (2002).
89. See, e.g., 40th Report (2001).
90. 8th Report (2001).
91. 42nd Report (2000).
92. 8th Report (2001).
93. See Scotland Act 1998, Sch 6, para 1.
94. 2nd Report (2000).
95. 2nd Report (2000), and see also 9th Report (2002).
96. See, e.g., 44th Report (2001).
97. E.g., 6th Report (2000).
98. 32nd Report (2000).
99. 13th and 14th Reports (2000).
100. For a special commendation on the quality of an Executive note, see SLC, 26 Feb 2002, col 810.
101. See the debate in the HC 3rd Standing Committee on Delegated Legislation (16 July 2001) where one order under consideration had the benefit of an Executive note and the other did not. Michael Moore MP enquired whether ministers would consider importing the equivalent of Executive notes into “this venerable institution”.
102. E.g., 17th Report (2000).
103. 32nd Report (2000).
104. 14th Report (2001) para 40. It is understood that there are plans, not yet realised, for the publication of a separate Scottish version and see 13th Report (2001).
105. But see SLC, 14 Mar 1999, col 119, where Fergus Ewing MSP “hoped beyond hope” to detect a “fatal flaw”.
106. See text at notes 114-119 below.
107. Others have included orders subject, under the Scotland Act, to approval both at Holyrood and Westminster. See also the special case of the Census (Scotland) Order 2000 referred to at note 122 below.
108. See, e.g., Local Government Committee, 29 May 2001, col 2045.
109. One advantage of having uncontroversial affirmative instruments considered in a lead committee which can then move on to other business is that, unlike a delegated legislation standing committee in the House of Commons, it has probably not been convened solely for the single instrument. The problem of the “trivial affirmative” (see (1999-2000) HC 48 para 11) is not acute.
110. See, e.g., the Education, Culture and Sport Committee, 6 Dec 2000, col 1896 et seq.
111. See SLC, 9 Jan 2001, col 391.
112. See Phil Gallie MSP's opposition to draft legal aid regulations on 15 Feb 2001: SPOR col 1405.
113. As with affirmative instruments (see note 109 above), there is some advantage (apart from that of accumulated expertise) in having uncontroversial negative instruments referred to committees with other business to conduct. There is less of a need for prior “sifting”, as has been proposed in the House ofCommons (see (1999-2000) HC 48 paras 13,14), which raises questions about the nature— technical or political—of the sifting function.
114. See the Committee's meetings of 22 and 29 Jan 2002.
115. Single instance comparisons ma) he misleading but the contrast between these events and an encounter in the HC 4th Standing Committee on Delegated Legislation (11 Dec 2001) is illuminating. In the HC committee, MPs appeared to be presenting very telling arguments as to the vires of some new Variation of Stamp Duties Regulations (cols 8-12), to be met only by defensive bluster on the part of the minister (Paul Boateng MP) and a reminder from the chairman that, whatever its reservations, the committee could do nothing but report that it had considered the regulations (col 18).
116. Education, Culture and Sport Committee, 29 Jan 2002, col 3038.
117. Education, Culture and Sport Committee, 6 Dec 2000, col 1910.
118. Education, Culture and Sport Committee, 6 Dec 2000, col 1903.
119. Michael Russell MSP in the Education, Culture and Sport Committee, 29 Jan 2002, col 3047.
120. For the Parliament's role in the aftermath of the SQA's failings, see the 6th Report (2000) of the Enterprise and Lifelong Learning Committee and the 11th Report (2000) of the Education, Culture and Sport Committee.
121. A possible competitor for the highest level of notoriety has been Robbie the Pict's campaign against the Skye Bridge tolls, conducted mainly in the courts (see, e.g., Smith v Hingston 2000 GWD 2-62) and a rare meeting of the Statutory Instruments Reference Committee at Westminster on 5 Dec 2001, but overflowing also into the Public Petitions Committee at Holyrood (5 Feb 2002).
122. SPOR, 16 Feb 2000, col 1100.
123. From time to time, the SLC has raised the possibility of some sort of an arrangement with the Executive to try to achieve a more balanced work flow. A good illustration of the negotiated rather than merely confrontational relationship between the Committee and the Scottish Executive. See, e.g., SLC, 22 Mar 2000, col 129.
124. Nicely illustrated at the time of the expansion of the SLC's remit in November 2000. See note 41 above.
125. Another matter to be addressed is that of provisional order procedures and special parliamentary procedures currently subject to the Scotland Act 1998, s 94.
126. Comparisons should not be too closely drawn but it has been interesting recently to see the discussions taking place between the SLC and the Northern Ireland Examiner of Statutory Rules, Mr Gordon Nabney. Mr Nabney was described by the deputy convener of the SLC as a “one-man subordinate legislation committee” (14 May 2002, col 891).
127. This is something which has been a concern at Westminster. See, inter alia. First Report of the House of Lords Select Committee on Delegated Powers (1992-93) HL Paper 57, Minutes of Evidence, at 25 (Professor Wade), and the Committee's 12th Report (1993-94) HL Paper 90, paras 11-12. See also (1980) 1 Statute Law Review 40 at 44-45. For a judicial response to ministerial inaction, see R v Home Secretary, ex p Fire Brigades Union [1995] AC 513.
128. The Scottish Parliament was represented at the International Conference on Regulation Reform Management and Scrutiny of Legislation held in Sydney in July 2001. A full report by David Mundell MSP was published as the 36th Report of the SLC (2001).
129. Indeed, practically all the innovative ideas at Holyrood have, mutatis mutandis, been considered at Westminster. See the HC Procedure Committee Reports, note 19 above.
130. Largely unconsidered in this article has, of course, been the scrutiny of subordinate legislation bv the courts. It is quite possible that, in addition to their new responsibilities to check that instruments are within devolved competence, a substantial shift in the degree of parliamentary scrutiny and control (including, e.g., a power to amend instruments) might in turn produce a revised approach to scrutiny of SSIs on the part of the courts.