 Fawr, wrth gwrs. Gweithiwch. Fy anodd y ff spurwyr yn ddisgrifenni 2014 er oedd ybreidwyr, cymdeithas, a ydych i'n gwaith o gwneud o'r pwyllgor mobiol. Y rhai ymddai arfer y Pwyllgor yw y sydd am mwynhag a ddefnydd함u. Ar hyn y pwyllgor eraill, sefyllwch â'r bydd. A cymdodd y pwyllgor yw ddweud, mae gallwn i'n meddwl o ffyrddwyr. A'r llei hefyd i'r pwyllgor. Rwy'n crefyd wedi cychwyn i fod yn teimlo i chi i chi amser yn dim ond a bod yn rhaid i chi gyd y Com raswn i chi i gyd y Com yn rhaid i chi i chi i chi beth amser. Rwy'n crefyd i chi i chi wedi chi i chi i chi wedi'i fewn gwasanaethu ffordd mwy o'r ddeinidu, ond hynny'n i chi yn dda ni'n ei fod yn pikelygu'r ddei chi, ac maen nhw'n bod yn ei gynllun i chi wedi ei gynnig. Y gndryg cymdeithasol ymblom hwn o'r ddechrau o'r cyfnod am y Cau inni yn ffraith. Sperfiad, we take items 9 and 10 in private, item 9 is consideration of a paper which will inform our draft report on airweapons and licensing. Scotland Bill at stage 1 and item 10 is a chance for the committee to consider the evidence. We just about hear from the Minister for Parliamentary Business—are we agreed to take those items in private please? Thank you very much, which brings us to item 3. Which is consideration of the work of the committee during the parliamentary year, and I welcome, The only thing that I am interested in is that the two Scottish Government officials, Stephen MacGregor is the legislative programme manager for the Parliament and Governance Division on Polka Keqt, is a solicitor and the Scottish Government legal directorate. Good morning gentlemen, thank you very much for coming. This is in my mind actually one of the highlights of our year because we worry about the process and the things that have happened and it's good to be able to review that in a positive kind of way. I am looking forward to our first question from John Scott. Gwydran i gweithio, Nigel. Gweithredu i gredbitidon. Mae cymummer yn yr unig yn 2013-14 felly yn rydyn ni'n cael eich gweithio gyda nhw'r ystafell sydd yn rhywbeth, ac yn rydyn ni'n cael eich gweithio'r ystafell sydd yn yr eich gweithio gyda nhw'r rydyn ni'n cael eich gweithio. ond. The committee welcomes those figures and asks what steps the Scottish Government is taking to maintain that improvement and, indeed, to reduce further the number of instruments reported on. First of all, I can say thank you to the committee for highlighting what is a very positive trend. I think that that is helpful to us in government and helpful to our officials that that is recognised. It is a trend that we want to continue on. Obviously, we need to do our best to keep our standards as high as possible. There are a few things that we have put in place, and it is continuing development. One of the things that we have is detailed guidance for our policy teams, and that is constantly being reviewed to make sure that we have best practice and based on changes in the law, comments of the committee are all being taken into account with the advice that we give to officials. One of the other things that has been very successful that we will continue is quarterly seminars on SSIs to officials, which I think that the clerks have been helpful in taking part in. That is our major point, to keep that continuing improvement on going, and that would be our intention. Thank you very much to the committee for recognising the progress that has been made today. It is unwelcoming, and it makes our job a great deal easier. In our report, we noted that the number of statutory instruments brought over the period did seem to be significantly lower than in previous periods. I am just wondering whether you can comment on whether you feel that that is significant or just the way that it has fallen out. It is not really significant, it is just that, as you say, the debate has fallen out. Different legislation will have different requirements for instruments, and there is not any underlying trend or anything, it is just that different laws—sometimes it is very complex laws—have less secondary requirements, and what on the face of it looks like a very non-complex piece of legislation that might have requirements for quite a lot of secondary legislation, so there is not any underlying trend. If I could then pick up on one of the other trends that we have observed, which previously, in previous years, we have seen spikes in the number of instruments coming through, particularly towards a recess, it seems to have been modified a bit. I am wondering whether you could talk about the processes, because we see fewer spikes, and that is obviously welcome. We have certainly, across the organisation, put on in place mechanisms to make sure that people understand that the desire of this committee is not to have these spikes and to try to manage spikes down. Looking forward, we do not envisage any major spikes, but we are coming towards the end of the parliamentary session, and that always has a particular pressure, which we have already started to process to alert bill teams that we need to do our best to make sure that we do not end up with a big spike at the end, which would put a huge pressure on this committee. Maybe I could ask Paul to come in and just talk about how we are managing that process. I think that it is really fair to see that there are two sorts of spikes, one of which are the timing spikes that relate to traditional times of year when instruments come into force and spikes around the end of parliamentary sessions, and there may be some that we need to manage. In fact, around the UK general election next year, when there may be instruments done in parallel with Westminster, but the other sort of spikes are the ones around individual implementation processes. We may end up speaking a bit more about that in the course of the meeting this morning, and it was a concern that was raised by the committee when we were last here in April to ensure that we look forward and plan. At that point, we had same-sex marriage, which was an implementation process that was upcoming. We took that away and spoke with the policy teams to ensure that there was as much proper management of that. While there is a risk of big bang implementation that requires a cluster of instruments to be taken together, there was some planning to make sure that that was smoothed out, but also to ensure that the instruments were before the committee at the same time so that the broader picture can be seen. It is something of forward planning to ensure that we are alert as to what is upcoming. That is certainly very much on-going for the period ahead. We are beginning to look between now and May 2016 about anticipated clusters and groups of instruments that we can ideally plan in a way that makes it easier for you to carry your scrutiny in role. I think that implementation packages are something that we are going to come to a little bit later as you have suggested. Do colleagues want to make any comment just at the moment? I just wondered if perhaps you would care to agree that, of course, the convenience of this committee is one thing, but it also would be more efficient use of the resources in drafting and bringing forward those instruments, more efficient use of Government resources and civil servants resources, for there to be a relatively uniform workload in that respect. I think that it is very much the position that our drafters are concerned that not only does it put pressure on this committee, but when you have a peak of working towards deadlines that is where the risk of things requiring to be rushed can be increased and therefore increases the risk. I hope that if issues arise, there might be no one, but it is an enhanced risk of that and the more we can manage that process to take pressure off individual drafters and policy leads the better, so it is a good point. With a consequent increased likelihood of accuracy, first time round, which is helpful to everyone. Thank you. It is interesting that it was the movement towards 2016 that you really touched on, but historically there has always been a spike in the last six months prior to any election as far as I could see, but you are obviously aware of that. There is already in the planning stage to make sure that we can manage that process as best as possible, so there will be strong guidance going out to bill teams and officials to do our best. I cannot guarantee that there will not be a spike coming to the end of the 2016 parliamentary session, but we are alert to it and we will do our best. You have already made mention of interaction with the UK Government, which, of course, happens for all sorts of very good reasons. We have seen a number of instruments that have breached the 28-day rule for the reason that you were trying to lay an instrument in the same terms as the UK Government for the rest of the UK. Again, it is entirely understandable. I think that you agreed that you would try to talk to David Mundell MP about how that might work. Perhaps you can report whether it would then progress, please. We certainly have flagged that up with Mr Mundell and I think that he is in good faith taking that back. Sometimes the pressure that he has to deal with are significant as well, if there are changes to their legislative programme, if there are opposition amendments. Some things are not entirely within their gift, but my understanding is that Mr Mundell does his best to make sure that other Government departments are alert to the different timings of this Parliament. It is going to remain an issue, but I think that we will continue to flag it up with Mr Mundell. Mr Mundell will continue to flag it with Government departments, and hopefully that will mean that it will not be an issue more often than it has to be. I think that there will continue to be some times when, for various reasons, there is a conflict in terms of the different timescales. We understand that we live in the world of real politics, not everything is always going to work the way that we wanted. You are probably aware that the committee has had some difficulties scrutinising the delegated powers, provisions and bills between stages 2 and 3 due to the timescales involved. I was wanting to ask this because I am also in the finance committee, and we have also had some issues with timescales around financial memoranda. In its submission to the SPPPA committee inquiry, the committee expressed the view that it may be beneficial to extend the period between stages 2 and 3 and, in turn, the time before stage 3 by which a revised or supplementary delegated powers memorandum must be lodged. I think that when you came before the committee earlier this year, you said that you would review the matter, and I just wondered if you could tell the committee where you are in the progress of having that review. We have taken on board the committee's concerns from last year. I think that it was just prior to my appearance last year when there were some issues that came before us. I hope that, since then, we have tried to make sure that those issues have not arisen again. The bottom line when I speak to bill teams before the introduction of a bill is that they should do absolutely everything possible not to bring new powers in at stage 3, which then puts pressure on this committee. I think that we have managed to manage that. I think that the other point is that, at any stage, the committee is saying that it is just not possible for us to look at those powers. In the past, we have extended the times to make sure that that can happen. We need to work together as much as possible. I will try to continue to make sure that those pressures that you experienced two years ago do not happen again. In the powers that I have, because I cannot foresee everything that might appear. We have expanded on the same. One of the points that was made by our legal advisers is the interaction of new powers when introduced at stage 3 with existing powers and how that matches up. The ramifications of that, which, if it is a constrained timescale, might occur to you as it were in the bath over a period of time. If you are working very short timescales, it is harder to understand the issues that may arise. I think that your point is well made. The message that I have been putting out to build teams is that, unless there is something exceptional, they should not be bringing new powers in at stage 3. If they are brought in, I certainly appreciate the work that the committee and the finance committee do in looking at those powers. We need to make sure that you have the time to do your job, which is part of the process. Remember that, for us all, it is about getting legislation that works and is robust at the end of the day. That is in everyone's interests. I think that sitting at this end of the table, my perspective is that we, as a committee, are almost bound to growl at the Government if you introduce things at stage 3, simply because, as a matter of process, it has got to be bad. It does ask for trouble. I will do my best to stop you growling. I wonder whether we can move on to the packages of instruments. We have seen some issues where the quality of drafting planning was not as good as anybody would have wanted. I can quote the examples of the Bank of Arts, the indebted advice and the public body's joint working Scotland bills, which I think that you will be well aware of. I wonder whether you can explain to the committee what you have done to ensure that those kinds of multiple errors do not occur again. Obviously, the first set of packages was the Police and Fire Reform Act. I think that we all learnt a lot from that process. Last year, I said that the next major packages that we would be coming through would be the marriage and civil partnership implementation. That is an example that shows that we have learned the lessons. Working with the clerks, the committee and other committees, we have managed to make sure that that process was what we should be aiming for for everything. However, I understand that there have been some areas where it has not worked quite as well as we should for particular reasons. However, I think that it is about communication between the committee and our officials to make sure that we all understand what we are trying to do and the processes around packages. There are a few more coming up, and we have continued meetings to take that forward, to make sure that officials are liaison with clerks as part of that process. There are no surprises, which is perhaps one of the most important things. We have also had concerns about certain orders that commence sections of an act that is being brought into force before Parliament has afforded the opportunity to scrutinise those orders. That occurred in relation to instruments that commence sections of the Public Bodies Joint Working Scotland Act 2014 and the Victims and Witnesses Act 2014. That is a practice that is concerning to us, and we welcome a commitment from the minister that efforts will be made to avoid repetitions of the needs and preferences. In relation to the Public Bodies Joint Working Scotland Act 2014, there was certainly an example where we did not follow the correct practice and a letter of apology was sent to the committee on that basis. The timescales for implementation were tight, but nonetheless we should have followed the procedures that we have in place to alert the committee of that process. I think that there was a second run where, again, we had to do it without using the full timescales, but on the second occasion with Public Bodies, we did follow the convention of giving an explanation in advance, because I think that that makes a difference if you know before something is done if we have explained it. In terms of the Victims and Witnesses Act 2014, that was slightly unusual in that we had an agreed commencement date of 13 August, which had been worked agreed with the justice partners and practical arrangements such as IT, staff training procedures had all been put in place. We were online to lay the order within the correct time, then close to the end something was identified that meant that the order could not be laid. It was not an intentional shortening of the time that was an unexpected change that required a change to the delaying of the order being laid. At that point, we could have had two choices, either to lay it with a reduced time or change the implementation day. Given that all the work had been done with partners for the 13 August being the commencement date, it would have been more disruptive to change that. We always do our best to meet the timescales that we have agreed to and which are best practice, but there will be occasional times when we have to say sorry on this occasion that we have not managed to keep to the time and hear the reason and hopefully committee accepts the reasons. Of course we do. We are reasonable people, but just as a general principle, if no one, like surprises in government, I am sure any more than we do on this committee. If there is a generality, we are able to avoid that in the future, then we would welcome that. The other thing that I have tried to put out across the organisation is that if there is any point when we cannot meet the timescales that we would be expected that we should be as transparent about that as possible and be as upfront as we can, so that that committee is at the maximum time. On a sort of parallel thing, it just occurs to me that there are bits of acts that, although on the statute book for some considerable time, have not been commenced. In some cases that is deliberate. I recall when I took the climate change bill through in 2009 that we had some bits in that that we said in the debate that we would only be commenced under some contingent circumstances, and that is fair enough. However, I wonder whether we have any sense whether, since 1999, when we started legislating here, there are bits of our legislation that have yet to be commenced. I suspect that you probably do not know, but I just wonder if it is perhaps time that we looked at it. I do not know if that is my answer to that question. I know that it is an issue, and there is clearly an obligation where Parliament has decided that a piece of legislation should be enacted that it should then respect the will of the Parliament and then, at the appropriate time, proceed to give effect to that. Sometimes that can take a little while. The example that you gave was an interesting one, because the Parliament understood that, in the climate change example, there was going to be some delay before that took effect. It might never be commenced. That was part of the debate. However, certainly, the principle that respect should be shown for the resuscitation of the Parliament to enact that legislation and it should be commenced is quite important. I cannot think of any particular examples of that. I do not know if the top of my head has since 1999. I know that there are some older pieces of legislation from Westminster that, for various reasons, have not been commenced or some acts that are not yet fully commenced for various reasons do not pin me down on what they are and have to go back to the memory banks, but I am conscious of the issue. I am not aware of any of the top of my head in the Scottish Parliament, but I do not have a comprehensive knowledge of the... Maybe you can take that away and have a wee look and see if it is not too onerous to pull back together. It is only curiosity, not necessity, so if it proves to look onerous, I do not think. I have to say that I am not entirely sure whether it is in the remit of this committee, but on the other hand, if you do not know what policy you are looking for, it is difficult to say which other committee's responsibility it is, so perhaps it is as in default. It might be just worth a quick sub-time. See if it is easy to look it up. See what there is. John. When developing that theme, if a piece of legislation has not been commenced and therefore has not been used or required, is there a kind of de facto argument for saying, well, if it has not been used after, shall we say, 15 years, should be a sunset clause on it? I think that that would be something for relevant committees to look at, I suppose, going forward. Perhaps sometimes these things would be picked up with future consolidation exercises. If I could take you on to transitional provisions, please, I am conscious that we had some cases which indicated that maybe the processes needed to change a little. I am conscious that the Government has made some commitments about the way it brings forward transitional provisions, but also conscious that, whilst that is a very good working relationship with the Government, and that is appreciated, although we do have one exception, it is not yet in standing orders. I suppose my concern is that a future Government would not be bound. Actually, as a committee, I think we would want you, in a sense, to be given some standing, some statutory instructions on how to deal with transitional arrangements simply because they have caused trouble in the past. I wonder what you are feeling about that at the moment, please. I think that we need to be careful to make sure that we continue to have the flexibility within the system in order to make sure that we have appropriate best practice, I think. Perhaps one of the challenges would be to work out where the provisions are significant, for instance, and how we would define such things might be difficult and certainly what we do not want to get into the position is that we are spending huge amounts of your time and our time arguing over whether a package is significant or not. I think that the situation would be hard for us to try to lay with 40 days to give extra time for the packages, the time that we spend discussing with clerks and your legal advisers. I think that it is all very well spent and it is getting us to make sure that we do not have those errors. Those errors are very infequent, but we do not want to underplay the significance of the cases that you have highlighted in the past. I think that the difficulty minister is that, whilst they are very rare, they do turn out to be significant when we get there, that is kind of the problem. If they do rear their heads, it is not a minor case. I wonder whether there is some provision whereby we have in standing orders that you have to allow the kind of timing that you are now doing, but if you were to write to the Presiding Officer and explain that you felt that this was an exception, as happens in some other instances, that might be the kind of provision with which you could live and which the committee could then see that there was a written-down process? I think that the challenge is around the complexity of determining what is a package and what is not a package. We are certainly trying to work to a standard that gives you the maximum amount of time. We are also doing some work in terms of making sure that we have robust executive notes attached to the instruments for the legal explanation and, perhaps more importantly, for the committee, to clear plain English policy notes so that people can understand what the whole package is trying to do and why we are doing it the way we are doing it. Paul, do you want to go on this? My point would be the same one about flexibility. Whether it is a practice or whether it is a standing order, there are circumstances in which it would not be appropriate to apply it, so we need to work in a flexible kind of way. We have certainly worked very hard to make sure, as far as we can, that policy teams know what the commitment is, and it generally has been adhered to. Where it has not been, I suspect, would have written to you to say that this is the reason why we are not adhering to it, so there is a question as to whether that would have made a difference in the circumstances and the issue that the minister makes about how you define complex when it is working out, whether something would be caught by the ruler or not. It would be unhelpful to end up having discussed with the committee about defining complex, which takes your eye off. The real issue is making sure that we do it properly in the first place. I am grateful for the discussion. Clearly, we are not going to resolve anything now, so that is now on the record. Perhaps we could go on to consolidation with Stuart Stevenson, please. Yes, I noted, minister, that we should have legislation that works. In that connection, I wonder whether, in particular in relation to secondary legislation, there are significant sequences of amending secondary legislation, perhaps particularly where there are lists being updated in secondary legislation. In one instance that I think we looked at, there were 18 separate amendments to a list. Whether the Government has a clear view of at what point it should go back to base and consolidate, so that someone who wishes to know what the law is does not inadvertently misunderstand by failing to spot one of the many amendments? It is an important point. Obviously, there is a resource issue in that we could consolidate everything. It is not just a matter of taking the amendments into the text, sometimes it is about rewriting the instrument in terms of modern-day language and the proper drafting procedure. It could be more than it might look to a lay person, more work intensive. However, we have taken forward 10 consolidations between 2013 and 2014. In the reporting year that we are looking at, there were 10 consolidations, so that is more than the year before. We have already done a further 2 this year. The trend is that we are doing more each year. There is no question that a consolidated instrument is much easier for everyone to follow. Clearly, instruments that are intended for lawyers are less important than ones that are intended for end-users and members of the public, in particular, to understand. That is certainly something that we would have to take into account. One of the other things that we take into account in terms of determining the committee is that if you are flagging up, particularly that you have dealt with some amendments that you think are amendments on amendments, and it has gone a stage further, we would look at that for consolidation as well. Maybe that is something that we could look at a way of formalising that. Yes, minister. I understand when you talk about lawyers, but might they not be merit in legislation being so simple that even lay people could understand it and thus avoid the expense of employing lawyers? In an idea of the world, always. However, let me now move on. Equally, minister, given that the drafter of an amendment to a piece of secondary legislation that perhaps does not conform to the present standards for drafting and layout and so on and so forth, will necessitate the drafter of that amendment considering what the instrument looks like after amendment. It will, of necessity, have produced a copy of the secondary legislation in its new amended form. Therefore, it is perhaps not very welcome, as the consolidations have been, even more opportunities for consolidation in the future. In practice, it will not necessarily be the case that the amendment will have a consolidated version, but it will have to work through a heavily amended instrument, certainly to work out what the current law is, to know what amendments are required to obey it. One of the things that I reflect on when I hear the question and think of the responses here is that a number of circumstances are different from what the purpose of legislation is and what the purpose of amendment is. You give the example of lists. You make a very valid point that the purpose of legislation is to be used in the real world at the end of the day. There are some pieces of legislation that are more directly used by the outside world, and that is a factor that would point to those being as up-to-date and as modern as possible lists that are a kind of example of that in many ways, where that makes sense. The age of the instrument is important. The number of times it has been amended can make it particularly complicated as well. In a strange way, picking up on the point about resources, the older the instrument and more out-of-date the drafting, the more sensible it is to consolidate, but also the harder at work it is to update all the references and to bring things into modern drafting practice, which means that we might not achieve as many numerically because we focus on the ones that need the most. All those factors come into play in deciding what the end outcome should be, but the idea of making legislation as modern, as up-to-date and as accessible as possible and as easy to use is an aspiration that clearly makes sense. We would agree with that. Let me move on to the accessibility issue. The website legislation.gov.uk is under the control of the UK Government, but to which we clearly contribute with our legislation. Where primary legislation is concerned, it will, in due course, sometimes at a relatively leisurely pace of years, reflect amendments that have been made by other pieces of legislation so that you can see what has been deleted and you can see what has been added and you can, in essence, read from top to bottom. That is very helpful, but there is no similar process in relation to secondary legislation. Is it perhaps time that we should be looking at using that facility when we are not moving to consolidation to at least give people better access to the sense of what an amended piece of secondary legislation might look like? One of the challenges would be the level of the numbers of secondary instruments that are across the UK. If that was to be done quickly for the whole UK, it would be a pretty sizeable piece of work to be done. However, in an ideal world, we are increasingly moving to an online world, and we need to make sure that we are using that to the max. Maybe it is something that we should look at as to whether we can perhaps suggest that Scotland might be a pilot or something in terms of taking that forward and there might be an opportunity there. I do not know, but it is a UK-wide resource, which we ourselves and the other Welsh Assembly in non-Island are part of, but we are not the major players because obviously the major players are the UK Government with the largest number of instruments. It is a valid point that we should try to examine and see whether there is a potential to use that resource so that we have that kind of online transparency and usability. It is certainly true that there is a lot of legislation. I looked at my own records, my five years or so, and the minister and I brought forward 127 pieces of secondary legislation. Yes, there is a lot of it. The Scottish Government, but you can imagine across the UK, it is even more. The next area to touch on was the teacher's pension scheme regulations 2014. I think that the committee has previously expressed concern about the quality of the drafting of the pension scheme regulations, although we welcomed the amended version of the instrument, which corrected the errors. However, the committee understands that there are plans to lay further pension instruments. Can the committee be given any assurance that the problems that we had in the past will not be repeated in the future? Obviously, sometimes you just have to put your hand up and thank the committee for bringing some to our attention. That is what happened in this case. I think that we took the right action by withdrawing that particular order and laying other ones. We have redoubled our efforts to make sure that there is proper checking to make sure that the quality is as high as possible. There is a degree of work going on across the organisation. Paul, you want to talk about the efforts that we are making to improve quality of the instrument? That was an instrument that there is no doubt, as far as the Government is concerned, in my direction that it is going to certainly be let ourselves down. On that instrument, there is no doubt that we did not do the professional job that we ought to have done. We were able to resolve the issue so that, at least in so far as, nobody would be adversely affected because the amendments would not take effect until 1 April next year. That was certainly an example of where the proper processes were not applied and were not followed. It is an example again where we need to remain vigilant in the overarching control processes and in responding to the scrutiny of the committee. However, we have taken steps to make sure that the particular area of activity that is concerned is that proper procedures are followed and that that will include future pensions regulations to ensure that the processes that we have to ensure that the high quality of instruments are followed in order to avoid that difficulty happening again. Good morning, everyone. The Community Empowerment Scotland Bill, the committee recently considered this bill and we were actually disappointed with the lack of explanation offered in relation to the number of powers within the bill. We also found a number of powers to be broad and ill-defined. While not common, this is not the first bill to present concerns of this nature and the committee has invited the Scottish Government to reflect on a number of powers in the bill. However, we would welcome the minister's perspective in general on the taking of broad powers, although little explanation is offered for their taking. Obviously, the Community Empowerment Bill is an unusual bill in terms of the framework bill. We try to avoid bringing forward framework bills. It is a wide bill that will be driven by communities in terms of how it is implemented. To rigidly say that the powers and what they are going to be used for might be difficult because it is not going to be for Government to say how it is used, but it will be for the communities to see how it is being taken forward. I guess that one of the strengths of the system that we have in the Scottish Parliament is that, if any powers are being drafted, they would have to come back to Parliament for scrutiny so that there is still a process to make sure that when the powers are being used, they are being used appropriately and correctly, so there is still that opportunity. However, it is a framework bill, and it is pretty unusual. Across the sessions of the Scottish Parliament since 1999, successive Governments have tried to steer away from framework bills as much as possible because of the concerns that the committee is raising, but this is one case in which a framework bill is appropriate because of the type of bill that it is and what the bill is trying to do. I am not really sure when you say that you are leaving it quite broad so that the communities can decide how to implement it, but if it is that broad and there are no defined guidelines, how will the communities understand how they can use the bill? Well, the bill has obviously been drafted in a way that is about enabling communities. I mean, one of the things that we have tried to do is to improve the memoranda that is around the bills, because I guess that is the tool that folk can use to see what a bill is trying to do and how it is trying to get there. I think that we have done a fair bit of work in trying to get to the point at which our committees feel that the memoranda are more useful and we have hopefully made progress on that. It is a work in practice and, if I can bring Stephen in just to talk about how we can get the information in those memoranda that you are seeking, because sometimes that is the challenges that we are trying to give you what you want and sometimes you do not quite understand that. Is there an on-going process to try to improve that? We are trying to work with bill teams across the Government to drive up standards of delegate powers memorandums, but one thing that would be really helpful for us to have an idea of is what the committee thinks is a good memorandum and perhaps a less good memorandum, then we can show that to future bill teams to give them practical examples of the sorts of information that the committee might be looking for. In this case, if there was further information that the committee would have expected to have heard about those powers, that is certainly something that will reflect on for the future if some more types of bills come forward. I mean I am probably a bit old fashioned, a bit naive, but I mean it seems, I mean we are a Parliament and it seems like a new kind of concept in law where essentially we make it up as we go along. And I am just not all fed with it. Are there other examples of where this happens elsewhere in the world or what is the precedent for it? It is hard to affirm accepted norms. It is a framework bill and maybe Paul can say another framework bill. Well yeah, I mean a lot depends on context. I know for example in the European context that it is quite often that a kind of framework legislation is made because that allows different member states for example to reflect the individual circumstances of the state. It is less commonly used in the UK but it can be relevant where circumstances, it is understood that circumstances will change in the future or that there to contain all the detail that would be required would actually make for absolutely enormous primary legislation so there can be circumstances where the detail is better set out in secondary. I am trying to think of examples of anything like a framework. I suppose the welfare reform bill was something that was a short bill that allowed for the details to be worked out at a later stage in a way that would be appropriate both for secondary level of scrutiny but also allow for relatively quick amendment as circumstances develop. Obviously the primary legislation process is a full level of scrutiny and takes some time normally to go through where a secondary has the advantage of having both scrutiny but also can be flexible in terms of speed of change if change when needed. I suppose just as parliamentarians we are very jealous of our right to meet legislation and if you are telling us that communities can now just sort of say here is an idea can we float this past you and turn it into legislation which in essence appears to be what you are saying given the breadth of the powers that are being assumed and the communities right to assume them. I think the point is that when the powers are put into instruments then that comes back to the parliament so the final powers when the powers are being used the parliament has oversight of that process. I am not certain that that is the level of scrutiny made to which we have been used to happening shall we? There is an interesting philosophical or jurisprudential or something conversation to be had about that is not there and maybe that is not something we can extend given the time tables we are working on but it does represent a change and I think it probably colleagues are reflecting the fact that we do not in practice up till now scrutinise secondary legislation in the same kind of way as we have scrutinised bills and maybe what we need to flag up is in these kind of bills and possibly regulatory reform would be another one. You do actually need to get subject committees to have a different approach to the secondary legislation but can I just pick up on one of the issues that has occurred is that we have finished up in a position where even interrogating officials around the table we have not been receiving an explanation of why a power is needed and that is relatively rare and we have had some pretty vague answers as to why other powers are needed and I am just hoping minister that you appreciate that that does cause us a problem because if you can't explain even theoretically why something might be needed it is a tad difficult to see that it is needed. I think that that is a good point and clearly our official should be able to or the minister in charge should be able to give those specific answers to why we have drafted something in the way we drafted. I think that in an ideal world again that should be clear from the delegate powers memoranda so that is where I think we want to get to the point that you are satisfied that that information is there and so I think you know in Stephen's point of view. That's a very fair point. I think, yeah, just go back to John. I would just say I mean it's excruciatingly difficult for us as a committee who deal with my new show bills when we are interrogating officials who have no idea why they're there apparently and I'm possibly exaggerating the situation but it's really not reasonable in parliamentary terms to allow officials to come here with no concept of why they are here when offered an explanation. I think that clearly if you're looking for answers to why we're asking for powers then you should be able to get those answers and no question. Excellent. Thank you. I wonder if we might think of it in this way minister that we would normally expect secondary legislation to be about the implementation details and policies that have been discussed and agreed by Parliament and incorporated in primary legislation. But when we're looking at framework bills we move to something that quite often has a different character. It's actually about the creation of new policy via secondary legislation rather than merely the implementation of policy that's already been discussed. Therefore, if this committee expresses some indication that we need to tread carefully I think that's probably what underpins are saying so and in particular there is a process difference when we're looking at the creation of new policy by secondary instrument compared to primary in that that denies parliamentarians the opportunity to amend. Yes, reject and total and invite the government to come back with a revised thing so therefore there is a process issue and I think you know proper issue concern us here in looking at the way this works but fundamentally there is that difference it seems to me between using SSIs to describe implementations and using SSIs to create new policies that you might care to consider minister. That's a reasonable point. I think that's a very helpful point. Thank you very much indeed. I wonder whether Margaret MacKellach wants to move on. Yes, the committee has been concerned also by the number of minor points arising from instruments in recent months and we believe that it is in the interests of the users of these instruments that such errors are avoided. What steps have you taken to reduce the number of minor points arising out of instruments? Your absolute right is in the interests of your users that instruments are unambiguous and in language that is clear what the intent is and that's always our aim and we from time to time are very grateful to the committee for flagging up where we've got it wrong and for putting out any ambiguity within the drafting but we obviously have on-going policies to try and make sure that we've got clarity of drafting and good plain English policies that's an on-going process which perhaps again Paul you want to… I think it is important that we within the government maintain and strengthen our cross-cutting role in ensuring that the proper quality of instruments that come to the Parliament we have processes in place, we have extensive guidance on what's good practice in order to eliminate obviously major problems as well as minor ones. We need to continue to do that and some of the experience I spoke about earlier this morning shows that the need as I said earlier to be vigilant to make sure that we maintain our quality of instruments. We're conscious that I'm in a relatively small directorate with quite a lot of continuity of legal staff who gain experience and develop skills in drafting and that can help because they gain that experience but equally there are new people that come in to my directorate and there are policy people who are less experienced in instructing second legislation and they don't see the wider issues and the need for consistency and the processes that we have in place are designed to ensure that we're consistent up to date reflecting the points that are made by this committee and trying as far as we can to minimise the risk of errors. We need to ensure that we train our staff and keep them up to speed with best practice just because it's such an important point to maintain those standards and eliminate particularly the minor points as far as we can. Good. I can just move on to the European Union opt-outs, which occurred very recently. You will be aware on 1 December that the Scottish Government had to bring forward the mutual recognition of criminal financial penalties and the mutual recognition of supervision measures at European legislation. I have to say that that's worked very well. We will in fact be reporting that later in the meeting but it's worth putting on the record that does seem to have been a very successful process. However, it's one that we could really do without very often and I'm just wondering whether you could comment on whether there's likely to be any more. I don't think that I could guarantee that we won't find ourselves in a similar situation again but I don't think that it's going to come every week. I think that it was a very unusual set of circumstances and I guess if anything either the same or similar comes again then I think our approach of engaging with the committee at the earliest possible opportunity to find a way forward that allows you to do your job within whatever the restrictions that we have in place. I mean this was very unusual and it had to be laid on a specific day and so it was very very unusual and it had to come into force on that same day as well. So that was very unusual and I think that the lesson from this is that you know if we kind of sit down and work out a way forward then actually we can do something that lets you do your job and lets us get the instrument in place in time. I would simply reiterate on behalf of the committee I think that it was a very successful process. We're going to formally report it later as being in default but nonetheless under the circumstances sorry because we have actually no option but I think it's worth making sure that it actually works very well and we're very grateful which I think brings us to Margaret for probably the last issue please. The Scottish Law Commission Bill we as a committee recently completed at stage one consideration of the legal writings counterparts and delivery Scotland Bill. This is obviously the first Scottish Law Commission Bill. Can you offer the committee any reflections on the process so far please? Yeah I think it's worked very well and I think it's shown that actually we've got a mechanism now where these reports of the law commission were previously not being given the attention that they deserved. We've now got a mechanism whereby under very strict circumstances and with clear criteria that we can take things forward. This one does appear I think to have worked very well. We're not quite there yet but we're already in the process of looking at what the next bill will be and I think we've identified in the programme for government a small technical succession bill which we think might meet the criteria so that consultation has started for that and you know if it does assuming that it does meet the criteria then we would be expecting that to come forward soon and to this committee and through that process and I think our kind of assumption is that it will be one of these bills every year is the kind of the rate. So not however that's going to swamp this committee and prevent you from doing the other things that you have to do but at a level that makes sure that we are given the the law commission it's due regard. Thank you for ready answering my second question on that. No that's fine thank you very much. Thank you. Do colleagues have any further questions John? Yes, one of the things that concerns me and it may not even be a relevant question for today but just at what level of post legislative scrutiny is on going at the moment because I know what all parties talk about at the run up to elections and we must do more. I'm just wondering how much we are doing at the moment and indeed given the increased workload that we're going to have post 2016 we will have even less time thereafter I suspect to carry that out but you could perhaps reassure me that of course there's a lot of it going on at the moment. I think that that's probably a matter for subject committees to determine when they feel that they should be doing post legislative scrutiny and obviously it would be a matter for another committee to determine if our processes need to be changed and I think there obviously was a recent review by the SPPSE committee on that very subject but I think it's clear up to subject committees if they want to do more post legislative scrutiny or not. Right well thank you very much minister and colleagues for coming along that's I suppose almost inevitably gone beyond the remit of the report which is already well past well past history. I suspect formally we'd be hoping to for a written response from yourself to that report but I suspect today's official report will be far more interesting than what you might like to send us but we'll take an account of the discussions we've had today as part of that response. Okay thank you very much and I'll suspend this meeting briefly. Gender item 4 which is instruments subject to affirmative procedure. No points have been raised by our legal advisers on the regulation of investigatory powers modification of authorised authorisation provisions legal consultation Scotland order 2015 draft nor on the regulation of investigatory powers covert surveillance and property interference code of practice Scotland order 2015 draft nor on the regulation of investigatory powers covert human intelligence sources code of practice Scotland order 2015 draft nor on the children's hearing Scotland order 2011 rules of procedure in children's hearings amendment rules 2015 draft nor on the secure accommodation Scotland amendment regulations 2015 draft. The committee may wish to note that the second and third of these instruments have just listed were initially laid before Parliament on the 2 December they were then withdrawn and relayed on the 8 December as the committee's legal adviser identified that the data issue of the code of practice as stated in article 2 1b of each order was not correct. Is the committee content with the instruments please? Gender item 5 instruments subject to negative procedure the mutual recognition of criminal financial penalties in the European Union Scotland number 2 order 2014 SSI 2014 336 and the mutual recognition of supervision measures in the European Union Scotland regulations 2014 SSI 2014 337. The same points have been raised by our legal advisers on both of these instruments has been a failure to observe the requirements of section 28 2 of the interpretation and legislative reform Scotland act 2010. The instruments were laid before Parliament and came into force on the 1 December 2014 so the requirement to leave a minimum of 28 days between laying and coming into force had not been complied with. Committee may however wish to find the breach acceptable in this instance instance due to the urgent circumstances which have arisen bars in section 2 2 of the European Communities Act 1972 could only be used to make the instruments no earlier than the 1 December as on that date the UK government opted into the council framework decision 2009 2 9 9 jha to which the orders give effect. Framework decision also required to be fully transposed and implemented on the 1 December. The committee might also welcome that Scottish Government provided it with early notice of its proposals for these orders and of the unusual set of circumstances which required the breach of the 28 day rule. I recognise that we are obliged under the rules to report this breach. I think that we should record our forgiveness of it and our congratulations to the Government on quite properly dealing with this in the way that we have seen them dealt with. If we discount through our forgiveness those two breaches, we probably today anticipating the rest of the agenda are in a position where all the procedures before us we have been pleased with and we would like that to continue. Indeed, would I be right in reflecting with the committee's view that actually the procedure that we've been to and just previously discussed with the Minister for Parliament does seem to have been the right procedure on those very rare circumstances—hopefully not to be repeated—and we can encourage the Government to think in those terms in the future should it have to? I think that the Government played it absolutely properly as far as my limited knowledge takes me, but in the unlikely circumstances of events that are occurring again we now have a model to follow in the future. Does the committee agree to draw the instruments of the Parliament's attention on reporting ground-grade J, as there has been a failure to observe the requirements of section 282 of the Interpretation and Allegitative Reform Scotland Act 2010? Does the committee agree, however, to report that it finds the breach to be completely acceptable in this incident and to welcome the fact that the Scottish Government gave the committee early notice of its proposals for these orders and the reasons for the breach? Thank you very much. No points have been raised by our legal advisers on the land and building transaction tax prescribed proportions Scotland order 2014, SSI 2014, 350, nor on the land and buildings transaction tax qualifying public or educational bodies Scotland amendment order 2014, SSI 2014, 351, nor on the land and building transaction tax definition of charity, relevant territories, Scotland regulations 2014, SSI 2014, 352. Is the committee content with the instruments, please? Gender item 6, instruments not subject to any parliamentary procedure. No points have been raised by our legal advisers on the Reservoirs Scotland Act 2011 commencement number one order 2014, SSI 2014, 348, nor on the act of the general criminal procedure rules amendment number two, miscellaneous 2014, SSI 2014, 349. Is the committee content with those instruments, please? Gender item 7 is the mental health Scotland bill. This item of business consideration of the Scottish Government's response to the committee's stage 1 report on this bill. Members have seen the briefing paper and the response from the Scottish Government. Do you members have any comments, please? I'm still not very comfortable with what we have in front of us in relation to the Government's response. It specifically, the Government is restating its intention to publish guidance mender under section 17C brackets 2, but contends still that there is not a requirement for the guidance to be published. That's fine as far as it goes, except that they then go on to say that the guidance will only achieve its intended purpose if it's made available to victims who wish to make representation under the new victim representation scheme. So it seems to me rather strange that the Government simultaneously asserts that this only achieves its objective if it's made available to people, while also asserting that it does not wish to make a legal requirement that it be published. I find myself unable to reconcile those two points. I suggest that, as I would understand this and I do think that it's probably acceptable. It's a principle of law that you don't write down, something that you don't need to write down, and in exactly the same way that a car can't operate if it hasn't got an engine, so you don't need to say a car has to have an engine, something that can't operate unless it is published doesn't need to say in law that it needs to be published. I wonder whether our legal advisers would care to comment on that and then I'll bring John in. Is that a fair interpretation of the principle? Absolutely, with Stuart, perhaps unusually, but I would. We've heard this morning in the earlier session that the Government Minister is making a case for bringing forward framework legislation, I think it was wonderfully called, where there's apparently no reason for bringing it forward at all, except—there's a different set of standards operating here within Government, which I think poses its own questions. I agree entirely with Stuart and I think that we, as a committee, should adhere to our position, which is the one that the guidance should be published if any committee in Parliament is about openness and transparency. It has to be this one, and let's stick with our position. I would merely reflect on the Government as it is going to publish it, because it must. I'm just wondering whether I could actually get one of our legal advisers to make comments on this position, please. There would have to be a requirement in the bill for publication to bind both the Government and future administrations in relation to publication. If it wasn't specified in the bill, there wouldn't be a statutory requirement for publication otherwise. Forgive me. I'm still not concerned about a statutory requirement, because if the only way that it operates is by publication, I'm not seeing why, as a matter of law, as I understand it, it needs to be published because it must be published, if that doesn't sound totally perverse. Well, convener, if I may agree with you that the must is the logical imperative if the policy position is to be delivered, as the Government itself explained, but in the absence of there being a legal requirement to publish, this Government or any future Government would be acting within the law if it chose not to publish, and there would be no parliamentary sanction, short of bringing forward parliamentary legislation to require a Government to publish, which would mean that the policy of making victim representation scheme available to complainants would fail, and that is an important part of the legislation. While I understand the analogy of tyres and wheels and cars, I'm not convinced that my convener do forgive me. I think that we've already heard enough to know that there's obviously a disagreement here. Could I offer to write to the Government drawing their attention to this conversation and asking them to clarify why they think they are in the position that they are? Just for clarification, I'm not understanding it. Are they drawing a distinction between publishing on the one hand and making it available to victims on the other hand? Are these two separate things, yes? Yes, they're totally seen. It's to be clear. They're not suggesting that it won't be available. It only operates if it is available. The suggestion that it can be available without being published? What they're arguing is that there's no need to say that it must be published, because it has no existence if it isn't published. It can't operate if it isn't published, and exactly the same way that a car isn't a car without a motor, it's a go-kart. Margaret? Yes. Again, I apologise for the stupid question, but if it's not published and you're a victim, how do you know the publication is there for you to access? That's precisely the point. What the Government, as I understand it and I am arguing in that corner, is saying that, as a matter of policy, it will have to be made available, therefore it will have to be published, therefore there's no need to say that it must be published, because actually it must be published. On the back of that, why is there a problem for the Government not wanting to publish it? I would argue that that's just a legal principle that you don't write down, something which is redundant, in other words, in exactly the same way that you don't write something twice. We don't want something twice in statute, so we actually complain if it's in two different places, and you wouldn't write down as a matter of drafting practice. As I understand it, and here I am talking as a non-lawyer, never mind as a drafter, you wouldn't write it down if it was a logical imperative. You simply wouldn't write it down, because it's actually a logical imperative. You've offered to write to the Government in the light of this discussion, and I think that's a helpful offer. I think it's a committee who would like me to do that, and let's do so, because the points are obviously very well made, and it will be extensive review on the official report. In which case, let me just come back to wherever an earth I've now gone to. Sorry, let's just make sure I know where we are. We're actually here, aren't we? Yes, so the question was, do Members have any comments, and the answer is yes, quite a few. Clearly, do we want to note the response? I think the answer will be yes, and I agree that I write to the Government to seek clarification on that point. I would just ask others any other points, or I'll be content with everything else. We are. Thank you very much. Okay, we will write. Agender item 8 is Public Bodies Act consent memorandum. This item of business is consideration of the Public Bodies abolition of homegrown timber advisory committee order 2015 draft in United Kingdom Government order made under the UK Public Bodies Act 2011. The consent of the Scottish Parliament is required to make an order under part one of the Public Bodies Act 2011, where such an order makes provision, which would be within the legislative competence of the Scottish Parliament. Delegated powers and law reform committee considers and reports on such orders under the same grounds as instruments laid before the Parliament. No points have been raised by illegal advisers on this order, which is worth putting on the record, does seem to abolish a body that really is no longer in existence, never mind doing anything. Does the committee agree to report that it's content with that order? Thank you. At which point we complete the public agenda and we now move into private.