 I welcome members to the 34th meeting in 2017 of the Delegated Powers and Law Reform Committee. I've received an apology from Monica Lennon, but we're welcome again, Pauline McNeill, as a substitute. Agender item 1 is decision on taking business in private, and it's proposed that the committee takes item 6 in private. That item is consideration of the evidence heard from the Minister for Parliamentary Business, which we'll hear soon, on the work of the committee during the parliamentary year 2016-17. Does the committee agree to take this item in private? Agender item 2 is consideration of the work of the committee during 2016-17. I welcome to the meeting Joe Fitzpatrick, Minister for Parliamentary Business. Alan Ellis, Head of Legislation Team, Parliament and Legislation Team. Fiona Burnett, Solista and Deputy Head of Business Division, Scottish Government legal directorate. Our old friend Luke McBratney, Head of Legislative Consequences of EU Withdrawal Team, Scottish Government. That's quite a mouthful. Minister, do you want to make any opening remarks? Very briefly. Obviously, this is my first appearance before the committee since you took over as convener, and I look forward to working with you and the committee over the coming months. I want to start by thanking the committee and the committee for your letter of 30 November about our progress on amending instruments. It's always good to receive positive feedback. I'd also like to take the opportunity to put on record my thanks to the former convener. There is no question that his tenacity had a role in the progress that we've made in reducing our extending commitments. It's a priority for me that will reduce this further, and myself and officials are working with colleagues to do so. Clearly, in terms of challenges ahead, Brexit looms large, while the legislative implications remain unclear, and it's going to require even better planning, qualifications and explanation of the Government's SSI programme. That's a challenge that Mr Russell and I are jointly tackling. The committee's recent report on the EU withdrawal bill raises some interesting points that I am currently reflecting on with Mr Russell. I'm happy to take any questions. I'll pass on your thanks to John Scott when I see him. With regard to the letter that we sent you, we felt very strongly as a committee that it's easy to criticise, but we should also praise as well when that's worth doing. We'll move on to questions. I'm going to take the first section, which will be around quality of instruments. We've split the questions into sections, so I'll deal with the first few and then we'll move round. The first question is, the committee noted that quality of instruments, for the most part, have continued to improve over the course of the last parliamentary year. We welcome the Government's progress in this area, but what's the Government doing to maintain the quality of instruments being presented to Parliament? In general terms, we are pleased that the quality is at a historic high, and the number of times that you are having to report is historically low, but we recognise that on occasions there have been one or two areas where the quality hasn't met our high expectations, particularly around tribunals. We have put in place a number of measures to try to keep on top of that and to continue to improve the quality. Perhaps Fiona, do you want to just talk about some of the things that we've done to try to maintain the progress that we've made in improving quality? Yes, thank you, minister. SGLD takes the quality control very seriously. It's invidious to use terms like perfection, but honestly that is what we strive to provide when we're bringing forward subordinate legislation. We have a whole suite of tools that we use to try to ensure that that's the case, and checks happen at every level of the hierarchy as they go through divisions and through the unit and then to the Parliament. One of the most important measures that we've put in place in the last reporting year is the increase in size of a pool of stylists. Those are the solicitors who perform a double check, a second pair of eyes check on the instruments. I think that in previous years there haven't perhaps been enough, we perceived a slight gap in the numbers and so we've increased that. We've also increased the length of time that the stylists have to perform the checks and we feel that that's brought a benefit. The other important aspect of what we do is good communications. We're fortunate to enjoy good relationships with Parliament and legislation units and also with the clerks and with your own legal advisers. We look as a group of stylists at the quarterly reports and take points from that as training points with a group of stylists. That information is disseminated to the drafters. We feel that the processes are robust with the high levels of work that people are dealing with. Very occasionally small elements of human error will, unfortunately, creep in, but we do feel that these are really occasional. While we strive to reduce them to an absolute minimum, they will creep in to some extent. I don't know if you wanted me to speak specifically about tribunals or if that gives you enough just now. We'll come on to that. I just wonder if you can explain the checking process that you go through. The drafter works alongside the policy colleague to provide a draft. That draft is then checked by a senior lawyer and then a further senior lawyer, a C2 lawyer and then a divisional solicitor. Those checks are not optional, the checks are compulsory and that's part of the minister's commitment to you is that all of those checks will happen and they do. After the divisional solicitor check, the stylist check takes place. We have a team of solicitors who do this role above their drafting role. We take an instrument from one area and it's always checked by solicitor from a different area. They truly have a fresh pair of eyes and nine times out of ten they will pick up any little defects. The instruments are also checked in a mechanical way through formatting validation with the typing pool. There are two strands to that. We've got drafter senior lawyer stylist. There's a senior lawyer, a divisional solicitor after the senior lawyer. Four stages. The processes involve a lot of pairs of eyes looking at the instruments and they should, in majority cases, pick up most errors. The process that we've put in place is part of the reason that we are at this historic low in terms of where you're having to report, but clearly 12 per cent is not 0 per cent so there's still progress that we can make. We're not complacent at all. Ten instruments were either withdrawn or revoked over the last parliamentary year. That suggests that instruments were laid that were not up to the required standard. What measures are in place to ensure that that doesn't happen? The number of instruments that have been withdrawn is down compared to previous years. The majority of the instruments that you're referring to were from one package in relation to tribunals. We recognise that the quality was not up to the standard that we'd be expecting. What is very important is that the instruments that are passed by the Parliament do what we expect them to do and they are understandable at the end of the day. We really appreciate the work that this committee does in helping that process but we understand that it's our responsibility to bring the instruments into this committee at a quality that they should be. The number that I've had to be withdrawn has reduced from previous years but, again, we're still aiming to improve that more. At least half of the number that you're talking about were in relation to one package. We'll come on to that now. We were quite exercised over the package of instruments under the tribunal Scotland Act 2014. That followed on from serious concerns about a package of instruments under that same act last year. What consideration has the Government given to the way in which it lays packages of instruments, in particular to the way in which it programmes the laying of such instruments and the quality control processes that are applied to them? It's our intention that the Government will do everything that we can to lay packages of instruments at the same time and where that's not being done to provide an explanation for why that's the case. We are taking an active interest in packages in particular. We know that it's something that exercises the committee and rightly so. Fion has laid out some of the things that we're doing to try to improve that. We understand the committee's concerns around that and it's a high priority for us. Despite the checks and balances that you've got, mistakes still come through and they filter through to us. 62 instruments over the reporting period contained minor mistakes and recently it looks as though that's been increasing. In the current reporting period, 38 per cent of instruments laid by the Government contained minor mistakes. Despite what you've said, there are really small things drafting errors that shouldn't really be getting through. Despite what you've said, what checks are you planning to put any extra checks in? Those things shouldn't really get into us. Fion talked about having extra resources, because people are doing substantial amounts of work. We've got the correct steps in place. We've improved our procedures, but we're looking to improve the resources that we have to do that work. I hope that that will trickle through and you'll see a continued improvement. Obviously, we have seen an improvement over the years to the quality coming out of Government, but we want to continue that improvement and that's what we're determined to do. I accept what you say, but last week, for example, we considered the Alcohol Minimum Pricing Act and the commencement order, not the actual act, but that was only two pages long, but it had four minor points in it, which isn't really good enough. Obviously, our aim is to strive for perfection, and we've put in additional steps to continue to improve that, but it's useful for the committee to always flag that up to us so that we can see if there is a pattern, if there is an area where we've got a particular problem, then Fion and the team will look at how we can address that so that, for as often as possible, you're getting instruments that do what they say they should do and don't have either major or minor errors. None of us want to be in this position. It's just a quick supplementary for me. In terms of the procedures that Fion and I spoke about, the four layers that you have, has that been a new situation that you have, or has that been something that's been there maybe for a number of months? When did that process happen? We've continued to try to improve the process and make it more robust, but Fion, do you want to talk about the changes that we've made? That system has been in place for a number of years, but it's just a case of tightening up, making sure that they now happen compulsorily every time, and increasing the length of time that stylists have to perform the checks has been quite an important improvement as well. It's honed a system that was pre-existing. I'll move on to the next section of questions. Alison Harris. The committee noted that there had been a reduction in the number of instruments laid this year, so would you like to comment on the way in which the secondary legislation programme is managed? Further, what are the reasons for the drop in number of instruments laid? The number of instruments will fluctuate depending on the legislation and requirements, so there's no aim to hold back instruments. We try to manage as much as possible so that instruments are over the year. I know that it's a particular concern to this committee. If there are peaks of instruments troughs as well, we try to manage the programme over the course of the year. That's not always possible and there will always still sometimes be peaks, but there's nothing untoward. The number of instruments required will vary from year to year depending on the legislation. I also don't want to go on to the next set of questions. If I'm correct, you said that the scrutiny comes in with the length of time. You're giving people more time to scrutinise to ensure that we get the correct legislation. Did I understand that correctly? That's one of the tools that we're using is just an increased time. I just wonder how that's going to affect going forward with the EU. If they give them more time and there's more bills, how are you going to factor that in? It's difficult. We're all operating slightly in an information vacuum just now. We would all like a little bit more information as to how this is all going to progress. We have plans in place for varying scenarios and we're ready to implement them once we know what the final picture looks like. One of the things in terms of time is increased resource. It's a way of managing time. If there's a set amount of work, if there's more people to do that work, then that's one way of managing that. That's one of the things we're looking at. Stuart, you've got some questions around this. Yes, partly dealt with. That's okay, Alison. As a minister, I'll be aware of it. I also sit on the European Committee here in the Parliament and you touched upon the issue of the EU withdrawal bill in your opening comments. As well as the additional resource implications that you are looking at, what other action will the Scottish Government be undertaking when it comes to the laying of instruments because of the increased number of bills and statutory instruments to come forward? The big challenge for us is that we still don't know exactly what that's going to look like. That's a challenge. I don't know if even the Government and Westminster knows what that's going to look like. That's our biggest challenge. Our proposal would be to work with the Parliament to look at how we can deal with an increased number of instruments. We certainly don't approve of the way that the Westminster Government plans to take things forward. We think that that needs to be a partnership with the Parliament and we're keen to work with the Parliament to find ways to allow us to do the scrutiny that is required in an appropriate way. One aspect that has been considered in the past has been the issue of that working relationship between ourselves and the Scottish Parliament and the issue of sharing of information. Do you have any indication as to what length of time you would actually want to introduce for that so that the Parliament can have that information at an earlier stage if possible so that they can work on it? Obviously the challenge for us is that we can't share information that we don't have but there's a bit of thinking going on to look across Government as to what is likely. Do you want to make some comments? Unfortunately Luke's got a sore throat. There's an ongoing project to identify the range and scale of deficiencies that might be caused in devolved Scottish legislation. That project obviously has to be neutral to a number of different things including the scenario on which the UK might exit the EU, which is currently uncertain. The state that the EU withdrawal will be in when it's passed, as members will be aware, is currently being considered by the House of Commons and the Scottish and Welsh Governments have proposed amendments to it. We hope to have the first results of that project in early in the new year and we've committed to sharing that at an official level first with the parliamentary authorities. One other aspect that has been discussed in the past has been the issue of this committee's potentially increased role in considering instruments from the EU withdrawal bill. Do you think that there is merit in increasing the number of members on this committee to deal with that going forward? That's something that we need to consider at the time when we see that and it's something that I would have to discuss with other business managers. When the committees were set up, one of the things that we agreed unanimously across the parties was that each committee should have a make-up that is roughly equivalent to the chamber. The Government should always be one member short of a majority. Clearly, if we wanted to expand the committee, we would have implications across the Parliament in terms of the resource that we have. It's certainly something that we should consider, but we need to see exactly what it's going to look like and how we jointly think that we can take that forward to deal with whatever the workload is. You spoke about looking for additional resources earlier, Minister. As well as the EU withdrawal bill, there will still be the everyday processes that will take place. Will you be looking to make sure that you will be able to deal with both the existing responsibilities of the EU and the EU? Yes, the people of Scotland voted in 2016 for the election. They did not vote for Brexit, so it's important that we manage to deliver on their aspirations in terms of domestic policy as well. David Cymru. David Cymru. Good morning, minister. The committee is pleased to note that relatively few commitments are outstanding for a period covered by a committee's report. However, there are remain a number of historic commitments outstanding from previous parliamentary years. What action is the Government proposing to take to meet each of the historic commitments? Are those commitments to correct legislation still necessary? The previous convener had an absolute priority. He helped us to get to the point where there are now 14 commitments that remain to be completed. It is a priority for us to continue to reduce that. We have asked officials across Government to look at the remaining commitments and to see where we think we can meet those commitments, but also to check whether there are some of them that we can say do not require any further action. We should accept that what is in place is working and that either there are not opportunities or the commitment is no longer required. We hope to come back to the committee early in the new year to expand on that as to how we manage to take that forward. It's a reasonable point that we've made a commitment and they've been quite historic. We should be able to say what we think we're going to do going forward. I think that we just need to clear it up and clear the decks. Alison, do you have another one? I would like to ask that, can you update the committee on the action that it proposes to take to consolidate the council tax reduction of Scotland regulations 2012 and the council tax reduction of state pension credit of Scotland regulations 2012? The cabinet secretary has given a commitment that we accept that this is something that should be consolidated, but it is a significant amount of work to do. It's not a minor piece of work, so I don't think that at this stage I can commit as to when that would happen. We do recognise it as something that we would want to do, but it would be a major piece of work that we would be asking people to do and obviously there are other priorities as well. I think that the cabinet secretary has committed to come back to expand further on timescales and I think that I'll let him do that and he's looking at just exactly how much work it would entail. The reason for consolidation is generally a good thing, particularly something that is being used on a day-to-day basis. Have you any idea when the cabinet secretary might come back to us? I don't, but we can chase up on that. Good morning, minister. I wanted to ask you about framework bills, so obviously where there's a framework bill, the policy is developed later and so you won't see the detail of the regulation until much later. I often think that the role of this committee is a wee bit underestimated. When people think that when you pass legislation that stage 3 and it gets royal assent, then that's the law. What they don't appreciate is actually the detail of that still to come. In many ways, parliamentarians don't really have control over that. The Government has control over that, so I'm interested in the much closer scrutiny and understanding of that process. You'll be aware that we've just been in the process of looking at a framework bill, which is the Social Security Bill. The minister has said that that's necessary because of the nature of what we're doing here. My first question is, is there any intention to use framework bills more often, or are they going to be for specific purposes? No, I think that your example is very good. I think that there's no trend towards framework bills, but there are, as you say, circumstances where it is more appropriate in order to have the on-going flexibility, and the Social Security Bill is a good point where we have a framework bill for a good reason. I hope that the approach that we took in there with the minister coming to this committee and sharing that information prior to introduction is most helpful. That's something that I'll try to encourage, if there are reasons for us having framework bills going forward, that we have that early engagement with this committee, because we do understand that it's important to yourselves, because it does mean more work down the line in terms of scrutiny of the further instruments. In cases where we passed legislation and the Government can draw down that power, I'm just thinking of one because it's coming up this week. The rent pressure zone, for example, so we legislated, and then the Government's got to decide at what point it actually brings forward the detail of that. Do you think that the Parliament should have any more saying when that is? I suppose that the Government could just not draw that down a whole session of the Parliament, couldn't they? I think that there is always scrutiny. Any powers that we have to do something, there is always scrutiny of how we take that forward. There's always the opportunity for people to put pressure on Government if they think that we're not taking a power soon enough. Generally, the process is very much about consultation, so the consultation on the detail of the use of a particular power is something that we would do going forward. I think that that's the appropriate way, and I think that's the same with just any legislation. I suppose that's kind of a point that we can't consult on it until you decide you're going to take the power. Sorry, sorry, the Government would consult on how they use a power going forward, so there's that kind of engagement. So there is an opportunity for the Parliament to engage at that time. How would you, as a minister, consider that more information could be provided to the committee to allow it to perform its scrutiny functions on framework bills? I think that June Freeman has shown a model of good practice that I am trying to encourage other ministers to follow. I think that the way that she engaged at an early stage with this committee understanding that, while she might see the Social Security Committee as the main committee for that bill, she understood that there are other committees in this one in particular that have particular interests. I think that good practice is something that I am trying to encourage other colleagues to follow. I think that it's just worth considering in terms of the parliamentary process that, while you have a framework bill and you don't know what the policy is going to be so much further down the line, and you're trying to decide if the Government got the balance right, I think that it's quite important that the parliamentary timetable does not have to do that. I think that my view is that it would probably just make it, but the timetable is very tight. If you really believe in proper scrutiny, I just say that it's just an observation that, as Minister for Parliament, it's worth considering in a framework bill that you want to make sure the committee... The timetable is the same as it would be for any other bill, and you might want to consider, in those cases, just to have a wee bit of slack in the system to make sure that they... I think that that's a reasonable point, and we always spend about a time discussing with the clerk of committee and the convener about the timetables that we expect, and ultimately the bureau agrees the timetable. It's a balance between giving the time and wanting the legislation to be able to be used to hopefully improve the lives of people in Scotland. It's what we're aiming to do, but there's that balance, but I think that your point is well made. Thank you very much, convener. That's a reasonable point, and there's actually today another framework bill, which is the planning bill. Stuart, I think that you had the final question. Yes, thank you, convener. Minister, in the past, the committee and myself have raised the issue of the Scottish Law Commission bills, which we certainly have welcomed, but the point of potentially bringing more than one bill or one area together so that the bills may actually be larger and to actually get more through the process as compared to the length of time it does take to get a Scottish Law Commission bill through the Parliament, is that something that you have given some consideration to? One of the challenges that we have is in order to use the process of bringing a law commission bill through this committee, there are a number of criteria that would have to be met, and obviously the bigger the bill is, the more difficult it would be for us to meet the criteria. If we feel that we want to deal with more topics, it might be worth looking at the criteria, because that's the stumbling block in terms of being able to bring more law commission bills through this committee, is that the criteria that's currently in place, and it might be something that the committee wants to consider as to whether we want to look at relaxing that a little bit so that there can be some degree of controversy, because right now it has to be really effectively entirely uncontroversial for it to come to this committee, and you know, while that's on the basis that this committee has particular technical experience, I think that there's now been enough experience of law commission bills coming through here that you probably might feel in the ability to do something a little bit more controversial or complex, but I think that we would need to look at the criteria. I think that that's the key. That's helpful. I think that we've all probably appreciated that experience and certainly the processes that we have went through, but your point regarding the fact that the bills have been non-contentious has certainly been something that has aided the process, but I think that it's something that they could probably have a discussion about later. OK. Any members have any follow-up questions? No. OK. That exhausts our line of questioning. I'll just say on a personal level that I've welcomed the dialogue that I've had with you, Minister, and I hope that continues. So thank you for your time this morning, and I hope your voice gets better, Mr McBrowney. I'll suspend the meeting briefly. Right. We're moving on to agenda item 3. If committee members can stop chatting amongst themselves, we're on to agenda item 3, which is consideration of an instrument subject to affirmative procedure. No points have been raised by our legal advisers on the draft police investigations and review commissioner application and modification of the criminal justice Scotland Act 2016. Scotland Order 2017 is the committee content with this instrument. Agender item 4 is consideration of an instrument subject to negative procedure. No points have been raised by our advisers on SSI 2017-415. Agender item 5 is consideration of an instrument not subject to any parliamentary procedure, and no points have been raised by our legal advisers on SSI 2017-414. Agender item 4 is the committee content with this instrument. I'll move the meeting into private.