 I welcome members to the fifth meeting in 2016 of the Standards, Procedures and Public Appointments Committee. I remind everyone to switch off mobile phones as they may affect the broadcasting system. We have no apologies today. First item on the agenda relates to delegated powers procedures. We are considering correspondence on the Scottish Government regarding procedures for delegated powers. That relates to an order that was incorrectly laid under the affirmative procedure. The minister proposes that an announcement could be placed in section 8 of the business bulletin to clarify what happened to the order during its parliamentary process. I would be minded to accept that that is a reasonable response. Does anyone else have any other comments? I have a question and then some comments. The letter from the minister, a second paragraph, can I just check that it is absolutely correct? My understanding was that the problem arose because an instrument was laid under the negative procedure when it should have been the affirmative procedure. The letter from the minister says that the legal situation was resolved when a desired policy outcome delivered by immediately laying a laid-only commencement order and a negative procedure instrument. Does it mean negative or is it just a technicality that I do not understand? It is certainly correct. As a member of the DPLR, I have been on the other side of this, so I speak partly of informing that. If it is certainly a procedure that should have been laid under or affirmative was laid under negative, I am just going to read it, because I think that we ought to be able to close this off. No, I am not able to address that from my knowledge, so we better just check that Patricia makes a good point. The letter is correct, but from our point of view it is more straightforward. My point then is that nothing to do with the letter is to do with the proposed notice. That point 1 says that the above order was purportedly made. It was not purportedly made, it was made. Number 4 also mentions purportedly made, but it says that, accordingly, the instrument made and laid is set out above and not being an instrument laid before and approved by the Parliament was not a Scottish statutory instrument and had no legal effect. That to me is not as clear as it needs to be, to be honest. If we were to effect what we said we wanted to effect, which was to make sure that on the parliamentary record it was clearly understood what had happened and I really do not want to split hairs or dance in the head of a pen over this, but I have drafted an alternative form of words that I think maybe works a little bit better without trying to take away the meaning of it. I have just said that, accordingly, the instrument made and laid, set out above, was not a properly approved instrument and therefore had no legal effect and is not, in effect, a Scottish statutory instrument and then 5 ministers have achieved the desired policy outcome by laying a laid-only commencement order and whatever kind of procedure instrument it actually is, negative or affirmative. I just think it. I do not understand why we just cannot be very clear about this because that is the purpose of trying to get some words on the record. Just before I come to my Russell, let me just take some advice because I think the word made is when it relates to when the instrument has legal effect. Is that correct? I have no problem with that word. No, no, but I just want to be clear about the use of the word purported, just a factual piece of advice if it can be given. I do not have any knowledge of the background to this particular word but it may be that purported has been used because something having been done under their own power, under their own procedure, means that the making of it was null and void. It was not there for me. I am just trying to pin down from our advisers where the word purported comes from and not to take a position on anything else whatsoever at this stage. That may be the case. I do not actually have any prior knowledge of this one and I do not advise delegated powers on what form committee, but that would strike me as a possible explanation for the wording that has been used. If I may, I will just take people in sequence. I think that Patricia Rathbone raises a very important point because there is an illogicality and an inconsistency between Joe's letter and the notice. Joe's letter paragraph 2, the erroneous instrument has not been published in legislation of the UK nor will it be printed and banned. In practical terms, it does not exist, but it does exist. It went through the system. It cannot be conjured out of existence. It may not have been legally made in that term, but it does exist. Philosophically, that is therefore wrong. Secondly, I think that purportedly is a problem. There is an inconsistency. It says that the above order was purportedly made in paragraph 1. It says that it is not made. Either it was made invalidly, might be a better word, but I would be unhappy with the word purportedly. Even if it is a correct legal term, that appearing in the bulletin appears to be, if I may use the term, mealy-mazd, and trying not to admit that there was a mistake. I am not satisfied with it as it is. I think that it needs a bit of work done to it. My point follows on from the point that I made in relation to the word purportedly. The explanation that you gave in my mind, and maybe you need to clarify it a bit further, the reasoning that you gave behind the use of the word purportedly is not what I believe purportedly means, which I think confuses the issue even further. I do not think that purportedly is a legal term. I think that something else could be substituted for that. No, it is not. It was perfectly clear that factually a document existed. It was published and described in the business bulletin as being a negative instrument to give effect to it, et cetera. I think that that is beyond debate. It would probably be helpful if it was described in terms as straightforward as I've just used, as to where it came from. The Government asserts and the DPLR have accepted that, because it had no legal effect, the legal issues around the document are resolved, but our issue is whether the parliamentary process is resolved. I think that we are all quite clear that, without something in the business bulletin, the parliamentary process is incomplete and could not be understood by external people. David. I agree with what you are saying. Would a simple way to deal with it be to just delete purportedly made, armed, and just put in the instrument improperly laid, because is that not what the essence of the problem is? Let me go back to Patricia, who raised the subject. I think that it's a wee bit more than that, Dave. I think that you're right, but our objection originally to there being nothing on the record was that that then meant we were in limbo, clear of explanation to Parliament or to any onlooker as to what we were actually talking about. When I read that, I thought, what is needed is just a clearer form of words, unless it struck me, I apologise to any Government civil servants who may be listening, that there are some that are absolutely excellent and vast majority are, but that struck me as the kind of thing that perhaps someone in a fit of peak about our interests in the matter has drawn up. In a spirit of helpfulness, I drafted the words that I had, which I think are clearer without taking away the meaning. I'll say again those where, accordingly, the instrument made and laid as set out above was not a properly approved instrument and therefore had no legal effect and is not therefore a Scottish statutory instrument. Ministers have achieved the desired policy outcome by laying a laid-only commencement order and either negative if we get that cleared or affirmative procedure instrument. I think that Parliament has to understand too because the words that were being given by the minister do not actually tell us about the policy outcome having been achieved as he does in his letter, so I felt that it was important that that was added in as well. I can give those words to Clare. It's from the same point, Mr Clare. I think that that's fine and I haven't heard the words for the second time and maybe they've sunk in a wee bit, but just one little query again about the made and laid. I mean, it was laid, certainly, but was it made because it was improperly laid so it wouldn't have been made. I mean, could we just delete made and laid? Can I just from the chair make a point about our process? We are not masters of what ultimately gets published. What we are doing and I propose we do is what Patricia has come forward sounds perfectly reasonable to me and we put it forward as our view of what should be published back to the minister in exactly the form that Patricia Slade had. I've got a perfectly content with that. Ultimately it is for the Government to take the decision as to what is published, but the Parliament does control the business bulletin. Our comments back to the Government should be taken very seriously because it is the Parliament's bulletin that we're talking about the contents of, but the Government has to provide the contents and we are suggesting what they say. On that basis, let's send it back to the Government, indeed reflecting the uncertainties that David has identified for them to deal with and we'll take our position thereafter if we feel the need to do so. Is anybody content with taking that approach then? Patricia? I was trying to change as little as possible as I could of the Government's version, so I just took made and laid from their words because that's what they've said. If it's wrong, obviously it should be changed. There's only in quantum physics that something can exist and not exist at the same time. I don't really want to get into that and neither do you, but that's the reality. The Heisenberg Unseventy principle, Professor. That concludes our discussion on item 1 and therefore ends the public part of the meeting. We now move into private session.