Legislation, Justice and Constitution Committee

Me?

Ruth, yes.

Thank you. Good afternoon, everyone. I think there's always an argument that can be made that this kind of, if you can call it a sort of legislative clarification, legislative tidying-up exercise, shouldn't, in a legislative programme, have the priority over something, perhaps, of a socioeconomic nature, a Bill to tackle one of the priorities of citizens, but, at the end of the day, it is important to have clarification about the status of the statute book. Decluttering exercises are important. There's never a good time for it. You can always argue for another priority, but the problem is, if you do that, you get, I'm afraid, legislative barnacles on the boat that build up over time, and the problem becomes more difficult over time. So, I think it's a useful exercise. I wish Westminster, wish the UK Government, were contemplating something similar. I think, probably, it is a useful exercise, and particularly trying to clarify some of the language around delegated legislation, which is of particular interest to us at the Hansard Society, I think, is useful.

Thank you. Dr Tucker, do you have anything to add?

Not very much. I'd echo Ruth's characterisation of it as a kind of tidying-up exercise. On the question 'Is it necessary?', necessity is always a really high bar, but I would say it's a good and coherent way of pursuing a sensible policy, even it's a meta/constitutional policy. And on Ruth's point that there's always the argument that now is not the time, I would say that, by the time we've got to this stage, the legislation's drafted, the Government's supporting it, it's introduced, then that makes it the time. Now that it's got to this stage, it becomes the time to do it. So, I'm uncomfortable talking about necessity, but I think the policy aims here, which are rule-of-law policy aims, are good constitutional aims, and the fact it's got this far makes it the time to do it.

Thank you very much. Is there anything in the Bill that causes concern or may have unintended consequences? I'm looking to see who wants to go first.

I'm happy to go first. I don't think it's a particular area of concern about the Bill, but when looking at it and reflecting on it in recent days, my concern has been rather more about what has been claimed about it by the Minister, by the Counsel General. Specifically she said that there was rationalisation and simplification of overly complex procedures, when she spoke about it in the oral statement to the Senedd when the Bill was introduced. She talked about the fact that it's hard to imagine what else might happen with the delegated legislation procedures. She talked about, ultimately, that Wales had adopted, in essence, the bulk of Westminster's procedures, as had Scotland at the time of devolution, and there had been, as she said, very little innovation over time, but that's probably understandable. And it seemed to me that she was overstating what is actually in the Bill, in that there isn't much in the way of simplification of the procedures; it's a restatement of procedures or custom and practice. What there is is useful, but a relabelling of terminology. Now, that's not nothing, but it's not, I think, a rationalisation and simplification, and, in fact, the complexity often in delegated legislation in relation to enhanced and superaffirmative procedures, for example, is not dealt with, really. So, my concern was more that something was being asserted that was broader than what the Bill actually can sustain.

Thank you. Dr Tucker, do you want to add anything?

I didn't know those claims had been made about the Bill, but I don't think they affect its inherent value. It doesn't change the procedures, but it does make those same procedures more accessible and clearer, and as long as we all agree that that's the change we're talking about, I don't have any reservations about that underlying change. There are no areas in the Bill that I would single out for causing concern. Maybe some things will come up in conversation later—small, niche things—but, on the Bill as a whole, no, I don't have any worries, especially about the unintended consequences question, which is always a risk with this kind of reform. So, I'll stress I don't have any unintended consequences reservations about this legislation.

Thank you. Adam.

Yes, in the context of your reply just now, what innovations do you think the Bill could potentially introduce in procedure?

Well, in terms of delegated legislation specifically, we at the Hansard Society have been conducting a review of the Westminster procedures, and I think some of the provisions there would be helpful to the devolved legislatures as well. But, by and large, I wouldn't put them, in the main, in statute. Procedure of the legislature should, by and large, be kept to Standing Orders if at all possible. So, our approach is always that you put the minimum in statute and the bulk of procedural reform in Standing Orders.

Now, the problem of course is that the Statutory Instruments Act 1946 has got one key aspect of the procedures, the negative procedure, in that text. So, in effect, what's happening here with the Bill is a balancing-out, by putting the affirmative procedures in as well and renaming them. The kinds of things that we are advocating for through our delegated legislation review—for example, amendability of approval motions; not of the text of an instrument, but the amendability of the approval motions to give conditional approval to an instrument, subject to the government, whether that's Westminster or Wales, giving approval to it, subject to, perhaps, some changes being made to it—that doesn't need to be in the Bill. That can be done by the Standing Orders. So, the Bill merely references that the Senedd must reach a resolution on an instrument or must resolve to pass a motion to approve an instrument. It doesn't dictate how the Senedd reaches that resolution or approves that motion. So, that could be done by the Standing Orders. So, in general, I would say I would keep as little as possible on the face of a Bill.

Dr Tucker, do you have a view, particularly on this issue of amendable statutory instruments or amendable statutory instrument motions?

Yes—is that the subtext of Adam's question to Ruth? Is that the improvement that Adam was hinting at? Can I answer the question in general and then move to that specific element? Is that okay?

Yes, please—if you could address that specifically.

My view is pretty much aligned with Ruth's view here. I think that's worth stressing because both of us have similar reservations about some of the practices surrounding delegated legislation more generally, and so you might expect one or both of us to answer Adam's question by advocating more stuff in primary legislation, but I don't think that's necessary or desirable. What legislation can do, what legislation does do and what this Bill sets out to do is set out a menu of procedures that are available to be used, either prospectively as what we should do, or retrospectively—'Here's the kind of things we do do'—or case by case. But the thing that is never really legislated for is the intensity of that scrutiny, and that always is going to be a matter of political practice and of Standing Orders. So, the legislation can say, 'This kind of statutory instrument needs this kind of approval', but what attracts that kind of approval from a legislature is always, really, a question for the cultures and the Standing Orders of that legislature. And I think that division is fairly entrenched, certainly in our constitutional culture, but I don't think we should be challenging it. It makes sense that if we give to a legislature the power to scrutinise delegated legislation, we don't put in the legislation how it should carry out that task.

So, on amendability—which you'll now see as separate to how I thought about answering that question initially, Adam—I'm very sceptical of making secondary legislation amendable during the scrutiny process. I'll try and say why as briefly as possible. My worry is that, on the one hand, in the problematic context of a lot of delegated legislation, where my view, which maybe we'll come to later, is that it's not always adequately scrutinised, the risk of that one change against that wider backdrop is that it's counterproductive in the sense that it enhances the apparent authority of delegated legislation by muddying the waters about who made that legislation—was it the legislature or was it the Executive? And it kind of obfuscates the underlying constitutional facts that the authority being exercised and the person who should be accountable for that law making is the Minister making the rules—the new rules, not necessarily the legislation. So, I'm sceptical of amendability. I think, against the backdrop of wider problems, it might make things cloudy.

To push back a little bit there, would you not accept that the context has changed because we have so much now in the way of delegated legislation, so much framework legislation, that actually there's an accountability gap now because of cleaving too closely to this classical understanding of the division between and primary and secondary legislation? So, you don't have amendable statutory instruments because that looks like a Bill, but the world has changed because we've had 40 years of Ministers basically shifting as much as possible into secondary legislation. And that's why the idea of some form of amending power has become so relevant and, indeed, is reflected to some extent in the Hansard Society's recommendations or the working group's draft recommendations.

I appreciate that. Let me stress what I said wasn't meant to cleave too closely to the kind of classical view of this. It was actually that I'm motivated by precisely the changed context that you mentioned. I think that because there's so much of this covering significant areas of our life as a community, it makes it more important not to give some subset of it—and it might happen arbitrarily, that subset—the kind of extra imprimatur of legitimacy that it doesn't necessarily deserve. So, I didn't mean to say that we should treat this as a hallowed practice; I meant to say that, because it's generally problematic, we should take care not to mischaracterise any of it as more legitimate than it actually is. And I realise that this is contested, but my worry is that amendability gives it a kind of air of legitimacy, which, in practice, it wouldn't be earning.

Could I just delve a little bit deeper into the question as to whether, if some method by which the legislature can express a proposal for refinement of the draft SI was accepted, that should be set out in statute? There are a small number, aren't there, of amendable statutory instruments in primary legislation in Westminster—the Civil Contingencies Act 2004; the census, I think, as well. Through this Bill, there's a renaming exercise, which has benefits in terms of accessibility. But given that that is being done, in terms of giving equal prominence to the fact—if it is the mind of the legislature to introduce some method reflected in its Standing Orders for an amending process—shouldn't that also be referenced in the Bill, for completeness and for understanding, that, actually, there is a method? I've tried to actually propose an amendable statutory instrument, and I was told, 'Well, that's not in the Standing Orders.' In order to give it a clear role in the legislative process, if it is a consensus view that we are going to do this, why not include it in this Bill? Reference it, effectively, so that it's there alongside the other processes.

You could. As I say, the preferential approach that the society takes is that you should try and keep those procedural matters as a matter for Standing Orders rather than legislation. I know that in terms of framework Bills at Westminster, where they have had these very broad delegated powers, the way in which particularly the House of Lords has been able to constrain those powers has been by putting procedures into the Act itself, because otherwise it would be difficult to restrain them. This is why we've got this proliferation of enhanced and superaffirmative procedures that are on the statute book. I think, at Westminster, we've got 16 powers in 15 Acts, and depending upon how you characterise them, there are nine versions in terms of how you think about the characteristics—consultation, longer periods of consultation, committee role, committee veto in terms of the superaffirmative and so on. That has just added to the complexity. So, there is precedent for doing it, if that's what you want.

Going to your point about the shifting boundary between primary and secondary or delegated legislation, that's at the heart of our review, in essence; that's driven our thinking about, first of all, the difficulties of defining the boundary, and secondly, the difficulties of bringing Ministers back to a view that was in place 30 or 40 years ago, because Ministers want—and, in some cases, need—to legislate at speed. Every Executive likes administrative convenience. They'll sit in committees like this, in opposition, and say 'Oh, we must have these constraints and we must have this scrutiny', and then they get into Government, of course, and then they think entirely differently about these matters. And, of course, as we're seeing at Westminster now, the Government that was in place is now on the opposition benches and they're suddenly converts to scrutiny. So, it is very difficult to make the argument.

Central to our proposals for reform at Westminster is the abolition of the concept of negative and affirmative—actually getting rid of those procedural distinctions and saying if you are bringing forward an instrument under a power, the procedure by which you today as Members scrutinise it shouldn't be determined by a provision in a Bill that was passed by the Parliament or the Senedd 10, 15, 20—in Westminster's case, 40, 50, 60—years ago; it should be determined by dint of the text of the instrument in front of you, and there should be a sifting committee—at Westminster, of one or both houses—to determine what the scrutiny procedure should be. And then, through that sifting committee, there are routes for the instrument to take, depending upon the nature of it, depending upon the legal issues, depending upon the policy content, that may give rise to concerns that need to be explored, and a new committee structure. At Westminster, for example, we've got these delegated legislation committees, which frankly are a waste of time, and it's very difficult. Unlike here, where you've got a Business Committee, so a Member can seek to get a motion to raise concerns about a negative instrument, at Westminster that is incredibly difficult, because the Government controls the agenda.

So, all in all, we think it would be better that you have a committee of the house, or at Westminster both houses, that determines the scrutiny route that is taken, on the basis of the legal text in front of you, not on the basis of some debate that took place however many years ago. And also, the Minister in charge of that Bill at the time may not be the Minister in charge now, and therefore they may have different policy purposes and objectives that they're pursuing, and determining therefore that it's negative or affirmative based on what the predecessor said is not necessarily a good route to enable you as Members today to scrutinise the legislation.

How would you prevent the decision made on the proper procedure simply being made, or the decision-making process being captured, by the Executive, because of its majority position?

That, I'm afraid, is an inevitable product of a legislature where you have a majority Government. In a minority Government situation, it would be different. At Westminster, you would have an elected committee. That restrains that risk to some degree. We can't rule it out. But at the end of the day, the other aspect of this is that one of the problems with delegated legislation is that it's difficult to engage Members' attention with it, because the incentive framework is wrong. With all the pressures and all the demands on your time, why are you going to spend time scrutinising instruments that you can't change, and it's an 'accept' or 'object', and sitting in committees for 90 minutes to debate something over which you've got no real influence? If you had a different system, not every Member is going to want to spend the time doing the detailed scrutiny of these technical instruments, but some will. It will appeal to some and some will find it interesting. If you can provide a structure for that, we think that that's a better approach.

Just going back, finally, Chair, if I may, to the issue of amendable statutory instruments, is there a complicating factor here in terms of the constitutional relationships, and the fact that in many cases in relation to delegated powers, because of our constitutional framework, they are often delegated to Welsh Ministers rather than to the legislature? Is creating an amendable statutory instrument in that context more complicated?

Going back to Adam's point, it arguably undermines the principle of delegation, but I think there are practical issues. Certainly, at Westminster, we've approached it obviously mindful of the fact that we're talking about a Parliament that has two houses that would have to reconcile their views on an amendable instrument, and that would be problematic, not least in terms of time. For a single-Chamber legislature, that is less of an issue, but I do wonder, if changes were being made, particularly on instruments that involved the UK Government, whether it would lead to issues in terms of reconciling agreement about whether or not to accept the proposed amendment that should be made—whether that was textual amendment of the motion, or whether that was actual textual amendment of the instrument itself. There are still some practical logistical challenges.

But your proposal of a conditional amendment process, or indeed the House of Lords version, which is a pause to rethink, might give space for those inter-governmental discussions to happen in that context.

Yes.

Dr Tucker, do you want to add anything?

No, not at this point. I'd just be repeating myself, so no.

Thank you very much. Alun.

I was actually quite enjoying the conversation that was going on there.

I think we all were.

I was interested, Ruth, in your proposal in answer to Adam about a sifting committee and the rest of it; I think that's a fascinating idea. But the conversations that we've had over many years about the scrutiny of delegated legislation—I don't disagree with the conclusions that either of you have come to on these matters—and the conversation that we've just had in committee this afternoon all point to the legislature having the ability to provide greater and more robust challenge to Ministers. But the ultimate challenge is, of course, being able to amend the text. That's what Ministers worry about: 'At the end of the day, I've got to get things through this place. It's a bit of a pain. I've got to stand up and read out a speech that I've never read before, and I've just got to put this down and get my people on board to vote for it, and it's done', bluntly. What challenges Ministers is the fact that they could lose on an amendment. That's what really challenges Ministers, and that will get them to invite people in for coffee and become the greatest friends, and the rest of it.

So, are we not missing a trick somewhat if we are saying that Members—? And as a Member myself, I find it immensely frustrating that I can ask whatever question I like of a Minister, and the Ministers are trying to find answers, and the rest of it, but what I can't do is say, 'Actually, all I want is to amend paragraph 3(13) to say this instead of that and then I'd be happy.' And so are we not saying that we can do all of these different things but what we can't do is actually that one thing that we want to do, which is to provide sometimes quite minor amendment to a piece of legal text with which we have concerns?

That's where I think our proposals, with some modifications for the fact that this is a one-Chamber Parliament, would come into play, because we would have all instruments in draft form, so you wouldn't be making instruments before they're laid before the legislature. They'd be in draft form, which is another problem with amendability, where you have the made instrument. It may not be in force, but it already has been made by the Minister, it's law, and therefore amendability becomes a problem retrospectively. We would have them all in draft. You put them through a sifting committee. Any Member can make representations to the sifting committee in addition to those Members who sit on it. So, if you had a particular constituency concern that you wanted to raise, you could channel it through that committee. If there are particular specific concerns of a drafting nature or of a policy nature, it would be sent to, in our model at Westminster, a regulatory scrutiny committee, and that committee would be able to haul in the Minister, haul in officials, whatever it may be.

The range would be from complaints about drafting problems, which I know is an issue here as well but it certainly has been an issue at Westminster about the number of errors and corrections, and so on, that have to be done. You could bring in the Ministers and the officials to give evidence and try to apply pressure that way, but you could also, through that committee, advance an argument with the Minister about why this change should be made, and then take that through a motion to the House, to the Chamber: 'We want, for clause x, this drafting change, from "may" to "should"', for example, or the other way. Whatever it may be. And put that to a vote of your colleagues. And yes, it wouldn't be a direct amendment of the text, but the Minister would know that there was a risk of losing the vote and that to go ahead and make the instrument without regard to what the result of that vote was would be just politically daft. Because if the Chamber has voted for a conditional amendment, why would they not reject the instrument without that amendment being taken on board and made by the Minister? I think our approach, whilst not full textual amendment, would politically in most instances get you to where you would want to be anyway.

Okay. I’m interested in that, Dr Fox, and I’m grateful to you as well. Dr Tucker, you outlined in an earlier answer one of your concerns, or you seemed to hint at least that you had other concerns in answer to Adam Price around the amendability of secondary legislation. And I think what you said was that you are concerned about who makes that legislation, who is accountable for it. I’m not sure I wholly agree with that, I have to say, but do you have other concerns? You seemed to hint that you had other issues you wanted to discuss with the committee.

No, I don’t think so. I think more what I'm hinting at is more elements of that same concern.

So, what are those more elements of the same concern, then?

So, just now, you said something really striking—and, by the way, I totally understand that’s your experience, and I think it generalises as well—you said that the ultimate challenge for Ministers and the thing that—I can’t remember how you phrased it—scares them or keeps them awake at night is the prospect of their proposed text being amended. But that actually exposes something that has maybe gone wrong in our constitutional practices. The ultimate challenge for Ministers and the thing that should scare them isn't merely having their text amended; it's having their text rejected. But that's just not plausible, which is why you said what you did. Your version is the reality version, and I’m being utopian about it, maybe. But in the case of delegated legislation—to stress, not primary legislation; the stakes are much lower with delegated legislation—if we had a healthier practice where there was at least a risk of a proposed instrument being rejected, in a healthy system, there would be at least that risk motivating the Minister in the same way that you just described them being motivated by the risk of amendment. And the stakes are much lower with delegated legislation and the procedure’s already in place if you don’t like a piece of proposed legislation to reject it with reasons, and then the Minister can address those reasons, but that possibility is just not used in our system. That’s not why I’m against amendability, though. The reason I’m sceptical of amendability is that I’m not sure the kinds of scrutiny processes that delegated legislation typically go through are the kind that we should rely on to generate good amendment proposals, and that the kind of scrutiny that generates good amendment proposals isn’t the way we approach delegated legislation, if that makes sense. I realise sometimes that you look at something, ‘Oh, here’s an amendment I would make', but I don’t think the process is designed to make that happen.

I think that’s largely right in some cases, to be fair; I think that’s a reasonable criticism to make. But you are right, I would tend not to vote against a whole load of delegated or secondary legislation simply because I’ve got a problem with one part of one paragraph or one clause in it. Why would you vote against the whole lot of it because you’re unhappy with elements of it? On that basis, you’d vote against everything, in my experience. But what you would provide for is for a greater power for the legislature vis-à-vis the Executive, and the one theme, I think, where we would have agreement over the last decade or so has been the growing power of the Executive and the reducing power of the legislature and the growth of majoritarian Government as a Government rather than accountability to any legislature.

So, my concern in this is increasing the power of the legislature, and that’s what we’ve sought to do with the superaffirmative and all the different procedures and processes we’ve put in place—has been to create greater barriers, if you like, for Ministers to overcome when they are seeking to impose legislation, and it just seems to me that we’ve gone all the way down this road and then we stop before we get to the end of it, and it just seems to me that the natural conclusion of where we want to be is amendability.

Your point about you've gone down the road of superaffirmatives and enhanced affirmatives, that’s right, but one of the issues is that that has imposed demands on the Executive to the extent that they now rarely use those powers, which may be a good thing, but—.

From our perspective, in our advisory group for the review, we had very extensive discussions about this quite vexed question of amendability and the best way to do it. As I say, at Westminster, we've got this added challenge of the two Chambers reconciling their views, but, ultimately, I think it came down to political pragmatism. It is very hard to conceive of circumstances in which any Executive in the UK is going to concede and support the right to textual amendment of statutory instruments. Just as a matter of political practicality, I just can't see circumstances in which they would do it.

And unless you've got circumstances of coalition Government, where you might be able to get the numbers for that in certain circumstances, in most instances, it's therefore just not going to happen. But the prospect of an amendable motion that the Government may or may not agree with or accept and that nonetheless doesn't stop it implementing the instrument if it wants to, but with a political cost of having to marshal its majority in the Chamber to vote against something that Members have already indicated that they want—. There's a political cost to that.

In terms of our other provisions, we were very mindful that, thinking about—. Appeals to constitutional principle, I'm afraid, just don't work. We've been trying that for 10, 15, 20 years. I wrote the book on delegated legislation at Westminster in 2009-10, and the arguments have changed and are moving in our favour, but the willingness of successive Governments of different political stripes to change their approach hasn't really shifted. So, increasingly, we're putting it through the prism of a business case. What is it that's going to persuade a Minister to make the change that you want? One of the big things that matters to them is the use of their time, so if you can up the demands on their time by requiring them to appear before a sifting committee, or requiring them to go to a regulatory scrutiny committee and account for the fact that this particular instrument has a specific problem, whether it's a drafting issue, a vires issue or whether it's a policy merits issue, and address the change you want and then have to spend time in the Chamber debating it to try and get the change through, that all is time that they would much rather spend elsewhere. If you can get—. Particularly at Westminster, I'm not sure whether it's quite so much here in Wales, but certainly at Westminster, bringing in the Permanent Secretary of the department to get a dressing down by a committee in full public view about the quality of their departmental statutory instrument programme is a way to put pressure on them to up their game.

So, from our perspective, our approach has been very much about what's politically possible, as opposed to what we'd really like in principle but we've got really no political prospects of getting, and what are the levers, what's the incentive framework that we can build that has a reasonable chance of being accepted, but would put pressure on the Executive to be more responsive to the legislature in a way that they're just not now? It's not perfect, but I think it's a more realistic proposition in terms of acceptability by Executives.

I've got no issue with pragmatism at all. I think we're probably coming from the same point of view in terms of the principle. My issue is that I don't want Ministers to have powers they don't need—or I don't believe they need. I believe power should reside in the legislature that the people have elected, not a Government. So, I'm looking at it, perhaps, from a different perspective. But we'll leave it at that. I'm content with that, thank you.

Thank you, Alun. Over to you, Adam.

I'm interested—. The political context here is slightly different in terms of the art of the possible. If it were possible to convince an Executive to allow a general amendable statutory instrument procedure, would that be a bit of a deterrent against too much reliance on statutory instruments? If the Minister felt, 'Well, statutory instruments aren't going to solve all my problems because, actually, there will be the prospect of amendment', would that change the balance of power, if you like, or the—?

Entirely possible, yes. You might see—. You'd have this balance between the Executive's desire for legislating at speed, for administrative convenience and so on, for this idea of futureproofing legislation, balanced by the risk that they're going to have to spend a bit more time in the legislature dealing with an amendment process. So, there's a balance there to be struck about how they view the demands, the capacity demands, on their time and on their resources. You might well see, therefore, a bit of a tilt towards saying, 'Well, we're going to have fewer framework Bills, framework clauses; we're going to have to put more detail on the face of the Bill', which would be an entirely good thing. My suspicion, though, is that—. Again, a different context here compared to Westminster, but my suspicion is that the power of the Government's majority, particularly as we see in the current circumstances, given the balance of influence in the Commons, would mean that the Government would just persist with doing what it wanted and take a very negative view of those Members who might support amendments.

Our view is that, even with a conditional amendment process, it would be something that should be used sparingly; this is not something that you want to be turned into a tool for guerrilla warfare by opposition parties—that would just undermine the whole system and it would collapse in the future. So, there's a balance to be struck, but it might tilt the balance here.

Maybe as a permissive power linked with some kind of sifting committee process, it might add something to the mix.

Yes.

I just wanted to ask you, both of you, in terms of the Bill's contribution to accessibility of Welsh law. Is there anything more that it could do to that effect?

If it can't, if it doesn't, then don't worry.

Not being a lawyer, I didn't feel that this was something that I'd got particularly strong views on. I think the accessibility point, from my perspective, is answered to some degree by the renaming of the procedures, which I think is helpful, but I haven't got any views much beyond that.

Dr Tucker, any comment on accessibility?

Yes. My view, especially about Part 1 of the Bill, but also, if we can trespass, in Part 2 of the Bill, is that they both do a kind of discrete accessibility-increasing job and they do that job well. So, echoing what Ruth just said, I like the new labels for the scrutiny procedures, for example, in Part 1. The way this Bill addresses the accessibility problems, in my view, is successful. We can always make the law clearer and more accessible, but if we focus our attention on the accessibility of scrutiny processes and the way that the delegated legislation is thereafter published, no, I don't think this Bill's missing any tricks; I think it does those two tasks successfully.

Could I ask—? It relates partly to accessibility, although it is slightly broader than that. Something that this committee spends a lot of its time on is statutory instruments that are technically defective in some regard, and often—many times—the Government will come back and say, 'We'll sort that out some way down the line' and we find out—. We go back and check and many years later—and correct me if I'm wrong, Chair, but—we find that it hasn't been amended. Is there something that could be done on the face of this Bill to force the Executive, when it often freely admits that there's some defective drafting, to actually bring forward a fresh statutory instrument within a reasonable time period?

Yes. You could have a provision that, where something has been identified and the Government's acknowledged that there is a flaw that can't be dealt with by a correction slip, then the instrument has to be introduced and dealt with within, I don’t know, define a reasonable time frame, but 28, 40 days, whatever it may be—certainly that. Also one thing, in terms of the actual Bill as it is, if an instrument were to be rejected or annulled, there is no provision in the Bill about when the statutory instrument revoking that provision would have to be introduced. There is a provision that a statutory instrument would have to revoke the original instrument, but it doesn’t specify within any timescale. And it seems to me, in the principles of the Bill—transparency, accessibility, decluttering—that requiring clarity on that as well would be helpful, because, again, it would no longer be enforced, but it would still sit there on the statute book essentially. So, I think those two things would go together.

Great. No further questions from me, Chair.

Alun.

Just to conclude, we’ve had a conversation about delegated legislation this afternoon, but the reason that we’re having this conversation, of course, is because of the increase in skeleton Bills and framework Bills, which has happened over many years, but particularly as a consequence of Brexit, of course. So, do you have any proposals as to how this legislation could help us in terms of dealing with framework Bills? I think this committee has, over many years, increasingly voiced its concern that too much legislation now is in a framework form, and we’re being asked to vote on frameworks that provide then for Ministers to have quite an extensive range of powers, which, notwithstanding the conversation we’ve just had, can be exercised almost unchecked.

Again, it goes to the heart of our review that this question about where the boundary lies between what should be in primary and what should be in secondary and the extent to which administrative convenience and the desire to legislate at speed has become a much bigger factor than it used to be, and hence why our approach is that—. Personally, with the best will in the world, I don’t think that the Governments, as future Governments, are going to take a different approach, culturally, to legislation. A new Government getting in in its first term wants to bring forward legislation quickly to show that it’s getting on with things; it wants to legislate in response to crises or problems as they emerge. So, my own view is that it’s just very, very difficult to persuade a Government of the day, no matter who they are, to spend more time on the preparation of legislation and the implementation process. I wish it were different, but it just isn’t, and I can’t see anything in our political culture that’s going to change that.

Our approach has been, 'Well, if you get—.' The problem at the moment is the Government gets all the benefits; it gets the benefits of ramming through its powers in framework Bills, knowing full well that the scrutiny of them is going to be relatively weak, as and when it brings forward the regulations. So, it sort of gets its cake and eats it. Our approach would be to say, 'Well, okay, there are things we can do in terms of framework Bills.' You could, for example, say, 'Well, if you are going to bring forward a regulation or a power that’s in a framework Bill, it’s going to be subject to an additional layer of scrutiny.' It’s sort of badged, if you like, for its future use, so that from the regulatory scrutiny committee or the sifting committee, whatever it may be, there’s an additional layer of scrutiny that has to be gone through. That may assert some pressure on Ministers to think twice about whether, 'Do I really need to do it this way?'

And then, secondly, if you get the scrutiny procedures downstream right, I think you don’t need to worry quite so much about the framework Bills. Because if you could get the scrutiny procedure on the regulations to be more robust, and a more genuine engagement by Members with an opportunity to suggest changes and alternative provisions, drafting or vires issues, whatever it may be, you don’t need to worry so much about what’s happening upstream. And the other factor that we’ve taken account of is that the way the world is going in areas like science, technology—artificial intelligence is obviously often cited—the idea that you can spend 18 months, two years legislating, and implementing then after that, in areas like that, which are so fast moving, I just think is increasingly unrealistic and, therefore, actually, we might need, in certain areas, framework Bills with greater agility for the legislature to then move at speed to scrutinise the regulations, with more robust scrutiny processes attached.

But you see, I remember, 20 years ago, being told almost exactly that by an up-and-coming special advisor in Downing Street about Ofcom, and that we needed to be able to legislate at speed to do all these different things, and they needed to take lightning-fast decisions, and I still can't use my mobile phone in the centre of my constituency in Ebbw Vale. They may have legislated quickly, but, frankly, they still haven't delivered the purpose of that legislation 20 years later in Blaenau Gwent. So, I'm a bit cynical about that argument, I have to say. But also, as a parliamentarian, I don't think we can accept it.

I'm always reminded—it's an extreme example—of being brought back here on 30 December to vote on the withdrawal agreement from the European Union. We spent a very unhappy hour in the Chamber here, voting through the motions, which allowed it to be discussed then in Westminster, and then, in Westminster, they spent an equally unhappy afternoon and evening voting it through.

I remember it.

And the European Parliament were still on recess. They came back in January and spent three months on the same thing. And during those three months, we all learnt about all the problems that we've become familiar with subsequently, as a consequence of that. But as parliamentarians in the United Kingdom, wherever you sit, in Westminster or here, we did not have the opportunity to question Ministers, to scrutinise the legislation, and we've suffered as a consequence of it, whereas elsewhere in Europe, they had the opportunity to do that. So, whilst I accept the pragmatism of what you're saying in terms of, 'This is where our political culture is', surely there's an argument here as well that we need to change our political culture in order to put democracy at the heart of it, and administrative convenience for Ministers at the back of that.

Yes, absolutely. What you're essentially talking about there with the European trade agreement was a disgrace, and I remember saying so at the time—an absolute disgrace—at Westminster, how that was handled. And, of course, quite a number of the Members who wanted it pushed through quite quickly were then, subsequently, quite critical of the measures when they realised what was in it. They could have taken the time, but they chose not to. That's not a delegated legislation point at Westminster, but certainly it's a reality that successive Governments, and in particular the last Government from 2019 onwards, took an extraordinary approach to, essentially, fast-track all emergency legislation—I mean, it just mushroomed—and claiming urgency or emergency when there was just no such reality. It just was not justified.

Now, given the Government at Westminster's control of the agenda, it's very, very difficult, unless you get enough Members of the governing party, the backbenchers, to vote against their own Government on that, to stop it. I don't know how it worked necessarily here—obviously, we only have the business bureau, and similarly in Scotland—but the fact that it happened in both legislatures, it is indicative of a political culture in which it's very difficult to persuade backbenchers to oppose the timetables that are being imposed upon them. I wish it were different.

We could spend the afternoon on this. [Laughter.] I'm grateful to you. Thank you very much. I'm grateful to you, Dr Tucker, as well.

Can I thank you—

Can I go back to answer questions—

Yes, sorry. Please do.

So, I share the reservations that have just been expressed about the growth of framework and skeleton legislation, and I also share Ruth's sense that that's not something that's likely to reverse, certainly in the near future. But I think that the tragic answer to your question, which was, 'Can we do something about that on this Bill?' is, 'Probably no.' I'm not sure, for reasons that have actually just emerged as that conversation developed, that these are issues that can be dealt with in primary legislation at all. They're constitutional cultural issues that we can't legislate on. I totally understand why, faced with this Bill, which seems as close as a Bill will ever be to this topic, the question has arisen as to, 'Could this be a vehicle to help solve this problem?' I think—and I'd love to be wrong, incidentally—but I think that the realistic answer is that legislation generally, and in particular this proposed piece of legislation, probably aren't promising ways to tackle that issue. The way to tackle it is to do with how intensely scrutinised the products of those processes are. And whilst this Bill makes the available options clear, it's a later issue how enthusiastically those processes get used, which we can't put in the Bill itself.

Thank you.

Could I ask another question? We recently—. Well, I moved a motion, actually, to annul some regulations that are related to the Welsh Government's puberty blocker ban, which was a version of similar regulations in England. There were two regulations there, one of which was UK wide. And that was under the made negative procedure. I think in terms of the NHS legislation, it was a made negative procedure here and there. And I think it showed—. In Westminster, there are obviously strongly passionate views on this subject across the political spectrum, but there was no discussion at Westminster. There was a High Court challenge, but there was no debate at all on those regulations. We had a debate here on an amendment to the regulations, but it just shows, an issue that is an important issue, where there is a lot of debate outside of Parliament, but there was no debate at Westminster, and it was only at the tail end of a made negative procedure that we were able to do that, when certain issues came to light.

Haven't you suggested as well a sort of urgent procedure where a Minister wants to make a regulation, and particularly there—I think Westminster was going into general election dissolution, et cetera, and then going into recess—for particular circumstances, where there are particular timely reasons why something needs to be done, there should be a parliamentary procedure to allow a timely debate nearer the time when the regulation has been moved? Could that apply in our circumstances as well, do you think?

Yes, I think every legislature will need a provision for urgency. Now, that is in effect the made affirmative procedure in most legislation at the moment. But as we saw during COVID, it can be abused in circumstances of an emergency, and the alternative is the civil contingencies model, but that is a very high bar to be reached in terms of whether those powers would be used. The reason at Westminster—. I can't remember the exact timescale in relation to the general election, but the reason it was not debated at Westminster wasn't particularly because it was necessarily coming up against time constraints. It's a made negative instrument. Made negatives are very, very rarely debated at Westminster—an extraordinarily low number. That is because of the procedures, specifically about how you get a debate on a negative.

So, an MP has to table an early day motion to pray against the instrument. Unless you are the leader of the opposition signing that prayer motion, it is highly unlikely that the Government will grant time for that motion to be considered. So, only in exceptional circumstances where there was a huge political stink about it would it happen. And even when the leader of the opposition has signed it, there's no guarantee that the debate will be scheduled within the 40 days. It's not unusual to find that some of those debates are suddenly used as filler debates after the 40-day period. And the reality at the moment, and something we've highlighted in some of our reports and publications and in the review, is that, at the moment, Government control of the agenda at Westminster enables it to frustrate the purpose of the Statutory Instruments Act, which to my mind is just unacceptable. But interesting enough MPs in that to do something about it is incredibly difficult. So, I think, at Westminster, those two separate issues, you do need the urgency provision precisely because what we are proposing in the review is to abolish the distinction between negatives and affirmatives, but you would need an urgency provision so that the legislature could consider the instrument and come back to it, if necessary.

Thankfully, we don't have the prayer problem. So, I suppose the issue that was common in both cases was that when the original Act giving powers to Ministers to amend the formulary of acceptable medicines for prescription purposes was created, then it was thought, 'Oh, it's reasonable to do it via a negative procedure', because normally it's a matter of such detail that it wouldn't be something where there would be great political disagreement until, of course, something comes up where it is, and then the procedure doesn't actually match the context, whereas your sifting committee and making a decision contemporaneously, that solves that problem.

Yes, and that's the purpose of it—precisely that kind of scenario. But what looks like a benign policy provision in 1990 does not necessarily look like a benign policy provision in 2025. Therefore, to set the scrutiny procedure then and require all subsequent users of it to adhere to that is just unhelpful and creates some of the problems within the system. Conversely, at Westminster—I don't know to what degree it happens here—it also means that powers that are ascribed to the affirmative procedure mean that MPs and peers have to spend time debating instruments about which they have no concerns. So, they can't debate what they do want to consider and they have to debate what they have no interest in considering. And you're talking about formalised, 90-minute debates, where you have to set up a committee, you have to have all the resourcing of it. It's a waste of time. So, there is a complete disconnect now between what Members want to debate and what they can debate, and that's partly driven by the shifting boundary between what should be in primary and what should be in delegated legislation.

I've got to say, if we only we had 90-minute debates. [Laughter.]

Well, they rarely last more than 30 and some of them no more than 10.

We'd like to have that opportunity. Here, the budget debate has now gone up to two hours from one. It's something that I find amazing, that major decisions are made in a very short period of time. Do you have any view on that?

Yes. We've got proposals for a form of financial scrutiny as well at Westminster. It is unacceptable but, again, unless, I'm afraid, enough Members marshall themselves to say 'no'—. It would need only happen once, and that would persuade the Government perhaps to take a different approach. But, at the moment, they get away with it.

I wouldn't disagree with that. On that point, can I thank Dr Fox and Dr Tucker for coming along and for giving evidence to us? It's been very helpful and informative.

I'm now going to ask my colleagues to have a break until 2.40 p.m.