Members will be well aware from sitting on other committees that they routinely consider statutory instruments, which are documents that are signed by a Government minister and which say something like, “By the power vested in Scottish ministers” in whatever act it might be, “I am changing the rules on this, that or the other”, or “I am changing the court fees”, for example—that is one of the instruments that comes through routinely every year. That is a statutory instrument, which has a number.
However, if legislation gives a minister a power simply to direct somebody to do something, that does not require a statutory instrument and it is a delegated power. As I said, a delegated powers memorandum addresses the former but does not address—and is not required to address; that is important—the delegated power, and it routinely does not.
The Delegated Powers and Law Reform Committee goes back to the Government and asks it to give us the reasons and the purpose for every delegated power. Our purpose as a committee is to ensure that the Parliament is being asked to give powers for good reasons. It seems to us that it would be sensible if the rules were changed so that the Government had to address that in the delegated powers memorandum. It will have to address it at some stage because we will keep asking it until it does, so why not just address it in the original document?
If something is introduced at stage 2, there will be a supplementary delegated powers memorandum. However, the same rules apply, so if the Government does not tell us about delegated powers, we will, again, have to go back and ask it what those are about. Sometimes, as I think happened a couple of weeks ago, I have had to ask that question of the minister at stage 3 because we have not finished the process beforehand. That comes back to timing, again, but all that could be avoided if something simply had to be included in a delegated powers memorandum. That is what we would suggest.
In the context of members’ bills, there is no requirement to introduce the bill with a delegated powers memorandum and to us that seems to be a defect. A requirement to provide a delegated powers memorandum might be seen as an added barrier to a member introducing a bill, but the member will have to address that at some point because, again, we will not let them away with it. It might therefore be more sensible if that delegated powers memorandum were one of the required documents at the introduction of a members’ bill or any other public bill.
I also put on record what it is that we need. It is worth distinguishing between the purpose of a power and the reason for a power. I hope that an example might help. If I were to come up with a purely hypothetical education bill—I do not think that there is an education bill before Parliament at the moment—it might seem perfectly reasonable if that hypothetical bill introduced a power for the minister to maintain school buildings. However, on a moment’s reflection, we would think, “Hang on, a local authority normally does that. Why would a minister want to do that?” The reason might reasonably be that where local authorities have failed to carry out their duties, it is relevant that the minister has a power to do it for them. That would be a good reason, but we would want to know what the reason was.
We would also want to know the purpose of the power, because if that power were ever to be invoked, it would be perfectly reasonable that the purpose might be to provide our children with adequate places where schooling could take place. On the other hand, it would be pretty clear that it would not be appropriate for the minister to exercise that power to, for example, preserve a building that was no longer in use because it was an ancient monument and the minister wanted to look after it. That would not be the purpose of the original power, so that is why we need to know not only why the Government wants to give a minister a power, but what the purpose of that power is. That is why quite a lot of detail is required in these things, so that we can see where the Parliament is giving the right powers for the right reasons to the right people.