Liam Kerr

What does an incumbent government do when meddlesome opposition MSPs delay the passing of legislation by challenging imprecise drafting, highlighting negative consequences and exposing lack of understanding by both back- and frontbench MSPs in that government?

The answer increasingly seems to be to lay legislation that is shorn of detail and precision, with a view to adding those elements later through a much less onerous process.

A number of recent, contentious bills in Holyrood have required many hours of scrutiny, debate and government difficulty, only to emerge flawed, unworkable and even unlawful. The government’s response appears to be a realisation that this can be avoided using a ‘framework bill’. As Michael Marra MSP said: “There has been a very marked increase in the number of framework bills that the Parliament is considering… my understanding is that, in years past, such bills were incredibly rare, if not completely unheard of, yet we are now seeing them at the committee almost every month.”

In the unicameral Scottish Parliament, a bill proceeds along a fairly standard three-step process, which itself follows a consultation period, interrogation and reporting on by cross-party committee. Increasingly stage two amendments will run to the several hundred and stage three has changed from seeing a few minor clarification amendments to involving many. Amendments unsupported by the government rarely, if ever, pass due to the numbers, but do result in a huge amount of time spent by the government, armies of advisers and civil servants, and often trigger negative press coverage.

But there is another way to make laws and the government’s increasing tendency to pursue it should ring alarm bells.

Secondary or delegated legislation follows a much-truncated process involving relatively no scrutiny. By inserting to a mere skeleton – or ‘framework’ – bill, clauses that enable ministers to amend or repeal provisions in an act of the Scottish Parliament using secondary legislation, the tortuous bill-passing process can be circumvented.

There is no formal definition of a framework bill in the Scottish Parliament’s Standing Orders, however its Bill Handbook states that a key issue for bill teams is “developing a coherent plan for the framework of any delegated powers provided for in the bill”. The Cabinet Office’s Guide to Making Legislation says framework legislation “leaves the substance of the policy, or significant aspects, of the policy to delegated legislation [and] might amount to a series of powers providing for a wide range of things that could be done with the detail on what will be done, left to be set out in the regulations”. A Framework Bill might therefore be considered legislation in which the substantive elements are not on its face but are later added by secondary regulations.

By way of example, contrast the Police and Fire Reform (Scotland) Act 2012 (158 pages setting out a comprehensive and detailed analysis of how Police Scotland and the Scottish Fire and Rescue Service will be structured, their functions and formation), with the National Care Service (Scotland) Bill (38 pages that contain the word ‘regulation’ roughly as often as the 2012 Act). Similarly, the National Health Service Reform (Scotland) Act 2004 which dissolved NHS trusts and transferred their responsibilities to NHS Health Boards and established community health partnerships, conferred not a single regulation-making power on Scottish ministers.

Several recent bills considered by Holyrood arguably constitute Framework Legislation: the Fireworks and Pyrotechnic Articles (Scotland) Bill; the Bankruptcy and Diligence (Scotland) Bill (which includes powers given to Scottish ministers to make any incidental, supplementary, consequential, transitional, transitory or saving provision they consider appropriate to give it full effect); the Circular Economy (Scotland) Bill (which mandates publication of a Circular Economy Strategy but gives no detail as to contents or resultant targets); an Agriculture and Rural Communities (Scotland) Bill (which mandates a rural support plan yet has no details of the contents, who is eligible for payments or what the criteria are).

In contrast, perhaps only the Scottish General Election (Coronavirus) Act 2021 and the Coronavirus (Scotland) Acts, both specifically designed to respond to the outbreak of Covid fall into this category. Extenuating circumstances if ever there were.

This matters for several reasons.

The Hansard Society states that increased use of framework bills “undermines parliamentary scrutiny” as there “is no mechanism to ensure that the scrutiny of an SI is commensurate with its policy content…debate on affirmative instruments is normally cursory at best… and there is no penalty for poor quality accompanying documentation, even where that documentation is essential to the understanding and/or operation of the Instrument in question”.

Furthermore putting substantive decisions on spending into secondary legislation does not constitute good legislative practice. Michelle Thompson MSP notes that “it is not possible to provide a full assessment of costs or savings until the regulations have been agreed”. The logical progression of which is that “such bills carry significant risks to the public purse… any understanding of how money operates in such programmes, goes against the use of framework bills, because those bills bring significant risks”. This is exactly why the Finance and Public Administration Committee in Holyrood has unanimously expressed concerns about the weaknesses in the financial memoranda accompanying several flagship Scottish government bills.

The pandemic gave Scottish ministers unprecedented powers to make laws via regulations. It is impossible to say definitively whether this is the cause of the increased use of framework legislation or whether it is evidence of a government uncomfortable with the level of scrutiny and interrogation that good law-making requires.

Regardless, it is my view that it needs to stop, before we do irreparable damage to democracy, to the law and to the public finances.