I am glad that the final debate of stage 2 is an important one. We all recognise the importance of getting the process right for scrutinising regulations, which is why, before the bill was even introduced, I met this committee and the Delegated Powers and Law Reform Committee to invite views on what extra scrutiny requirements would be appropriate and how they should fit with the Parliament’s usual processes.
In its stage 1 report, the committee called for a super-affirmative procedure that would give an independent expert body an opportunity to feed its views into the scrutiny of regulations to help the Government and the Parliament ensure that our social security law is the best that it can be. Alongside the amendments setting up the new commission, amendment 131 gives full effect to the committee’s recommendation. I thank Dr McCormick, Ms Paterson and the other members of the expert advisory group for their work in that regard.
Members will have received the Government’s policy paper, which explains in detail the effect of the Government’s amendments. To briefly summarise, amendment 131 would create a process for the scrutiny of regulations that deal with eligibility and entitlements under the assistance types in part 2 of the bill and any top-up assistance created under part 3.
The first step of the process is that the Scottish ministers must inform the commission of their proposals, notify the Parliament that they have done so and make the proposals publicly available. That will also allow for experience panels and other groups to be consulted, as this Government has done throughout the bill process—members will recall that it is one of the bill’s principles that the system will be designed with the people of Scotland. It also provides an opportunity for the Parliament, if it so wishes, to engage with the proposals at the consultation stage.
The next stage of the process is that the independent commission must prepare a report on the draft regulations, setting out its observations and recommendations. In performing that work, the commission will be under a statutory duty to take into account the principles and any relevant international human rights instruments.
Once that independent report is published, ministers can lay their draft regulations before Parliament for approval. Alongside the draft regulations, they will also have to lay a report before Parliament explaining what they have and have not done in response to any recommendations that the commission has made. With the benefit of having seen the independent expert commission’s report and the Government’s response, it is then for the Parliament to decide whether to approve the Government’s regulations and the steps that the Parliament might wish to take in reaching that decision.
There are two situations in which that procedure does not need to be followed. One is when the draft regulations are for the purpose of consolidating existing regulations, and the other is when the commission advises that its scrutiny is not required. I know that the Delegated Powers and Law Reform Committee has written to this committee to express concern about that last point. As the Government’s position paper makes clear, if members would prefer the commission not to have that power, the Government will be happy to remove it at stage 3.
Amendment 132, in my name, excepts draft funeral expense assistance regulations and early years assistance regulations from the process that I have just outlined, until such time as the commission advises that it is ready to begin carrying out its scrutiny role. That is to avoid delay in the implementation of those benefits by summer 2019. As the committee knows, the policy proposals for such assistance have been, and are being, consulted on extensively. We published illustrative regulations last year, and further public consultation on draft regulations will take place this year. Against that background, it seems unnecessary to hold up implementation until the commission is in operation. However, I reiterate that it will, of course, remain for this committee to determine the role that it wants to take in the scrutiny of those draft regulations when they are laid.
Amendment 131B, in the name of Ms McNeill, seeks to extend super-affirmative procedure to all regulations that will be made under the powers in both the bill and the Welfare Funds (Scotland) Act 2015. In my view, that is disproportionate and unnecessary; I also believe that the amendment is technically flawed. The scrutiny procedure that is attached to regulation-making powers has to be chosen with an eye to the importance of the regulations in question and the need to preserve and make effective use of parliamentary time. That is what the Delegated Powers and Law Reform Committee considers when it scrutinises bills. Unsurprisingly, it has not recommended that all regulations made under the powers in the bill and the 2015 act be subject to the affirmative procedure, much less the super-affirmative procedure.
The effect of amendment 131B would be that even commencement regulations, which are normally subject to a laying requirement only, would be subject to the super-affirmative procedure. While I am sure that it would be a pleasure for me to appear before this committee on a weekly basis to go through every regulation, I am not sure that that would be the most effective use of members’ time.
I cannot support amendment 211, in the name of Mr Griffin. It would let a judge strike down regulations that had been approved by a vote of the Parliament, on the basis that, in the judge’s opinion, the policy behind the regulations is “retrogressive”, without providing a definition of what that is or detailing any other circumstances surrounding such a decision. Whether a particular policy is or is not retrogressive is, in effect, a political judgment. It is precisely the sort of judgment that we have all been elected to this Parliament to make. I am sure that Mr Griffin does not want to abdicate to the courts his responsibility as a member of this Parliament. I do not think that that would be appropriate. Amendment 211 would diminish the role of Parliament. I therefore urge members to reject it and to support the amendments in my name.
I move amendment 131.