Seòmar agus comataidhean

Thank you, Presiding Officer.

Today, I am speaking on behalf of the committee. I said earlier that we wanted to depoliticise elements of the issue that we are discussing. I have my own views, which I will be happy to speak to Mr Kerr about after the debate. However, the committee did not go into great detail on the functions and structure of the Scottish Parliament. I can have a chat about that with Mr Kerr afterwards—that would be no bother.

The report sets out in detail the steps that the committee supports being taken by the Government and fellow parliamentarians to help to strengthen the scrutiny of delegated powers in primary legislation and the secondary legislation that is subsequently made under those powers. Such steps include the use of the so-called super-affirmative procedure for subordinate legislation and the Scottish Government setting out the overarching justification in instances in which it decides to take a framework approach.

The committee concluded that, although it expects so-called Henry VIII powers—powers that allow primary legislation to be amended by secondary legislation—to be appropriately limited in scope, it considers them to be a necessary and efficient tool when they are used suitably. At present, the committee is generally content with the drafting of most Henry VIII powers in Scottish Government bills, and it is content that they are subject to appropriate parliamentary procedures. Speaking personally, I do not like the idea of Henry VIII powers, but I recognise and agree with the committee’s unanimous finding in that regard.

I hope that the committee’s report proves to be helpful to the Parliament and beyond, in the longer term, and that it has formed the basis for an interesting and informative debate this afternoon. I thank my committee colleagues for the way that they worked throughout the inquiry, and I look forward to hearing contributions from other members. I also put on the record my thanks on behalf of the committee members to the excellent clerking team and the legal advisers of the Delegated Powers and Law Reform Committee. Their assistance during the inquiry was invaluable, and we all appreciate everything that they have undertaken to help us.

I move,

That the Parliament notes the conclusions and recommendations contained in the Delegated Powers and Law Reform Committee’s 21st Report, 2025 (Session 6), Inquiry into Framework Legislation and Henry VIII powers (SP Paper 762).

Yes, I do. The fact that we managed to arrive at some kind of definition is an indication of that. We recognised how challenging it is to arrive at a definition. That is understandable, given that some of the evidence that we heard in that regard was conflicting.

As parliamentarians, we think that most of our colleagues will know a piece of framework legislation when they see one, but we hope that, by setting out our understanding of what constitutes framework legislation, we can help to inform debate. It is worth acknowledging that the Scottish Government noted in its response to our report that the committee’s definition

“reflects a broad consensus of views amongst academics and practitioners.”

On the issue of the frequency with which framework legislation is used, the committee heard a variety of views. There is a general acceptance that the occurrence of framework legislation is not diminishing, but in the absence of a universally agreed definition of framework legislation or a single way of counting it over time, it is not possible to give a definitive answer. On balance, the committee considers that, across jurisdictions, it is likely that the occurrence of framework legislation has increased. If we take the 1932 report of the Donoughmore Committee on Ministers’ Powers as our starting point, the trend seems to be increasing.

Speaking of the Donoughmore committee, which was established in 1929 and reported in 1932, it was reassuring to learn that members of the DPLR Committee are not the first parliamentarians to concern ourselves with the issue of ministers’ powers. We do not know whether our report will be considered in 93 years’ time, but the age of the Donoughmore committee’s report on what is substantially the same subject speaks to the fact that this is not a new issue or one that is peculiar to Scotland.

In relation to the scrutiny of bills, the committee agreed that its preference, wherever possible, is for the detail of legislation to be spelled out in the body of the bill, to allow for transparency and proper democratic engagement, and to ensure that stakeholders and parliamentarians can engage with and scrutinise solid proposals. That said, the committee recognised the need, in some cases, for primary legislation to provide flexibility by allowing for laws to be updated without requiring further bills.

Will the member give way?

Adults in my constituency have repeatedly raised, both with my office and directly with me, that they feel that they have no option other than to pursue private ADHD or autism diagnoses. In instances where they are given such a diagnosis and are prescribed medication, their next challenge is to get an NHS shared care agreement put in place. For many, that can result in huge bills that they risk not being able to afford if the NHS does not take on their treatment. Will the cabinet secretary advise what additional work is to take place to ensure that the criteria for NHS shared care agreements are made clear to patients and that the process for assessing whether a private diagnosis meets NHS standards is carried out at pace?

I recommend that Lorna Slater, and all members, have regard to what Jonnie Hall of the National Farmers Union Scotland said about co-design when he gave evidence to the Delegated Powers and Law Reform Committee.

To ask the Scottish Government what dialogue it has had with NHS Greater Glasgow and Clyde regarding shared care agreements for adults with private attention deficit hyperactivity disorder and autism diagnoses. (S6O-04561)

Will the member take another intervention?

Before the interventions, Martin Whitfield spoke about Covid. It is fair to say that we, as a committee, recognised that Covid was a unique situation, so our report did not focus on that period. We spoke about it, and it came up in evidence, but we were very conscious that that was a very different time compared with normal parliamentary time.

I am grateful for the opportunity to discuss the work of the Delegated Powers and Law Reform Committee’s inquiry into framework legislation and Henry VIII powers. The genesis of the inquiry was a genuine desire of the committee to look at the issue of framework legislation. We hoped that, by taking a step back from any particular bill, with its detail and policy context, we would be able to look at the bigger picture. We hoped that that was a way to slightly depoliticise the issue, recognising that framework legislation has been used by Governments of all stripes over the years, and not just in Scotland.

Indeed, the chair of the House of Lords Delegated Powers and Regulatory Reform Committee, Lord McLoughlin, whom we met on our committee fact-finding visit to London, said that the change in views in relation to framework legislation—between being in opposition and being in government—was akin to Damascene conversion. Whichever political party is in charge, Oppositions are generally against legislating in such a way, and Governments are in favour of it. However, we also recognised that some members in the Parliament hold a genuine concern about framework elements in bills that have come forward this session, and that there is a perception that those are becoming more common.

We set out to examine a number of key questions including, first, whether framework legislation can be defined; secondly, whether it is, indeed, becoming more common; and thirdly, what might be done to improve scrutiny. That was in relation to both framework primary legislation and framework powers being used to make secondary legislation.

In seeking to explore those questions, the committee was indebted to the thoughtful and interesting responses to our work that we received. As members will know, we heard directly from the convener of the Finance and Public Administration Committee, Kenneth Gibson, and the convener of the Rural Affairs and Islands Committee, Finlay Carson. I am pleased that Finlay Carson will speak in the debate as the convener of that committee.

We also heard from other legislatures across the world, including from Commonwealth Parliamentary Association colleagues. As members know, I highly value the work and engagement of the CPA. The committee was also greatly helped in its work by views from key stakeholder organisations that are at the heart of Scottish policy making; leading academics and think tanks; and eminent legal bodies.

On behalf of all the committee members, I thank everyone who gave their time by providing the committee with written responses, and by speaking with the committee, both informally and as a witness. Although issues that are related to delegated powers might not be widely understood or discussed outside of the political, legal and policy bubbles, the level and quality of the engagement clearly demonstrate how important the scrutiny of delegated powers is. That should impress on all parliamentarians the need to carefully consider delegated powers in the context of scrutinising a bill.

I will repeat a comment that I have made in the past in the chamber: I recommend that every member spends time on the Delegated Powers and Law Reform Committee, because it clearly increases the understanding and appreciation of how legislation and our Parliament work. In delegating a power, the Parliament is giving away the power to create law in a certain area. Achieving the right balance—by ensuring that powers are only delegated appropriately and that appropriate safeguards are in place—is an important undertaking, and we were glad to see that that significance is understood by many colleagues and stakeholders.

There has been a lot of discussion about what we mean by framework legislation. During the evidence session on 21 January 2025 with Finlay Carson and Kenneth Gibson, Mr Carson highlighted the difficulty perfectly as he alluded to two different definitions of framework legislation. That highlights the key challenge that politicians face when it comes to framework legislation.

After listening to stakeholders, the committee concluded that, although there might not be a single definition and that, even with a definition, there is still scope for reasonable disagreement and grey areas as to whether a provision in a bill meets that definition, it is possible to set out what framework legislation is. In our report, we concluded that it is:

“legislation that sets out the principles for a policy but does not include substantial detail on how that policy will be given practical effect. Instead, this type of legislation seeks to give broad powers to ministers or others to fill in this detail at a later stage”.

I congratulate Jamie Halcro Johnston on securing the debate, and I note his comments regarding the islands. As a Highlands and Islands MSP, I would not have expected anything less from him. We all know that our islands are vital for the country. As all speakers so far have highlighted, our islands contribute a great deal to the country and are not short of ambition.

Kenneth Gibson touched on the challenges. I recognise the challenges, particularly with regard to the delay in the delivery of the Glen Sannox, and I whole-heartedly support Kenneth Gibson’s consistent calls, and those of local campaigners and other MSPs, to get the deal with Peel Ports over the line to ensure that the port at Ardrossan gets the investment that it sorely needs. In the debate that I led two weeks ago in the chamber on the Peel Ports conservancy fee proposals for the River Clyde, there was a unified voice throughout the chamber. We all recognise the damage that the proposals would do to the Clyde and that the Harbours Act 1964 should be updated to ensure that the stewardship of our ports and harbours is removed from the private sector.

The updating of the harbours legislation will provide a more joined-up approach, certainly with regard to islands in the west. I do not know about other areas, but colleagues from elsewhere might be able to indicate whether that might improve issues in other parts of the country, including the islands.

At the end, the motion notes concerns that the islands

“can face many unique challenges, including the threat of depopulation, without the provision of adequate housing, healthcare, transport links and connectivity.”

I do not at all disagree with those comments, but I gently remind members that depopulation is not solely an islands issue. The Scottish Government action plan to address depopulation, which was published in February 2024, highlighted that Inverclyde faces the most acute depopulation challenge between 2018 and 2028, at minus 5.1 per cent.

The issue is not new—it has been going on since the early 1980s. In the past, Jamie Halcro Johnston and I have debated what happened to industry in my community. We have rehearsed that before, so I do not need to go into it any further today. However, I genuinely recognise the challenges that islanders, businesses and communities face, and I support the calls to assist the islands as much as possible. I genuinely do not want the same mistakes to be made in relation to island communities as have happened in other parts of Scotland.

Kenneth Gibson touched on the part of the motion that deals with transport links, which I highlighted a moment ago. I will address that head on. The delay in the delivery of vessels has not been positive for our islands—nor, certainly, for the shipyard in my constituency. The workforce of Ferguson Marine has apologised on many occasions. Those workers are also visitors to the islands, so they know how challenging the delays have become. That is not the record that they want to have. Before liquidation in 2014, the record was excellent. The current board and management need to turn the yard back to being efficient. Strong leadership is needed so that the yard—whether in public or private ownership—can build vessels for the future for many years to come.

Jamie Halcro Johnston touched on some of the challenges, but he also touched on the opportunities that our islands now have. He touched on EMEC, which I went to see a number of years ago as part of a parliamentary inquiry and which was a fascinating experience. As members can imagine, EMEC can only grow the economy in Orkney, and I whole-heartedly support it.

I am conscious of time. I again thank Jamie Halcro Johnston for securing the debate, which is important and has certainly been interesting, given in particular some of the contributions from across the parties.