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Delegated Powers and Law Reform Committee
Framework Legislation and Henry VIII Powers
Meeting date: 7 January 2025
Daniel Johnson
Finally, I have one slightly cheeky question—well, it is not cheeky but it is slightly less formal. As two drafters speaking to a group of legislators, if you had one plea to legislators on what they should consider when they are thinking about turning policy into codified law, what might that be?
Delegated Powers and Law Reform Committee
Framework Legislation and Henry VIII Powers
Meeting date: 7 January 2025
Daniel Johnson
Thank you.
Delegated Powers and Law Reform Committee
Framework Legislation and Henry VIII Powers
Meeting date: 7 January 2025
Daniel Johnson
I would like to know whether other witnesses think that guidance or a concordat is a practical solution. I also wonder whether the conclusion of the discussion that we have had this morning is that not just principles, but counterfactual tests, would be required. That is, is what will be done foreseeable and predictable? Are boundaries and parameters set?
Principally, do the other members of the panel agree that some sort of published document on how framework legislation or secondary powers will be used would be a helpful way forward, both at Holyrood and elsewhere?
Delegated Powers and Law Reform Committee
Framework Legislation and Henry VIII Powers
Meeting date: 7 January 2025
Daniel Johnson
There are some interesting points about other procedures that could be applied, such as requiring the Government to make explicit statements.
There was also an interesting suggestion made by Dr Grez Hidalgo that the committee should have the power to delay a stage of a bill. I am interested in that because I think that committees in this Parliament have that power. In the previous session of Parliament, I sat on the Education and Skills Committee. The committee refused to publish a stage 1 report on the Children and Young People (Information Sharing) (Scotland) Bill, the purpose of which was to correct the issues around information sharing regarding the named person policy.
First, I would be interested to know whether it would be helpful for committees to have the ability to undertake greater stage 2 scrutiny. Secondly, I wonder whether some of these points are actually about parliamentarians’ awareness of what we are seeking to do. That relates to Dr Tickell’s earlier point about interrogating the legal consequences and the parameters of bills, not just the policy that is being presented in them.
Do the witnesses think that codifying that kind of greater stage 2 scrutiny would be helpful, and that parliamentarians need to alter how they view legislation—and therefore scrutinise it as it progresses—in order to deal with that?
10:30Delegated Powers and Law Reform Committee
Framework Legislation and Henry VIII Powers
Meeting date: 7 January 2025
Daniel Johnson
I was going to come to that.
Delegated Powers and Law Reform Committee
Framework Legislation and Henry VIII Powers
Meeting date: 7 January 2025
Daniel Johnson
As an aside, I will say that that is an incredibly helpful insight for the member’s bill that I am in the process of drafting, so thank you very much.
Do you have a view on the frequency of the use of Henry VIII powers and secondary powers? Is it going up, or is it about the same? Are there differences in the approach that you see, especially given your 25 years of experience?
Delegated Powers and Law Reform Committee
Framework Legislation and Henry VIII Powers
Meeting date: 7 January 2025
Daniel Johnson
In essence, you are saying that it is more important to look at the scope and effect of what is being legislated for, rather than the number of particular instances or clauses, because then you are just counting—
Delegated Powers and Law Reform Committee
Framework Legislation and Henry VIII Powers
Meeting date: 7 January 2025
Daniel Johnson
That is really helpful. On a side note, it is always interesting to look at how the machinery of the UK Government interacts with that of devolved Governments, so having people at that interface is useful.
You have both stated a number of times that the goal is to provide clear and understandable legislation. I have two specific questions on that. I note that the OPC has drafting guidance. First, how is that set out? Secondly, we heard from the previous witnesses that, when legislation sets out powers in secondary legislation, it is sometimes not at all clear what ministers will do with those powers. Are such scenarios caught in the guidance or your broader practice? Is there a point at which you say, “We cannot tell what this legislation is going to do. Is this the right thing to do in terms of setting it and framing it in secondary legislation?”
Delegated Powers and Law Reform Committee
Framework Legislation and Henry VIII Powers
Meeting date: 7 January 2025
Daniel Johnson
Have you noticed anything different in the approach to and practice in drafting, specifically with regard to secondary legislation and legislative powers?
Delegated Powers and Law Reform Committee
Framework Legislation and Henry VIII Powers
Meeting date: 7 January 2025
Daniel Johnson
This has been an excellent discussion. The observation was made that making a hard distinction between things that are framework bills and things that are not is not as helpful as thinking about how powers are framed. Also, this is as much about practice and culture as it is about drafting. Those are my takeaways. I am really grateful to the witnesses for their contributions.
