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Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 5 May 2021
  6. Current session: 12 May 2021 to 17 June 2025
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Displaying 783 contributions

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Delegated Powers and Law Reform Committee

Framework Legislation and Henry VIII Powers

Meeting date: 7 January 2025

Daniel Johnson

I was just going to collapse into the next area about dealing with the specific powers—-

Delegated Powers and Law Reform Committee

Framework Legislation and Henry VIII Powers

Meeting date: 7 January 2025

Daniel Johnson

Okay.

Delegated Powers and Law Reform Committee

Framework Legislation and Henry VIII Powers

Meeting date: 7 January 2025

Daniel Johnson

Many of my questions have been touched on, so what I say might be a little repetitious. However, I will try to avoid that.

First of all, though, I would like to start almost from the beginning and understand your roles a bit more. You are both lawyers who sit in the Cabinet Office and work across Whitehall departments. Do you typically work directly with ministers and other civil servants? Can you describe the function of your office and how you interact with other parts of Government?

Delegated Powers and Law Reform Committee

Framework Legislation and Henry VIII Powers

Meeting date: 7 January 2025

Daniel Johnson

What I am really interested in is whether there is any possibility of sharing best practice. Obviously the jurisdictions are different, but drafting is drafting and, in a sense, lots of different people are seeking to do the same job of translating policy intent into good law. Is there any possibility of sharing best practice, both generally and more specifically with regard to delegated and Henry VIII powers? I keep saying “Henry VIII” but that is, as the previous panel pointed out, a pejorative term, so perhaps I should say “powers to amend primary legislation”. To what extent does the possibility of sharing best practice exist, and to what extent is there a possibility of exploring that in the future?

Delegated Powers and Law Reform Committee

Framework Legislation and Henry VIII Powers

Meeting date: 7 January 2025

Daniel Johnson

That certainly raises an interesting point for me, given that the Scottish Government and, I would imagine, the Welsh Government are former Government departments. Do you have interactions with lawyers from devolved Administrations or do you interact purely with Whitehall departments? I recognise that such interactions might be on a slightly different basis, but if you do have those contacts, in what circumstances do they arise?

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?

10:30  

Delegated Powers and Law Reform Committee

Framework Legislation and Henry VIII Powers

Meeting date: 7 January 2025

Daniel Johnson

Dr Fox, it sounds as though you are saying that secondary legislation instruments that come before Parliament should be treated as mini-bills, almost by default. Are you saying that they should be scrutinised and deliberated on in much the same way as primary legislation? If so, is that because, in essence, there is no clear distinction between primary and secondary legislation now?