Transcript

INTERVIEWER

We’re going to talk about primary and secondary legislation in the Scottish Parliament and the UK Parliament, and some of the differences between them. So we know that primary legislation, that’s Acts of the Scottish Parliament, are invalid if they are in conflict with the Human Rights Act, or EU law, or outside of the powers of the Scottish Parliament. How does that differ from how UK Parliament primary legislation is treated?

SUBJECT

Well, the main difference to the UK Parliament legislation is that a court cannot strike down UK primary legislation as invalid, which they can with Scottish legislation. With the UK or Westminster legislation, it can only be declared incompatible by the court. It’s then up to the UK or Westminster Parliament to review it.

INTERVIEWER

So that’s if it’s in conflict with the Human Rights Act. In terms of EU law, how does it work?

SUBJECT

The same applies to EU law until Brexit. After Brexit, there’s a provision in the ‘Great Repeal Bill’, which is actually the European Union Withdrawal Bill, Section 11. Under that section, the Scottish Parliament cannot pass any legislation which is incompatible with retained EU legislation by the Westminster Parliament.

So there’s not only a problem with the status of primary legislation, it’s the volume of secondary legislation that I think we should examine.

The volume of secondary legislation, or what we call delegated legislation, has increased over the years. So what problems has this caused?

INTERVIEWER

Well, in the first instance, primarily in the UK Parliament, there’s an issue of scrutiny. A lot of delegated legislation, this is legislation under a parent Act, but that’s passed by ministers, is laid before Parliament. But there’s too much of it for Parliament to really scrutinise properly. So the increasing volume of dedicated legislation means that a lot of it is passed without proper parliamentary scrutiny.

SUBJECT

So for example, I think there was 11,000 pieces of secondary legislation passed two years ago. With the coming of the EU withdrawal, there’s going to have to be 14,000 pieces of secondary legislation that have to be scrutinised. So there’s a time problem, isn’t there?

INTERVIEWER

There’s a time problem, absolutely. And time in terms of the amount of time before withdrawal comes into play. And also, time just in terms of the parliamentary calendar, in terms of squeezing things into the day.

SUBJECT

It’s impossible for Parliament to scrutinise that legislation. But we’re told Parliament is supreme, or sovereign. So is there an inconsistency there, do you think?

INTERVIEWER

Part of parliamentary sovereignty has to be about the principle of transparency of good government, of people being able to see and understand Parliament acting out its supremacy, I suppose. And if it can’t properly scrutinise delegated legislation, that may be one thing if it’s something as simple as a commencement order, i.e., a minister stating when an Act comes into force.

But if it’s something much more significant or important, like a Henry VIII clause, which we might need more of, according to the so-called ‘Great Repeal Bill’, then it tends to start to sort of erode away at parliament’s sort of ability to exercise its sovereignty over all legislative matters. I mean, perhaps you can say a bit more about the scope of some of its delegated legislation that we might be talking about here.

SUBJECT

Well, we’ve mentioned that there’s going to be 14,000 pieces of EU legislation that’s going to become delegated legislation. But also, the problem on the scope is that with the Henry VIII power in the hands of a Minister, so by that, we mean the power of a Minister to change primary legislation without Parliament scrutinising what he’s doing, several questions arise, don’t they? Has he done it properly? Who draughts that secondary legislation? It’s not a parliamentary draughtsman, could be just a civil servant.

So I think as members of the public, we can’t always assume that their legislation is valid. And so going back to our first point, it means that the court in the UK, as in Scotland, has power to scrutinise secondary legislation. And in both cases, they can strike it down if it’s not valid.

INTERVIEWER

Yeah, absolutely. The difficulty there is that it takes time and happens, obviously, after the fact. Whereas it would be good to have a more effective scrutiny procedure, perhaps in advance. And I think we see that a bit more in the Scottish Parliament. Is there more scrutiny of delegated legislation through the Scottish Parliament?

SUBJECT

Scottish Parliament, I think there is more scrutiny. And the fact that every piece of legislation in the Scottish Parliament has to go back to be considered by a committee. Whereas in Westminster, that’s much more of an ad hoc basis. Some goes back to committee, some goes to the House of Lords, that’s the only scrutiny. But, of course, the reason in Scottish Parliament this happens, it’s a unicameral Parliament. There’s only one legislative body. So the committees have a very important role in scrutinising.

INTERVIEWER

And I think in the UK Parliament, it’s certainly true that there’s different types of delegated legislation. And quite a lot of it doesn’t even end up before Parliament to be scrutinised.

SUBJECT

Wwe still have the fundamental problem that more of our laws are secondary legislation than primary legislation. And it’s up to the citizen to ensure that they can track what laws apply in any situation, and not assume that the law is always correct if it’s secondary legislation.

INTERVIEWER

Yeah, and it’s much more difficult to do so with secondary legislation. It’s much more opaque, much more difficult to find, much more difficult to comprehend to some extent.

SUBJECT

And, of course, if you’re in Scotland, you have to look not only at the Scottish Acts, whether they’re secondary or primary, but you almost look at the Acts from Westminster, because they could also apply to Scotland. So you have different levels and hierarchies of law.