No bones about it - skeleton bills are a bad way of making laws

So, the National Care Service is no more. On 23 January the minister, Maree Todd MSP, announced that the National Care Service (Scotland) Bill would be gutted of its substantive provisions – the creation of a National Care Service.

A week later Biffa Waste Services Ltd, which had been appointed as logistics provider for the now defunct deposit return scheme, successfully argued in the Court of Session that Scottish ministers may have owed the company a duty of care when the minister (Lorna Slater MSP) assured the company that the scheme would proceed. On this basis it spent millions of pounds in preparing for implementation. A full hearing is to be held.

I do hope that some objective, dispassionate analysis will be conducted to learn why these important policies failed. One factor that has been highlighted in both cases is the role of secondary legislation. Much of the National Care Service was to be developed using such legislation and the deposit return scheme is delivered via regulations running to 32 pages.

In an article published in The Times, my fellow columnist James Mitchell and a colleague of his, Scott Wortley from the University of Edinburgh law school, argued that the National Care Service Bill is a good example of the abuse of such legislation. Before the recent announcement, ministers had proposed 41 pages of amendments (the bill was 38 pages long), adding 24 new sections, four new schedules and deleting 19 sections. Now the whole of part one is being ditched. Back in November 2024, Mitchell and Wortley argued that the legislation was then (and certainly is now) largely a new bill. They point to this episode as “policymaking on the hoof”.

But it is increasingly common. Ministers wish to reform some aspect of public life and, instead of doing the hard and detailed policy work before introducing legislation, they instead ask parliament to pass bills that are thin on detail and give ministers the power through secondary legislation to fill in the detail. But with the devil, as they say, often being in the detail itself, MSPs are growing fed-up with this approach.

Ordinarily, secondary legislation is used to provide flexibility on matters of secondary importance. Under Freedom of Information legislation, for example, it is appropriate to give ministers the powers to add new public bodies to the list of those covered by the FoI. Similarly, it is fine for such legislation to deal with the uprating of benefit rates. In both cases, the substantive policy (FoI and benefits) has already been agreed by parliament.

But it is the increasing use of so-called framework bills that has led to the Delegated Powers and Law Reform Committee launching an inquiry into bills that do little more than provide a framework for new policy such as the National Care Service and intentionally leave the detail to be worked out later.

The problem with this approach is that the detail forms part of the substantive policy and when it comes before parliament in the form of secondary legislation it is subject to very little scrutiny, no meaningful public consultation and cannot be amended. Similarly, when ministers are given powers to do the things, most often it is framed in such a way that they are not in fact under any obligation to do so at all.

In 2003, certain tenant farmers in possession of secure leases were given the right to buy their farms when they came to be sold. To trigger this right, they had to register them in advance. In 2016, legislation gave ministers the power to abolish the need for registration, but secondary legislation was never tabled to give effect to this. Ministers have now proposed in legislation before parliament to repeal the 2016 power which, it turns out, could not be delivered. Instead of doing the hard work of working out a proposed replacement to the registration duty, they gave themselves the power to work it out later.

The committee’s inquiry has, unusually, received written evidence from five Scottish Parliament committees and legislatures from as far afield as New Zealand, Estonia and the Canadian province of Alberta. The National Care Service Bill was highlighted by many as just the most recent example where those with an interest (including parliamentary committees) were unable to properly scrutinise the proposals because, to be blunt, there were none.

This might all seem quite geeky and niche but deposit return schemes, care services, and other areas of public policy are all very, very important indeed. The public expects the process by which reforms are made to be robust, thoughtful, reflective, considered and comprehensive before such bills are presented to parliament. They also expect that MSPs will be able to scrutinise and test such bills to determine whether in fact they will do what they purport to do.
Too often, it seems, they don’t. Bills are increasingly little more than a gatekeeping exercise in which parliament is asked to rubber stamp vague proposals where the full detail has not been thought out. Let’s hope the Delegated Powers Committee’s inquiry delivers meaningful reform so that parliament can do the job it is elected to do – make good law.