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6 MINISTERIAL POWER TO ISSUE STATUTORY GUIDANCE
Consultation question:
Q9 Do you agree that Ministers should take a power to issue 'statutory guidance' to which authorities would have to have regard?
6.1 The consultation document sets out proposals for a power which would allow Ministers to issue 'statutory guidance' in relation to the legislation and regulations proposed in the consultation. "This would then have the status of guidance to which recipients, i.e. authorities would be obliged to have regard". The consultation asked whether respondents "agree that Ministers should take a power to issue 'statutory guidance' to which authorities would have to have regard?"
Consultation responses
6.2 As chart 6.1 shows, there was support from 60% of respondents for this proposal; only 6% disagreed and 34% did not give a direct answer. Support was highest amongst individuals (80%) but fairly low amongst education respondents (33%), local authorities (29%) and other organisations (20%); although these sub-groups showed very high proportions of no responses.
Chart 6.1 - Agreement that Ministers should take a power to issue 'statutory guidance' to which authorities would have to have regard
6.3 The need to ensure consistency across Scotland was raised in 11% of all responses; this was particularly important to local authorities (36%):
"This would ensure that all authorities have regard to the same factors which may be relevant to various types of proposals which may be consulted upon."
(local authority)
"This is agreed to ensure consistency. However there is need for the Government to frame the essential elements for inclusion in a prescriptive manner to reduce further appeals within the system due to a lack of clarity in any educational benefit statement."
(local authority)
6..4 In addition, 8% of respondents commented that this proposal would ensure fairness. Six percent gave brief, general reasons for supporting the proposal, for example that it would be sensible or helpful.
6.5 There were some questions over the usefulness of this proposal, from 8% of respondents; an individual commented "A major problem has been that the current "guidance" has been ignored all too often."
6.6 Five percent commented that statutory guidance should only be used for clarifying legislation. This was higher among local authority respondents (18%) who made similar comments, including one who commented "The view of the authority however is that the statutory guidance prepared should be used purely as a means of clarifying the legislation and not used as a replacement or addition to legislation."
6.7 Other comments included:
- that the proposal would ensure transparency (4%);
- that the guidance should not be considered exhaustive (4%);
- that guidance should be given on a regional rather than national level (4%).
Comments from other strands of research
6.8 In the deliberative workshops, there was not a great deal of discussion about the proposed ministerial power to issue statutory guidance, beyond a general agreement that it is a good idea.
In summary:
The majority (60%) of respondents to the consultation supported the proposal in relation to a power to issue statutory guidance; 6% disagreed while 34% did not give a direct answer. Agreement levels were lowest amongst local authorities.
The key theme to emerge across responses was the need to ensure consistency throughout the country and the advantages of statutory guidance as a mechanism for achieving this.
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