Delegated Powers and Law Reform Committee
Inquiry into the use of the made affirmative procedure during the coronavirus pandemic
Letter from the Convener to the Convener of COVID-19 Recovery Committee, 25 November 2021
Dear Siobhian,
As you may know, the Delegated Powers and Law Reform Committee has begun a short inquiry into the use of the made affirmative procedure during the coronavirus pandemic. Given these made affirmative instruments are almost always also considered by your Committee, I wanted to both make you aware of the inquiry and invite any thoughts the COVID-19 Recovery Committee might have on this work.
As I said in my Chamber announcement on Tuesday, the public health measures used to try and protect the people of Scotland from the full impact of the coronavirus have chiefly been made using secondary legislation. Many of these measures have been brought into law using the made affirmative procedure. This allows the Scottish Government to bring changes into force immediately. While this Chamber needs to approve the changes within 28 days for the regulations to stay in force, the law will often have been altered weeks earlier.
Prior to the pandemic, the use of the made affirmative procedure for laying Scottish statutory instruments was relatively unusual; less than five per year. Since March 2020, the Parliament has considered its use on well over 100 occasions.
The Committee has recognised the need to use the procedure during the pandemic. It has allowed the Government to respond quickly to the ever-changing challenges that the coronavirus presented. The Committee has also said that substantial changes should be brought into force immediately and before any parliamentary scrutiny only when that is essential, and that it should not become standard practice, particularly when time allows the affirmative procedure to be used.
The purpose of the inquiry is to ensure that the made affirmative procedure continues to be used appropriately and only when necessary. The Committee hopes that its work might be of benefit to the Parliament when it considers the use of the made affirmative procedure in future legislation. We also want to ensure that there is an appropriate balance between flexibility for the Scottish Government in responding to an emergency, whatever that may be, and ensuring appropriate parliamentary scrutiny and oversight.
While the Committee appreciates that the focus of the COVID-19 Recovery Committee is on the policy changes being brought about by these regulations, we know that you have also commented on the appropriateness of the made affirmative procedure in bringing these changes into law.
The Committee would therefore welcome any comments the COVID-19 Recovery Committee might have on this work. Given the Committee is keen to report in time for the February recess, we would be grateful for any views you might have by Monday 20 December 2021
Yours sincerely
Stuart McMillan MSP
Convener of the Delegated Powers and Law Reform Committee