Skip to main content

Language: English / Gàidhlig

Chamber and committees

Meeting of the Parliament (Hybrid)

Meeting date: Tuesday, February 22, 2022

Agenda: Time for Reflection, Point of Order, Business Motion, Topical Question Time, Covid-19, Made Affirmative Procedure, Nationality and Borders Bill, Decision Time, OVO Energy (Redundancies)


Made Affirmative Procedure

The Deputy Presiding Officer (Liam McArthur)

The next item of business is a debate on the inquiry into the use of the made affirmative procedure during the coronavirus pandemic. I invite members who wish to participate to press their request-to-speak button now or as soon as possible, or to place an R in the chat function if they are joining us online. I call Stuart McMillan to speak on behalf of the Delegated Powers and Law Reform Committee for around seven minutes.


Stuart McMillan (Greenock and Inverclyde) (SNP)

I am delighted to open the debate on the Delegated Powers and Law Reform Committee’s inquiry into the use of the made affirmative procedure during the coronavirus pandemic.

At the outset, I thank all those who appeared before the committee and provided written evidence at very short notice. We agreed to hold the inquiry only in late November, so we were very grateful to hear from so many people in such a short space of time. I also thank the clerking team and the legal team, who were invaluable during the inquiry and ensured that our report was turned around in the short timeframe that we allocated ourselves.

Being able to hear from witnesses remotely allowed us to take evidence despite new restrictions due to the omicron variant. Although I know that meeting in person is always preferable and beneficial, virtual meetings have their place. As we know, they can sometimes be challenging, but they provide Parliament with another option to hear from witnesses, in addition to helping to reduce the carbon footprint of Parliament and individuals.

Before I cover the committee’s main findings, I will first mention why this work was important and why it should matter to all of us in Holyrood, and not just the five members of the committee. The use of the made affirmative procedure since March 2020, which has allowed the Scottish Government to bring into force a large number of very significant powers immediately, is a classic case of a debate that predates us at the Scottish Parliament—namely , the balance of power between Parliament and the Government of the day.

Dr Ruth Fox, director of the Hansard Society, reminded the committee that debates on how statutory instruments are laid and scrutinised were taking place in the 1930s. Books were published in the aftermath of the second world war about government by diktat and the use of emergency provisions. Dr Fox told us that concerns about the concentration of legislative power with the Executive and the shift of influence away from Parliament have been a “long-running sore.”

The committee’s report should be read in the context of that history. The committee is clear in the report that we do not wish to remove the made affirmative procedure. The committee has regularly acknowledged that made affirmative instruments have allowed the Scottish Government to respond quickly to the many challenges that have been presented by coronavirus. However, we want to ensure that bringing such substantial changes, which have often impacted on all aspects of our lives, into force immediately, before any parliamentary scrutiny, should be done only if essential, and that such emergency powers should not, as we often heard from witnesses, become a habit.

We want to ensure that the balance of power between the Parliament and the Government is indeed balanced, and each of the committee’s recommendations seeks to achieve that.

Our first set of recommendations focuses on the clarity and accessibility of law. We heard from Sir Jonathan Jones QC, the former head of the United Kingdom Government’s legal department, that in the Westminster context there were times during the pandemic when

“extreme urgency”

was prioritised

“over the quality and comprehensibility of legislation.”—[Official Report, Delegated Powers and Law Reform Committee, 14 December 2021; c 7.]

The Law Society of Scotland highlighted concerns about the clarity and accessibility of made affirmative instruments that are subject to frequent and significant amendment. It suggested that, when amending an instrument, the Government should produce a consolidated version that shows the whole instrument as amended.

The committee agrees. We want all legislation to be properly and clearly drafted, so that it is legally accurate. It should be easy to find and able to be interpreted by all, particularly given that many of the regulations that were made during the pandemic placed significant restrictions and potential criminal sanctions on individuals and businesses. Our various practical recommendations seek to help to achieve that.

The report calls for a number of changes to how made affirmative instruments are brought forward. The majority are currently laid under the Coronavirus Act 2020 and the Public Health etc (Scotland) Act 2008. Under both acts, it is for the Scottish Government to determine whether regulations need to be made urgently. The University of Birmingham’s Covid-19 review observatory found that the frequent use of the made affirmative procedure since the start of the pandemic has raised questions about how the urgency threshold is operating as a constraint. Others spoke of the potential for use of the made affirmative procedure to become a habit.

The Deputy First Minister told the committee that using the procedure is not the Scottish Government’s default view. He said that he would consider adding a statement of urgency to all made affirmative instruments. The committee has called on the Scottish Government to do just that.

If the committee is not satisfied with the Government’s justification of urgency, it reserves the right to seek to raise the matter in the chamber and to do so quickly. The committee has suggested options for how that might work in practice under current procedures. It has also invited the Standards, Procedures and Public Appointments Committee to explore further procedural options as part of its inquiry into shaping parliamentary procedures and practices for the future. The Delegated Powers and Law Reform Committee would be grateful if the SPPA Committee considered that as part of its work.

I will move on to the section on how the Parliament looks at proposals for made affirmative powers in new bills. That is already prescient, as the Delegated Powers and Law Reform Committee had an initial look at such proposals in the Coronavirus (Recovery and Reform) (Scotland) Bill this morning. Professor Stephen Tierney, who is professor of constitutional theory at the University of Edinburgh, told the committee that adequate scrutiny of the primary legislation that creates delegated powers is a key part of robust lawmaking.

The committee agrees. To ensure that robust approach, we have outlined a set of four key principles that we will use to scrutinise any such proposals. To go back to my opening comments, we hope that they will ensure that there is an appropriate balance of power between the Parliament and the Government of the day.

I will briefly highlight the expedited affirmative procedure. The affirmative procedure enables the Delegated Powers and Law Reform Committee and the lead committee to conduct their respective technical and policy scrutiny roles before proposed changes are made in law. Morag Ross QC, representing the Faculty of Advocates, noted that individuals might scrutinise legislation that is already in force differently from legislation that is still prospective. The committee would therefore be happy to consider with the Scottish Government, the COVID-19 Recovery Committee and the Parliamentary Bureau on a case-by-case basis when the use of an expedited affirmative procedure as an alternative to the made affirmative procedure might be appropriate and what the parliamentary timescales for such scrutiny would be.

I refer members to paragraphs 106 and 107 of the committee’s report. We acknowledge that the Scottish Government did not start out in 2020 with a plan to use the made affirmative procedure 146 times. However, we embarked on this short inquiry because of the importance of proper parliamentary scrutiny, which leads to good law that is accessible to all. I look forward to hearing the contributions in the debate.


The Deputy First Minister and Cabinet Secretary for Covid Recovery (John Swinney)

The Government welcomes the opportunity to participate in the debate. I listened with interest to the convener’s explanation of how the committee conducted its inquiry and to his explanation of the committee’s key recommendations. Yesterday, I made an initial response to the committee’s conclusions, as requested by the committee, to give a sense of the Government’s response to the issues that were raised. I will amplify that in my comments today, and I hope that the committee and its convener found the response yesterday helpful. We will, of course, reflect in full on this debate and on the report in due course, and submit a substantial response to the committee’s inquiry.

It is important at the outset of this discussion to provide some context from the Government’s perspective. When I gave evidence last month to the Delegated Power and Law Reform Committee as part of its inquiry, I put on record the Government’s general position on the use of the made affirmative procedure. I emphasised that the procedure is a very unusual power, which is granted by Parliament in situations—which are usually related to safeguarding public health—when action might need to be taken more quickly than the normal affirmative procedure allows for.

I assured the committee that the Government does not take lightly the use of the made affirmative procedure. It is a quite exceptional power, but it has been required in these quite exceptional times. It is clear to me, from the vantage point that I have, that it has been an essential tool in enabling the Government to deal with the coronavirus pandemic. The Government has a duty to protect public health, and it is important that we continue to have the option of using the made affirmative procedure when urgent action is required to protect public health.

However, I recognise the challenges that the use of the made affirmative procedure gives rise to in terms of parliamentary scrutiny and the challenges that that throws up for committees and for Parliament. I recognise why the committee wished to conduct an inquiry into how that power has been exercised and any lessons that can be learned from that experience.

I turn to the committee’s report and its recommendations. I think that it would be fair to say that none of us could have envisaged at the beginning of the pandemic just how long the public health crisis would be with us. It would also be fair to say that none of us could have envisaged how regularly we would need to make regulatory changes to deal with the pandemic. Therefore, it is helpful that the committee’s report recognises, at paragraph 108, that the made affirmative procedure has been

“a vital tool in the handling of the pandemic”.

The committee rightly emphasises the importance of ensuring that regulations that are brought forward under the made affirmative procedure are robust, clear in their meaning and accessible to those to whom they apply. I share that view, and the Government aspires to those characteristics being in all the legislation that it brings forward.

The committee also rightly emphasises that the Government should make clear why it considers urgent action to be necessary when the use of the made affirmative procedure is proposed. I recognise that the committee expects that justification to be made on a case-by-case basis, and the Government accepts that.

However, I think that it is worth making a general point now, as I did when I gave evidence to the committee, about why it is necessary to have the made affirmative procedure at all, and that is because of the timing constraints that apply under the normal affirmative procedure. Standing orders allow for 40 days of committee scrutiny before a chamber vote is taken on whether regulations should pass. The reason for the existence of the made affirmative procedure is to enable regulatory action to be taken much more quickly to safeguard public health. As we have seen from our experience in the course of the pandemic, 40 days is an extraordinarily long period of time in the handling of the challenges of the pandemic that we have faced.

Will the Deputy First Minister give way?

John Swinney

If Mr Simpson allows me first to provide an example, I will then give way.

At the end of November last year, the Government had a Cabinet meeting on a Tuesday at which we considered the pandemic to be in a relatively stable position. Forty-eight hours later, my colleague Mr Matheson was on calls with the United Kingdom Government about the disclosure of the information on omicron and the advancing pace of the circulation of that form of the virus. That 48 hours changed fundamentally our view of the type of conditions with which we were wrestling. I make that point to register the fact that swift action can be necessary.

Graham Simpson

Would the Deputy First Minister accept that it is possible to have an expedited procedure, as was recommended in the report? Does he accept that Parliament can act at pace and does not need to take 40 days when we use an affirmative procedure, and that we could change things if we need to act quickly?

I will give the Deputy First Minister his time back.

John Swinney

Thank you.

That is an eminently deliverable proposition, but it depends how long we are talking about—I do not want that in any way to sound like I am asking about the length of a piece of string, but it is relevant. I cited one example, and I could also go back to March 2020, when events moved at a ferocious pace. We had to take decisions of a dramatic nature in a very short space of time. Indeed, some decisions that we thought were dramatic were followed very shortly afterwards by ones that had to be taken even more quickly and were of an even more dramatic nature.

There is a possibility of doing what Mr Simpson has talked about. In the light of the pandemic, it may be valuable for the Government and the committee to consider, in a slightly more relaxed context, what that might look like so that we are all aware of what a super-expedited procedure—if we want to give it some terminology—could involve.

In relation to the points made by the committee, the Government is happy to explain what is driving urgent action on a case-by-case basis. However, the fundamental issue that the Government must determine is whether the action needs to be taken more quickly than is provided for under the normal affirmative procedure. That may open some of the space that I have just discussed with Mr Simpson for further dialogue.

The committee also rightly emphasises that the use of the made affirmative procedure should not become the new normal. I confirm to the Parliament what I said to the committee, which is that that is also the Government’s view. I am happy to confirm that the Government has no intention of made affirmative powers routinely being included in Government bills. However, such powers have a place and the committee will know, for example, that made affirmative powers have been included in the Coronavirus (Recovery and Reform) (Scotland) Bill. In that context, it is envisaged that the bill will create a set of powers that might have to be used because of the urgency and gravity of the situation that we face.

Would the Deputy First Minister agree that the bills that embed this procedure should be properly scrutinised by the Parliament before they progress?

I would be grateful if you could begin to wind up, Deputy First Minister.

John Swinney

I agree unreservedly with Mr Whitfield’s point, and that is what the Government is providing for in the parliamentary timescale that is available. The usual scrutiny at stages 1, 2 and 3 will be available for the Coronavirus (Recovery and Reform) (Scotland) Bill. I look forward to engaging with Parliament on that—indeed, Mr Whitfield might be an active player in the process. I fully accept that the Government will need to justify why such powers are appropriate for inclusion in the bill, and I note the set of principles that the committee has identified to support its scrutiny.

I emphasise that the Government accepts that the made affirmative power is an exceptional power. I welcome the committee’s helpful analysis of the use of the power over the past two years, and I will reflect further on its recommendations. It is important that Parliament considers the impact of the pandemic on its legislative basis. That is why we have introduced other legislation which, as I confirmed to Mr Whitfield, will be subject to further scrutiny in Parliament.


Graham Simpson (Central Scotland) (Con)

I am in my second spell on the DPLR Committee. My first was as convener, and members might be forgiven for thinking that I earned a second stint because my chief whip does not like me, which might well be true. However, I actually made the schoolboy error of telling him how important the committee is.

The DPLR Committee is the gatekeeper. We see everything, including the tricks that the Government is up to, although a committee report would never use such a phrase. However, that is what the inquiry was about. In layman’s terms, the inquiry was about the way in which the Government has been making law without Parliament first scrutinising and voting on it.

Does Mr Simpson agree that the language that he is using belittles the challenges of the pandemic?

Graham Simpson

Not at all. That is the way that I see it, and the figures bear that out. Between 2012 and 2019, the made affirmative procedure had been used only nine times, but between March 2020 and 1 February 2022, it was used 146 times. When I described that as becoming the norm and John Swinney said that that was “ludicrous”, I was right and he was wrong.

At times, the situation has become ridiculous. Quite often, Parliament has been voting on things that are no longer in force. It has been a case of, “Now you see it, now you don’t.” It is like the Derren Brown school of legislating. The ridiculous Manchester travel ban is a good example. Nicola Sturgeon had come to her senses before MSPs could tell her to wise up. Had the matter come to us in advance, we could have spared the First Minister a needless spat with Andy Burnham.

I thank the committee clerks, all our witnesses and the convener for helping us to produce an excellent report. Sir Jonathan Jones QC told us that using the no-scrutiny route had become a habit here and at Westminster, and that it was a bad one. I agree. Dr Ruth Fox of the Hansard Society reminded us that the tension between Governments wanting to push the boundaries and Parliament wanting to keep them in check was as old as the hills. Professor Stephen Tierney agreed with me that, if we give Governments an inch, they will take a mile, which is what has happened. Morag Ross QC was of the view that rapidly changing legislation can become confusing. That led to our recommendation that legislation should be consolidated so that it can be easily read.

To use the no scrutiny route, all that a minister has to do is to decide that something is urgent. He or she does not have to say why; they do not have to justify that decision. The University of Birmingham Covid-19 review observatory said that

“the urgency requirement is not an effective constraint”

on the use of the made affirmative procedure. It said that the use of the procedure should be justified, to ensure that all such Scottish SIs are treated as exceptional. The committee agreed with that.

The committee is clear that if ministers think that something is so urgent that they feel that they must legislate without the normal checks and balances, they need to say why, and that if the committee disagrees, the matter should be brought to the chamber. If such a matter is to be debated, it should be open to all members to contribute.

This Government has been ramming through legislation at will without scrutiny on a weekly—sometimes daily—basis, and that has to stop. We are long past the stage at which Governments need to legislate at a pace that might be justified in wartime. I would argue that we could have scrutinised every piece of legislation prior to it coming into force. We certainly should be doing that from here on in. The committee makes just that point.

Will the member take an intervention?

I think that I am in my last minute, but I will take an intervention if I am given time to do so.

Yes, you can get the time back.

John Mason

Does the member accept that there are at least some cases, such as the travel restrictions to foreign countries, which apply at both UK and Scotland level, in which allowing two days before they came into force was probably too long? Such restrictions should have applied immediately.

Graham Simpson

I am making the point that I believe that this Parliament is up to the job of scrutinising any piece of legislation and that we can do so at pace. Given that we have a hybrid form of working now, people can do that from home. I would be prepared to work weekends, if that was necessary.

Stuart McMillan

I ask this question not as convener of the committee but as a member of the Scottish National Party. Does Graham Simpson acknowledge that, at the outset of the pandemic, hybrid working was a challenge, including for Parliament? When the Deputy First Minister spoke earlier about some of the early instruments that had to go through the Parliament, he said that hybrid working might not have been acceptable and suitable at that time.

Graham Simpson

Stuart McMillan has a point, because hybrid working was not in place initially, so we might have struggled. However, it is now in place. He might not be able to say it, but I think that Stuart McMillan actually agrees with my point that we could act at pace.

Both the DPLR Committee and the COVID-19 Recovery Committee have said that the affirmative procedure should be the default. Therefore, I hope that the COVID-19 Recovery Committee will reject forthwith anything that is done otherwise, unless it is to get rid of restrictions.

Presiding Officer, too many committee reports are ignored by the Government. This report is for the Government, but it is also for Parliament. I hope that you and your colleagues will take a stand, because you are there to defend Parliament. We have been bypassed for the past two years and it has to stop.


Neil Bibby (West Scotland) (Lab)

I commend the committee for its thorough and insightful report. It is, of course, right that a Government should be able to act swiftly and decisively when faced with unprecedented challenges. When legislating, there is always a tension between urgency and scrutiny, but democratic accountability is vital. It is what Parliament is for. Therefore, the burden of proof for a proposal to sacrifice democratic accountability, even in the name of urgency, must be very high. That is the basic principle from which I and Scottish Labour approach the matter.

The Scottish Government went from using the made affirmative procedure on average once or twice per year, prior to the pandemic, to using it more than 140 times since the pandemic began. That is understandable. The Covid emergency necessitated urgent action that made the use of made affirmative powers entirely appropriate. Nevertheless, as the committee also acknowledged, proper parliamentary scrutiny is vital and we must ensure that those powers do not in any way become normalised.

Scrutiny and debate make for better legislation. Unrestrained and unaccountable ministerial powers do not. We therefore endorse entirely the committee’s finding that there would be significant dangers in Government using such procedures if the public was not aware of what was being done and why, and if Parliament was not fully informed and able to hold the Government to account.

There are important concerns around the need to have high standards of drafting. High-quality drafting takes time and effort. Legislation made in a hurry is unlikely to be of the same quality as legislation to which due care and attention has been paid. Rectifying errors in drafting can also be complex and time consuming. I therefore echo the committee’s call for the Scottish Government to outline its internal checks and balances in order to ensure that high standards of drafting are maintained when making changes to the law. That is entirely reasonable. Parliament and the people deserve to know what is being done in order to avoid errors in legislation.

In line with all of those concerns, the committee makes important recommendations regarding a test of urgency. Given the significance of the use of made affirmative instruments, it is wholly reasonable to ask for guarantees that they will be used only in exceptional circumstances. We therefore support the committee in its calls for the Scottish Government to publish criteria on whether a situation is suitably urgent, to provide a written statement prior to the instrument coming into force and to ensure that such regulations are published as quickly as possible, so that people who are impacted fully understand the changes that have been made.

The committee raises a further important point regarding the parliamentary process. The report points out that there is at present no obvious mechanism by which members could debate a made affirmative issue with sufficient speed. The challenges of the pandemic have, perhaps, identified some weaknesses with scrutiny in the Parliament that need to be addressed more generally. Perhaps it is time to consider recommendations to strengthen the role of Parliament, including the use of an expedited affirmative procedure as an alternative to the use of the made affirmative procedure. That proposal is raised in the committee’s report and it is worth looking at seriously.

The committee sets out four principles. First, the use of the affirmative procedure should be the default position in all but exceptional and urgent circumstances. Secondly, when use of made affirmative powers is proposed, Parliament should require an assurance that a situation is urgent and there should be an opportunity for debate in a timely manner. Thirdly, ministers should include an assessment of the impact on people affected by any instrument in the explanation that they provide. Fourthly, legislation containing a provision for use of the made affirmative procedure must contain sunset clauses. Those four principles are strong ones and should be supported.

We move to the open debate.


Jenni Minto (Argyll and Bute) (SNP)

I attended the Delegated Powers and Law Reform Committee as a substitute member for its meeting on 11 January 2022—unlike Graham Simpson, I was not steeped in the history of the committee. It was the final evidence session of the committee’s inquiry into the use of the made affirmative procedure during the coronavirus pandemic. Evidence was being taken from the Deputy First Minister, as he has stated, so I felt no pressure at all that day.

Reading the evidence that had already been provided by the two earlier sessions, I found that there was much agreement among witnesses on the key areas of questioning, which were clarity and accessibility of law, how to define urgency, and scrutiny of the Executive by the Parliament. I will look briefly at each of those areas separately, which I can do from two points of view: first, as a parliamentarian and, secondly, from my previous life as a community activist, in which my fellow activists and I were looking for up-to-date and clear guidance that was set out in a way that was easy to understand, because we passed it on to the people whom we were supporting during the Covid pandemic.

The law should be clear and accessible to all, especially when laws continually change or come into force with immediate effect, as has sometimes been the case during the pandemic.

Sir Jonathan Jones QC said:

“Ironically, it is probably true to say that it is easier to legislate for a lockdown with very tight controls and only minimal exceptions, by drafting very tight and clear laws, than it is to legislate—as we saw later in the pandemic—for partial closures and multiple exceptions.”—[Official Report, Delegated Powers and Law Reform Committee, 14 December 2021; c 7.]

I recognise that analysis from my experience during lockdown and our emergence from it. Throughout the pandemic, individuals, businesses and communities were looking for clear and timely guidance as to what they should or should not be doing. Emerging from lockdown was difficult. The resilience group that I was part of discussed long and hard how we could achieve that safely on Islay, and the Scottish Government’s route map provided the blueprint for our work.

To ensure that laws are clearly understandable for everyone who is affected, the DPLR Committee has concluded that policy notes and explanatory notes must be written in plain English and in sufficient detail.

Defining “urgency” was seen as key in determining the use of the made affirmative procedure. In her evidence, Morag Ross QC suggested:

“It would be tempting to think that we could narrow that down to say that ‘urgency’ definitely means X or Y and that it does not mean Z, A, B or C.”

She went on to say:

“Also, things change, so there must be flexibility to allow decisions to be made that respond to changing circumstances. ‘Urgency’ might mean one thing in week 1 and something else in week 2, so you have to allow for responses to be developed”.—[Official Report, Delegated Powers and Law Reform Committee, 7 December 2021; c 3.]

The example that the Deputy First Minister has just given in his speech mentioned 48 hours. In his evidence to the committee, he concluded by saying:

“In my book, that is why urgent action is required—because the situation has changed before our eyes in a very dramatic order and fashion.”—[Official Report, Delegated Powers and Law Reform Committee, 11 January 2022; c 23.]

In its conclusions, as other members have said, the committee asked for transparency in the criteria for determining whether a “situation is suitably urgent” to merit the use of the made affirmative procedure; requested publication of a written statement of “justification and evidence” prior to an instrument coming into force; and asked the Government to ensure that any such regulations are published “as quickly as possible”.

All witnesses raised concerns about the increased use of the made affirmative procedure during the coronavirus pandemic, and how that has impacted on the Parliament’s scrutinising or holding the Executive to account. Professor Tierney said:

“from my work in scrutinising legislation over many years, I have come to realise that all Governments like powers: they like to get more of them”.—[Official Report, Delegated Powers and Law Reform Committee, 14 December 2021; c 3.]

In answering my question on what the Scottish Government has learned from the pandemic and how that could shape future decision making and the use of made affirmative procedures to allow proper parliamentary scrutiny, the Deputy First Minister said:

“In the circumstances of a global pandemic that requires swift action, the measures that have been taken are appropriate. However, we should always be open to learning lessons from the situation and the Government will consider with care any output from the committee’s inquiry.”—[Official Report, Delegated Powers and Law Reform Committee, 11 January 2022; c 22.]

The DPLRC report and its conclusions provide a number of suggestions about how decisions around the made affirmative procedure could be enhanced. I hope that the Scottish Government considers the committee’s findings with care.


Murdo Fraser (Mid Scotland and Fife) (Con)

I welcome the opportunity to make a short contribution to this debate on the made affirmative procedure and its use during the coronavirus pandemic. I commend members of the Delegated Powers and Law Reform Committee for taking the time to look into the topic. I remind members of my entry in the members’ register of interests, in that I am a member of the Law Society of Scotland.

The debate may seem to be about a dry and arcane issue of parliamentary procedure but, in fact, it raises serious issues about our democracy and the proper parliamentary scrutiny of Government action.

It is important that we put all of this into context. An unprecedented public health emergency has required Governments across the world to act quickly in the public interest, restricting individual liberties and bringing in restrictions that, in normal times, would be deemed totally unacceptable. Because of the speed of changes throughout the pandemic, Governments sometimes had to act very quickly, without going through the normal parliamentary processes and opportunities for scrutiny. All of that is understood.

However, an important point has been made by the committee in its report, in that the made affirmative procedure—in other words, regulations coming into force instantly on their being laid, with any scrutiny in the Parliament taking place retrospectively, perhaps weeks after the event—can lead to a poor quality of legislation and to bad law.

Giving evidence to the committee on behalf of the Faculty of Advocates, Morag Ross QC warned:

“In general, legislation that is made in a hurry is unlikely to be of the same quality as legislation to which great thought has been given and for which preparation has been undertaken.”—[Official Report, Delegated Powers and Law Reform Committee, 7 December 2021; c 8.]

A very good example of that situation arises in the case of vaccination passports. Vaccination passports remain a controversial part of the Covid legislation, and we have argued previously that there is little or no evidence of their effectiveness. Indeed, in the evidence paper that the Scottish Government published in November last year, it conceded, in effect, that vaccination passports had very little value in preventing the spread of Covid or in increasing the rate of uptake of vaccination. An hour or so ago, the First Minister confirmed that vaccination passports would be removed in a few weeks.

The Scottish Government used the made affirmative procedure to introduce the regulations for vaccination passports, albeit that there was time for a more considered approach. A month passed between the date on which the Scottish Government announced that vaccination passports would be introduced and the original implementation date for the policy. There was then a two-week grace period during which, the Government accepted, those regulations would not be enforced on businesses. There would therefore have been time for proper parliamentary scrutiny of what was being proposed, rather than that being done retrospectively, as was the case. If I remember rightly, the only reason that we had parliamentary scrutiny was because the Conservatives allowed Opposition debating time to be used to shine a light on the proposals.

I will briefly make two other points, which were highlighted by the committee. The first is about the clarity and accessibility of instruments that have been amended many times. That was raised by the Law Society of Scotland in its evidence. It cited the example of the Health Protection (Coronavirus) (International Travel) (Scotland) Regulations 2020, which were amended no fewer than 25 times. Undoubtedly, that causes a great deal of confusion for those who try to consolidate the rules. The committee has called for improvements to the accessibility of the consolidation of such instruments. It has also called for criteria to be published by the Scottish Government for the circumstances in which it would use the made affirmative procedure in the future. That is a helpful recommendation, which I hope the Government will listen to.

I accept that there is a case for the use of the made affirmative procedure in emergency circumstances; however, my concern, which reflects that of the committee, is that the use of that procedure, bypassing proper parliamentary scrutiny, has become too frequent. As we move out from this phase of the Covid pandemic and relax restrictions, rather than imposing them, I hope that lessons will be learned by the Scottish Government for any future situation that arises.

The Deputy Presiding Officer

Thank you, Mr Fraser.

I am afraid that we have exhausted all the time that we had available, so I would be grateful if colleagues would stick to their time limits. With that, it is over to Martin Whitfield, for around four minutes.


Martin Whitfield (South Scotland) (Lab)

Presiding Officer, I hear your cry to stick within the time, and I will do that for you.

I welcome the report and I thank the committee and its convener for their excellent work in taking evidence. I echo Stuart McMillan’s comments about the use of hybrid proceedings to allow people to contribute. It is interesting that, in comments that members have made in the debate so far, hybrid proceedings have been noted as a way in which better parliamentary scrutiny can take place. I know that both the Parliament and those outside it will look to that as we proceed.

I very much welcome the report’s conclusions. However, I am addressing the chamber partly as convener of the Standards, Procedures and Public Appointments Committee, so I also thank Stuart McMillan for his letter, which has been received, and I note that the subject will appear on our work schedule in due course, so we will take a look at it.

It is concerning that the report highlights an absence in the standing orders and parliamentary procedures regarding our ability to hold the Government to account. If a Parliament is to be of any use, it must be able to hold the Government to account. We have heard—and I welcome John Swinney’s comments on this—that this is an exceptional power to be used in exceptional situations. However, I have found that, as has been evidenced in other legislatures, a habit of easy power sometimes develops and is repeated. I confirm that I am grateful for the Deputy First Minister’s comments on that, but I hope that all those who hold his post and other Government posts in future will remember that this is an exceptional power to be used in exceptional situations.

Because of the nature of such powers, it is right for the Parliament to hold the Government to account for decisions that are made. Provision should be made so that the Parliament can do that, question ministers and hopefully—I say this carefully—improve legislation. As Murdo Fraser rightly pointed out, legislation that is put through too quickly often lacks clarity and is difficult to understand, which is then reflected in the understanding of those outside this place who read it.

The committee that I have the pleasure to convene has been invited to consider the matter. I cannot speak on behalf of the committee, but I say to both the Parliament and the committee that produced the report that we will discuss it and liaise with the convener of that committee to seek any additional information that may be available. There must be a way for the Parliament to hold the Government to account for its decisions that does not involve only the convener of that committee or the use of an urgent or supplementary question.

In order to allow the debate to continue on time, and to do what I undertook to do, I will conclude. I welcome the report, but I also welcome the Government’s assurances that this will remain an exceptional power to be used in exceptional circumstances.

Thank you, Mr Whitfield. That was impeccable timing.

I call John Mason, who will be followed by the closing speakers.


John Mason (Glasgow Shettleston) (SNP)

Thank you, Presiding Officer. I can always use Martin Whitfield’s extra time.

I am not currently a member of the DPLR Committee, although I have been a member of it and I have huge respect for those members who find its normal work interesting. However, I was keen to take part in this debate, particularly because I am a member of the COVID-19 Recovery Committee. It is largely because of Covid that more use has been made of the made affirmative procedure.

I think that virtually all of us accept that many decisions had to be made quickly during the pandemic and there was not time for the usual, often lengthy consultation and scrutiny process to take place. We are all loyal to our parties and we generally vote along party lines. However, we also have responsibilities as parliamentarians to ensure that Parliament works well. I am convinced that, when Parliament works well, Scotland as a whole benefits. I was disappointed by some of Graham Simpson’s comments, which I think got the balance wrong between taking a party line and being a parliamentarian.

I welcomed the fact that the DPLR Committee was carrying out its inquiry, and I commend it for its report. I accept that we need to strike a balance between, on the one hand, acting quickly and potentially giving a longer notice period to those who are affected by particular regulations and, on the other, acting more slowly to allow Parliament more time for scrutiny even though that means less time for those who are affected to know where they stand.

An example of that, as Murdo Fraser said, is the approach to vaccine certificates or passports, which is mentioned in paragraph 37 of the report. More time was given than with other decisions between the policy being announced and its coming into effect. That meant that the COVID-19 Recovery Committee had more time to take evidence from witnesses, and there was potentially time for the affirmative procedure to be used. On the other hand, nightclubs and other businesses were demanding certainty as far ahead as possible so that they could prepare. Their preference was for a decision to be made as quickly as possible—albeit only after their voices had been heard.

I particularly like the recommendation in paragraph 10.1 of the report that

“use of the affirmative procedure should be the default position in all but exceptional and urgent circumstances. Legislation making provision for the made affirmative procedure must be very closely framed and its exercise tightly limited”.

I also note paragraph 11, which says that an expedited affirmative procedure might be preferable to the made affirmative procedure on a case-by-case basis, and with the agreement of the Government, the Parliamentary Bureau, the lead committee and the Delegated Powers and Law Reform Committee. That would certainly be my personal preference if at all possible, and there was support for it within the COVID-19 Recovery Committee, as evidenced by our letter to the DPLR Committee, which is referenced in paragraph 93.

I take slight issue with paragraph 13, although that may be because of the way that it is worded. I agree that considering legislation before it comes into effect should not come at any cost, but I do think that it should become habitual—if that means considering it before it comes into effect.

I note the point that John Swinney makes, which is quoted in paragraph 46. We have had almost weekly statements in the past two years and have had ample opportunity to ask questions of the Government and to invite relevant witnesses to committees. I suspect that few other countries have had such opportunities. However, that is slightly separate from scrutinising the actual legislation, for which the timescales have been much more compressed.

Morag Ross QC makes the very valid point that we inevitably look at legislation differently depending on whether it is already in force and effectively a fait accompli, or will come into force in 28 days’ time.

I commend the DPLR Committee for its inquiry and report. I think it was important that we as a Parliament considered the issue and I hope that it will be a learning experience for us all.


Paul Sweeney (Glasgow) (Lab)

It was a pleasure to take part in the inquiry into the use of the made affirmative procedure, which is unusual in the history of devolution and, indeed, in the UK legislative framework. We all agree that circumstances were exceptional, but now that we have an opportunity in the coming months to reflect on how the procedure was used, the report will help to guide the Parliament in deliberating on how we can improve our processes and our scrutiny of the quality of legislation. I thank the convener for his effective chairing of the committee and I thank the convener of the Standards, Procedures and Public Appointments Committee. There is a symbiotic relationship in what we are doing to try to improve the Parliament and safeguard the quality of our legislation.

There will inevitably be tension between the Executive and the legislature. That was borne out by the witnesses who came forward. The convener mentioned Dr Ruth Fox’s historical perspective. There has been a decades long debate about the nature of the tension between the Executive and the legislature. This particular situation offers an insight into what can be a ratcheting process. Although Government ministers might virtuously say that they will happily surrender powers as soon as they are not necessary, the general trend has been of a one-way, ratcheting effect. Power is hoarded by the Executive and the legislature must actively recover that power and scrutinise the Government. We are proposing a decent balance. The made affirmative procedure may be unusual, but the report offers us an opportunity to build a new type of legislative framework, which is what some of the witnesses to the inquiry suggested.

In 1976, Lord Hailsham described the House of Commons as an “elective dictatorship”. The nature of the electoral system for the House of Commons means that it generally produces Executive control of the chamber. That is less likely in Holyrood because of our electoral system, which provides greater scope and opportunity for a balance of power that acts as an effective check on the Executive’s execution of power. That is borne out in committees, where Opposition members hold the balance of power. That offers a welcome and effective check on Executive control.

I note in particular Sir Jonathan Jones’s comment that

“we should go further and have a new statutory instruments act.”—[Official Report, Delegated Powers and Law Reform Committee, 14 December 2021; c 25.]

He also mentioned the “very outdated” Statutory Instruments Act 1946, which is probably getting past its sell-by date.

Perhaps this is a watershed moment and a point at which the Government can reflect more fundamentally on the suitability of existing procedures to deal with the modern threats and challenges that we face as a legislature. It could also consider the innovations that were mentioned by the convener of the Standards, Procedures and Public Appointments Committee with regard to the opportunity for the chamber to be used in a hybrid fashion. We know that there are huge opportunities for us to work in real time. Why can we not have live committees meeting in real time—committees of the whole chamber if necessary—to work with the Government to craft those bills and fast-track those legislative processes?

John Swinney

Mr Sweeney says that the Government has to consider some of those issues. I think that there is also the scope and necessity for the Parliament to consider those issues. I am sure that he would accept that waiting 40 days for an urgent provision to be enacted is, in a public health emergency, just far too long. However, there are quicker ways of doing it, with good scrutiny, which the Government is happy to consider.

Paul Sweeney

I welcome the Deputy First Minister’s comments on that, and I think that his words are important, particularly with regard to Professor Tierney’s point about the need for there to be a legislative code that underpins what is done, because we cannot simply rely on the good will of ministers and parliamentarians to make it all work—the good chap theory of government has very much been put to the test in recent years and we have to look at a better way of codifying what we do.

In that spirit, let us work together to enact some of the recommendations of the report and build a better legislative framework, because we can build a new system of statutory instruments that better reflects the pace of change that is needed in our democracy today.


Craig Hoy (South Scotland) (Con)

I thank my colleagues on the Delegated Powers and Law Reform Committee for the report that we are debating. I also thank the clerks and the wider committee team for their support.

Despite the nature of the issue, the debate has been neither technical nor dry, and that is because it goes to the heart of parliamentary democracy, as Paul Sweeney has just said. The debate answers the question why it is important that MSPs, acting independently and collectively as a legislative body, have the proper powers and processes in place to scrutinise laws and regulations and, through that, to hold the Government to account.

In the face of an unprecedented public health emergency, we handed powers to ministers to an extent that we would never have considered acceptable before. We did so on an emergency basis and on a temporary basis. We accepted the need for legislation to be brought in at speed, sometimes with little or no parliamentary scrutiny at all, and we also accepted that hastily written regulations that might prove through time to be far from perfect were, at the time, likely to be better than no regulations at all.

As the public health emergency recedes, it is time to ask ministers to hand those powers back to the Parliament and, ultimately, to the people, but ministers now want to permanently enshrine in law many of those powers, from shutting schools to closing pubs, and that leads me to conclude that ministers are drunk on powers that do not ultimately belong to them. Having got a taste of those powers, they want to keep them now and into the future. That is why, as Neil Bibby said, the four principles that are set out in the report are fundamental to the Parliament and its secure working in the future.

At this point in time, it is safe to conclude that the use of the made affirmative procedure is now a habit, and it is a bad habit. So is the shift towards using skeleton bills to give the Government greater powers through delegated regulatory processes, even if that is, as is identified in the report, a long-running sore. As my committee colleague Graham Simpson noted, between 2012 and 2019, the made affirmative procedure was used only nine times in this Parliament but, between March 2020 and 1 February this year, it was used 146 times. Therefore, when it comes to whether I agree with Mr Simpson or Mr Swinney about whether that approach is now the norm, laying party loyalties to one side, I find myself, on balance, siding with Mr Simpson. That approach has become the norm, and the Parliament should rightly be concerned.

Had the Parliament been given the opportunity to fully scrutinise the Manchester travel ban or Covid passports, ministers would have been caught out passing laws that were disproportionate or ineffective or, in the case of vaccination certification, both disproportionate and ineffective. I suspect that, deep down, the Deputy First Minister knows that.

Does the member at least accept that the COVID-19 Committee spent a considerable amount of time on vaccination certificates and looked at the issue thoroughly?

Craig Hoy

Yes, but only after we rejected the use of the made affirmative procedure, so that we could have more scrutiny. I recall asking some questions of the Minister for Parliamentary Business and being told that I was “a rascal” for doing so. That is the Scottish Government’s commitment to parliamentary scrutiny.

During the course of our inquiry, we heard witnesses raise real concerns about the increased use of the made affirmative procedure. Murdo Fraser rightly reflected today on the evidence from Morag Ross QC, who warned that

“legislation that is made in a hurry is unlikely to be of the same quality”—[Official Report, Delegated Powers and Law Reform Committee, 7 December 2021; c 8.]

as legislation that is carefully drafted over time.

The report could have gone much further, but it is solid and so are its recommendations. The debate has shown that the Government cannot simply brush it aside. Members are being sidelined, the Parliament is being bypassed and proper parliamentary scrutiny is being undermined. That is why I hope that MSPs, including those on the Government benches, will stand up to ministers on this important issue and that in turn, ministers will accept the report’s recommendations.


The Minister for Parliamentary Business (George Adam)

Graham Simpson mentioned that he has been on the DPLR Committee for some time. I, too, did some time on the committee. It is an important part of the Parliament, which, as a minister, I appreciate. I also appreciate the work that most of our colleagues on the committee have done. I do not think that Mr Simpson’s chief whip does not love him—I do not think that in any shape or form; it is just that Mr Simpson has expertise on the issue. I did not agree with a lot of what he said—maybe he will get there eventually.

It was interesting to hear members’ comments in the debate. Paul Sweeney set out the case for us working together and finding solutions to the issues. I welcome that; perhaps we will continue to have that debate with him as time proceeds, giving us an opportunity to see how we can learn lessons from the past two years.

John Mason framed the debate and went through the committee report thoroughly. He added something a wee bit different to the debate: humour. I look forward to hearing more of that from him. We have to frame the debate in a way that relates to the past two years that we have all lived through.

Many members, including Murdo Fraser, mentioned the public health crisis that we have all had to deal with. The Government has had to balance that crisis and the parliamentary process, which has led to difficult decisions. As the Deputy First Minister has said on numerous occasions, not one of those decisions has been taken lightly. The idea that we as a Government have gone power mad and want to maintain the position is comical, and is not worth discussing any further.

Craig Hoy said that there has been a general shift towards framework bills. That is completely inaccurate, given what Stuart McMillan said. I followed a lot of what was said during the committee process. The convener mentioned that Dr Ruth Fox gave evidence that there was a problem with Governments retaining power, which I read as a reference to the lack of scrutiny of the UK Government, rather than a reference to the Scottish Government dealing with the public health crisis that we had in front of us.

The Government welcomes the spirit of the committee’s report and will consider carefully all its recommendations. We have already acknowledged the importance of ensuring that regulations that are brought forward under the made affirmative procedure are robust, clear in their meaning and accessible to those they apply to. The Government always aspires to adhere to those principles with all legislation that it introduces and to be open to challenge, where Parliament sees fit to challenge it.

The Government is happy to engage with the committee on any issues around the justification of the use of the made affirmative procedure under existing legislative frameworks or in the event that it seeks parliamentary approval of any fresh use of the tool. From a Government perspective, the ability to use the made affirmative procedure is an exceptional power that Parliament has granted to ministers to use in exceptional circumstances. The fundamental basis for the use of the procedure is to allow measures to be taken more quickly than use of the normal affirmative procedure would allow for.

We all know that it is not true that use of the made affirmative procedure leads to less scrutiny, because there has been scrutiny at all times. However, the committee’s conclusion that the use of the made affirmative procedure should not be normal practice is an important one, and one that we all agree with, as the Deputy First Minister said. We all believe that use of the made affirmative procedure is not the way forward.

Over the past few years, we have had to deal with an unprecedented—that word has been used often—public health crisis. We have had to balance that with consideration of how to deal with the parliamentary process. Lessons have been learned and, as we move on, I look forward to working with colleagues to find new ways of working in the Parliament.

I call Bill Kidd to wind up the debate on behalf of the Delegated Powers and Law Reform Committee.


Bill Kidd (Glasgow Anniesland) (SNP)

I have taken a few notes and, to be quite honest, there has been a lot of jouking about, if I can put it that way, in that a lot of what has been said has been fairly repetitive, although everyone has their own opinions. I will try not to miss anyone out, but if I get it wrong, members can sue me.

I am delighted to close the debate on the Delegated Powers and Law Reform Committee’s inquiry into the use of the made affirmative procedure during the coronavirus pandemic. I am grateful to all members who have taken part in the debate and to the Government. A range of comments have been made about the committee’s work, which I will try to compare with the committee’s four sets of recommendations. That will be difficult, because not many members addressed those four sets of recommendations.

On the need for clear and accessible law, as has been said, the committee wants to ensure that all legislation is properly and clearly drafted. It should also be easy to find and able to be interpreted by all. The Deputy First Minister said that 40 days was too long a period to wait for public health legislation to be enacted during a pandemic and that the use of the made affirmative procedure was necessary when urgent action was required because of public health concerns. Despite that, he said that use of the procedure required oversight by the Parliament, and other members agreed.

Neil Bibby said that the fact that there were exceptional circumstances only emphasised the need to scrutinise the actions of the Scottish Government to ensure that fair and proper legislation was delivered.

Jenni Minto said that we must have clear and accessible law at all times for the benefit of broader society, and that everyone must be able to understand legislative proposals that are made.

Craig Hoy said that although the committee accepted the necessity for speed in legislating during Covid, the powers that were enacted must be repealed.

George Adam said that he did not believe that the made affirmative procedure was overused during Covid and that it had been used only when necessary, but that consideration would be given to how it may be used in future.

The report called for a number of changes to be made to the way in which made affirmative instruments are brought forward. In particular, the committee wants a test for whether proposed regulations do in fact require to be made urgently, although it acknowledged in paragraph 108 of its report that

“the made affirmative procedure has been a vital tool in the handling of the pandemic,”

and that the Scottish Government needed to use it in order to safeguard public health. The Deputy First Minister agreed, but said that the Scottish Government had no intention of using the procedure as a matter of course in the future.

Graham Simpson said that the made affirmative procedure was used only 20 times between 2012 and 2019 but 146 times during the one-year period of 2020-21, which suggested that the Scottish Government had fallen into a bad habit. He said that the power should be used only in exceptional circumstances and that its use should be scrutinised and debated in the chamber.

John Mason said that more time was given to discuss vaccination passports but night clubs and others were asking for urgency, and the Parliament had to try to address both elements.

Paul Sweeney said that a new type of framework should be built, to avoid powers being retained by Government. The Scottish Parliament is well set up to achieve that; we should be using the powers that we have.

Members talked about how the Parliament considers proposals for made affirmative powers in new bills. As members said, that is relevant given the powers in the Coronavirus (Recovery and Reform) (Scotland) Bill. Murdo Fraser said that the use of the made affirmative power on issues such as vaccination passports should have had more time for scrutiny by the Parliament as a whole. He said that the power had been used too frequently.

Martin Whitfield said that overfast legislation is undesirable and that further use of hybrid procedures should be considered when it comes to holding the Government to account. He also welcomed the report and the Scottish Government’s statement that it wants to avoid having to use made affirmative powers. I think that he said that the Standards, Procedures and Public Appointments Committee will consider the matter. That approach was strongly supported by Neil Bibby.

I must conclude, Presiding Officer—if I have not already rambled on too long. I want to end the debate where it began, by emphasising what Stuart McMillan, the DPLR Committee’s convener, said about why all this matters. It matters because we have an interest in the balance of power between the Parliament and the Government. That is important, not just today but tomorrow and in the years to come.

In that vein, the committee recognises that its report is only a first step and hopes that its recommendations will help to guide the Parliament’s scrutiny of primary and secondary legislation in the coming months and years. It will work with the Scottish Government to ensure that the recommendations are delivered.