Meeting of the Parliament (Hybrid)

Meeting date: Tuesday, November 23, 2021

Official Report 934KB pdf

Committee Announcement (Made Affirmative Procedure Inquiry)

The next item of business is a committee announcement by Stuart McMillan, convener of the Delegated Powers and Law Reform Committee, on an inquiry into the use of made affirmative procedure during the coronavirus pandemic.

Members will know that, for the past 20 months, many of the public health measures that have been used to try to protect the people of Scotland from the full impact of the coronavirus have been brought into law using secondary legislation, with many of them using the made affirmative procedure. That procedure allows the Scottish Government to bring changes into force immediately. Although the Parliament needs to approve the changes within 28 days for any 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 rare—in single-digit figures per annum—but, since March 2020, we have considered its use on well over 100 occasions. The Delegated Powers and Law Reform 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. We have 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 committee is therefore holding a short inquiry to ensure that the made affirmative procedure continues to be used appropriately and only when necessary. We hope that that work might be of benefit to the Parliament, as we seek to inform members’ consideration of 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.

Our inquiry is due to conclude in early February, and we hope to have the opportunity to highlight our recommendations in the chamber then. In the meantime, if members—or, indeed, committees—wish to provide any comments on the use of the procedure, we would welcome any input prior to the Christmas recess.