Chamber and committees

What if we encountered an unwilling partner?

Obviously, there is an argument for sunset provisions. The difficulty is that we cannot, for example, predict the moment at which we might face a pandemic, how long it will go on for, or whether—to be blunt—it will coincide with the intricacies of parliamentary sitting arrangements. We could find ourselves in a situation in which we have a gap in the statute book because Parliament is not sitting, but there would be a necessity for us to undertake particular provisions. It is about taking an orderly approach to ensuring that the statute book is in a fit state to respond to different challenges.

It would have to be considered at that time. Obviously, there are certain arrangements in the bill that mean that if, for example, the made affirmative procedure is applied but the Parliament does not support or endorse the provision, it will lapse after a given period of time. Those provisions are built into legislation at the time of its design. However, there is the provision for ministers to consider any other provisions of that nature that might come forward and which members might wish to add to the bill during its passage.

In relation to the delegation of powers in the bill, the rationale is to recognise the necessity of us taking sufficiently comprehensive action should we face the challenges of an intensification of the coronavirus pandemic or another comparable incident of similar style and scale. Existing provisions in the Public Health etc (Scotland) Act 2008 give some limited localised powers to deal with what I would describe as localised outbreaks of concern but, when it comes to dealing with a situation of the magnitude that we have been dealing with around Covid, the statute book is ill equipped for such measures.

We are trying to complete the statute book to ensure that adequate powers are available and that there is a scheme of delegation in place that is appropriate to deal both with the necessity of parliamentary scrutiny and with the necessity of urgent action, should that be required, given the circumstances that we face.

To be blunt, convener, I think that Mr Simpson has got it wrong. My response to the committee, whether in giving evidence, in contributing to debates or in the correspondence that I have exchanged with you, has, broadly, been along the same lines. The nature of the pandemic is such that it has required us to act at pace, which is why we have had to use the made affirmative procedure on a number of occasions. That has been done of necessity.

When I was before the committee last week, Mr Sweeney raised the possibility of using a hybrid option that combines made affirmative and affirmative procedure. I am happy to engage on that, as I confirmed in my submission to the committee yesterday; I am happy to confirm that again now. Nevertheless, if, in a public health emergency, which is a very difficult scenario, ministers were faced with a choice between whether to act today or wait 40 days for parliamentary scrutiny, I am afraid to say that I would consider acting today, because people might die if I did not. My response to the committee is set in that context.

In that response, I accept a number of other points. I indicate that I think that the Government operates

“to high standards of drafting”.

If there are issues with drafting and we do not get it right, we accept, confront and address that. If the committee believes that there are areas where we have not done that, I am, as I said in my submission, happy to consider those.

In my response, I go on to talk about the specific issue of the consolidation of instruments, for which the committee had asked. In principle, I am sympathetic to that approach, but there are a lot of practical issues, including the resources that are required to consolidate all the instruments while we are dealing with a public health emergency. Nevertheless, in principle, I would welcome such an approach.

The substance of the Government’s response is designed to be helpful. I suspect that Mr Simpson was looking for me, in that submission, to abandon my belief in the necessity of the made affirmative procedure. I am afraid that I cannot do that, however, because I would be endangering the lives of members of the public if I did so.

There is always a risk of legal challenge. The bill incorporating the United Nations Convention on the Rights of the Child into Scots law is a standalone bespoke provision that looks to incorporate the UNCRC into our domestic legislation. One provision of that has been challenged by the United Kingdom Government because it does not want the provisions of the UNCRC to be applied in areas in which it has historically legislated.

That is one part of a compartmentalised bill, so Mr Simpson’s whole argument is totally undermined by the practice of his colleague, the Secretary of State for Scotland. He has done exactly what Mr Simpson is talking about on one compartmentalised theme bill. There is no substance to the view that Mr Simpson is putting to me.

It is there simply as an example to indicate that there are threats and challenges to public health that could have widespread effect. The other examples are of significant outbreaks of new diseases, which have to a greater or lesser extent had an effect on our society but have had a much greater effect on other societies. That does not mean that they will not have a similar and comparable effect here. Having the capacity and ability to respond to circumstances that we face is an important point of the legislation.

I will take that point away and reflect on it. My first reaction to all the requirements and points that Mr Hoy has put to me is to say that I would have judged them to be covered by the variety of impact assessments that we are required, by other statute, to do in any given circumstance. I would have thought that all those existing obligations—to undertake a business and regulatory impact assessment where appropriate or an equalities impact assessment where necessary; there are other statutory requirements—would catch the point that Mr Hoy has put to me. However, I will take that point away to satisfy myself that no gap exists there, because I accept the sentiment unreservedly.

The reasoning behind which—

I welcome the opportunity to make a brief opening statement about the proposed made affirmative powers in the Coronavirus (Recovery and Reform) (Scotland) Bill.

The delegated powers memorandum prepared for the bill set out the details of 15 delegated powers proposed for the Scottish ministers in the bill. Of those, five are capable of engaging the made affirmative procedure, and I expect that the committee will have some questions on that issue.

It is worth emphasising that the default for those powers is the normal affirmative procedure, but we consider that there is justification for having the option of made affirmative procedure when urgent action is necessary. It is also worth emphasising that the prisoner release power is an extended temporary power, rather than making the Covid-specific provision a permanent power.

The committee also now has my full response to its report on the use of the made affirmative procedure. I explained in the covering letter to that response that I was responding in general terms to the committee’s recommendations and I hope that the committee has found that to be a helpful explanation of the Government’s position. I also said that I would be happy to consider specific recommendations from the committee in more detail in the context of its scrutiny of the Coronavirus (Recovery and Reform) (Scotland) Bill, and I stand ready to do so.

The committee will by now be familiar with my views on the intricacies of subordinate legislation procedures, so rather than repeating those I will happily answer any questions that you have.