Chamber and committees

We can consider that adjustment and would be likely to move towards it. The recent Coronavirus (Discretionary Compensation for Self-isolation) (Scotland) Bill took an approach in which we took explicit responsibility for setting out the rationale for the necessity of acting with urgency. I am therefore happy to consider what you suggest. It strikes me as a change that the Government would be likely to embrace, given what we did in that bill.

I am wholly committed to exploring that third way, if calling it that is not too offensive. I am very happy to do that. I might take some advice from Steven Macgregor, after saying what I am about to say, but I think that the challenge is that we would need input from the Standards, Procedures and Public Appointments Committee’s perspective on standing orders. The undertaking would then become slightly broader. I am not familiar with that committee’s workload and whether it could address that question on the same timescale as that for the scrutiny of the bill. However, if we proceed with the timetable for the bill, that will in no way dampen the Government’s willingness to participate in a discussion about putting in place an alternative procedure that is somewhere between made affirmative and expedited. I am very happy to look at how we might apply that. Does Steven Macgregor want to add anything?

Good morning.

That is simply because those measures are not ordinary elements of policy that we would want to have in place.

As I have indicated, the Government will certainly happily co-operate with all those processes.

I do not think that we are doing that because of all the reasons that I have just given. We have reflected on the experience of the pandemic, taken account of the experiences, and formulated a legislative proposition that gives us the powers to act in certain circumstances. Obviously, if there is further legislative change—I imagine that there will be further tenancy-related changes in the years to come—there will be the opportunity to reflect on any provisions when that legislation is being considered by Parliament.

It essentially relates to predictability. We can be pretty certain that we will face further challenges in the form of a pandemic in the years to come. What we cannot be certain about is the exact presentation of the challenges that will come from that. We are trying to create an approach that equips the statute book with the necessary powers to enable us to act in all circumstances where we face a national public health emergency. That approach also provides sufficient scope for us to tailor the interventions and the specifics of legislation that we put in place to reflect those circumstances—which, of itself, would be subject to parliamentary scrutiny, either through the affirmative process or, depending on the necessity and urgency, the made affirmative process.

Essentially, in principle, it is about trying to endow the statute book with the necessary powers and responsibilities, to be exercised after full and proper parliamentary consideration, and leave scope for us to adapt and adjust to the challenge as it presents itself, while still enabling parliamentary scrutiny as to whether those measures are appropriate in any given circumstance. Even with the made affirmative procedure, there is scope for parliamentary scrutiny, albeit once the measures have come into force.

I simply want to have clarity in the statute book so that we know, should we face such circumstances, that we have the ability to act.

I think that what we have set out in the response is entirely appropriate. It is a point of fact that the Government makes a statement about why we consider that the made affirmative procedure is required, because something is of an urgent nature. We set out the rationale for that. However, in the response, I go on to say:

“I am happy to work with the Committee to consider how that could be better codified in practice for current and future made-affirmative powers.”

That is an indication of my willingness. I think that we are giving that explanation but, if the committee says to me, “Well, if you did it this way, and covered that detail and these points,” and makes suggestions of that type, I will happily consider how we do that.

Obviously, choices are available to ministers in the formulation of legislation. One issue that I considered, along with my ministerial colleagues, was whether we should do exactly what Mr Simpson has talked about and put the measures in their compartments in different pieces of legislation, or whether we should take the route of consolidating the legislative change that is required as a consequence of the pandemic. Essentially, the purpose of the bill is to equip the statute book, across a range of legislative questions, with the capacity to handle a pandemic, should one come our way again.

There is an arguable case for either point. We could either compartmentalise and do it in a number of pieces of legislation, or take the consolidation route. I opted to take the consolidation route, because I felt that, in the aftermath of the pandemic, there was a rational basis for us to update the statute book to learn the lessons from our experience and put in place the changes that are required.

There is a different character to some of the proposals in the bill. For example, the justice provisions in part 5 are titled “Temporary justice measures”. They are there simply because, if we do not make those changes, the implications for the exercise of judicial responsibilities will be significant. However, they are not permanent changes. They are there to put in place a framework that it is envisaged will operate until 2025. Some of the other provisions are about powers that we may use if we face a pandemic, but we will not use them if we do not face one.

Other provisions are relatively straightforward. Indeed, I think that when I was at committee last week, Mr Simpson said that some of the changes that we were making in relation to digital access were perfectly straightforward and reasonable propositions. The argument is simply between consolidation in the aftermath of a pandemic or multiple pieces of legislation that stand alone. Of course, there would be a significant delay in getting around to introducing a number of those because of the other legislative burdens that the Parliament wrestles with.

Lastly, the relevant point is that the bill is primary legislation, so the Parliament can scrutinise every single letter in it.