Chamber and committees

I am grateful for the considered point that Mr Rowley has made. This matter comes down to a fundamental point of legislation: whether there should be, in statute, provision that enables the Government to take swift measures to control a pandemic—not that it must or that it will take those measures, but that it might have to use those powers.

Mr Rowley raises fair points about the long-term legislative issues, which the Parliament will consider and scrutinise. However, at this moment we still face challenges in relation to Covid. The extension of regulations that I am putting to the Parliament today, which is essentially about ensuring that the face coverings restrictions can remain in place, if that is necessary, until September—although we hope that it will be only until 21 March—will ensure that the Government has the ability to do exactly that.

I welcome Mr Rowley’s contribution and, as I confirmed to Mr Whitfield in discussions—yesterday, I think—we will of course have full parliamentary scrutiny on all those points.

We do not know for sure that it will be appropriate to lift the measures that are included in the regulations from 21 March. We hope that that will be the case, but we want to make sure that we have the arrangements in place to enable us to do that. For now, it is really important that we do not allow the remaining baseline measures to expire by default on 28 February. The regulations will ensure that that does not happen and that the measures can be removed when the time is right.

Subject to the course of the virus over the next few weeks, we expect to be in a position to remove the measures on 21 March, but approval of the regulations will provide the statutory basis for the Government to be able to act, should there be any deterioration in the coronavirus situation. Members will be familiar with the very sharp turns of events that have taken place over the course of the pandemic, when we have gone from a position that we thought was stable and benign to an acutely difficult position in a very short space of time. I simply counsel members to consider that point as I invite them to endorse the regulations that are before the Parliament.

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.

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.

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.

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.

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.

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

Will the member take an intervention?

Will the member take an intervention?

That is irrelevant.