Chamber and committees

As Mr Fraser will be aware, we look at a range of data to inform our judgments about the appropriateness of any restrictions that are applied, and ministers have to be satisfied that those restrictions are proportionate in relation to the evidence that lies before us.

I counsel Mr Fraser against jumping to the assumptions that underpin his question. We must also factor in the fact that variants can affect different parts of the United Kingdom at different times. For example, developments in London preceded developments here in Scotland and have no doubt completed their course earlier than they will complete their course here in Scotland. Fundamentally, the Scottish Government must take the appropriate decisions that we judge to be essential to protect public health in Scotland.

Through the course of the pandemic, our strategy has changed in relation to factors such as vaccination uptake and vaccine waning, levels of adherence to Covid-19 rules and guidance, and new variants, all of which can combine to produce different outcomes requiring different responses.

In the long term, we must adapt our thinking on how to manage the virus and become more resilient to it in the future. That will mean seeking ways that are more proportionate, sustainable and less restrictive. The Scottish Government is therefore currently working on, and will publish in the next few weeks, a revised strategic framework that will set out more fully how the process of adaptation can be managed, with a view to building greater resilience.

I recognise unreservedly the importance of the point that Mr Whittle makes and that such services and opportunities must be available to all communities. We are working with our local authority partners as part of the Covid recovery programme board, which I referred to in my earlier answer, to enable such an approach to take place and those services to be available.

However, I will add one caveat to that point, which the First Minister made reference to yesterday. We have to ensure that social care services are available for all our constituents as an absolute priority. In my answer to Ms Ewing, I indicated that we are reviewing, with local resilience partnerships, the effectiveness of service delivery. I am conscious that, because of staff absences due to omicron, there is intense pressure on the availability of social care services. The implications of prioritising social care might well be that some of the services that Mr Whittle would like restarted—for absolutely understandable reasons—might have to be restarted slightly later in order to enable us to prioritise social care. It is important that I am candid with the Parliament about that point. However valuable and important the point that Mr Whittle makes, which I unreservedly accept, we have to ensure that we prioritise the measures that will enable us to deliver social care effectively.

To be blunt, I do not recognise the problem, and I completely, utterly and unreservedly reject the ludicrous narrative that Graham Simpson has just put on the record. He said that the made affirmative procedure had been used nine times before 20 March 2020, and 132 times afterwards. That might have something to do with the fact that, prior to 20 March 2020, during the lifetime of the Scottish Parliament, we had never faced a global pandemic. Yes, there have been a lot of made affirmative instruments, but they have been required because of the necessity of acting swiftly in a public health emergency.

Mr Simpson is one of a number of members of the Scottish Parliament who regularly criticise me and my colleagues for bringing a Westminster or United Kingdom perspective to the debate, but he has just done that himself because it suited him to do so.

Mr Simpson’s question ignores the reality of a public health pandemic. When we look at the list of made affirmative instruments, it is clear that a vast number of them were brought forward to put in place measures that were necessary to protect the public health of individuals in Scotland. Some of them related to measures on international travel, which—again—were about trying to protect the public health of people in Scotland. Indeed, the nine occasions on which the made affirmative procedure was used prior to 20 March 2020 were, in a large number of circumstances, also to do with public health requirements. I totally reject Mr Simpson’s characterisation of the situation.

With regard to parliamentary scrutiny, we have come to agreements with the Parliament and with committees about how added scrutiny can be undertaken. There is always the opportunity for business managers from different parties to ask for more debating time or more questions. I was not handling all the legislation from 20 March 2020 until the election, but I have handled it since the election, and I would be happy to consider any request for a debate about legislation if members wished to have one in addition to what is provided. However, the starting point in all this has to be an acceptance that there is a public health emergency that has to be addressed.

I recognise that, in any legislative process, whether slow or quick, there is always the potential for errors to be made. Sometimes, provisions can be put in place in a stage 1 draft of a bill but, during its passage, we find—I use “we” in the generic sense of Government ministers over all time—that there is an error with it or that a mistake has been made, and we have opportunities to remedy that, as it has to be remedied, at stage 2 or 3. Errors can be made. I do not think that the process or the people involved in it are infallible.

Generally, we are fortunate in having very high levels of quality in the drafting of legislation, and we are also served well by the Parliament and by parliamentary officials in the way in which they scrutinise and highlight any issues that arise around legislation. That interaction between Government and Parliament is helpful and welcome, and it adds to the process. Obviously, the scrutiny by members of Parliament assists in that process. However, nobody is infallible. When people move at such a pace, the risk of error increases, but we have minimised that in our use of the made affirmative procedure, which has been a necessary but not habitual part of our actions as a Government.

First, I note that the current situation is not my ideal model for how we should legislate. We should always take care and time over legislation, and the Parliament has in place very good procedures for ensuring that that is the case. However, as Mr Sweeney acknowledged, we are dealing with the necessity of acting swiftly, so we are required, in undertaking the process, to act in that fashion.

On the accessibility of legislation, I am conscious of the challenge that that has presented to various individuals and groups, and I would be happy to consider whether there is a way in which we could improve and enhance any of the current arrangements so that the marshalling of the legislation is more accessible and more visible.

The legislation.gov.uk website has been ensuring that Covid-19 regulations are updated as soon as possible after they are amended, so it provides a place where the consolidated legislation is available. I accept that the website, although it is helpful, is by its nature complex, but legislation itself is complex. Nevertheless, I am willing to consider further the points that witnesses have raised, which Mr Sweeney put to me, as that may well help us in taking the issue forward.

This has been an incredibly challenging period. In essence, it revolves around wrestling with that question. I have wrestled with it on countless occasions. I will give an example from around this time last year.

If my memory serves me right, the Parliament rose on 22 December 2020. A group of ministers met that evening, at the end of the meeting of the Parliament, and our judgment was that the state of the pandemic was reasonably stable. A week later, we reconvened to deal with the emergency Brexit legislation. My dates might not be absolutely correct, but it was round about 29 or 30 December. Once we had dealt with the Brexit legislation, we gathered again to discuss where things were at. We were slightly more concerned about the situation, but we still felt that we had the right measures in place.

By the end of new year’s day, 1 January 2021, I was on conference calls with other ministers being briefed about a rapidly deteriorating situation. It was deteriorating so rapidly that the Presiding Officer recalled the Parliament on 4 January 2021 to hear from the First Minister and for us to enact very restrictive measures on people’s freedom of movement and activity with immediate effect, which were subject to the made affirmative procedure. That is an example in which, in the space of 48 hours, the situation deteriorated dramatically and necessitated urgent intervention.

I will give another example, which has been vividly in my mind recently. The Cabinet met on 23 November 2021 and our view was that the situation was relatively stable. We felt that we had a reasonably sustainable pathway through the Christmas and new year period.

On 25 November, we were called to a briefing to be advised of early findings of the research in South Africa on omicron. By that night, my colleague Mr Matheson was on a United Kingdom call that was putting in place travel restrictions around South Africa and various southern African states. We had quite literally gone from thinking on a Tuesday morning that we were in a relatively stable position—indeed, Parliament was advised by the First Minister of that view on the Tuesday afternoon—to a position of acute concern by the Thursday.

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. I think that that necessitates action of the speed and the pace that the Government has taken.

I am glad that I asked for clarification, because I had misheard the word “skeleton”.

That is a question that must be considered on a case-by-case basis in relation to individual legislative instruments. Obviously, there can be arguments for skeleton primary legislation that requires to be completed by delegated legislation.

I can give Mr Hoy a real, live example. In the previous session, Parliament legislated for the redress scheme in relation to historical abuse. That was pretty detailed legislation, but certain elements were left to be followed up by regulation. One of the points of detail that I wrestled with recently in the secondary legislation was about remedying errors that had been made. I balked when I saw the immense amount of detail in that secondary legislation, and I wrestled with how Parliament would react to that, after having had extensive discussions about the redress legislation, so I looked at it, thought about it and discussed it with my legal advisers and officials. So much detail was required in that secondary legislation that including it in the primary legislation would have made for an act with a colossal amount of detail—more than would ordinarily be on the face of primary legislation.

Therefore, it is important that we wrestle with those questions on a case-by-case basis. When legislation is being considered, it is an absolute requirement that, for anything that might be described as skeleton legislation to be put in place, a clear argument must be made, and clear justification provided, to satisfy the test of parliamentary scrutiny.

Ultimately, Parliament must decide on the appropriate content of legislation. That is what we are all here for. There are 129 legislators in Parliament. Through a very detailed process of scrutiny, we must decide what is appropriate to put into primary legislation and what is appropriate to put into secondary legislation.

I would counsel Mr Hoy against using some of the terminology that he used in his question. Even when ministers are given delegated powers to act by secondary legislation, that still has to come back to Parliament for scrutiny. I acknowledge that that happens under different procedures, but it must still be scrutinised.

Legislation has been delegated for many years. There is legislation that underpins many aspects of how our public services operate. By parliamentary design, ministers’ executive power has been an implicit part of that legislation not in the past year or two or the past five years, but for the past 50 to 70 years.

Mr Hoy’s question is one that Parliament must wrestle with for every piece of legislation. Parliament must be satisfied that there is a robust case for legislating in the terms on which it finally agrees to do so.

Good morning. I welcome the opportunity to give evidence in relation to the committee’s inquiry into the use of the made affirmative procedure. I have noted with interest the views expressed by previous witnesses, and I am grateful for the opportunity to make a brief opening statement.

In the past almost two years—and very recently—the decisions that we have taken to use the made affirmative procedure to bring forward regulations in Covid-related Scottish statutory instruments have been based on the need to address the very serious threat posed by coronavirus. I assure the committee that the Government does not take lightly the use of the made affirmative procedure for these SSIs. The powers are exceptional powers that are required for the exceptional circumstances in which we find ourselves.

The made affirmative procedure has provided the Government with the necessary flexibility to deal with crisis situations when immediate action has been necessary, such as when imposing or removing domestic public health restrictions or international travel restrictions. It has also been necessary when urgent action has been required to deal with the continuing effect of the pandemic, and when that action has been needed to be taken more quickly than the normal draft affirmative procedure allows for. The continuing need for such flexibility has been demonstrated clearly by the impact of the omicron variant.

In recognition of the exceptional nature of the powers, the Government is committed to working with Parliament to ensure that it can conduct effective scrutiny of Covid-related regulations. In the previous session of Parliament, we agreed a process that ensured that the then COVID-19 Committee was provided with a copy of the relevant draft made affirmative regulations, and that it had an opportunity to consider those before they were brought into force. We have also sought to explore whether the normal draft affirmative procedure can be expedited successfully in appropriate cases, as it was in, for example, the Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No 4) Regulations 2021.

I recognise the concerns that have been expressed that the Government should not view use of the made affirmative procedure as a normal approach to legislating, and I assure the committee that the Government shares that view. The Government did not, for example, make use of the power contained in the Coronavirus (Scotland) Act 2020 to convert any existing draft affirmative procedure in statute into the made affirmative procedure because of the impact of Covid. Indeed, that power has now expired. Nor do I expect that the made affirmative procedure will become a more regular feature of future Government legislation. It has its place, but only in a limited set of circumstances, such as in legislation dealing with the continuing impact of the pandemic—the current Coronavirus (Discretionary Compensation for Self-isolation) (Scotland) Bill, for example—or for relevant tax-related legislation.

I hope that the committee has found my remarks helpful, and I am happy to answer any questions that you have.