Chamber and committees

No. Essentially, the matter of necessity kicks in on those questions. For example, we had to face the necessity to move to a situation in which our schools did not function in the way to which we were accustomed. We would want to avoid the necessity of releasing prisoners early, because courts have decided that prisoners must serve particular sentences. No particular rationale exists as to why that provision should be there in perpetuity, because it conflicts with fundamental elements of our legislative framework and the expectations of members of the public about the nature of those circumstances and how we handle them.

Ultimately, the Parliament has to satisfy itself that it has the right legislative arrangements in place to deal with any given scenario. The statute book includes a number of strong characteristics, not least of which is the ability of the chief medical officer, for example, to offer his view on the situation that we face. That has influenced the judgment that was made on the construction of the bill. It is a matter for the Parliament to scrutinise and consider whether it believes that appropriate descriptions and explanations are in place in the legislation, and the Government will then consider that further.

Some of that discussion could be influenced by the first question that Mr Sweeney put to me, which was about the nature of any undertaking and explanation that the Government gives about the use of the made affirmative procedure, for example, which can have certain characteristics that give a demonstrable reason why that procedure should be used in a particular circumstance.

I do not have that information to hand. The Government is working with the parliamentary timetablers on the passage of the legislation but, depending on the nature of the process that we go through, I suspect that we may find ourselves in a different timescale.

We do that in the delegated powers memorandum, and I rehearsed that with Mr Simpson. Fundamentally, judgments on such questions are informed by advice that the Government receives from its chief medical officer, who has a role in statute to provide such advice to Government. The chief medical officer’s views already drive a number of provisions that are in statute and have nothing to do with the bill. The chief medical officer takes a view that is based on his or her professional assessment of the situation that we face, and I would argue that that is exactly as it should be, so that we are influenced by high-quality, independent clinical and epidemiological advice about the situation that we face.

I make the point in trying to answer Mr Hoy’s question—I understand exactly why it was asked—that it almost invites me to define the indefinable, because we do not know what might come our way. If we did not feel that over the past two years, we certainly have felt it over the past two weeks in relation to the awful situation in Ukraine.

The construction of our statute book on many public health issues, which often hinges on the chief medical officer’s advice, is designed to give us the ability to interrogate and interpret events as they unfold and then come to a view on what merits the necessary action by ministers. The challenge of any part of legislation is to make sure that that advice can be offered, that it can be considered by ministers and that Parliament can exercise accountability over that judgment.

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.