Chamber and committees

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.

That goes back to a point of principle about the purpose of the statute book, which is there for a variety of reasons—to codify and define the rule of law in relation to certain provisions, to provide for clarity on the law in scenarios that happen, have happened and might happen and to provide crystal-clear information to individuals and organisations about their obligations. Those are just three points about the statute book’s purpose. There are provisions in statute that relate to events and circumstances that have never happened, but they provide us with the capacity to deal with such situations should they happen.

On the logic of Mr Simpson’s argument, we should have no civil contingencies legislation, because we have not had to face a civil contingency issue. I argue that the pandemic was pretty close to a civil contingency, which provides the justification for having powers in the statute book that we might never use. If we were to face a situation when we did not have powers in place, that would get us into tricky territory.

The bill is about that fundamental issue. The fundamental issue that I disagree with Mr Simpson about is whether the statute book should be prepared for the different eventualities that might come our way.

That is my justification. There might be a need for us to take action to close or restrict access to boarding school accommodation. We may have to—

The logic is quite simply that we do not want to take a policy approach in any circumstances that envisages releasing prisoners early. We have had to do that once, in May 2020. Although the Covid threat is still hanging over us, we do not think that that provision for that policy element should be available to us on an on-going basis. However, in other aspects of the bill, we must have a range of options at our disposal to help us to deal with the public health emergency. That is the simple distinction that I would make.

I think that it would, because the powers that are envisaged in the bill can be used only should certain scenarios arise that are in themselves compatible with article 15. The powers are not routine or everyday, and the statute book has other powers in place that can be used only in given circumstances, which could come into the same scope as Mr Hoy outlined.

Without such powers, we would end up with a statute book that was ill prepared for certain emergency circumstances. Given what we have gone through in the past two years and the way in which we have had to address those issues in extremis, that would not be a desirable outcome.

If I think back to the passage of the coronavirus legislation in the previous parliamentary session, although there was a lot of parliamentary good will to get the legislation passed, there were quite a lot of complaints about the fact that we were not doing that in slow time. We would be better to do this carefully, in slow time, and put it into statute but make sure that it can be used only in extremis.

That might be a necessity of its time. However, we do not particularly want to release prisoners out of the necessity of the time.