Chamber and committees

I thank Mr Brown and Mr Greene for their comments. Sadly, Mr Brown seems to wish to reject all my amendments in the group—even though they are perfectly reasonable, as he well knows—on the basis that he thinks that they would add delays into the system. However, in the same speech, he noted that Parliament is already considering a protocol to deal more quickly with the affirmative procedure. That stemmed from the work of the DPLR Committee, and we are, indeed, considering the matter.

I will follow up on Mr Greene’s comments. The Parliament has shown that it can act extremely quickly when necessary, so we could and should have an expedited affirmative procedure. It should allow what I suggest in amendment 1025: that ministers come to Parliament to give a statement and that we debate—ministers would have to present evidence—and vote on the matter. That is what we are in Parliament to do. Currently, ministers do not have to do any of that. They can do what they like. No evidence is taken and there is no vote until an instrument is in force.

Through amendment 1025, I am merely trying to correct a parliamentary wrong. I will move that amendment.

With amendment 1024, as I explained earlier, I am saying that we should not be able to use the made affirmative procedure; we should just use the affirmative procedure. I will stick to that.

However, I will give ground, unlike Mr Brown, on amendment 1026, because I accept that applying a blanket one-year sunset clause across the bill might be wrong. Perhaps we should have some flexibility, so I will not move amendment 1026, but I will press the other amendments.

Will you take an intervention?

Why did you pick the end date of 31 January 2023 for the first reporting period?

Yes.

I have been listening to the debate with great interest. Based on what you have said, I put it to you that, if you were the victim of a crime—I hope that you never are—you would want to know what had happened in that case. If police had arrested somebody, you would want to know that. You would not necessarily need to know their name—in fact, you would not need to know their name—but you would want to know what had happened in that case. Is that not the point of amendment 1040?

Will the member take another intervention?

It is.

Thank you. Let us not personalise it; let us talk not about you, but about general victims of crime.

You made the point that any victim of crime just wants that basic level of information. If I was a victim of a crime, I would want to know what had happened in that case, and I would want the police to tell me what they were doing. If it got further than the police—in this case, we are talking about a fiscal fine—all that people would want to know was what had happened. Surely that is not unreasonable.

I will not move amendment 1026. I do not know how long you are planning to continue for, but my work is done after this amendment. If you are continuing, I would be grateful if colleagues would press Mr Whittle’s remaining amendment.

Amendment 1026 not moved.

Amendment 1008 moved—[Keith Brown]—and agreed to.

Schedule, as amended, agreed to.

Section 39 agreed to.

Section 40—Expiry

Amendments 1027 and 1028 not moved.

It has been an interesting day, and I am glad that I have sat through the meeting.

This is a relatively small but important group of amendments. Members know that I sit on the Delegated Powers and Law Reform Committee, which scrutinises every piece of legislation and produced an excellent and balanced report on the bill. However, prior to that, we held a mini inquiry into the use of the made affirmative procedure during the pandemic. That inquiry shaped the recommendations that we arrived at for the bill. The made affirmative procedure can be used in relation to five powers in the bill, one of which this committee is concerned with today: the power to free prisoners early.

I will remind members what the made affirmative procedure does, because that gives the background to the reasoning behind my amendments 1024 to 1026. The procedure allows a Scottish statutory instrument to be made and to come into force even though it has not yet been approved by the Parliament. That approval comes later. Law is made with no scrutiny and no parliamentary backing—there is no vote. The procedure was not commonly used before 2020, but it became very common after that.

In the DPLR Committee’s report, we held to four principles, the first of which was:

“Given the lack of prior parliamentary scrutiny and risks to legislative clarity and transparency in the made affirmative procedure, use of the affirmative procedure”—

which, of course, allows such scrutiny—

“should be the default position in all but exceptional and urgent circumstances. Legislation making provision for the made affirmative procedure must be very closely framed and its exercise tightly limited.”

Secondly,

“The Parliament will require an assurance that a situation is urgent. Provision in primary legislation will need to encompass a requirement to provide an explanation and evidence for the reasons for urgency in each case where the procedure is being used. There should be an opportunity for debate in a timely fashion and open to Members to seek to contribute”.

That does not happen at the moment.

Thirdly,

“Any explanation provided by Scottish Ministers should also include an assessment of the impact of the instrument on those affected by it and Ministers’ plans to publicise its contents and implications. This could include details of the relevant Scottish Government website where links to the instrument, including where relevant any consolidated version of the instrument it amends, as well as any associated guidance, can be found.”

People find it quite difficult to find their way through the legislation.

Finally,

“There will be a general expectation that legislation containing provision for the made affirmative procedure will include provision for sunset clauses to the effect that (a) Ministers’ ability to use the power will expire at a specified date and that (b) any instrument made under the power will be time-limited.”

We recommended that the Scottish Government lodge amendments on each power that can be used through the made affirmative procedure to ensure that the following requirements would be included. Scottish ministers should provide a written statement, prior to the instrument coming into force, that contains an explanation of and evidence showing why the Government thinks that it needs to be made urgently. Moreover, when using the made affirmative procedure, Scottish ministers should include an assessment of the impact of the instrument and ensure that statutory instruments made under the powers are subject to a sunset provision. Nevertheless, the committee restated that it expects the default position to be that the Scottish Government use the affirmative procedure

“in all but exceptional and urgent circumstances.”

My amendments in this group merely reflect the committee’s unanimous view.

The effect of amendment 1024 would simply be that any such regulations could be made only through the affirmative procedure, which is my preference. If the committee agrees to that amendment, the others in the group fall. If that does not happen, we move on to the other amendments.

Amendment 1008, in the name of Keith Brown, merely allows a minister to provide an explanation of why they think the made affirmative procedure should be used. If members have read the amendments in the group, they will have immediately realised that that amendment does not go as far as the others. It would be very easy for a minister to say, for instance, “We need to act quickly. That’s what the experts are telling us.” That would be the explanation. They could dress it up a bit, but if Mr Brown’s amendment is agreed to and mine are not, that is what the Parliament will be left with.

My amendments put Parliament front and centre in deciding whether the Government has got it right. When we are dealing with something as serious as freeing prisoners early, it is not good enough just to say, “We need to do this—okay?”

Amendment 1025 states:

“Ministers”

must

“have made a statement to the ... Parliament”

with

“an explanation, and”—

crucially—

“evidence, as to why ... regulations need to be made urgently”.

More importantly, it says that Parliament must agree to that.

Amendment 1026 is similar, but it calls for

“an assessment of the impact”

of the regulations, and it includes a sunset clause with a figure of one year.

I think that I have got this right. The Government is sympathetic to the idea of sunset clauses in general, but it has not—as far as I can tell—put a figure on the limit, as I have clearly done. I think that one year is a reasonable timescale.

I hope that that is a good summary for the committee that helps members to understand the reasoning behind the amendments.

I move amendment 1024.