Chamber and committees

Convener, you might already have covered this, but I think that it is important that we write a quite strongly worded letter to the Government and relevant minister to reflect the committee’s thoughts on the matter. We will report to the lead committee, as is entirely right, but we need to get what has just been said down on paper and send it to the Government.

Would you specify a time period in sunset clauses or should it depend on the instrument?

Thank you. That takes us seamlessly back to the convener.

I want to ask a quick question on the subject of urgency. If we were to develop—[Interruption.] I am sorry, but my camera keeps going; I will have to hold it in position.

If we were to develop a procedure whereby a minister has to justify why something is urgent, we could imagine any minister considering the process as just something that they have to do, or a bit of a tick-box exercise. They might have to go along to some bothersome committee, but they will just get through it and, at the end of the day, if they decide that something is urgent, then it is urgent. Should we build into any system the power of veto for Parliament and/or a committee?

I am not stopping you—go for it.

That is useful.

I will now ask you about the possibility of introducing sunset provisions. The convener might want to explore later the question about whether situations are urgent, so I will leave it to him to ask about that.

Would it be good to introduce sunset clauses? Do you have any other ideas that might improve transparency?

With our previous evidence session in mind, I think that this instrument highlights why scrutiny is important. Indeed, the reason for the 28-day rule is to allow some form of scrutiny.

On the face of it, a lot of people will think that the Scottish Government has done the right thing by pushing the instrument through. However, you mentioned the letter that the Parliament has received from the Scottish Centre for Crime and Justice Research, which puts forward a counterargument. That shows why we need to have scrutiny.

We need to tell the Government in no uncertain terms that breaching that 28-day rule, whatever one thinks of the policy, is really not acceptable.

I realise that we are up against the clock, so I will roll two questions into one. They are also on the theme of what we do now.

I am really frustrated by the use of the made affirmative procedure. It has been overused in both Parliaments. When ministers lay such instruments before the Parliament, they should have to justify why a measure is urgent or an emergency. They should have to come to—or at least write to—a committee and make the case. Also, to pick up on the House of Lords report on the subject, it would be a good idea for every made affirmative instrument to be subject to a sunset provision.

Should the Government have to make the case that an instrument is urgent? Should that have to be subject to a vote in a committee or the Parliament? Should such instruments be subject to a sunset provision and, if so, what length should that be?

What do you think, Dr Fox?

I thank both witnesses for coming. It has been very interesting so far.

I have to praise Dr Fox for some of her work so far, including her book “The Devil is in the Detail: Parliament and Delegated Legislation”, which I was thinking of putting on my Christmas list. However, knowing my family, I will probably end up having to buy it myself. It looks like an absolute bargain, so I will be rushing out to get it.

Morag Ross made a number of interesting points earlier, one of which was about how we as parliamentarians deal with stuff after it has become law. When something has been put through under made affirmative procedure, it is already law, and we scrutinise it as such—as opposed to as something that is not already law. She is absolutely right that there is a tendency for parliamentarians to look at stuff that is already law and say, “Well, it is done; we will just nod it through.” Sometimes, the law has already been overtaken or amendments have been lodged or it is null and void, and so we think, “Well, I’m not going to bother with this.” However, that is not the way it should be, and the purpose of this mini-inquiry is to consider that issue.

In the interests of time, I will not go over the same ground. I am keen to explore solutions as to how we improve things. When the Scottish Parliament debates regulations, they go through this committee, as we have a remit; then to a policy committee—in terms of this inquiry, coronavirus-related regulations go mostly to the COVID-19 Recovery Committee—and then to the full Parliament. When regulations get to the full Parliament, the opportunity for MSPs to debate them is extremely limited, as there is only a minister and possibly one member from each party taking part. There is some very important stuff going through the Parliament—Craig Hoy has mentioned vaccination passports—yet the debate is extremely limited.

Perhaps this is a question for Ruth Fox. You mentioned that, in Westminster, MPs get a 90-minute debate, which we do not get. Is there something there for us in Scotland to look at?