Chamber and committees

Yes, it is up to six minutes.

I am not on the whip in this debate, which is a rarity. We would not often come across any speaker in this Parliament who is not on the whip. Normally, in my group, Stephen Kerr chooses who gets to speak and who does not. I was not on the list for this debate, so I had to approach the Presiding Officer, and your good office said that I could speak. That does not normally happen. That seems entirely wrong to me. When I saw the topic of the debate, I felt that I had something to contribute. All parties need to look at their practices and allow members in that position to do so.

Just a sec—allow me to make this point at least.

The Presiding Officer mentioned the time limit at the start of my speech, Stephen Kerr mentioned spontaneity and Daniel Johnson mentioned the issue, too. MSPs are very often limited by time. I think that they write out their speeches so that they can fit in with that time. If we were to be more flexible—

Stephen Kerr rose—

Mr Whitfield wanted in first.

I completely agree. Mr Kerr could take a lead on that in our own party and perhaps introduce some reforms in our whip’s office to allow more spontaneity. I look forward to that happening.

I wanted to speak today because I will be launching a consultation on a member’s bill in January. One aspect of the bill cuts right across some of the issues that we are discussing today. If the bill gets beyond the consultation stage, it will eventually come to the Standards, Procedures and Public Appointments Committee.

There are several aspects to the bill, but I will discuss just one. I want to replicate the situation in councils: if councillors do not turn up for work or do not do any work for six months, they can be removed as councillors. That is a matter of law, but it is not one that applies to MSPs. It struck me that that is entirely wrong. If someone effectively decides to stop work, they should not be allowed to do that job.

That simple idea occurred to me before the pandemic. Since then, we have changed the way that we work. However, I have proceeded with the bill, and the consultation will deal with some of the issues that we have discussed today. A big question now is what constitutes work. It was quite easy before—we just had to turn up, vote or take part in proceedings here—but now it is not so simple. The consultation paper will raise those questions. I encourage all members who have taken part in today’s debate, since they obviously have a keen interest, to contribute, because I am interested to hear people’s views.

It is good to see you, Professor Tierney and Sir Jonathan.

The figures highlight the scale of the issue with which we are dealing. Between 2011 and 2019, there were nine made affirmative instruments in Scotland; between 20 March 2020 and 2 December 2021, there were 132. The use of the procedure has exploded. The vast majority of those instruments were Covid related.

You both talked about the complexity of the law. I agree that the law becomes extremely difficult for people to follow unless it is consolidated, which it generally is not; it is certainly not consolidated here, and I suspect that it is not consolidated in Westminster either. I agree with Sir Jonathan that we should move in the direction of consolidation. The law needs to be understandable. It is okay for you guys: you are experts who can probably work things out, but most of us are not in that position. The law needs to be easily understood, particularly when it is made at speed and we are expecting the public and businesses to know what is going on.

Sir Jonathan, I enjoyed reading your comments to the Statute Law Society on the rule of law and subordinate legislation. There was a good deal of humour in them. You seemed to accept many of the reservations that some of us have about the instruments that we are talking about, and you called for

“a reset of our use of subordinate legislation”—

as you have done today. However, on whether that will happen, you rather gloomily concluded:

“I won’t hold my breath.”

I have to agree with you on that. My question for you and Professor Tierney is this: if you give Government an inch, will it take a mile?

Professor Tierney, I suspect that you would agree with that, so I will ask you a slightly different question about something that both you and Sir Jonathan have touched on.

Do you think that, right now, we are in an emergency whereby we have to legislate at such speed? I will give an example. In the Scottish Parliament, we have legislation to deal with vaccination passports. This committee pushed back on that, but eventually, it was put through under the made affirmative procedure. Westminster is at least getting a vote on the issue—we did not have that luxury. The legislation was pushed through at speed, yet it had been planned for weeks. Are we in an emergency of the sort that was clear at the start of the pandemic, which might justify the use of the made affirmative procedure?

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?