Delegated Powers and Law Reform Committee

Meeting date: Tuesday, January 11, 2022

Official Report 570KB pdf

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Made Affirmative Procedure Inquiry

We move to agenda item 3. Today, we are taking evidence from John Swinney, the Deputy First Minister and Cabinet Secretary for Covid Recovery, as part of the committee’s inquiry into use of the made affirmative procedure during the coronavirus pandemic.

The Deputy First Minister is accompanied by three Scottish Government officials: Rachel Rayner, deputy legislation co-ordinator, Scottish Government legal directorate; Elizabeth Blair, unit head, Covid co-ordination; and Steven Macgregor, head of the Parliament and legislation unit. I welcome you all to the meeting. We are very grateful that you are able to attend virtually today. I remind all attendees not to worry about turning on their microphones during the session, as they are controlled by broadcasting.

In a moment, I will invite the Deputy First Minister to make some opening remarks. The procedure will be slightly different today, as we have agreed that each member will ask a series of questions, to be followed by another member and so on. There will not be so much back and forwards as normal—members will ask a run of questions.

The first member to ask questions is Graham Simpson. Oh, I beg your pardon—I am too excited. Deputy First Minister, would you like to make some opening remarks?

Good morning. I welcome the opportunity to give evidence in relation to the committee’s inquiry into the use of the made affirmative procedure. I have noted with interest the views expressed by previous witnesses, and I am grateful for the opportunity to make a brief opening statement.

In the past almost two years—and very recently—the decisions that we have taken to use the made affirmative procedure to bring forward regulations in Covid-related Scottish statutory instruments have been based on the need to address the very serious threat posed by coronavirus. I assure the committee that the Government does not take lightly the use of the made affirmative procedure for these SSIs. The powers are exceptional powers that are required for the exceptional circumstances in which we find ourselves.

The made affirmative procedure has provided the Government with the necessary flexibility to deal with crisis situations when immediate action has been necessary, such as when imposing or removing domestic public health restrictions or international travel restrictions. It has also been necessary when urgent action has been required to deal with the continuing effect of the pandemic, and when that action has been needed to be taken more quickly than the normal draft affirmative procedure allows for. The continuing need for such flexibility has been demonstrated clearly by the impact of the omicron variant.

In recognition of the exceptional nature of the powers, the Government is committed to working with Parliament to ensure that it can conduct effective scrutiny of Covid-related regulations. In the previous session of Parliament, we agreed a process that ensured that the then COVID-19 Committee was provided with a copy of the relevant draft made affirmative regulations, and that it had an opportunity to consider those before they were brought into force. We have also sought to explore whether the normal draft affirmative procedure can be expedited successfully in appropriate cases, as it was in, for example, the Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No 4) Regulations 2021.

I recognise the concerns that have been expressed that the Government should not view use of the made affirmative procedure as a normal approach to legislating, and I assure the committee that the Government shares that view. The Government did not, for example, make use of the power contained in the Coronavirus (Scotland) Act 2020 to convert any existing draft affirmative procedure in statute into the made affirmative procedure because of the impact of Covid. Indeed, that power has now expired. Nor do I expect that the made affirmative procedure will become a more regular feature of future Government legislation. It has its place, but only in a limited set of circumstances, such as in legislation dealing with the continuing impact of the pandemic—the current Coronavirus (Discretionary Compensation for Self-isolation) (Scotland) Bill, for example—or for relevant tax-related legislation.

I hope that the committee has found my remarks helpful, and I am happy to answer any questions that you have.

Thank you. I invite members to ask questions. We begin with Graham Simpson.

I welcome the Deputy First Minister to the meeting. We are all grateful that he is here, and I am interested to hear what he has to say.

Mr Swinney, I note that you have brought three officials with you, and I wonder whether we could start off by hearing from them, because they are the people who have to draft the laws, which is being done at breakneck speed a lot of the time. Before I question you, Mr Swinney, could we hear something from the officials about their experiences of having to make legislation during the pandemic at great speed?

Deputy First Minister, is that all right with you?

Let me say a couple of words first, then I will hand over to my officials. During the pandemic, officials in the Scottish Government have had to work at pace in a whole range of areas of policy and activity within the Government’s responsibilities. Working at pace is not unique to this legislative team.

Secondly—Rachel Rayner might have a little more to say about this—when ministers are considering the right steps to take, there will be a number of possibilities in most circumstances. Drafting is likely to take place across a range of those different possibilities before a conclusion is arrived at and put into the draft instrument. There is, therefore, preparatory time for officials to be working on some of these questions before ministers take their final decisions.

Thirdly, we rely heavily on the quality of drafting skills in the Government to prepare legislation of this type. Generally, it is of a very high quality, as has been consistently demonstrated. When things are having to be done at pace, there is the potential for errors to be made, which we obviously try to minimise. However, our officials do a tremendous job in making sure that quality legislation is produced in accordance with the circumstances with which we all wrestle at the moment.

I am very happy for my officials to add some remarks.

Ms Rayner might want to say something, convener.

Rachel Rayner’s name has been mentioned. Would you care to make a contribution?

[Inaudible.]

Is your microphone on?

Yes. Thank you, convener.

Lawyers have been closely involved in the policy development process for the Covid SSIs and we have worked together closely with policy colleagues. As the Deputy First Minister has indicated, we often prepare contingent drafting for different options so that when decisions are made, drafting can be finalised as quickly as possible afterwards. In the situation that we have been in, we have recognised that decisions in relation to Covid need to be made with the most up-to-date data, and preparing contingent drafting allows that to happen. In addition, we have our usual checking process, which is undertaken at the end of the drafting process to ensure that a high standard of drafting is maintained.

Occasionally, issues arise, which can happen with non-Covid legislation as well. When that happens, we consider and reflect carefully on the issue and on what can be done to avoid it happening in the future.

Thank you, Ms Rayner. Are you happy with that, Graham Simpson?

Yes, thank you. Can I carry on, convener?

Yes—carry on.

Thanks very much. I will spare the officials from now on, which they will be pleased to hear.

I note the Deputy First Minister’s comment that he does not want the use of the made affirmative procedure to become normal. Well, it has become normal. If we look at some figures, we see that, since the start of session 4 up to the end of 2019, the made affirmative procedure was used nine times. Then, from 20 March 2020 to 2 December 2021, it was used 132 times, the vast majority of which were for coronavirus regulations. The percentage of those that were reported—generally for mistakes, which is what this committee picks up on—was 11.6 per cent. That is quite a high number.

It has become normal because the Government has got into the habit of using the procedure—and it is a procedure. If I can put it in layman’s terms—I will ask Mr Swinney to respond to this when I have finished—the Government has been ramming through laws at breakneck speed with little to no oversight. It is an affront to democracy. In fact, the Secondary Legislation Scrutiny Committee at Westminster called it “government by diktat”. I agree with that.

When, retrospectively, the laws eventually come before Parliament, there is very little debate—in fact, there is no procedure in this Parliament for a proper debate. All that is very unsatisfactory. Do you recognise the problem? If so, what do you intend to do about it?

10:45  

To be blunt, I do not recognise the problem, and I completely, utterly and unreservedly reject the ludicrous narrative that Graham Simpson has just put on the record. He said that the made affirmative procedure had been used nine times before 20 March 2020, and 132 times afterwards. That might have something to do with the fact that, prior to 20 March 2020, during the lifetime of the Scottish Parliament, we had never faced a global pandemic. Yes, there have been a lot of made affirmative instruments, but they have been required because of the necessity of acting swiftly in a public health emergency.

Mr Simpson is one of a number of members of the Scottish Parliament who regularly criticise me and my colleagues for bringing a Westminster or United Kingdom perspective to the debate, but he has just done that himself because it suited him to do so.

Mr Simpson’s question ignores the reality of a public health pandemic. When we look at the list of made affirmative instruments, it is clear that a vast number of them were brought forward to put in place measures that were necessary to protect the public health of individuals in Scotland. Some of them related to measures on international travel, which—again—were about trying to protect the public health of people in Scotland. Indeed, the nine occasions on which the made affirmative procedure was used prior to 20 March 2020 were, in a large number of circumstances, also to do with public health requirements. I totally reject Mr Simpson’s characterisation of the situation.

With regard to parliamentary scrutiny, we have come to agreements with the Parliament and with committees about how added scrutiny can be undertaken. There is always the opportunity for business managers from different parties to ask for more debating time or more questions. I was not handling all the legislation from 20 March 2020 until the election, but I have handled it since the election, and I would be happy to consider any request for a debate about legislation if members wished to have one in addition to what is provided. However, the starting point in all this has to be an acceptance that there is a public health emergency that has to be addressed.

I thank the Deputy First Minister for his comments. He described my comments as “ludicrous”—that is his view. I referred to coronavirus in my opening comments; it is quite clear that that is the reason why the Government has been using the made affirmative procedure—nobody denies that. The question that the committee is addressing is whether, as we move on, it should become a habit.

Using the made affirmative procedure has become a habit—various witnesses have described it as such. Sir Jonathan Jones QC described it as a “bad” habit and said that bad habits are hard to break. It is not only the Scottish Government—the Westminster Government has also got into that habit, and the same debate is going on down there. The question for this Parliament is, moving on, what do we do? As the Deputy First Minister appeared to recognise in his opening remarks, we do not want this approach to become the norm.

One of the issues that we have addressed in taking evidence is the reality that, in order for the made affirmative procedure to be used, all that needs to happen is that a minister—it could be Mr Swinney—decides that something is urgent. They do not need to justify that or to come to Parliament to say why they think that it is urgent; they simply need to decide in their own head that it is urgent and, with the flick of a ministerial pen, something will become law. There is no scrutiny of that.

I will put to Mr Swinney a question that has come up in evidence to us. Moving on and forgetting what has gone before, should ministers have to come to Parliament—either the full Parliament or a committee—to justify why they think that something is urgent?

I will answer the specific question that Mr Simpson has put to me in a moment. However, I hope that we are not going to go through a morning of Mr Simpson misrepresenting my position and my comments to the committee. In my opening remarks, I said:

“I recognise the concerns that have been expressed that the Government should not view use of the made affirmative procedure as a normal approach to legislating, and I assure the committee that the Government shares that view.”

The Government has used the made affirmative procedure as much as we have only because of the global pandemic. It is not a default view of the Government that that is the approach to legislating; using the made affirmative procedure has been a necessity because of the incredibly difficult circumstances that we have faced and the need for us to act with urgency to protect the public. Substantial numbers of the orders that are put in place through the made affirmative procedure lapse and are not renewed simply because of the temporary nature of the provisions that are put in place.

Mr Simpson has alleged that the flick of a ministerial pen makes something law. There is an element of substance to that view, but something will stop being law if Parliament does not approve it within 28 days. That is the parliamentary control and protection. If Parliament does not like it, it does not have to approve it.

I have seen the representations from the Law Society of Scotland, among others, on the question of the definition of “urgency”, and I think that a reasonable point has been made. Ministers could regularly make statements of arguments for urgency if that would help to create greater reassurance—such a statement could be made to a committee, provided that that would still enable the Government to act with urgency and would not undermine the principle of the made affirmative procedure that the law provides for.

I should point out that the use of the made affirmative procedure under the coronavirus legislation was by virtue of an act of the United Kingdom Parliament, not an act of the Scottish Parliament, and that some of the early examples of the use of the made affirmative procedure in the years of devolution were the product of the utilisation of pre-devolution United Kingdom legislation in relation to food quality and hygiene. That has, of course, been reserved legislation under which we have operated within the rule of law.

It is really important that it is recognised that the made affirmative procedure is part of the legal firmament of the United Kingdom and that, obviously, where we are entitled to use that power, we are free to do so. If, in the committee’s eyes, that would be enhanced by the provision of a statement of urgency, I would be very pleased to think about that.

It would be helpful if such statements were made. It would be even more helpful if the Parliament was allowed to take a view on any such statement, but I suppose that having one would be a good first step, because ministers would at least have to justify their position.

When the vaccination passport scheme was introduced, the committee took a view on the matter. The scheme had been planned and trailed for several weeks, but it was put through the Parliament under the made affirmative procedure. Our view was that the Government could not say that that was urgent, because it had been planned for weeks. That is a good recent example of why it is important for ministers to justify their view that something is urgent.

On parliamentary oversight, the Deputy First Minister says that Parliament gets a vote. It does, but that happens only after the law has come into effect. That is the wrong way round. A lot of the time, we could use different procedures. We do not always need to use the made affirmative procedure. Parliament could take a view on a measure before it comes into law. Does the Deputy First Minister agree that more regulations could be introduced using the affirmative procedure, which would allow the Parliament to vote on measures before they become law?

Deputy First Minister, if you want to bring any of your officials in at any point, you are at liberty to do so.

I will, of course, do so, convener.

The issue hinges on the question of urgency. The Government budgets on requiring 54 days to be confident that legislation can be enacted under the affirmative procedure. There is a world of difference between a timetable of 54 days and the requirement to apply, for example, international travel restrictions or some form of regulation of the opening hours of hospitality businesses, as we have had to do recently. In circumstances where urgent action is required, we cannot wait 54 days to do that, so I will be interested to hear what the committee suggests in that respect.

If the choice is between a made affirmative procedure that enables us to act urgently to protect public health and an affirmative procedure that takes 54 days, I am afraid that I will come down on the side of the made affirmative procedure, because the decisions that the Government has had to arrive at have had a material impact on the protection of life and limb. To be frank, the timescales that are normally associated with affirmative regulations do not allow for that.

I am open to considering how such measures can be enhanced. My predecessor in handling such issues, Michael Russell, came to pragmatic agreements with the COVID-19 Committee on making regulations available in draft so that that committee could discuss them and ask questions about them at its routine meetings before they were enacted. Those were pragmatic measures to enhance the operation of the legislative system. However, I am happy to consider any other proposals that this committee makes.

I will let Graham Simpson in for one last word.

I am very grateful—I am aware that I have taken up quite a bit of time.

I completely agree with the Deputy First Minister: we do not want to have to wait 54 days to put through regulations that have a certain degree of urgency about them. It is a question of Parliament being flexible and perhaps coming up with a bespoke procedure. I will leave my comments there, because other members have things to say.

11:00  

Thank you, Mr Simpson. We move to questions from Craig Hoy.

Good morning, Deputy First Minister. I welcome you and your officials.

If we can step back from the pandemic for a moment and think in slightly more abstract terms, do you think that the increased use of skeleton legislation and the widespread and now relatively common use of delegated powers within that is consistent with the need for parliamentary scrutiny and accountability?

Before I answer that question, there was a slight interruption in the line, so I missed what I think was a pretty crucial word in Craig Hoy’s question. Was it about delegated legislation?

The question is about skeleton legislation and the delegated legislation that stems from it. Do you think that the increased use of such legislation is consistent with the need for parliamentary scrutiny and accountability?

I am glad that I asked for clarification, because I had misheard the word “skeleton”.

That is a question that must be considered on a case-by-case basis in relation to individual legislative instruments. Obviously, there can be arguments for skeleton primary legislation that requires to be completed by delegated legislation.

I can give Mr Hoy a real, live example. In the previous session, Parliament legislated for the redress scheme in relation to historical abuse. That was pretty detailed legislation, but certain elements were left to be followed up by regulation. One of the points of detail that I wrestled with recently in the secondary legislation was about remedying errors that had been made. I balked when I saw the immense amount of detail in that secondary legislation, and I wrestled with how Parliament would react to that, after having had extensive discussions about the redress legislation, so I looked at it, thought about it and discussed it with my legal advisers and officials. So much detail was required in that secondary legislation that including it in the primary legislation would have made for an act with a colossal amount of detail—more than would ordinarily be on the face of primary legislation.

Therefore, it is important that we wrestle with those questions on a case-by-case basis. When legislation is being considered, it is an absolute requirement that, for anything that might be described as skeleton legislation to be put in place, a clear argument must be made, and clear justification provided, to satisfy the test of parliamentary scrutiny.

Would you concede that it is unhealthy to go down the route of having very broad-brush legislation that, in effect, allows ministers to flesh out that law in regulation, free from the constraints of parliamentary scrutiny?

Ultimately, Parliament must decide on the appropriate content of legislation. That is what we are all here for. There are 129 legislators in Parliament. Through a very detailed process of scrutiny, we must decide what is appropriate to put into primary legislation and what is appropriate to put into secondary legislation.

I would counsel Mr Hoy against using some of the terminology that he used in his question. Even when ministers are given delegated powers to act by secondary legislation, that still has to come back to Parliament for scrutiny. I acknowledge that that happens under different procedures, but it must still be scrutinised.

Legislation has been delegated for many years. There is legislation that underpins many aspects of how our public services operate. By parliamentary design, ministers’ executive power has been an implicit part of that legislation not in the past year or two or the past five years, but for the past 50 to 70 years.

Mr Hoy’s question is one that Parliament must wrestle with for every piece of legislation. Parliament must be satisfied that there is a robust case for legislating in the terms on which it finally agrees to do so.

The inquiry is looking specifically at the use of the made affirmative procedure, although the committee has general concerns about the wider use of delegated legislation. The fundamental element of the made affirmative procedure is that scrutiny comes after a law is introduced and implemented. What made you determine that there was an emergency situation and that Covid passports would have to be introduced under the made affirmative procedure?

The simple rationale was the belief that vaccination certification would be a valuable tool in boosting levels of participation in the vaccination programme among key groups in society and that that would help us to protect public health. There was a necessity to make progress with the vaccination programme as swiftly as we could. Effective participation in the vaccination programme has been an integral part of the strategy to protect the public from Covid, so it was an absolute necessity to drive participation in the programme.

That was a major change with wide-reaching implications. You had obviously thought about it for a long time and you subsequently delayed the enforcement, so could we not rightly conclude that it was not an emergency?

No. We put it into force to enable participation in the scheme so that we could, as far as possible, encourage greater uptake of vaccination and therefore protect public health. The rationale for urgency that I have shared with Mr Hoy was the rationale that governed our approach to using that instrument.

I would challenge that by taking up Graham Simpson’s point that that could be perceived as an example of the Government getting into bad lawmaking habits and of legislation being published too late and without due scrutiny. The evidence from the Children and Young People’s Commissioner Scotland makes that point, saying that regulations are too often published too late and that

“it was not always clear that such short notice publication was necessary, or that it was not possible for parliamentary scrutiny to take place in advance.”

Is that not a fair criticism?

No—it is not. I read the evidence from the children’s commissioner and I do not think that the criticism is warranted. The Government has a duty to protect public health. On countless occasions, we have had to fulfil that duty swiftly to protect the public. I do not have the luxury of waiting for 54 days, which is the period in the normal process for affirmative orders, when there is a clamour and I have advice in front of me to take action that is justified and proportionate to protect public health. I do not have the luxury of waiting for 54 days to consider that; I must move. Of course I am accountable for that and, if Parliament does not like an order, it can vote against that in a 28-day period. Such options are all available to Parliament, and I am accountable for all that. I do not have the luxury of having lots of time on my hands when dealing with these difficult issues.

One concern is that we must take the Government’s word for it and take you at face value. I am not making a specific point about you; the same criticism has also been levelled at the UK Government for its increased use of the made affirmative procedure.

As an example, the Manchester travel ban came and went before Parliament could reject it, if Parliament had thought that the ban was not sound. It would be interesting to get your reflections on a remark from Lord Lisvane—you might know him from your time at Westminster—who is a former clerk of the House of Commons. In a recent House of Lords debate, he said that

“The real losers”

from the made affirmative process

“are ... citizens”

and business. He said:

“They and ... industry, our national institutions and civil society need to know how the law will be changed, to have the opportunity to comment and make representations, and to know how it will end up applying to them.”—[Official Report, House of Lords, 6 January 2022; Vol 817, c 780.]

If we think about the Manchester travel ban, is that a fair comment?

The comment is interesting, but I put it in the same category as the comments from the children’s commissioner—it does not really acknowledge the pressing urgency of action in a public health emergency.

I go back to my opening remarks and my comments in response to Mr Simpson. The made affirmative procedure should not be used habitually in the legislative process. As Mr Simpson helpfully pointed out, it was used nine times between 1 July 1999 and 20 March 2020. Those uses—some are listed in front of me—were for absolutely justifiable reasons. The powers were exercised not by me but by my predecessors in other political Administrations, who acted appropriately.

The procedure should not be used in the ordinary run of life but, when we are dealing with a global pandemic with serious material threats to the lives of our individual citizens, we must act. There are opportunities for Parliament to challenge such questions, and there has been no lack of opportunity for people to raise their concerns in Parliament about issues since March 2020—the First Minister has made statements almost weekly since March 2020; members have had the ability to raise issues; committees have met; and a bespoke Covid committee has been created. There have been endless opportunities for members to raise issues.

People need to be aware of legislation and, if it changes abruptly, we must take steps to communicate that—the Government does that and we make information available as widely as we can. We are open to listening to comments about how we might enhance the process.

I have one final question. There is still an underlying concern that Government—in general, perhaps—has used Covid and the pandemic to do what Government often quite likes to do, which is to take decisions free from as much parliamentary scrutiny as it can be. Sir Jonathan Jones QC suggested to us that one solution could be for each and every piece of delegated law to be brought by the minister to the floor of Parliament for even brief consideration and debate. The debate could be for 10 or 15 minutes, given that a lot of it is relatively uncontentious. However, it would mean that that delegated legislation is questioned and subject to scrutiny. Would that not overcome the view that you have something to hide and are running from scrutiny in respect of certain regulations?

11:15  

No. Mr Hoy and Mr Simpson have obviously decided that that will be the ludicrous line of argument that they deploy. There is plenty of scrutiny of the Government. There will be a statement from the First Minister this afternoon on which she will take 40 minutes of questions from members of Parliament. The idea that the Government is not under scrutiny in relation to Covid is ludicrous.

Could it not be argued that your somewhat intemperate and bad-tempered response to legitimate questions proves my point that you are not overly happy with parliamentary scrutiny at the moment?

No. There is nothing intemperate about me, Mr Hoy. I am simply pointing out the absurdity of the point that you and Mr Simpson are putting to me this morning. There is endless opportunity for parliamentary scrutiny of all these issues. For example, there is the statement that the First Minister gives, and I—or one of my ministerial colleagues—have consistently been in front of the COVID-19 Recovery Committee every week. Other committees are also interrogating ministers. There has also been extensive coronavirus legislation. Although I appreciate that Mr Hoy was not in Parliament when it was put through in 2020, two very extensive pieces of legislation were put through Parliament and were scrutinised by members of Parliament. I am not in any way concerned about scrutiny. I submit myself to parliamentary scrutiny on a constant basis. The argument that Mr Hoy is putting to me this morning is—frankly—ludicrous.

In relation to the suggested alternative of a 15-minute debate on the floor of Parliament, to be honest, I think that that would attract the charge of tokenism. Mr Hoy himself just made the point that such a debate might be satisfactory because most of the material is non-contentious—I think that that is the word that he used. If it is non-contentious, it undermines the argument that Mr Hoy has put to me. If members of Parliament generally see this as non-contentious legislation that has to happen to protect public health, that surely makes my argument for me that the made affirmative procedure is the appropriate procedure for it. If issues of a cumulative nature arise out of the legislation, those can of course be resolved by further scrutiny. However, that indicates that a mountain is being made out of a molehill in relation to some of these issues.

Just to pick up on that point, our committee finds that a lot of what comes before us is not necessarily contentious, but having that process of scrutiny reassures Parliament and the public that things are not going through that should be subject to a rigorous process of scrutiny.

I think that we are all agreed on the need to make sure that there is appropriate parliamentary scrutiny of any legislative instruments that come forward. That is vitally important in all scenarios. However, I am simply making the argument that, if we look dispassionately at what has happened in relation to legislation since March 2020, we see that most of what has been brought forward under the made affirmative procedure has been essential and non-contentious material that has been required to protect the public in a public health emergency.

I appreciate that there is a philosophical difference of view among members of Parliament about vaccination certification. I understand that. However, countless other measures have gone through with unanimity across the political spectrum. I take from that that there is an acceptance by members of Parliament of all political persuasions of the validity and necessity of individual pieces of legislation.

Thank you very much, Deputy First Minister, and thanks very much to Craig Hoy. My computer fell out for a bit, so I missed some of the excitement of the past 20 minutes. We can move on now to Paul Sweeney.

It has been an interesting discussion, so far. Although this inquiry itself might initially appear quite a dry exercise, it has been very interesting, certainly for me as a new MSP, to look at the broader historical issues. Some of our witnesses have described the broad trends of the tension between the executive and legislature over decades as being a source of contention, which has been interesting to reflect on, and, obviously, we have seen the recent change in the manner in which the Government legislates by using the made affirmative procedure to bring forward a large number of instruments.

Based on your experience as an Opposition and as a Government member, looking at how things have played out in the past two years or so, how do you feel that the made affirmative procedure has worked when it comes to the quality of the measures that have been introduced? We are aware of the necessity for them and of the requirements for speed but, on reflection, are you aware of any instances in which that might have led to things going awry for want of greater scrutiny or greater patience in looking at the practical implications of how those measures were going to work?

I recognise that, in any legislative process, whether slow or quick, there is always the potential for errors to be made. Sometimes, provisions can be put in place in a stage 1 draft of a bill but, during its passage, we find—I use “we” in the generic sense of Government ministers over all time—that there is an error with it or that a mistake has been made, and we have opportunities to remedy that, as it has to be remedied, at stage 2 or 3. Errors can be made. I do not think that the process or the people involved in it are infallible.

Generally, we are fortunate in having very high levels of quality in the drafting of legislation, and we are also served well by the Parliament and by parliamentary officials in the way in which they scrutinise and highlight any issues that arise around legislation. That interaction between Government and Parliament is helpful and welcome, and it adds to the process. Obviously, the scrutiny by members of Parliament assists in that process. However, nobody is infallible. When people move at such a pace, the risk of error increases, but we have minimised that in our use of the made affirmative procedure, which has been a necessary but not habitual part of our actions as a Government.

There is a broad reflection to add that is not just about the made affirmative procedure, as certainly some of our witnesses have argued that adequate scrutiny of the primary legislation is also a key part of robustness. For example, Professor Stephen Tierney mentioned that

“The real problems are not simply with the made affirmative procedure downstream but with the fact that the primary legislation that created the powers was itself drafted and passed very quickly without adequate scrutiny.”—[Official Report, Delegated Powers and Law Reform Committee, 14 December 2021; c 4.]

It is clear that, once the instruments pile up, the initial legislation becomes so distorted that it is hard to understand what it means for parliamentarians or members of the public.

Witnesses have discussed the accessibility of instruments that have been subject to multiple amendments. Sir Jonathan Jones QC and the Law Society of Scotland have both suggested that the publication of consolidated versions of instruments that have been subject to multiple amendments would be an improvement on the current procedure. Would you consider introducing that? Will the Government take away and reflect on that suggestion in respect of improving transparency and the implications of making multiple changes to legislation so that there is greater understanding of what it means, despite all the changes?

First, I note that the current situation is not my ideal model for how we should legislate. We should always take care and time over legislation, and the Parliament has in place very good procedures for ensuring that that is the case. However, as Mr Sweeney acknowledged, we are dealing with the necessity of acting swiftly, so we are required, in undertaking the process, to act in that fashion.

On the accessibility of legislation, I am conscious of the challenge that that has presented to various individuals and groups, and I would be happy to consider whether there is a way in which we could improve and enhance any of the current arrangements so that the marshalling of the legislation is more accessible and more visible.

The legislation.gov.uk website has been ensuring that Covid-19 regulations are updated as soon as possible after they are amended, so it provides a place where the consolidated legislation is available. I accept that the website, although it is helpful, is by its nature complex, but legislation itself is complex. Nevertheless, I am willing to consider further the points that witnesses have raised, which Mr Sweeney put to me, as that may well help us in taking the issue forward.

Thank you—that is useful.

Cabinet secretary, you mentioned that you attend the COVID-19 Recovery Committee relatively frequently. That is a fair point with regard to how the Parliament interacts with the Executive and holds it to account, especially under such unusual circumstances. However, the COVID-19 Recovery Committee, in its submission to this committee, suggested that using the affirmative procedure as a default measure, as opposed to the made affirmative procedure, would enable

“the Committee to gather views from affected stakeholders before proposed policy changes are made into the law”,

as

“This process is an essential part of the Committee’s role in delivering the Scottish Parliament’s mission statement to create good quality, effective and accessible legislation.”

Furthermore, we have heard evidence about greater parliamentary scrutiny ahead of the measures coming into force. It was suggested that we have a fairly regular parliamentary debate that would enable greater discussion and comment on regulations, and questions to the minister on the use of the made affirmative procedure. The idea is that regular parliamentary time would be allotted to enable us to discuss instruments under the made affirmative procedure. Ministers make statements in the Parliament, but those are general and cannot, by their very nature, home in on the technicalities of some of the issues that need to be debated in respect of the made affirmative procedure. Perhaps the Government might consider looking at the parliamentary timetable in order to make chamber time available specifically for close scrutiny and discussion of instruments under the made affirmative procedure before they are brought into force.

I am happy to consider that point. I view myself very much as the servant of Parliament and, if the Parliament wishes to exercise more scrutiny by asking me to be available to answer more questions on measures that are going through under the made affirmative procedure, I will do that. If the Parliament asks me to do something, provided that it is within the law, I will do it. I am a servant of Parliament. I have made it clear to the COVID-19 Recovery Committee that, provided that there is reasonable notice, I will appear before it at any time, because I view that to be my primary channel for parliamentary accountability.

Mr Sweeney is putting fair and reasonable issues to me. If the Parliamentary Bureau were to consider them in relation to the parliamentary timetable or if committees were to decide to act in a particular way, I am a servant of the Parliament in that respect, so I would be entirely happy to participate in such an approach.

11:30  

I appreciate that response. Perhaps that is something for the committee to consider as we look at the continuous improvement of the Parliament and its procedures.

More generally, there was discussion earlier about skeleton bills and the trend of that form of legislation becoming increasingly attractive to Government, because it allows broad general principles to be outlined without necessarily having specific actions detailed in legislation. That leaves a lot of leeway for ministers to subsequently direct where they want to go, using secondary legislation. That perhaps presents some complications.

One example that springs to mind is the Transport (Scotland) Act 2019, which had a number of amendments made to it with the introduction of franchising, local authorities setting up their own municipal bus companies and bus service improvement partnerships. The latter have, in general, a public-private partnership model that is a bit more light touch and is more akin to the status quo of the deregulated model. Even though those provisions were all in the legislation, the Government and Transport Scotland have resourced and pushed forward the bus service improvement partnerships only. The other options for local authorities to pursue are not resourced in a meaningful way. That is an example of legislation that was drafted in a skeleton sense only. The way in which it has been implemented and driven by secondary legislation means that a lot of the provisions in the legislation have not been taken forward.

I wonder whether the Government will reflect on skeleton bills, how they are designed, the fact that their increasing use has been a long-term trend across Governments for decades and whether they lead to problems later on, when a Parliament expresses a view that things should happen in a country but they do not happen. What does the Deputy First Minister think about the general principle of there being problems with the tendency to use skeleton bills and there being provisions put in place that are not taken forward in secondary legislation?

I do not think that there is an increasing trend to use skeleton legislation, although I accept that some is introduced. It comes down to one of the answers that I gave earlier to Craig Hoy, which is about judging the situation case by case.

Going back to the redress scheme legislation that I talked about in my answer to Mr Hoy, I suppose that I could have introduced a bill that said that the Parliament would legislate for a redress scheme and that ministers would decide what the redress scheme should be. That would have been very skeletal legislation and it would have been wholly inappropriate, because there were big issues that had to be determined about the nature of the redress scheme. The Parliament decided all those questions. I accept that some of the detail that underpins those big questions is left to secondary legislation, but I would not describe the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill as skeletal legislation in any shape or form.

I would not describe the Transport (Scotland) Act 2019 as skeletal, either. I accept that there are provisions that require either executive action or secondary legislation, but the Parliament decided on the key questions that should be applied.

There is always a debate about the appropriate level of detail in a bill. Parliament agonises about that with every piece of legislation. Some voices will say that there is far too much detail because it runs the risk of becoming inflexible and other voices will say that there is far too little detail and it therefore remains vague and gives far too much power to ministers. Parliament has to wrestle with that spectrum on a case-by-case basis.

I was trying to get at this point in my answers to Mr Hoy and I give a similar response to Mr Sweeney: there is no precise model that we could say was appropriate in all circumstances. In certain circumstances, a member of Parliament may decide to pursue an issue—I have seen that on countless occasions. If you look at any act as a whole, a particular provision may appear to be significantly more detailed and focused than every other section. That will be because a member of Parliament made it their business to get that specificity into the bill for a particular purpose. I do not criticise that—I admire it. That is the use of the parliamentary procedure to make something happen, and members of Parliament are entitled to do that.

Mr Sweeney is right that there is also a wider philosophical debate that has been going on for my lifetime—and before that—about the right balance between specificity and flexibility in legislation. Much of that hinges on the level of executive power and responsibility that is granted by the Parliament in every circumstance.

Thank you for those questions, Paul; they were very helpful.

Thank you, Deputy First Minister, for joining us today. Like Mr Sweeney, I am a new member of the Parliament as well as being new to the committee, so I found this morning’s discussion and the evidence that was submitted to be very useful.

I want to go back to the objectives of the inquiry. Part of the purpose of the review is to help ensure that there is an appropriate balance between flexibility for the Government in responding to the emergency situation and continuing to ensure appropriate parliamentary scrutiny and oversight. I was not a member of Parliament when the pandemic started. What was important to me then was clarity of the law and how it affected my life, and how the public health emergency was being addressed. It has been said in evidence to the committee that it was perhaps easier for us to legislate to go into lockdown than it has been to start emerging from it.

What have you learned from the experience, Deputy First Minister? How could it shape future decision making within the Parliament and the use of made affirmative procedures?

Parliament has some very strong procedures in relation to the creation of new legislation. Our processes are very transparent, engaging and give adequate time and opportunity for scrutiny. That is not to say that they cannot be enhanced, but in general, Parliament has some pretty strong and transparent procedures for the formulation of legislation. For that reason, we should use the mechanisms that Parliament has. I come back to the comment that I made in my opening remarks, which is that the Government does not wish to make a habit of using the made affirmative procedure, because it does not allow all the time that our other procedures allow for engagement, consultation and scrutiny in advance of legislation being enacted. However, the necessity of the public health emergency has required the use of the made affirmative procedure.

The Parliament is well served by the arrangements that it has in place but has recognised with pragmatism the necessity of acting swiftly to put in place mechanisms and measures to handle the public health emergency. Indeed, Jenni Minto’s predecessor as member of the Scottish Parliament for Argyll and Bute, Michael Russell, was the author of the coronavirus legislation in the Parliament, steered it through the Parliament and, as a consequence, presided over much of the scrutiny of the measures in the previous parliamentary session—which he did with great distinction—because, in the circumstances, there was a necessity for us to act to ensure that we had measures in place to protect the public.

We wrestle at all times with the question of what approach it is right to take. In general, the arrangements that the Parliament has in place habitually are the appropriate measures to take. In the circumstances of a global pandemic that requires swift action, the measures that have been taken are appropriate. However, we should always be open to learning lessons from the situation and the Government will consider with care any output from the committee’s inquiry.

Some of the evidence that I have read said that, when you define urgency or an emergency, there has to be some personal input into that. I am interested to know how you weighed up what you felt was urgent and what was an emergency.

This has been an incredibly challenging period. In essence, it revolves around wrestling with that question. I have wrestled with it on countless occasions. I will give an example from around this time last year.

If my memory serves me right, the Parliament rose on 22 December 2020. A group of ministers met that evening, at the end of the meeting of the Parliament, and our judgment was that the state of the pandemic was reasonably stable. A week later, we reconvened to deal with the emergency Brexit legislation. My dates might not be absolutely correct, but it was round about 29 or 30 December. Once we had dealt with the Brexit legislation, we gathered again to discuss where things were at. We were slightly more concerned about the situation, but we still felt that we had the right measures in place.

By the end of new year’s day, 1 January 2021, I was on conference calls with other ministers being briefed about a rapidly deteriorating situation. It was deteriorating so rapidly that the Presiding Officer recalled the Parliament on 4 January 2021 to hear from the First Minister and for us to enact very restrictive measures on people’s freedom of movement and activity with immediate effect, which were subject to the made affirmative procedure. That is an example in which, in the space of 48 hours, the situation deteriorated dramatically and necessitated urgent intervention.

I will give another example, which has been vividly in my mind recently. The Cabinet met on 23 November 2021 and our view was that the situation was relatively stable. We felt that we had a reasonably sustainable pathway through the Christmas and new year period.

11:45  

On 25 November, we were called to a briefing to be advised of early findings of the research in South Africa on omicron. By that night, my colleague Mr Matheson was on a United Kingdom call that was putting in place travel restrictions around South Africa and various southern African states. We had quite literally gone from thinking on a Tuesday morning that we were in a relatively stable position—indeed, Parliament was advised by the First Minister of that view on the Tuesday afternoon—to a position of acute concern by the Thursday.

In my book, that is why urgent action is required—because the situation has changed before our eyes in a very dramatic order and fashion. I think that that necessitates action of the speed and the pace that the Government has taken.

Thank you.

We will have one follow-up question from Graham Simpson.

Mr Swinney, I want to ask about something that witnesses have raised and that we have not covered yet: the idea that we should introduce sunset provisions in both primary and secondary legislation. What are your thoughts on that?

Obviously, in relation to primary legislation, Parliament is at liberty to apply sunset provisions if it judges them to be appropriate. By their nature, many of the statutory instruments in relation to the handling of Covid that have been introduced through the made affirmative procedure have sunset provisions in them already. Indeed, a large number of those instruments have expired as a result of such provision. There is a role for sunset provisions. There is sunsetting provision implicit in the made affirmative procedure, in that if the Parliament does not vote for the legislation within 28 days, it lapses. There is a role for sunset provisions and the Government would be happy to consider those measures and possibilities as part of the legislative process.

Thank you.

I think that we have reached our next stage. I thank the Deputy First Minister and his officials Elizabeth Blair, Steven Macgregor and especially on this occasion, Rachel Rayner, who made some helpful comments. I thank you all for your helpful evidence.

As has been suggested, the committee might follow up by letter with any additional questions that stem from the meeting. Will that be acceptable, Deputy First Minister?

I will be happy to supply any information required.

Thank you, that is very kind. The questions are exhausted, and no doubt the Deputy First Minister is too. Thank you very much, Deputy First Minister. We will see you again.

11:49 Meeting suspended.  

11:57 On resuming—