Chamber and committees

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.