Chamber and committees

Professor Tierney touched on September 11. As I prepared for today, I was struck by the events of 9/11 and by the situation when mad cow disease came into the UK. Are you aware of measures that were brought in at that time regarding the made affirmative procedure? Was any other scrutiny brought in with that? Those two huge events have had an impact on life ever since.

Okay—no problem.

Sir Jonathan, you spoke a moment ago about some things that could happen to try to provide more scrutiny. Graham Simpson gave the example of the Covid passport instrument. I am not sure whether you are aware of this but, prior to the final instrument coming to the Parliament, a statement was given in the chamber, and there were questions to the relevant minister. The Minister for Parliamentary Business also came before our committee and took questions from us.

There was some pre-scrutiny in that instance. I accept that there was not so much scrutiny of the instrument itself, but there were opportunities for dialogue and scrutiny with the relevant ministers. Clearly, colleagues might not have been happy with some of the responses from the minister, but that happens in every Parliament. However, that approach has not been taken with every made affirmative instrument that has come to the Parliament. I cannot comment about what happens elsewhere. I wanted to make you aware of the actions that took place, because that instrument clearly had a lot more public and political interest to it than many of the other made affirmatives that have come into the committee and the Parliament.

I have a question for both Professor Tierney and Sir Jonathan on the issue of legislation and the legal requirement to provide evidence of urgency. From what you have both said, it is clear that more information should be presented. Should that requirement be put on a legal footing? If that is the case, do you have any examples of existing legislation that could help with the situation that we currently face? Clearly, Covid is not going away any time soon and we will be living with it for some time, whether in an emergency situation, as at present, or further down the line when society has returned to a more normal state.

I thank Professor Tierney and Sir Jonathan Jones for their helpful evidence. The committee might wish to follow up by letter any additional questions stemming from the meeting—we will discuss that later on this morning. Thank you very much to you both, gentlemen.

I briefly suspend the meeting to let the witnesses leave BlueJeans.

Is the committee content with the instruments?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Agenda item 4 is consideration of affirmative instruments.

Is the committee content with the draft regulations?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

I hand over to Paul Sweeney.

Welcome to the 14th meeting in session 6 of the Delegated Powers and Law Reform Committee. The meeting is taking place virtually, following the guidance that the Presiding Officer issued last week to limit the number of people attending Holyrood and was agreed by the Scottish Parliamentary Corporate Body and the Parliamentary Bureau. The intention is to help the Parliament play its part in limiting transmission of the virus.

The first item of business is to decide whether to take items 7, 8, 9 and 10 in private. Is the committee content to take those items in private?

Members indicated agreement.

Item 2 is an evidence session for the committee’s inquiry into use of the made affirmative procedure during the coronavirus pandemic. This is the second of two evidence sessions planned for this month, before the committee hears from the Scottish Government in January.

I welcome to the meeting Professor Stephen Tierney, who is professor of constitutional theory at the University of Edinburgh’s school of law, and Sir Jonathan Jones QC, who is a former permanent secretary of the United Kingdom Government Legal Department and is now at Linklaters LLP. We are grateful that you are both able to attend virtually. I remind all attendees not to worry about turning on their microphones during the meeting, as they are controlled by our broadcasting staff.

I will start the questioning. Before we move to specific questions on the use of the made affirmative procedure, do the witnesses have any initial observations on the use of the procedure during the pandemic?

Thank you. I will bring in Craig Hoy.