Chamber and committees

I will move on to discuss the Scottish Law Commission. As you know, the committee works closely with the SLC, as do you, and there has been long-standing frustration from the SLC—and from us, but particularly from the SLC—about the amount of work that it has done and the number of reports that it has produced that have just stacked up and not resulted in legislation.

The SLC has provided us with a list of about 18 of its reports dating back as far as 2006 that have not ended up as legislation, covering things from electoral law to level crossings. All kinds of serious work has gone on and the SLC and the committee are very frustrated. In the previous parliamentary session, the committee worked with the Parliament on a set of protocols that would allow the committee to take on more bills, if they were presented. That would help the Parliament to get stuff through.

The programme for government said that the Government wants to do something on moveable transactions. When do you see that legislation being introduced and would it be a bill that meets the criteria for it to be considered by this committee?

I think that trust law was the other one.

Would you accept that what I describe would be a breach of my data?

When we had a private meeting with your officials, we asked about the area of questioning that Mr Sweeney has just covered. We specifically asked whether the Government could provide us with a list of outstanding regulations that flow from acts that have been passed and I am not sure that we have seen that. Mr Sweeney mentioned the Transport (Scotland) Act 2019, but there will be a number of others. I think that there is still some stuff outstanding from the Planning (Scotland) Act 2019. It would be useful to have that list, if we could.

We had a two-hour debate on something about which we knew precious little. We certainly did not know the detail, which is where scrutiny comes in. I know that you know that, but I do not think that that debate counts as scrutiny. The scrutiny will come when you actually tell the Parliament what the Government is proposing to do—if, indeed, you proceed with the proposal.

I will read out what you say in your letter. You say:

“I absolutely accept that the made affirmative procedure must only be used when the test for using it set out in Schedule 19 of the Coronavirus Act 2020 is met.”

Paragraph 1(1) of the Coronavirus Act 2020 says:

“The Scottish Ministers may by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Scotland”

so that gives you the power to do all this stuff. However, there are also some checks on that power in the 2020 act. Paragraph 2(4)(a) of schedule 19 says:

“Regulations under paragraph 1(1) may not include provision enabling the imposition of a special restriction or requirement”

which could include vaccine passports

“unless—

(a) the regulations are made in response to a serious and imminent threat to public health, or

(b) imposition of the restriction or requirement is expressed to be contingent on there being such a threat at the time when it is imposed.”

The threat therefore has to be both “serious and imminent”.

The First Minister announced her intention to bring in vaccine passports a couple of weeks ago and said that they will not actually come in until the start of October, which does not meet those tests, in my view. When she announced her intention, the threat was not “serious and imminent” and, under the second point about the threat when the restriction is imposed, we cannot possibly know what the threat will be in a couple of weeks. That is why I argue that you should not be using the made affirmative procedure. You should be allowing prior scrutiny of whatever you propose, so that we get it right.

We will have to strongly disagree with each other on that. My interpretation is that you have not met the tests of the 2020 act, which gives ministers the powers to do such things. We are clearly not going to agree on that.

I welcome the minister’s comments at the start of the meeting about the relationship that he wants with the committee. When I was the convener, I had a good relationship with Graeme Dey, you will be horrified to hear.

I am speculating because we do not actually know. However, you said that you will write to us with the details.

I move on to another item. You mentioned earlier the need for clarity when you lay instruments. At committee recently, we had an interesting discussion about what constitutes dancing. You will recall that, if you are dancing in a nightclub, you do not have to wear a mask. Of course, we do not yet have a proper definition of a nightclub, let alone dancing. The Government came back to us and said that dancing is a form of exercise, so it will fall into that category. As Craig Hoy then pointed out, somebody could be dancing in a supermarket aisle and could take their mask off. That is why there is a need for clarity. Have you defined what is meant by dancing?

That was the problem with the way that the law was framed, which was why we raised the issue. We are joking about it, but it is a serious matter that, when we write law, it needs to make sense and be understood, and there should not be loopholes.

I found Graeme Dey and his predecessor, Joe FitzPatrick, to be very good to work with. When they appeared at the committee, we had a very cordial relationship and they knew the committee’s requirements.

We had some correspondence with you last week about the vaccination passport debate and the proposal from the Scottish Government to introduce a requirement for vaccine certification at certain events. You will have seen our annual report from the previous parliamentary session in which we expressed some concern, shall we say, over the number of made affirmative regulations that were being approved. For anyone who is watching, I note that that is when the Government brings in a law without its having been scrutinised by the Parliament; the scrutiny comes later. Most parliamentarians accept that there has been a need to use that procedure during Covid, but there has been a large number of such instruments.

We wrote to you about the proposal for vaccine passports. That might not be the term that you use, but that is the term that I use. We know what we are talking about. You wrote back to us on 9 September—it was a quick turnaround—and in that letter you said that if there were to be regulations, which there would have to be if the proposal comes in, your view is that the made affirmative procedure should still be used despite there being weeks to prepare. Is that still your position?