Meeting of the Parliament (Hybrid) 22 February 2022
I am delighted to open the debate on the Delegated Powers and Law Reform Committee’s inquiry into the use of the made affirmative procedure during the coronavirus pandemic.
At the outset, I thank all those who appeared before the committee and provided written evidence at very short notice. We agreed to hold the inquiry only in late November, so we were very grateful to hear from so many people in such a short space of time. I also thank the clerking team and the legal team, who were invaluable during the inquiry and ensured that our report was turned around in the short timeframe that we allocated ourselves.
Being able to hear from witnesses remotely allowed us to take evidence despite new restrictions due to the omicron variant. Although I know that meeting in person is always preferable and beneficial, virtual meetings have their place. As we know, they can sometimes be challenging, but they provide Parliament with another option to hear from witnesses, in addition to helping to reduce the carbon footprint of Parliament and individuals.
Before I cover the committee’s main findings, I will first mention why this work was important and why it should matter to all of us in Holyrood, and not just the five members of the committee. The use of the made affirmative procedure since March 2020, which has allowed the Scottish Government to bring into force a large number of very significant powers immediately, is a classic case of a debate that predates us at the Scottish Parliament—namely , the balance of power between Parliament and the Government of the day.
Dr Ruth Fox, director of the Hansard Society, reminded the committee that debates on how statutory instruments are laid and scrutinised were taking place in the 1930s. Books were published in the aftermath of the second world war about government by diktat and the use of emergency provisions. Dr Fox told us that concerns about the concentration of legislative power with the Executive and the shift of influence away from Parliament have been a “long-running sore.”
The committee’s report should be read in the context of that history. The committee is clear in the report that we do not wish to remove the made affirmative procedure. The committee has regularly acknowledged that made affirmative instruments have allowed the Scottish Government to respond quickly to the many challenges that have been presented by coronavirus. However, we want to ensure that bringing such substantial changes, which have often impacted on all aspects of our lives, into force immediately, before any parliamentary scrutiny, should be done only if essential, and that such emergency powers should not, as we often heard from witnesses, become a habit.
We want to ensure that the balance of power between the Parliament and the Government is indeed balanced, and each of the committee’s recommendations seeks to achieve that.
Our first set of recommendations focuses on the clarity and accessibility of law. We heard from Sir Jonathan Jones QC, the former head of the United Kingdom Government’s legal department, that in the Westminster context there were times during the pandemic when
“extreme urgency”
was prioritised
“over the quality and comprehensibility of legislation.”—[Official Report, Delegated Powers and Law Reform Committee, 14 December 2021; c 7.]
The Law Society of Scotland highlighted concerns about the clarity and accessibility of made affirmative instruments that are subject to frequent and significant amendment. It suggested that, when amending an instrument, the Government should produce a consolidated version that shows the whole instrument as amended.
The committee agrees. We want all legislation to be properly and clearly drafted, so that it is legally accurate. It should be easy to find and able to be interpreted by all, particularly given that many of the regulations that were made during the pandemic placed significant restrictions and potential criminal sanctions on individuals and businesses. Our various practical recommendations seek to help to achieve that.
The report calls for a number of changes to how made affirmative instruments are brought forward. The majority are currently laid under the Coronavirus Act 2020 and the Public Health etc (Scotland) Act 2008. Under both acts, it is for the Scottish Government to determine whether regulations need to be made urgently. The University of Birmingham’s Covid-19 review observatory found that the frequent use of the made affirmative procedure since the start of the pandemic has raised questions about how the urgency threshold is operating as a constraint. Others spoke of the potential for use of the made affirmative procedure to become a habit.
The Deputy First Minister told the committee that using the procedure is not the Scottish Government’s default view. He said that he would consider adding a statement of urgency to all made affirmative instruments. The committee has called on the Scottish Government to do just that.
If the committee is not satisfied with the Government’s justification of urgency, it reserves the right to seek to raise the matter in the chamber and to do so quickly. The committee has suggested options for how that might work in practice under current procedures. It has also invited the Standards, Procedures and Public Appointments Committee to explore further procedural options as part of its inquiry into shaping parliamentary procedures and practices for the future. The Delegated Powers and Law Reform Committee would be grateful if the SPPA Committee considered that as part of its work.
I will move on to the section on how the Parliament looks at proposals for made affirmative powers in new bills. That is already prescient, as the Delegated Powers and Law Reform Committee had an initial look at such proposals in the Coronavirus (Recovery and Reform) (Scotland) Bill this morning. Professor Stephen Tierney, who is professor of constitutional theory at the University of Edinburgh, told the committee that adequate scrutiny of the primary legislation that creates delegated powers is a key part of robust lawmaking.
The committee agrees. To ensure that robust approach, we have outlined a set of four key principles that we will use to scrutinise any such proposals. To go back to my opening comments, we hope that they will ensure that there is an appropriate balance of power between the Parliament and the Government of the day.
I will briefly highlight the expedited affirmative procedure. The affirmative procedure enables the Delegated Powers and Law Reform Committee and the lead committee to conduct their respective technical and policy scrutiny roles before proposed changes are made in law. Morag Ross QC, representing the Faculty of Advocates, noted that individuals might scrutinise legislation that is already in force differently from legislation that is still prospective. The committee would therefore be happy to consider with the Scottish Government, the COVID-19 Recovery Committee and the Parliamentary Bureau on a case-by-case basis when the use of an expedited affirmative procedure as an alternative to the made affirmative procedure might be appropriate and what the parliamentary timescales for such scrutiny would be.
I refer members to paragraphs 106 and 107 of the committee’s report. We acknowledge that the Scottish Government did not start out in 2020 with a plan to use the made affirmative procedure 146 times. However, we embarked on this short inquiry because of the importance of proper parliamentary scrutiny, which leads to good law that is accessible to all. I look forward to hearing the contributions in the debate.
15:39