 Welcome to the 14th meeting of session 6 of the Delegative Powers and Law Reform Committee, which is taking place fully online. This follows guidance from the Presiding Officer issued last week to limit the number of people attending Holyrood. I was agreed by the Parliament's corporate body and the Parliamentary Bureau. This is intended to help 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? Moving to agenda item number two, we are taking an evidence session this morning on the committee's inquiry into the use of the made affirmative procedure during the coronavirus pandemic. This is the second of the two planned evidence sessions that are taking place this month for the committee's hears from the Scottish Government in January. I welcome to the meeting Professor Stephen Tierney and the Professor of Constitutional Theory from the University of Edinburgh School of Law and Sir Jonathan Jones QC, former Permanent Secretary of the United Kingdom Government legal department now with LLP. Welcome gentlemen. We are very grateful that we are able to attend virtually today. I commend all attendees not to worry about the turning on of their microphones during the session, as they are controlled by parliamentary broadcasting. With that, I am going to open the session up to two questions. I will start the questioning this morning. Before we move to any specific questions on the use of the made affirmative procedure, do witnesses have any initial observations on the use of the procedure during the pandemic? I will open that up to Sir Jonathan Jones first of all. Thank you very much and thank you for inviting me to join the session today. I think that all I would say is by way of introduction. First of all, just to explain as you have mentioned, I was Secretary of Justice and Permanent Secretary of the UK Government legal department until last year. I was in post at the start of the coronavirus pandemic and I was involved in the early stages of the legal response to that. Since leaving Government service later last year, I have continued to follow this issue very closely, in particular the process for legislating about Covid and the extent of parliamentary scrutiny, or lack of it. I have given a lecture about that statute of law society among other things and I am a member of the advisory panel for the Hansard society's delegated legislation review, which I think that you have heard about from Dr Ruth Fox. I am on record as expressing some concerns about aspects of the way that the UK Government, at any rate, has legislated for Covid, including the lack of parliamentary scrutiny and the speed at which measures have been introduced. I should make sure that my experience is largely confined to the UK Government and the Westminster Parliament, but perhaps I can leave it there for now and we can explore all of that in questioning. Thank you. Professor Taylor. Yes, good morning, convener. Obviously, we are in unprecedented times and Governments are under great strain, but with my other hat on as legal adviser to the House of Lords Constitution Committee, I am aware that the use of this procedure in London is growing. That is a growing issue for all Governments in the United Kingdom. There is clearly an issue of principle in the made affirmative measures. We appreciate that these are challenging times, but the idea that law is made initially without parliamentary scrutiny could cause pause even in difficult times. As I say, I advise the Westminster Parliament, but I think that there is a particular issue for the Scottish Parliament and for any Parliament in a multi-level system, because quite often the protagonist can appear to be the central level of government and there are good reasons for that as a devolved legislature perhaps looks for more powers or resists interference in its competence. However, it is important that the Parliament is not conducting this inquiry and does not take its eye off the ball that a really important task for the Scottish Parliament is controlling the devolved Government in the exercise of the powers that it does have. Final observations in general are that, from my work in scrutinising legislation over many years, I have come to realise that all Governments like powers and they like to get more of them, and they are very clever at expanding the powers that they have and then very reluctant to relinquish powers once they get them. They also like when drafting primary legislation that gives those powers to subject them to minimum levels of scrutiny. It seems to me that the job for the Scottish Parliament, as for any Parliament, is threefold. First of all, to be very rigorous and indeed reluctant in conceding those powers in the first place, secondly, checking that they are framed very closely and that their exercise is tightly limited, and then finally ensuring that mechanisms for scrutiny are very robust. That is particularly the case with made affirmative procedure. Those would be the three guiding principles that I would use for the rest of my evidence. Okay. Thank you for that, Professor Tierney. I am going to hand over to Craig Hoy for some questions, but when I was looking through the papers and also looking at the official report from last Tuesday and also the experience that we have all had over the course of the last, what, near 20 months, it would be fair to say that the experience has actually shown that Governments, whether it is in secondary legislation or otherwise, is it clear that Governments cannot legislate for every single eventuality? That has probably brought along a number of complications and a number of challenges to parliamentarians when we have been attempting to undertake our work. Professor Tierney, do you want to go first? Yes, there is no doubt about that. The points that I made in my opening remarks are points of general principle, because parliaments often have to make themselves unpopular, particularly in these difficult times. The pressure to concede powers when urgency is claimed are pressing. There is no doubt that the Scottish Government, as the UK Government and Governments throughout the world, is under intense pressure and they cannot foresee every eventuality. There is no doubt that that is the case, but that makes it all the more important that, when primary legislation is drafted, the ways in which those powers are to be made, the limits on the content of those powers should be set down clearly. One of the real problems is not simply the made affirmative procedure downstream, but the fact that the primary legislation that created those powers was itself drafted and passed very quickly without adequate scrutiny. I agree with all that. The risk that I have identified is that, having seen Governments necessarily responding at high speed to a genuine emergency, having to do unprecedented things in a hurry, with no opportunity for prior scrutiny, that that may have been justified at some stages of the pandemic at the beginning, when everybody was working out what to do to respond to the emergency. The risk is that that becomes a habit because it is sort of convenient for ministers to be able to legislate in that way. That is the practice that we are continuing to see certainly in Westminster, that throughout the pandemic—here we are, 18 months and so on, admittedly still facing huge challenges. Nonetheless, the legislative response has continued to be—the default position has continued to be—legislate at speed, use the made affirmative procedure or its equivalents. Any scrutiny that happens, if at all, happens only after the event. That then becomes a habit and I have suggested that it is a bad habit. It may be necessary to act in that way in circumstances of a real emergency, but it should not become the default way of legislating when there is more time and space or should be more time and space to consider what the right policy and legal response is. My fear is that it has become a habit. I thank you for that. I will come back on that particular point, Sir Jonathan. Obviously, there are three devolved departments in the UK, as well as the UK Parliament. I do not have any specific example here, but if there were to be in the past, if a particular instrument was brought forward by the UK Government to change the travel restrictions to make things either harder or easier, that was undertaken that way. If the devolved Administrations had decided not to follow suit to then keep things separate, I am quite sure that there would have been political discourse challenging the devolved Administrations as to why the weren't following suit tried to keep things as tightly drawn as possible to have a four nations approach on that particular issue. Would you agree with that? I probably would. It is just an example of a wider point. Nobody is claiming that any of this is easy, but deciding on the right policy response in an emergency and an unfolding challenging picture, which we continue to see, nobody is saying that it is easy to identify what the right legal or policy response is. As we have already said, sometimes it may just be necessary to act very quickly. On the whole, you will end up with better policy and you are more likely to get consensus across the different countries of the UK, which is your point. You are also likely to get better buy-in from businesses and other organisations that are affected by the law if you take a bit of time to get it right and to consult, and if the relevant Administrations and their parliaments have an opportunity to consider and debate. It is easy to say that, and I accept that you practice that it is very difficult to do it at the height of an emergency, but it is true that you are more likely to get a consistent thought through understood policy that people buy into and go along with if you take a bit of time to get it right. Again, where that does not happen, you will get disagreement, you will get inconsistency, you will get unintended gaps in the law and so on, and you will certainly get the position where parliamentarians, the public and businesses and those whose job it is to enforce the law will tend not really to have understood it, will not necessarily buy into it and then you get problems of comprehension and enforcement, which may be what we want to come on to. No, thank you for that. I will hand over to Craig Hoy. Thank you, convener, and good morning, Professor Tierney. I think that perhaps if I could open with use, we heard from Dr Ruth Forbes last week who talked about the impact that urgent and repeated delegated legislation can have on the clarity and therefore the accessibility of the law, and she said in a quote, one problem with the made affirmative procedure is that due to the pressure of urgency legislation is pushed through quickly, therefore the scrutiny and the technical legal checks are missing, therefore the drafting problems get through and you have to either amend the regulations, which further adds to their complexity, or revoke them. In light of those concerns and the potential risks, therefore, Sir Jonathan, of the use of the made affirmative procedure, would you say that in technical drafting terms that there is a tension between drafting at speeds and the clarity of the instrument that is produced, and what, in your experience, can be done to mitigate the risks associated with drafting what can potentially be quite complex legislation at speeds? Well, I do agree with it. It has made me a danger of everybody agreeing with everybody else in analysing what the problem is, but I do agree with that. The hands-off society, of course, has analysed in great detail the patterns around the use of different procedures, but certainly I agree that one of the problems with legislating at speeds is that the drafting will contain mistakes or it will not be as clear as it would have been if more time had been allowed. Whenever I talk about that, I am careful to express a lot of sympathy with the drafters, because I used to be one and I used to be responsible for them. It is, of course, a very tough job to be asked to draft complex legislation when the policy is still being developed, perhaps days or even hours, is still being finalised. Days or hours before changes are due to come into force is a very tough call for any drafter. Particularly over time, what we have seen is multiple layers of amendment that have a complicated instrument and then that gets amended two, three or four times. Inevitably, that becomes very complex and difficult to understand. As we have said and as Dr Fox has said, the risk is simply that errors creep in. There have been plenty of examples of that and examples in which the hands of society has identified of amending instruments needing to be brought forward very quickly and so on. None of this is good for the comprehension of the law or for its enforcement or for clarity and so on. It is easy to identify the problem and it is inevitable that that will happen when you have policy responses being finalised very quickly and the law having to be drafted very quickly. It continues to happen. The most recent regulations in Westminster, the ones dealing with the Covid pass so-called, were made and laid yesterday and they are coming into force tomorrow. The latest face covering regulations were laid at 5 p.m. on the 9th, coming into force on the following day. I have talked about the risk of bad habits. The pattern of speed continues to be evident. It is easy to identify the problem. What is the solution? The solution has to be where possible to allow more time for the development of the policy for testing—ideally, it is scrutiny—by relevant parliaments and more time for the drafting. It is difficult to assess the question of judgement as to how long is long enough when you are balancing the need to legislate quickly. The question is how quickly. Not everything is an absolute emergency. Your balancing the need to legislate nonetheless relatively quickly with the need to get the legislation right both in policy terms and in drafting terms. It is easy to say that my feeling is that we have got the balance wrong too often over the course of the pandemic in recent times. We are continuing stills to prioritise the extreme urgency against the question of quality and comprehensibility of the legislation. Should it be accepted that, on some occasions, the urgency of a situation and the need to have the legislation in place takes precedence over clarity and that can be revised later? Can you think of any examples where you would say recently that that has been the case? Again, an unclear law has been better to have no law at all. Those are difficult policy judgments and it is not for me to second-guess the policy. However, if you go right back to the beginning of the pandemic, probably, if you are going to introduce a lockdown, the highest kind of emergency one can imagine is a very tight lockdown. That is going to need to be done pretty quickly, possibly in hours or within a day. I accept that that may be the case when you are at the height of an emergency and possibly it was then. Ironically, it is probably true to say that legislating for very, very tight controls and legislating effectively for a lockdown are only minimal exceptions. It is easier to draft very tight, very clear laws than it is to legislate as we saw later on in the pandemic for partial closures and multiple exceptions, and then you are making distinctions between air salons and paropathists and so on. You have got multiple policy judgments to be made. My suggestion would be that, where you are into that phase of a pandemic, probably it is not quite so urgent to legislate today or tomorrow and you should take a bit longer to get it right. I appreciate that. Professor Thierney, we heard from Morag Ross QC last week who raised fears about the repeated use of delegated legislation on the accessibility of the law. She said that the more instruments are made and the more the ad to qualify revoc in whole or in part update existing regulations, the more complex the picture becomes. She is going to say that repeated cycles of changing this or that are not conducive to accessibility. In light of the fact that when delegated legislation is made urgently and comes into force before being considered by Parliament, does that in your opinion, Professor Thierney, lead to challenges involving the accessibility of the law? What would your specific concerns be in relation to that? I think that it does, Mr Hoy, but to some extent the made affirmative procedure can become a bit of a straw man here. I think that Sir Jonathan has elucidated this clearly, that the issue is a much broader one. The issue really is one of constantly expanding executive power. Through wider delegated powers, the increased use of Henry VIII powers, so powers to amend primary legislation, if what you could call Super Henry VIII powers, which we are now seeing is the power to amend the parent statute itself, powers through regulation to create guidance rather than regulations themselves, which are very difficult to enforce legally. The real problem of made affirmative is one of principle in that the law is being made with no scrutiny. At least it is subject to affirmative procedure somewhere down the line, so a Parliament has to actively engage with it within a certain time period. The problem with a lot of the other powers is that they are made through negative procedure or, as I say, through guidance, which are often subject to no parliamentary scrutiny after the event. When we, in the Constitution Committee in the Lords conducted a long inquiry into the legislative process, we talked a lot about the need for proper policy making that Sir Jonathan has touched upon pre-legislative scrutiny in the making of the primary legislation, where those powers are themselves first created. Without that, those problems do emerge. I do not want to take too long, but I will give an example. I am looking at the nationality and borders bill at the moment. Immigration law in the United Kingdom is an absolute minefield of complexity. It is a problem of lack of accessibility, incomprehensible combination of primary and secondary legislation. It affects them often those vulnerable people in society, often who do not have English as a first language, and legal practitioners tear their hair out trying to make sense of immigration law. Most of that was made with no urgency whatsoever, but it is very difficult for consumers to use that term. The urgency with which a lot of those powers are made is a problem, but the Parliament needs to have a wider overview of the general problem. The habit that Sir Jonathan talked about of Governments throughout the UK is acting in this way very quickly, often because they have not got their act together to draft things properly on time, and then using urgency as an excuse. It is often late drafting rather than urgency, that is the real issue. Justin, I am sure that there is probably not a formula that applies to it, but would your general impression be, Professor Taney, that the more a law is amended, the less accessible and the less understandable it is? It is certainly the case. The other risk is that a lawyer should be able to go into current statute and find the amendment. Tech has made it much easier to identify what the recent provisions of a statute are, but certainly when you get into the world of having to look at delegated statutory instruments as well, that can be problematic. A big problem is that we now have a number of different parent statutes being used to make these instruments. You have got the Coronavirus Act being used, but you have also got the Scottish Act being used, and then other public health-related statutes. The danger is that you find inconsistency among the different regulations, and I lack of clarity can creep in simply because you are having to look across a number of different instruments to try and find out what the law is. It becomes entirely Byzantine, and you are adding layer upon layer of complexity. I think that Coronavirus and Brexit have both simply brought to a head what has been a much longer term problem through the different parliaments in terms of the growing complexity of law. Thanks, and if we could just ask that same question to Mr Jonathan as well. Well, again, boringly, I broadly agree with what Professor Tierney has said. I mean, complex policy will make complex law. I mean, only so much of the responsibility rests with the drafters. Of course, at various stages of the pandemic, we have seen very, very complex policies with, you know, certainly in England, we've had tiers with different rules applying to different tiers, we've had exception upon exception. All of these probably for understandable policy reasons, but, as the law has got more complicated, we have seen different judgments as to what types of organisation needs to apply, what rules are exempt from them and so on. That produces complex law. It produces complex policy, and it produces complex law. It also is capable of producing controversial and sometimes rather inconsistent law, so I jokingly referred to the rules on face covering being different for properties as compared to hair salons. There may be good reasons for that. That may be a bad example, but you get the point. As you get complex policy and difficult judgments being made about who is in and who is out, inevitably that leads to quite complex drafting and you have to have exceptions and you have schedules and so on, and that's what we've now ended up with. The additional problem that we keep coming back to is when that is produced at speed, there is a greater risk of purely drafting errors slipping in or simply the legislation being more complicated and more difficult to follow, and that we have also seen. The final point is that where you have, as we've said, multiple layers of instruments and mending one another, it can be very difficult to follow the cumulative effect of the amendments. One of the solutions to that, which I and some others have suggested is not a new idea, is that when you're doing that, you should at the same time produce a consolidated amended version of the whole instrument so that you can see what the law now looks like in one place as amended. That's extra work and there may be good administrative reasons why it's quite difficult to do that, but there is no doubt that some kind of approach like that will make it easier at least to follow the effect when you have that kind of community of repeated amendment. The gov.uk website does that in time, so it can happen and it certainly helps. Again, if you're doing this at speed, it can take a while for that to be done. Looking the other day at the amendments to the face coverings regulations, all you had to go on was a very complicated instrument that was amending another instrument that had been made a few days before and so on, and that's all very difficult to follow. Thank you, Mr Jonathan. You've made a complex situation very clear. I will hand back to the community of that. Thanks very much. I'm going to head over to Graham Simpson. Thanks very much, convener. It's good to see both Professor Tania and Jonathan. I just want to give you some figures that may highlight the scale of the issue that we're dealing with between 2011 and 2019. Here in Scotland, there were nine eight affirmative instruments, and between 20 March 2020 and 2 December this year, there were 132. It's absolutely exploded. Most of them were Covid-related, but not all, but the vast majority were Covid-related. Just picking up on the point that you both made about the complexity of law, I completely agree with that. It does become extremely difficult for people to follow unless it's consolidated, which it generally isn't. I certainly isn't here, and I suspect it's not in Westminster either. As a personal point of view, I agree with what you said, Mr Jonathan, that we should move in that direction because the law needs to be understandable. It's okay for you guys and your experts to probably work things out, but most of us are not in that position. It needs to be easily understood, particularly when you're making those laws at speed and you're expecting members of the public to know what's going on or you're expecting businesses to know what's going on. You made comments to the statute law society on the rule of law and subordinate legislation. I enjoyed reading those comments. There was a good deal of humour in them, but you've covered some of the points. Many of the reservations that some of us have are over those instruments. You've called for a reset, which you've done again today, but rather gloomily you've concluded that you won't hold your breath for that to happen. Unfortunately, I have to agree with you on that. If you give the Government an inch, it will take a mile. I'll start with Sir Jonathan on that. Well, thank you for your remarks about what I said to the statute law society. Well, I'm just one voice, but I'm not the only voice. You've heard from the Hansard society and the review that they have established. What we've also seen is the beginning of a debate. You're obviously having it, there in Scotland, but we've also seen it in London. I think that you've seen the two reports of the House of Lords scrutiny committee. The exercise in which the Hansard society is leading has input from members of both houses of Parliament. Interestingly, those are people that come from all parts of the policy debate on Covid. I think that the Government has gone too far. There are people who think that it hasn't gone far enough, but the one thing that they agree on is that there needs to be a property debate and there needs to be better scrutiny. We are seeing at least the beginning of a healthy conversation about that. I think that the feeling is, as I've said, that the Government has gone too far and it has taken a while. All the Governments have done that. It's understandable that, in response to exceptional demands, both Covid and Brexit, for good or ill, have placed exceptional demands on Governments, and that's led them to do exceptional things at exceptional speed. That's understandable. It's also understandable from a kind of political human view, but when it's sort of easier for a Government administration to legislate in this way, then why wouldn't you? That's what we've seen, I think. That's my point about bad habits, because they're convenient. All of that is understandable. For it to change, it will need a whole combination of things. It will need leadership, it will need political leadership, it will need behavioural change. It will certainly involve members of all the Parliament, if I can put it this way, with that patronising and searching themselves. As Parliament trains are starting to do and as scrutiny committees are doing, it will take all of those things. I'm not saying that it will be easy, because, in the end, you're up against Government, which is certainly speaking for Westminster, you've got a Government with a strong majority. It may now be under challenge on some of those things, which I say that at least there's a debate whatever you think about the merits of the measures on Covid. That there's a debate is a good thing. It will take all of those things to happen for this to change, but some of them are starting to happen. That's why I think it's a good debate. I welcome this session, I welcome what the Lord's committees have done, and I welcome what the Hansel Society is doing. Nobody is saying that it's easy, nobody is saying that it's a quick fix. It will require this kind of debate and process to happen. Professor Teaney, I suspect that you agree with that, so can I ask you something slightly different in that case? You've both touched on it earlier. The question is, do you think that we're actually in an emergency right now where we have to legislate at such speed? I'll give an example, we here in the Scottish Parliament, we have legislation to deal with vaccine passports. That committee pushed back on that, it was eventually put through under the main affirmative procedure, so at least when Westminster is getting a vote on it, we didn't have that luxury, pushed through at speed and yet it had been planned for weeks. Are we actually in in this emergency that we're clearly in at the start of the pandemic that justifies the use of the main affirmative procedure? That's to you, Professor Teaney. Thank you, Mr Simpson. I'm sorry that I didn't get to answer the give them an inch, take a mile point. I'm not stopping you. I was going to say that if we don't just take a mile, we define in regulations what a mile means and then set up a public body to change a mile into a kilometre. Absolutely, that's what Governments do. That's a serious point. When any Parliament gives those powers, you have to remember that you're giving them to very, very clever civil servants who then interpret them very, very broadly. Quite often, they were the ones who drafted them in the first place, so they know exactly what they intend to do with them. I think that you asked three responses to the second question, which is that Parliament has to be very robust in these situations. It's very easy for a claim of an emergency or a natural disaster. There was a very famous case during the Second World War in which the Court of Appeal said that, amid the clash of arms, the law is not silent. Parliament should remember that, amid any pandemic or any urgent process like Brexit, Parliaments cannot remain silent. Parliaments continue to have a job to do to scrutinise the executive. In fact, that job is more important during these situations because the powers that are being given are more significant than in normal times. I think that there are two questions that arise as to urgency. First of all, what is an emergency situation? We have tended to get into a situation in which we leave that to the executive. If you look at the European convention on human rights article 15 that talks about emergencies, going back to the post-September 11 situation, that was left to the UK Government to define what was an emergency in that case. That was challenged very robustly. I think that Parliaments should be really strong in saying, is this actually an urgent situation or is it urgent because you've taken so long to draft measures or you've sat on the policy for so long? Once Governments know that they can do that, then what's to stop them bringing forward measures late and claiming that it's an emergency? Finally, who defines what an emergency is? It's not just the objective test of what is an emergency but who gets to define it. In primary legislation, if you look at the coronavirus act 2020, it was set out in very vague terms what the test was for the use of this power. Parliaments really need to pin down much more rigorously what an urgent situation is. I'm sure that you'll come on to other things such as sunset clauses. The things that are expressly excluded from the use of these powers, there is a whole raft of things that Parliaments can do to curtail the use of these powers, but it's important that Parliaments at this stage develop codes of practice for that. That's very useful. I'm now going to ask you about possibly introducing sunset provisions and any other thoughts that you might have that would improve transparency. I think that the convener might want to explore later the matter of whether things are urgent or not, so we'll leave that to him to ask. If I can ask you about introducing sunset clauses, would that be good? Have you got any other thoughts on how we could improve transparency? Seeing as you mentioned sunset clauses, Professor Tain will start with you. I think that he can serve two purposes. You can have a sunset clause in the primary legislation itself for the use of the powers, and that is there. We see that in the UK act and in the Scottish legislation, so much so that your own Parliament has recently passed another primary extension act. I think that that's all good. I think that the fact that the primary legislation and the primary powers run out is important. You have to be careful of extensions. If you put in any room for extension that will be used, you can see that in the Brexit legislation as well. When you put in an extension power, you might as well say that the sunset clause is the end of that extension power, because it will all certainly be used. The second way in which a sunset power can be used is in relation to the instruments themselves after they are made. I think that that is an important consideration. It might also deal with the complexity point that we are talking about. If you really need a made affirmative measure for a very urgent consideration, why not bind that in time to run out at a certain point so that not just the power runs out but the instrument that has been made runs out? I don't see a reason not to include that within legislation. A final point is that we should not allow those powers to be reused. If it is so urgent that a made affirmative measure has to be used on the first occasion that a power is used, there is absolutely no excuse for 40 days or six months down the line to use a made affirmative measure again. I think that there will be three qualifications that would help. Before it comes to Sir Jonathan, would you put a time period on what the sunset clause should be or should it depend on what the regulation is? In a sense, there was a 40-day period or a 28-day period, depending on which Parliament for the made affirmative to be approved, but it would depend on the circumstances, but possibly a six-month period, unlike the period that is put in the use of the power itself. Sir Jonathan? I don't really have much to add to that. I think that, certainly, sunset clauses should be part of the armory by which we control the use of those extreme powers. We are talking just about what is the right balance to strike in situations in which there really is an emergency and ministers therefore need to act very quickly. We are ensuring that there is some kind of proper scrutiny or a later opportunity for Parliament to come back and revisit the issue, and sunset clauses, I think, achieve that. On the question of—maybe we will come back to that—who defines what an emergency is? I agree with what Professor Tierney said about the need for the enabling legislation. That question arises, first of all, in the enabling legislation, but, secondly, assuming that, in the end, somebody has got to be able to decide when something is an emergency and, therefore, when procedures are short-circuited, and that probably is going to end up being the minister, you get the test as tight as you can. Therefore, I think that this is a suggestion that was made by Dr Fox. You allow—you make provision requiring the minister, in some way, to explain and be held accountable for relying on that test. Those are all examples of ways in which you balance our very wide powers with some kind of constraint and some kind of accountability, and I think that sunset clauses are definitely part of that. That takes us seamlessly back to the convener. Thank you very much for that, Graeme. On the matter of urgency, as has already been touched upon, as you said to Jonathan, we were covering some Dr Fox and the committee last week. Do both witnesses have any type of framework or any type of recommendations by way of the definition of urgency or what the mechanism should be put in place that Governments have to follow before utilising the made affirmative? Well, I don't have a draft sitting in front of me. Let's be honest, any draft, any definition, is going to have to allow some kind of margin of interpretation and judgement for the person making the decision. However, no doubt there are ways in which one can confine and define a definition of emergency so that it really hits the things that you're worried about, but if you're talking about a public health emergency, there are only so many ways one can define that. More important than that is how you hold the minister accountable for the judgment that he's made that there is indeed such an emergency. I think that much of that was touched on by Dr Fox, that requiring a public explanation of the reasons rather than just a statement that there is an emergency, setting out the reasons, setting out the evidence for it within reason, possibly requiring, even in conditions of real emergency, requiring the minister to make a statement in Parliament there and then. If ministers can give press conferences, they can go to Parliament, and some provision, even at that stage, for a debate of questioning in which ministers can be held account of the judgment that they have made, even if it can't at that stage be overturned, these are all salutary mechanisms. Again, they are all about achieving balance, but when you're giving very wide powers in the end, potentially a wide discretion to a minister to decide that something is an emergency, least you're requiring that minister to come to the elected assembly and to explain the reasons why they've reached that decision and be held accountable for it. Some version of those things, I think, could just help again to reset balance. I'll come back to that in a moment, Professor Timmy. Yes, I agree that it's very difficult to take the definition of an emergency or urgency away from a Government. Let's be very clear here, this is a very difficult issue. No one's suggesting any wave of impropriety on the part of Governments when they respond to this health crisis. Everyone's trying to do their best, I'm sure. The issue then becomes much more of a downstream one. We saw that even with article 15, which says that the emergency has to be threatening to the life of the nation. Governments use that. We accept that in some of the anti-terrorism legislation, so it's very difficult to imagine this being second guessed, for example by our courts. I don't really see any role for that. The real issue then is what powers are you giving to Government in that situation? What can they do with them? That really has to be something for which the Government has to be accountable. You can restrict it by how long they can use those powers. You can exclude specifically certain things that they cannot do. You can't create criminal offences. You can't deny people's citizenship. Whatever it might be, there are certain things that you can build in. You can't fundamentally violate the human rights convention. You can also build in scrutiny after the event. I think that those are the important dimensions of it. It's not so much that there is an emergency, but it's a broader question of what powers you're giving to Government and how robust Parliament is in checking what they're doing with them. We've lost your sound, Professor Tierney. Sorry. Can you hear me now, convener? Yes, can I now? Sorry. I think that I'd finished, but I was simply saying that the crucial thing is that the Parliament is really scrutinising what Governments are doing with those powers. I think that another big issue is that the primary legislation—I come back to this point—we can take our eye off the ball with the made affirmative procedure. It is, as a mark of principle, problematic, but in many ways Parliament has longer scrutinised those made affirmative instruments after the event than it has often to scrutinise the primary legislation that created those powers, which often passes through Parliament in a day or two. That's where the really hard questions have to be asked. Should the legislation be passing so quickly, and should it be brought back very quickly for thorough post-legislative scrutiny, the whole bill, which I think is something that we should really be thinking about in those major pieces of legislation? We've lost sound again, Professor Tierney. Sorry. I'd finished there. That would be. I'll just go back to Sir Jonathan. Sir Jonathan, you had made some suggestions by way of—sorry—Professor Tierney. I think that you're still talking there, but there's no volume coming through. Are you finished? Sorry, no. I'll re-mute myself. Okay, no problem, thank you. Sir Jonathan, you spoke a moment ago of some aspects and some things that could happen by way of or trying to have more scrutiny and an old game, Simpsonland, given the example earlier of the Covid passport when that order came into the Scottish Parliament. I'm not sure if you're aware, but prior to the order, the final order came into the Parliament. There were statements that took place in the chamber and questions to the relevant minister, and the Parliamentary Business Minister came in front of our committee and took questions from the committee. There were a few things that actually did happen in that particular instance regarding the pre-scrutiny. I accept not so much scrutiny of the actual order, but there were opportunities to have that dialogue and have some of that scrutiny to the relevant minister. Clearly colleagues might not have been happy with some of the responses from the minister, but that will happen in every single Parliament. That particular situation hasn't happened in every single made affirmative that has come into this Parliament. I can't comment about elsewhere. I wanted to be aware of those actions that took place, because it clearly was an instrument that had a lot more public interest to it as well as political interest to it, compared to many other of the made affirmatives that have come into the committee and the Parliament. I have a question to both Professor Tierney and Sir Jonathan. On the issue of legislation and the legal requirement to provide the evidence of urgency, I think that, from what you said, it is clear that more information should be presented and should that be put on a legal footing. If that is the case, do you have any examples of existing legislation that can help with the situation that we come to face? Clearly Covid is not going away any time soon, so we will be living with that for quite some time to come, whether it is in the emergency situation that we currently have or, at some point, further down the line when society has returned to a more normal state. It is very difficult to think of other legislation where Governments have had to define precisely what they mean by an emergency. I think that the issue is not so much in defining an emergency as an issue. The health crisis is what it is, and there is no doubt about that in many ways, but it is what you do in response to that. I think that that is what requires justification. Yes, we have a pandemic, but if you are going to pass those instruments, which of them genuinely need to be made without any parliamentary scrutiny and why? Why does that have to be made into law without any level of parliamentary scrutiny and why could it not have been brought forward earlier? It would be possible for Parliament to draw up a very rigorous checklist that is equivalent of the delegated powers memorandum or human rights memorandum that Governments have to submit ahead of legislation to show that they have done due diligence on those fronts. We are now at the stage that this pandemic has been with us long enough whereby Government bringing forward legislation without parliamentary process should explain that this is an extremely exceptional situation that Parliament cannot even get a few days or a couple of weeks to look at something. There should be a checklist of explaining exactly what the power is to be used for, why it is so urgent and why it could not have been brought forward earlier. Some form of pre-legislative memorandum accompanying each instrument is explaining very clearly why it is so urgent. It is maybe one way for Parliament to get some initial scrutiny. If Parliament is unhappy, there should be a process to call this measure in for proper scrutiny. I cannot think of a specific example, but I do not see why you could not have a combination of a legal requirement and a parliamentary procedure that requires the minister, when relying on very urgent powers, to explain why the parent statute could include a requirement that says that, when the minister has determined that a situation is particularly urgent, he must set out and publish an explanation for the reasons that he has reached that decision and why he thinks that it is necessary to legislate in reliant on that urgent procedure. That might be backed up by a method of parliamentary accountability that means that he has to come to Parliament and explain the reasons for that. I think that there are mechanisms that one could have for doing that. That is recognising that the existence of an emergency may itself be politically, or at least the extent of the emergency, might itself be politically controversial. Maybe everybody accepted right at the beginning that there was a coronavirus emergency and all Governments needed to act quickly. The reason why having this conversation is that, down the road, at various stages, views have differed, and they differ today as to how grave the emergency is, first of all. Secondly, whether the emergency really justifies relying on urgent procedures for particular measures—that is the debate that will be happening in the Westminster Parliament about whether the Omicron variant has heightened the emergency to such an extent that we now need to introduce new measures on Covid passports and further restrictions on face covering and so on. The very fact of the emergency, or the extent of the emergency, is itself politically contentious. All the more reason why, if ultimately you are giving powers to ministers to decide that they should be accountable for them and that there should be at least some opportunity, however urgent, for a debate around that. I haven't got a template, but I think it would be possible to devise a combination of legal and parliamentary procedures requiring that. I have just one question about the emergency that was touched upon on September 11. As I was preparing for today, it struck me also regarding the events of 9-11 and the mad cow disease that came into the UK. Are you aware of any measures that came in particularly regarding made affirmative? Any particular measures that came in that referred to any other aspects of scrutiny that came in along with the made affirmative clearly relate to the events that they were. They clearly had an impact on life ever since. I agreed that there were huge emergencies and that they led to very extensive legislative responses. I am going back to the point that Professor Tinney made earlier. The debate that was made affirmative is just one example of a wider debate about how Governments legislate in an emergency and what is the role of the Parliament in that. I cannot often think of examples of particular procedures that were used in response to 9-11 or mad cow or those other things. From memory, the legal response to 9-11 was, of course, intensely controversial, not least the treatment of suspected terrorists and so on and what you do about people that you cannot try. We had the control orders and TPMs and all those measures, intensely controversial they were and they all needed primary legislation. I do not think that, to anything like the same extent, was their reliance on pre-existing emergency legislation to do things by—I am not saying that it did not happen and I have not got the details in front of me—but the main legislative responses, controversial though they are and in many ways still remain, would have been done by primary legislation. Sometimes, certainly at speed but nonetheless in a way that allowed at least some measure of parliamentary debate and scrutiny. It is an example of the same thing but I suspect that it is less an issue about using secondary legislation or made affirmative. For good measure, many of those legal responses ended up being challenged in the courts and in some cases successfully challenged. Precisely because they involved very delicate controversial balances between responding to an emergency and the effect on individuals, liverties and so on, and those are difficult judgments. They needed legislation but very often the legislation was itself challenged. A couple of reflections. One is that the Anti-Terrorism Crime and Security Act 2001 introduced a power but the power was largely to detain people without trial. Mercifully, the Human Rights Act and other civil liberties law was in place whereby that could be challenged by individuals before the courts. All that we have seen in the time since then is that delegated powers—I think that Sir Jonathan is right—lawmaking powers were not a big issue in the 2001 act but they have become such a banality now that we almost take for granted wide Henry VIII powers, guidance making powers that are not subject to any scrutiny by the courts. Those have now crept into our legislation. It has been exacerbated by the need for an urgent response to Brexit and now an urgent response to the coronavirus. There are potentially very wide civil liberties issues emerging from those that are not being properly addressed. We have seen court cases on closing of churches, for example, that have been challenged. There are restrictions on people's liberty in the lockdown measures. Those are not typically now being challenged under human rights legislation with any success. We need to take into account the broader picture that, over those 20 years, exacerbated by the two huge events in our country's history, has led to the accrual of extensive executive powers, which, in 2001, would have seen breathtaking powers in many ways. I think that this inquiry and other related inquiries are an opportunity to sit back and say that this is not just about made affirmative. Maybe the Scottish Parliament needs to have a real thorough inquiry into the broad use of the delegated powers more widely and the extent to which Brexit legislation and now coronavirus legislation is empowering the executive for too much at the expense of Parliament. I am just looking at the handover to Gim Simpson. I will comment just one thing. Clearly, Dr Fox, on the record to our committee last week, indicated that this type of debate has been going on since the early 1930s. It is obviously not a new debate and, clearly, nobody has managed to get to a successful outcome over that period of time. I would also imagine that, even if a successful outcome were found at some point in the past, different events happened and different solutions are then required for those also. Professor Tennant, you are on mute. Sorry, yes. I want to qualify what we are saying. The reason why this has been an issue since the 30s is because we have bigger Governments since the 30s, much of which has been a great thing. We have a welfare system, we have a health service and we have all of these things that require big government. I do not think that anyone is arguing that Government should not be given power. Government should be given power. We need Governments to do things. I think that what you are focusing on is Government being given law-making power and Government being given law-making power that is not subject to scrutiny. I want to confine my remarks to the constitutional issue. I am not entering into an ideological criticism of big government. There are very good reasons why we have big government. Jonathan, do you want to come in on that and then I will move on to Graeme? I want to share the reflection that this is not a new debate. It has been going on as long as you have had secondary legislation and it is not going to go away. The use of secondary legislation is now well established and, in many ways, is a perfectly sensible part of our system of making law. You could not go back to the day when every minor change of the law had to be done by primary legislation. The debate will go on forever. It is about what the right balance is and what the checks are when you confer those powers on ministers. That is the debate that we are having. As everybody accepts, that debate has been thrown into new relief and you gave the stats from Scotland. As a result of the demands of Brexit and Covid, that is why it is a good thing to have the debate again. It is not a new debate but we should have it again because it has now become just more salient because of those things. Graeme Simmson, on our supplementary question. I just want to ask a quick question around this urgency question. If we were to develop a procedure where a minister has to justify why something is urgent, you could imagine any minister just seeing it as something that they just have to do—a bit of a tick box exercise. Maybe they might have to go along to some bothersome committee, but they will just get through it. At the end of the day, they decide that it is urgent. Should we build into any system the power of veto for Parliament and or a committee? I will ask that to you both. I will start off with Professor Tini. Yes. With respect, Parliament does have a veto in not giving the power in the first place in the primary legislation. I appreciate that that is a bit more attenuated in this case since the initial power was given by Westminster in the coronavirus act. I do think that the first step really is for the Parliament when these powers are being given to really question how they are being drafted and how the definition of emergency is being drafted. It is possible simply not to pass legislation on that basis. The issue is not so much the definition of an emergency but what happens pursuant to it. It is very important to put in, by virtue of having a set of principles, what does not go into those powers. For example, they cannot be used to create criminal offences. They cannot be used to impinge upon the human rights act or convention rights under the Scotland act. They cannot be used to change primary legislation. They cannot be used to create public bodies. They cannot operate retrospectively. You can have a whole series of very quick qualifications that go in in relation to any power that is claimed in relation to an emergency or in relation to a power that is going to be exercised by made affirmative procedure so that you are immediately excluding a whole range of possible abuses. That would probably be more useful than trying to second-guess what emergency means, because, as a number of people have said, a test that the Government will assert, and it is a test that, as we now know from the courts, the courts are very reluctant to second-guess. Mr Johnson, you referred to the risk of any test being a tick-bop. I think that what I have suggested and what Professor Tune suggested is that you could have something that is more demanding than that than we have now, which is basically just assertion. That requires some kind of explanation and evidence in some kind of debate. There is a risk that even that becomes just a sort of charade. I think that we have to hold out some hope that accountability means something. Even if it does not involve a veto, having properly to account as a minister for the judgment that you have made is worth doing and it tends to concentrate minds and it will create better, ultimately, over time, better decision-making and policy-making. I am trying to hold on to that truth so that even that kind of control will be better than a tick-box and it will be better than we have now. As to whether you then build in, as it were, a veto, I think that I am probably with Professor Tune, which is that you just have to—again, if you are in this system where ministers in the end sometimes just need to act very quickly—or simply that there is not parliamentary time to allow a full debate and a vote on every single instrument, then you have to decide what are the things where you need that heightened level of control, where you need Parliament to positively devote for or against something. Professor Tune suggested a list, and the list that I suggested in my lecture is not so very dissimilar. There will be some things that you just do not allow a minister to do on the nod and there has to be a debate on or some heightened kind of scrutiny. Then you have a debate about—again, Professor Tune said—you have a debate at the stage of conferring the power as to where you draw the line and how much leeway you give the minister, so that there is some combination of those things that I would suggest. Thank you very much, convener. Thank you very much indeed to both of our guests. I am not going to take you back over everything that you have said. You will be very pleased to hear. However, more IQ Ross QC, when she was speaking to us recently, emphasised the importance of parliamentary democracy and the rule of law and how there was a perceived increase in executive power. It was not about Covid, it was basically on observations of whether there is a more general shift away from legislative power towards the executive power. If so, why might that be the case? If there had not been Covid, do you think that in general terms in the Governments in the UK there has been a more general shift away from legislation through parliamentary debate and the committee system towards the executive power? I do not think that there is any doubt about that. My principal experience is that Westminster is advising the Constitution Committee, but I take a very close interest in the Scottish Parliament's lawmaking. There is no doubt that there are far more delegated instruments than there are ever were. There is no doubt that there are far more Henry VIII powers in legislation than there used to be. I see that even in the six years that I have been doing that job. As I say, there are now super Henry VIII powers that allow for the amendment of the parent statute. There is the giving of guidance powers whereby ministers can effect and create rules that are not necessarily legally enforceable, but they are very restrictive, as is to say, for example local authorities. We see them in the immigration rules in relation to nationality law and powers to set up public bodies that we see all the time now in Brexit legislation. There are reasons for that. We have talked about urgency and the fact that, after Brexit, there has been a need to deal with 20,000 or however many instruments there are that are retained EU law. All of those are undoubtedly pressing concerns. However, in many other ways, it is simply convenient for the Government to kick the can down the road as to what rules it will need. Putting it in delegated legislation makes it much more convenient because you are not subjected to scrutiny and headlines at the time that you pass a bill. It suits civil servants who can draft the rules that will take effect at their leisure later on in response to issues as they arise. There are all kinds of reasons why that has happened, but I think that the very fact of it is irrefusible. I think that it is potentially very dangerous. Just on the back of that, do you believe that scrutiny by the committees in the systems that we have such as this committee and say even the Covid-19 recovery committee, do you believe that potentially they could be afforded a greater opportunity to take their debates, their scrutiny towards fulsome parliamentary debate, which would circumvent, to some degree, the executive domination of those powers? The Scottish Parliament is already in a slightly difficult situation because of its unicameral nature, and that does undoubtedly Westminster for all the faults of those of lords that I am sure many members will talk about. It is a check, and it operates as a check, and it has specialist committees that will conduct review of delegated powers, so there is a dedicated delegated powers committee—of course, you also have—but there is also the constitution committee and the joint committee in human rights, which is overseeing those powers on a regular basis and doing a second level of legislative scrutiny. I think that that is already a difficult situation to be in. I am sure that every committee is now overwhelmed by the volume of work that you have. I am not inclined to blame parliaments for this at all. I think that parliaments are doing the best job that they can. There may well be measures that they can bring forward to try and draw this to the attention of plenary Parliament more fulsomly. I think that there is need for a broader inquiry into the growth and the creep—executive creep—in the granting of those powers and the exercise of those powers. I am sure that there are procedural mechanisms that you could use to draw those to the attention of Parliament, but I think that the overwhelming issue is that resources will get in the way. I am sure that you must be overwhelmed by the volume of that stuff. I agree with Professor Taney's analysis of the trend. I agree that that is irrefutable. Part of that is simply the politics, and in Westminster, which I am most familiar with, you have a Government with a strong majority. Hitherto has shown that it can control the House of Commons and therefore limit scrutiny, and that is what Governments tend to do when they can. I agree that the scrutiny committees play an important role where scrutiny cannot be done on the floor of the house because there is no time and teachers do not allow for it. There has been some first-class work done by some of the scrutiny committees, both in the Lords—we have mentioned them—but some of the Commons committees, I gave evidence to the Justice Committee not long ago. There is valuable scrutiny being done there. It is not the same as requiring ministers to come and justify and let alone have a vote on what they are doing. The other point is that it is very difficult to go backwards when you have seen a trend like that. I have been a civil servant for many years, I know what it is like. You have developed a clever new way of conferring powers. You have got precedents for Henry VIII powers. The next time a bill comes along, you cleverly devise a yet more extensive Henry VIII power, and the Government gets it through because it has a majority. However, you have got a precedent, and it may be very convenient to use it again. The direction tends always to be one way, to ratchet it. What Government is then ever going to give up that kind of control and go backwards and actively choose more scrutiny? That is the truth that you tend to go in one direction. However, all the more reason to have this conversation and ask whether it is in the wider benefit of good governance under any political party. Does that make for good law and good governance and public confidence in the law? I think that we are saying on the whole that it doesn't. Thank you, convener, and thanks to our witnesses for giving such comprehensive and expert evidence. It seems to me that perhaps that is all a function of the lack of a codified constitution, that is perhaps a more fundamental debate that we need to have. However, I was intrigued by the issue of introducing a sense of a defined urgency as a check. Could that potentially be a lever that could perhaps stop the ratchet moving further forward? How might that actually practically impact on the future exercise of executive power? I would like to direct that question in the first instance to Sir Jonathan. I think that when we have talked about what form a kind of urgency test might take, I think that there is scope for doing something wider, which could include that, but which could include other constraints. Again, there is a kind of shopping list that I and others have suggested. Ways in which you constrain the exercise of those powers, ways in which you impose controls on them and greater levels of scrutiny, some of that could even be done—I mean, the Lord's committees have simply recommended revising the guidance on legislation that is in Westminster, in Whitehall, is developed by the Cabinet Office, that we just have a change of behaviour on the part of the civil service. Some of that could be done relatively informally. I have suggested that we should go further and have a new statutory instruments act. We have a very outdated statutory instruments act of 1946, which basically sets out a framework for statutory instruments, but I have suggested that what we could do with is a statute that contains many more controls around how secondary legislation is made, what procedures apply to it, potentially even how it is published and printed and so on. That is not a written constitution and under our system such an act could later on be changed and overridden, but it would certainly be a reset of the kind that I have suggested. Again, talking from a Westminster perspective, I certainly think that it would be worth doing that. I agree that an option would be some kind of legislative code, so there is a ministerial code that regulates ministerial conduct. There is now sufficient agreement among people as to what is good and bad practice in the drafting of legislation in terms of how delegated powers are drafted, Henry VIII's clauses and so on. I think that a legislative code that drafters could use, which would point out that certain approaches are exceptional and can only be used in very exceptional situations, which must constantly be justified. We already have that in delegated powers memoranda, but something that really shows it to be unacceptable and acceptable in exceptional circumstances is the way to go. I think that civil servants are drafting things based on what previous people have done. They are trying to do things quickly, they are trying to do the will of the minister. Often from conversations that we have behind the scenes with bill committees, with drafting teams, they do not see anything wrong with that stuff. It is not as though they are trying to pull the wool over Parliament's highs. A clear, transparent legislative code that sets out what good and bad drafting from a constitutional perspective is would at least set the tenor. It would allow Parliaments, when those measures come before them, to say that they go against the code and go back and do it again, if they are not passing it. That is very helpful. I suppose that necessity is the mother of invention sometimes. You have described the time constraints that might drive behaviours that might not necessarily be malicious in intent or malignant intent, but they are simply a byproduct of some other pressures in the system. Perhaps that could assist. Those suggestions were really helpful. Dr Fox, when she was giving her evidence, described a trend towards writing or drafting skeleton bills that are by their very architecture prone to being allowed to be massively expanded upon by secondary legislation. That perhaps is a trend or design of our legislation that might have meant the propensity to use the delegated persons in such a way in recent years that has expanded so significantly. If you are looking at recent primary legislation, in the nature of the powers that have been given to ministers, what might that mean for the exercise of executive powers in the future? Would you agree with that sort of observation that skeleton bills and the architecture bills have substantially changed in recent years and that perhaps has driven some of the or certainly given light to some of the behaviours and use of expanded secondary legislation that we have seen? That could perhaps tie into your points about the codes or potentially even legislation to tighten up how those are designed. I will follow up, Mr Sweeney, since I was answering. It seems to flow. Three examples, I can just think off the top of my head. Not just skeleton bills, which are common, but fast-track legislation. The fact that legislation is going through so quickly, such a code might provide that when a bill is being fast-tracked that is not the place or the kind of measures. There would require to be even more intense scrutiny in relation to delegated powers, whereas there has been no scrutiny of the primary legislation. A third example that I have come across recently is placeholder clauses, where a clause is simply named in a draft bill that can go through part of its parliamentary process with no detail. The clause is then added at committee. There are new things emerging all the time that one is constantly amazed at what Governments are trying to get away with. Sir Jonathan has said that this is a one-directional process, and Governments never relinquish powers they have unless they are made to. Those are three other areas where we see trends towards fast legislation, very thin legislation, but thin legislation is packed with delegated powers downstream, which are then subject to potentially no scrutiny. It is deeply problematic from a constitutional perspective, and applies throughout the UK. Johnathan, if you have any thoughts on that second question? Again, not much to add. Having been a civil servant as long as I was, I saw examples of all those things, but I agree that we are simply seeing more of it. It is just another example of the one-way trend that we have talked about. I agree that it is mostly not malign. It is simply a feature of our structure and, often of our politics, that ministers will want to bring forward a bill on a particular topic to show that they are active on a particular subject, or that the time in the parliamentary cycle has come around that it is convenient for them to bring forward a bill with a particular heading at a time when the policy is not fully developed. That is the other incentive behind that. It is the kind of political and practical demands of being seen to legislate on a topic before the policy is truly developed. That is another reason why we get very thin skeleton bills. You rightly say that that tends to mean that the detail has to be fleshed out later by secondary legislation, and that inevitably gets less scrutiny than the detail in the bill would have done. It is just another example of the same thing. I very much appreciate that. Just as we are about to close, but before we do, I would like to ask the witnesses if there are any additional comments or points that you would like to highlight that you do not feel as if they have already been covered. Is that off with yourself or to the officer, Jonathan? I do not think that I do. I think that we have covered all the issues. You have detected quite a high degree of agreement as to what the problem is. As I have said that it is healthy that there is now a debate about that issue, that there is some agreement that there is a problem both here and in Westminster. I would like to see that the hands-on society process will help. I am sure that the committee's report will help. We need to take advance of that momentum and start coming up with some solutions that I hope we started to do. Simply to echo that I very much welcome what the committee is doing and to make a plea for inter-parliamentary co-operation, which I know is going on next, because I think that the parliaments of the UK have much to learn from each other in how they regulate the Government. Thank you for that, Professor Tierney. I would like to thank both Professor Tierney and Jonathan Jones-Cousie for their helpful evidence. I also add that the committee may wish to follow up by letter to any additional questions stemming from the meeting of the person later on in the morning. Before we move to our consideration of SSIs, we are meeting online today, and it will be more challenging for members to indicate agreement to the items being discussed. I therefore ask you to raise your hand if you are not content with the question being put, or if you wish to speak about an instrument. Under agenda item 3, we are considering instruments that are subject to the made affirmative procedure. No issues have been raised on SSIs 2021, 454 and 455. It is a committee content with these instruments. No member has indicated that they are not content or that they wish to speak, and so we are agreed. Under agenda item 4, we are considering instruments that are subject to the affirmative procedure. An issue has been raised on the draft Scottish child payment regulations 2020 and the disability assistance for children and young people Scotland regulations 2021, miscellaneous amendments regulations 2022. The regulations are made as part of a wider legislative framework for the administration of social security assistance that Scotland provided and for by the social security Scotland act 2018. Section 97.9 of the act includes a requirement on the Scottish ministers at the time of laying the instrument to also lay a response to the Scottish commission on social security's report on the proposals for the regulations, or a statement explaining why ministers consider it appropriate to lay the draft instrument before the commission has submitted its report on the proposals for the regulations. One set of amendments in this instrument were not reported on by the commission prior to laying the instrument. A statement under section 97.9b sent to the social justice and social security committee on 1 December, the statement was not laid until 3 December. In a written response to a question from the committee, which can be found on the public pages for this meeting, the Scottish Government has apologised for this administrative oversight. Does the committee agree to port the instrument under the general reporting ground in respect of the failure to lay the necessary statement when laying the draft instrument on 29 November 2021, as required under section 97.9b of the social security Scotland act 2018? While the committee may wish to welcome the Scottish Government's apology for this administrative oversight and acknowledge that the oversight was only related to one set of minor technical amendments in the instrument, I am just corrected within four days. It is clearly a breach of the laying requirements. Does the committee also wish to write to the Minister for Parliamentary Business to highlight his desire for all instruments to be laid correctly? No member has indicated that they are not content or that they wish to speak, and so are we agreed. Also, under the agenda item, no points have been raised on the draft redress for survivors' historical child reviews and care, reconsideration and review of the terminations, Scotland regulations 2022, the segmented content of the instrument. No member has indicated that they are not content or that they wish to speak, and so we are agreed. Under agenda item number 5, we are considering an instrument project to the negative procedure. An issue has been raised on SSI 2021 446, prisons and young offenders institutions Scotland amendment rules 2021. The instrument amends the prisons and young offenders institutions Scotland rules of 2021. It was laid before the Parliament on the 30th of November and went to force on the 13th of December 2021. Accordingly, it does not respect the requirement in section 282 of the interpretation and legislative reform Scotland Act 2021 that at least 28 days should have lapsed in the laying of an instrument subject to the negative procedure and the coming into force of that instrument. Before I write comments on members on whether the breach of the 28-day rule was appropriate, does the committee agree to report the instrument under reporting ground G for failure to laid in accordance with the linear requirements under the interpretation and legislative reform of the Scotland Act 2010? In terms of the explanation provided by the Scottish Government for the breach, members will also have seen the correspondence of the Scottish Centre for Crime and Justice Research, for the letters perhaps focus more on wider policy concerns, rather than under our technical remit. They do focus on the speed that those changes have been implemented. Given our earlier session, I think that it highlights why scrutiny is important. That is why we have a 28-day rule to allow some form of scrutiny. On the face of it, a lot of people will think that what the Scottish Government has done here is the right thing to do, but it has pushed through the regulation. You mentioned the letters that the Parliament has received from the Scottish Centre for Crime and Justice Research, which puts a counterargument forward. That is why we need to have scrutiny. I am afraid that breaching that 28-day rule, whatever you think of the policy, is really not acceptable, and we need to tell the Government that in no uncertain terms. I think that it is really just to look at how we got here in light of Mr Simpson's remarks and the evidence that we have taken earlier about the Government getting in bad habits and maybe drafting and laying things too late, even though they had the policy intent earlier. Obviously, that was first raised by my colleague Russell Finlay on 1 September with Keith Brown in committee, and then it was raised again on 1 September 15 in the chamber with Keith Brown. On 1 September 16, my colleague Russell Finlay wrote to the Justice Minister, then he raised it again on 1 September 29, with the drops minister in the chamber, and then in a further letter on 26 October, obviously the intent to bring the policy in was then announced on 1 November 2. If the Government's reason for bringing it forward is that there was a major incident at the end of November, I think that what we are seeing perhaps here is that maybe ministers had been asleep at the wheel to some degree, and we are only really awoken by Russell Finlay. Therefore, the 28 days could have been quite adequately covered had they brought this forward earlier so that we can have what I think is providing what it says on the tim potentially a good piece of legislation bringing forward a policy that is proportionate, timely and practical. However, what it does expose is that if perhaps the Government is not planning properly for bringing forward this kind of legislation, then we do get into a situation whereby we are not having adequate scrutiny. I think that for those kinds of instruments and the legislation to have public confidence, I think that the public would expect us to have had due time for consultation and for that all-important scrutiny. Therefore, I very much support the intent of the policy. I think that there are some concerns that it may not do what it is setting out to do, but certainly the principle behind the policy is very much in favour of it, but I do share the concerns of Mr Simpson that how we got here is not sufficient or adequate. I would like to raise significant concerns with the policy. It represents an abuse of power, it represents the overreach of the executive and insufficient scrutiny or evidence that it is going to achieve its proportionate effects. For all those reasons, it is an appropriate use of the procedure and should be resisted on that basis. I would be inclined to the very least right to the lead committee on policies relating to justice and also to the cabinet secretary dealing with the drug death emergency, because I think that this flies in the face of public health approaches to management, particularly given that there is no evidence that illicit substances have been responsible for any deaths in prisons in Scotland. The primary driver is prescribed medications, so I think that there needs to be a greater effort to understand the nature of the problem rather than jumping the gun, particularly given that the Scottish Prison Service is a problematic issue with deaths and custody at the hands of prison officers. I believe that we have to take this further. I would like the justice of the evidence that has been put in front of us in terms of failure to enact the legislation in a proper manner. I am very concerned to read about psychoactive substances arriving in different formats for prisoners from outside. However, prisoners have human rights, and I do not believe that all of their communications from loved ones outside should be treated in the manner that is being suggested. I think that that requires further investigation, and I take on board the points from the SCC at the GIR. At the same time, I think that we need to be able to see from proper investigation through the Scottish Government what the actual circumstances are. I do not think that we have been given that opportunity, and I think that it needs to be looked at. There are a number of points there, and so I certainly thank you, colleagues, for your thoughts and comments. First, does the committee wish to report that it is not content with the explanation provided by the Scottish Government for breach of the requirement in section 28 to 2020 act and emphasise, as the committee has done in the past, that the Scottish Government should normally comply with lane requirements and facilitate timely parliamentary scrutiny of such important policy choices? Secondly, does the committee agree to highlight the correspondence that is received from the Scottish Centre for Crime and Justice Research to the lead committee? Finally, does the committee wish to highlight concerns about the speed of change in policy, the Cabinet Secretary for Justice, responsible for personal reform and personal policy, and also the Minister for Drugs Policy? No member has indicated that they are not content with what they wish to speak, and so are we agreed? Sorry, convener. I think that it is important—you may have covered this amendment—that we write a quite strongly-worded letter to the Government and to the relevant minister just reflecting the committee's thoughts on this. I think that that is important. Yes, we will report to the lead committee that is entirely right, but we need to get off what has been said just now down on paper to the Government. No, Mr Simpson, it is certainly the final point that I was raising there regarding the writing to the Cabinet Secretary for Justice. We will certainly co-operate the thoughts. Agenda item 6, where we are considering instruments, is not subject to any parliamentary procedure. No points have been raised on SSIs 2021, 434, 444, 449. Is the committee content with those? No member has indicated that they are not content or that they wish to speak, so we are agreed. With that, I will move the committee into private.