 Thank you for joining me again. Welcome to the 13th meeting of the session 6 of the Delegated Powers and Law Reform Committee. Before we move to the first item on the agenda, I want to remind everyone present to switch to mobile phones to silent. The first item in business is to decide whether to take item 8 in private, as a committee, he contain to take the item in private. Moving on to agenda item 2 this morning, we are taking an evidence session on the committee's inquiry into the use ond dd twfodd drws lawer o bwysig ar hyn oherwydd y pandemi coronavirus. Dwi'n chi'n symud ei wneud â'r peisio twym ni'n gweithio, tu fyddai'r penodol yn felcaf gl�fwyr ar y SPEC, i wneud fanf矛 o'r erbyng. Fy薰wch ar y dyfodol dr Ruth Fox i ddechrau Llywodraeth a'r llongell Hansard. Rwy'n dechrau Llywodraeth i ddechrau Llywodraeth i ddefnyddio i ddechrau Llywodraeth, ac i ddefnyddu rôl i bwysig ar y Rhywun i g exertodol â'r llongell. Before we move on to others in the committee, I would just like to start the questioning. I will be grateful from witnesses to have an understanding of any general views that you may have of the made affirmative procedure, such as the observations on the frequency of the use of the made affirmative procedure during the coronavirus pandemic as compared to the pre-pandemic. I would like to say a little bit about what I can and can't say on the basis of the experience that I bring that informs that. I am here obviously on behalf of the Faculty of Advocates. For my own part, predominantly my experience and expertise in administrative and public law and parliamentary procedure is not normally considered in the context of litigation, so I can't say that there is direct professional experience of these sorts of measures, but there are general principles relating to decision making processes in general about the way in which statute law is made and importantly about the accessibility of law, which all of these things are at the heart of public law in practice, which is what I do. It may be that I can offer observations from an external, legally informed perspective that might assist. I should say as well that there have, as you'll be aware, there have been some cases in court where the courts have looked at the lawfulness of coronavirus regulations, in particular in relation to worship in churches and aspects of regulation in the hospitality industry, but those have not, at their core, looked at the process. I should say that I am aware of those cases, but I haven't been directly involved. Speaking as I do on behalf of faculty, I can't make any comment on the political aspects and I can't really say in any one case any individual regulation whether it was justified or not either as a matter of policy or procedure. With that introduction, it's important to say that for faculty, for lawyers, there are general issues of principle and practice. I'll just say very briefly what I consider those to be, chiefly, and they are to do with, first and foremost, the rule of law and the place of parliamentary democracy in the way in which law is made, with clarity in legislation, with the risk of complexity in legislation, which might come about in this way. The accessibility of law, the visibility of law to society at large, but also to lawyers, and questions about whether it's possible to define or to be more specific about urgency. I think that those are probably the critical areas that will be of concern to the committee. I'm happy to expand on any of those, but that's probably sufficient and I'm happy to answer any questions which follow. OK, thank you for that opening. Can I ask you just on the issue of the urgency, which clearly is the area that this committee will be looking at in more depth? Can you provide your thoughts on the urgency issue? Clearly, pre-pandemic, there were very few made affirmatives that were made, but obviously, since the pandemic, it's been a totally different situation. Yes. Well, of course, as I understand it, the provisions that you're looking at, the regulations that have been made, have chiefly been made under one of two statutes as the Public Health Scotland Act 2008 and the UK Coronavirus Act 2020. Both of those have very similar provisions. You'll be aware of those, of course, which refer to circumstances where the ministers consider it to be urgent. I'm glossing that slightly. It would be tempting to think that you could either narrow it down to say urgency definitely means x or it definitely means y and it doesn't mean z or a or b or c. But, tempting though that might be, it's likely to be impossible to do that in any meaningful way in practice. You have to be able to anticipate not necessarily all eventualities, but there has to be room for the unforeseen and also things change. You have to have the flexibility to allow decisions to be made that respond to changing circumstances. Urgency might mean one thing in week one and it might mean something else in week two and so you have to allow for that to be developed. One of the things that occurred to me as I was thinking about this is whether there are any useful parallels in looking at other circumstances where decision makers are constrained by urgency and by having to look at what urgent means. I'm not seeking to say that this is a direct parallel or an obvious analogy, but in public procurement regulation, which obliges contracting authorities, generally public authorities, to follow really strict rules before they can award public contracts, and I pause there to say that, of course, the awarding of public contracts is an issue in the coronavirus context anyway, but I'm leaving that to one side. In routine public procurement, you have to follow certain steps, there has to be a timetable, it's all very highly regulated, but there are exceptions that allow contracting authorities not to apply that and to award a contract without advertising. Provisions made for that is a matter of EU law and in domestic legislation in the regulations that apply in Scotland. The provision there is where, only if it is strictly necessary for reasons of extreme urgency brought about by events unforeseeable. There is an example of where regulation has gone a bit further and has said that it has to be unforeseeable, that it has to be strictly necessary and it has to be extreme. I'm not suggesting, I'm not advocating that that is a model to follow, but it's as well to be aware that, in other circumstances, efforts have been made by the legislator to define what urgency means. It's important to understand that the courts, when they have had to construe that, have taken a strict line on testing government or contracting authorities in what were the circumstances. I mention that to be aware of, as I say, not to say that there's a model and adopt it, but, in general terms, you are left with the term urgency within the framework and it's a matter for how it's applied. Dr Fox, I could set the context that the handsaw society has been monitoring all statutory instruments laid before the Westminster Parliament since the start of the 2017 session. My remarks are almost universally about the approach to made affirmative taken at Westminster and what lessons are transferable from that experience. I haven't been monitoring instruments before the Scottish Parliament and I'm not as familiar with the Scottish Parliament's procedures as I am with those at Westminster. On the approach of the UK Government to made affirmative, it's certainly true that the use of the procedure was relatively rare until the last few years. We've certainly seen an increase in the use of the procedure, not just because of Covid-19 but also because of Brexit. There were quite a number of provisions in Brexit-related legislation that went through the Westminster Parliament that included the similar provision that we see in the Public Health Act that was replicated in other legislation, including the EU withdrawal act and the customs and cross-border trade act, and the future relationship act that went through between Christmas and New Year last year. There are a number of provisions for the made affirmative procedure now on the statute book. Prior to Brexit and Covid, you tended to see the made affirmative procedure used in relation to a lot of financial or tax-related provisions. In evidence to the House of Lords secondary legislation scrutiny committee earlier this year, the first parliamentary council, the head of the office of parliamentary council in Whitehall, said that prior to the Covid legislation, the only legislation that she was aware of having the procedure was either civil contingencies legislation or a lot of indirect tax legislation. We certainly see a lot of the use of the made affirmative procedure and urgency in relation, for example, to sanctions, the application of sanctions regulations, partly in terms of urgency due to the need to control capital flight, the need to introduce provisions very quickly in relation to high-risk countries and so on, and then obviously in terms of taxation and customs issues. We have never seen the use of the made affirmative procedure in the Public Health Act on that kind of scale. The question about whether it was necessary for it to be used in all circumstances is obviously highly debatable. The sheer volume to give some context to the debate, certainly in terms of the use of the procedure at Westminster, since the start of the 2017 session there have been 221 made affirmative instruments, so that is just over 5.5 per cent of all instruments laid before the Westminster Parliament. However, if you look at specific sessions, the height of the Covid crisis, the height of the provisions for Brexit, at times it was reaching 10 per cent or even in the short session around prorogatio, and prior to the 2019 election it reached nearly 17 per cent of the share of all instruments laid before the Parliament. It certainly has increased and you definitely see peaks in the use of it in relation to the height of the pandemic, obviously, and Brexit delivery. Thank you for that, Dr Fox. I think that just to be useful for anyone watching this, just to make people aware of the figures on Scotland. Under the Public Health Scotland Act, there have been 63 made affirmative instruments and the Coronavirus Act 2020, 61. In total, there have been 132 in Scotland since between 20 March 2020 and 2 December 2021. It is difficult to do a direct comparison, which I think that we will all agree with. Every single instrument goes through this committee in the Scottish Parliament, whereas that is not the case in Westminster. I also just wanted to make people aware of that to anyone who is watching, because it is an important point for people to recognise. On the issue of the instruments that have been made using the affirmative procedure, I will go to Dr Fox first of all. Do you have any particular thoughts on not understanding the numbers that you indicate and also your focus is clear about Westminster and not so much about here, but do you have any thoughts on the nature of instruments that are used? Do you think that the increase in number on to public health in the indicator there at 1.17 per cent of instruments in Westminster were made affirmative? Do you think that the nature of instruments being used in terms of the policy areas are accurate, correct or potentially just overbearing? Question of urgency. There is no constraint on the minister's use of the power. He or she only has to declare that they consider the matter urgent and therefore necessarily have to use the power. If you look at a number of the regulations during the pandemic, particularly last summer, as we were emerging from lockdown, there were particular concerns at Westminster. I think that those were replicated also in relation to the actions of the devolved Governments that some of the regulations had been discussed and debated or the policy direction had been discussed and debated at some length through media press conferences, through debates in the Parliament, but the regulations emerged very late on shortly before they were brought into effect and often published quite late, sometimes as little as half an hour before they came into force. The whole question of whether they were urgent given how long they had been discussed and had clearly the clear direction of policy was there. Was it necessary for them to be published as late as they were? Was it not possible for the instruments to have been brought in through the draft affirmative procedure, albeit with a commitment on the part of the Parliament to expedite its procedures in relation to the draft affirmative procedure, so that the scrutiny could take place before the instruments came into effect? I think that you see throughout a real concern about the absence of substantive supporting documentation, supporting information in adequate explanatory memorandums, a lack of impact assessments and an evidence base for the policy. That, to what extent, is partly a product of the developing nature of policy within the pandemic and to what extent it is about the way in which ministers have been able, for reasons of political convenience and administrative convenience, to push those things to the wire and to get away if you like without producing that information and without doing that substantive policy work because they have got this option to resort to the made affirmative procedure is obviously hotly debated and certainly at Westminster, as I know, there is with your committee, a concern that ministers are using that power rather than doing some of the policy work to provide that information when the regulations are brought forward. Thank you, Dr Fox. Ms Ross. Yes, I think that there's a particular point that Dr Fox made a moment ago, which I'd like to develop a little further, and that's to do with the question whether giving information in general is a substitute for parliamentary procedure, because it might be suggested that this is that, so long as you communicate and so long as the Government tells everybody what it's thinking of doing, that that's enough, that as long as you've got a clear public message which tells everybody in simple terms, then that satisfies the requirement of certainty. I would suggest that that's not a substitute for proper parliamentary procedure. You can only have a message that is properly clear if the law that underpins it is clear. A clear message has to have a grounding in law and law has to have a grounding in proper process. You can't just get over that by putting out statements saying what's going to happen. If it's suggested that it's enough to meet the requirements, for example, of transparency and accessibility for government just to say, here's what we're thinking of doing in terms of future regulation, here's what we're planning, of course communication is a good thing, nobody would say that that shouldn't be said in public. Statements have to allow also for the possibility that things might change, but in both of the statutes that you're looking at here, the default is affirmative procedure and urgency made affirmative procedure is the exception, but the default in public health regulations of the kind that would be needed, the default is that there should be affirmative procedure. If there's enough time to discuss options in public and to canvas views, then there is likely to be enough time to introduce legislation in the conventional way. It's a mistake, people can accept that communication is a good thing, but that shouldn't be allowed to turn into a substitute for proper process. I think all of that then, as I said at the beginning, there are really important things to do with accessibility of legislation, of law, and all of that is connected to those things. I'm happy to say a bit more about that, but also to respond to your questions. Sure, no problem, thank you. Just on that then, it touches upon the final point that I'd like to explore and that's on the issue of the consistency of the instruments that are brought forward. Clearly, every single piece of legislation that comes forward, there will be some individuals who will look at it and criticise it, no matter what it says, and others who won't do that, and they'll maybe look at it from a different perspective, but in terms of the made affirmatives that have been brought forward, do you have any thoughts or any considerations on how that legislation actually has been drafted? Is it something that you're aware of any, or do you have any opinion on any that potentially, that you feel as if have been not drafted well, and are then created a situation of law that's maybe difficult to understand, or is your opinion that the majority, if not all, have been easily read and easily understood? Well, you won't be surprised that I can't say that I have been through every instrument that has come before this committee, and I'm not able to offer a view on individual items of drafting. However, I can offer some observations about the tendency of accelerated procedures to result in risks. I can't say that the courts have had to look at some of the instruments that have been made, and it's part of the day-to-day work of lawyers that you scrutinise and read carefully small parts of legislation, primary and secretary legislation, but perhaps it's more important for these purposes just to step back and look at some of the general tendencies. Clarity is absolutely fundamental to good legislation. Legislation has to be clear and capable of being understood and applied consistently, and legislation that is made in a hurry is unlikely, in general terms, to be of the same quality as legislation to which great thought has been given and preparation has been undertaken. I don't want to make any criticism of those who draft legislation. It's a tremendous skill, and to be able to do it at speed accurately is a very valuable skill indeed, and where circumstances are pressing a great deal of respect is due to those who work under those circumstances. However, it's inevitable that there's room for mistakes to be made. Bringing legislation into force without the opportunity to give it proper scrutiny beforehand takes away at least an opportunity for checks. However, I want to be clear that this is not just about technical defects, it's not about checking punctuation. I've paused to say that the technical side of legislation actually is really, really important. Defects in structure, expression and so forth can have significant consequences, but it's not just about technical drafting, it's also about policy, because it's only if you actually understand the policy and you've tested the policy by asking questions about it that you can be satisfied that any piece of legislation, any instrument, secondary legislation is actually necessary that it achieves what it says it is there to achieve. It's only if you get to grips with all of that, and you can only get to grips with all of that if you've had some opportunity to ask the questions. So whether that's for this committee or whether it's as I understand it for a policy committee to deal with that, there has to be an opportunity to do that. Now you can't say it has to be the maximum possible opportunity, but that does have to be there. The second thing in general terms is to do with complexity and the repeated making of instruments on the same subject, because the more instruments are made and the more they add to or qualify or revoke in whole or in part, or update existing regulations, the more complex the whole picture becomes. So if you make use of the made affirmative procedure repeatedly, then the risk is there of accumulating rapidly changing regulation and that becomes confusing. I'd say it's particularly important, these problems become particularly acute when you're looking at criminal sanctions, where you have the risk of lack of certainty about whether you're breaking the law or not. That matters not just for individuals, it matters for lawyers providing advice on the legislation. It's a matter of fairness to the individual citizen, it's fairness to the police and prosecutors, defence and the courts. In the context of criminal sanctions for all of those people to fulfil their functions, there has to be clarity about it. If you've got repeated cycles of changing this or that, then that's not conducive to accessibility. In other areas, it's also an issue for those, for example, whose businesses are affected by emergency legislation. Where you have the made affirmative approach taken, then there's at least scope for those who are affected by it to lose the opportunity to make preparations and to organise their affairs in advance, anticipating what might happen. Sudden changes, especially if the consequences take a while to understand, are quite unhelpful. Of course, as Dr Fox has said, there will be circumstances with tax legislation and so forth where that's absolutely fine and everybody understands that, but in this much more unforeseen environment, the ability to plan and to understand the law in advance is really, really important. Thank you for that. Dr Fox. Yeah, I would agree with much of that. I think just in terms of the point that Moragrass was making about the complexity of the legislation as a result of frequent amendment and the sort of the layering of SIs on top of each other, I mean certainly at Westminster that has been a significant problem. I'm not a lawyer, I'm not a policy sector expert so I can't comment on the quality of the legal drafting or the policy direction itself, but I think it's a strong hint when you see very frequent amendment very soon after the instrument has been laid. It's a hint that there is a problem with the drafting. For example, back last summer, we saw statutory sick pay regulations were amended twice within four days. We had the health protection restrictions, the localised restrictions, affecting the areas of Blackburn and Bradford, for example, were amended twice in 12 hours. We had face covering regulations were amended by three different statutory instruments made in two days, last September, September 2020, sorry. We saw last autumn the Covid restrictions amending the main lockdown number two regulation. The drafters had remembered to make provision for Remembrance Sunday when it came to listing permitted exemptions to the restrictions on gatherings but had forgotten about Armistice day itself and had to go through a new instrument subject to the main affirmative procedure, go through that whole process again in order to make that amendment. One problem clearly in the way that the main affirmative works is that the pressure on urgency, the pushing through of this legislation very quickly, the lack of being scrutiny by in Westminster the technical legal check done by the joint committee on statutory instruments in your Parliament done by your committee is missing and therefore those drafting problems get through and you then have to either amend the regulations, which has to the complexity or you have to revoke them. Certainly at Westminster we then had the bizarre situation where because debates to approve the instruments were not happening very quickly last summer 2020 and there was a long delay because of parliamentary recesses, we had the bizarre situation where MPs were voting to approve instruments that had already been amended and therefore the debates didn't make an awful lot of sense. So you then had that problem emerge in the scrutiny process at the end of the approval process as a result of these upstream drafting problems. I thank you for that, Dr Fox. I'm going to hand over to Craig Hoy. Thank you and good morning, Mr Ross and Dr Fox. I just wanted to perhaps just backtrack a little bit and just wonder, wondering out loud that if there is some contradiction or tension between the balance for the necessity for emergency legislation to be of significant importance and to be urgent and the fact that it then goes on to get the least amount of scrutiny or certainly a limited amount of scrutiny. One example I think perhaps, Mr Ross, you may have been agreeing to or not. Recently we obviously had the Covid passport. Regulations came before this committee and as a new member of this committee my concern was that the regulation may have been exactly as should be framed but the policy that it gave effect to was certainly deficient in that the passports didn't prove that the person who had presented the passport was in fact the same person to whom the passport was issued so there was an element of possible impersonation there and also that once we introduced lateral flow tests it didn't prove that the person had actually had a negative test. Just simply they declared themselves negative they may or may not have had that test. So I suppose what I'm wanting to get at here is how do we manage that tension between the debate that goes on and then if in effect the absence of scrutiny that seems to take place both around the detail of the made affirmative instruments but also more importantly the policies that it brings effect to. How do we manage that tension between the debate and then the lack of scrutiny when the legislation comes forward? The original your starting point was to identify the tension that arises because scrutiny takes time not necessarily lots of time but it takes time and by definition almost an urgent measure is something which must be done right away so there is necessarily a tension between the amount of time that can be spent in the process thinking about something and discussing it and the need to do something immediately which stops people behaving in a particular way or obliges people to behave in a particular way. The question about the debate then comes in if you're adding that into the mix and saying well if there's time for that then why not follow the process. I think bluntly the answer is that's a political issue for you as politicians to discuss with government as to the place of public discussion as opposed to or in addition to what happens in Parliament. Having said that I wonder whether if you are looking to explore ways in which you as a committee deal with made affirmative instruments where there has been perhaps where there has been some discussion it may not matter whether there's been discussion or not. One thing that it's important to bear in mind is I suppose and I'm not seeking to tell you how to do your jobs but I think it's important to remember that anybody who is looking at something which is already in force effectively affect a company will approach it in a particular way and that way is likely to be different to the way in which the person applying the scrutiny approaches legislation which is prospective so if you have two instruments one of which has already been made you will look at it you are likely to be looking at it in a different way to that which will come into force in 28 days time or whenever. There may be a particular something to look at in checking how you scrutinise something made under the made affirmative procedure. Do you give it the same amount of time? Do you approach it in a way that is based on your being prepared to say actually no? I'm putting the questions back to you there might be something in your own processes about what it is you do when you're looking at made affirmative. Do you just accept it or to what extent do you test it? That might not be a long term answer but how you deal with that might inform where you go next. Would you foresee if we carried on in these circumstances that there would be more recourse to the courts as a result of continued application of made affirmative? Would that be one of the routes that for example industry would look to utilise if Parliament isn't effectively scrutinising and holding the executive to account for those laws? In the first place I'm going to be very cautious and say it would depend entirely on the circumstances of any particular measure and the circumstances of anybody who sought to challenge that. It might be surprising if the sole complaint were about the way in which it had been made. Much more likely if somebody were seeking to challenge legislation it would be on the substance of what the policy and what was sought to be brought forward or what had been put in place. That's much more likely to exercise those who are affected by specific legislation but if it has been made in a way in which it was suggested that that was objectionable then that might be something that alongside a challenge to the substance might be brought before the courts. Typically nobody wants to go to court just to make a point about procedure. It has to achieve something that has to be an end result so it would be perhaps unlikely but I couldn't possibly say that the thought wouldn't occur to anybody in the future in my well-do. Dr Fox, just in respect of perhaps the way we look at these instruments between Holyrood and Westminster, in the case and point in relation to the Covid passport regulation, we could only look at the instrument in terms of making sure that it was framed in a way that was sound. We couldn't really dig deeper into the policy which I think certainly some members of the committee thought was defective and deficient. How does that differ about Westminster? Would those who are looking at the instrument also look into the policy or are they just again looking at the way in which the legislation is framed? Yes, so the procedures in the House of Commons and the House of Lords are different. So a made affirmative instrument going through the Commons would be subject to consideration by a general committee comprised of 17 MPs usually in what's called a delegated legislation committee. They'd have a 90-minute debate, the instrument and the supporting documentation but it's not a committee like a select committee or a subject committee, it doesn't have a secretariat, there's no policy research notes or briefing material, there's no legal advice provided so MPs do their scrutiny in a really quite difficult circumstance given the technical nature of the regulations that they have to look at. For some of the regulations and the vaccination regulations are an example, the debate will not take place in the committee with a small number of MPs to be then approved by motion in the House later, it will go to a full debate in the chamber in which all MPs can participate but again subject to a 90-minute restriction on understanding orders unless that business motion is moved to extend that. So they are reliant upon advice and information on drafting and on policy matters that is provided by either the House of Commons library at speed or is provided through external organisations, civil society organisations and campaign groups. The House of Lords is rather different because they have a committee system, the secondary legislation scrutiny committee, which looks at all instruments and reports on them and they look at it from a policy perspective so they look at the merits of the regulations and they draw them to the attention of the House. Then you have a joint committee of both houses called the joint committee on statutory instruments that will look at the technical legal drafting matters similar to your committee's remit and that will report on things like the virus and drafting irregularities and so on. In the House of Commons they can consider instruments without reference to the joint committee's reports so they will sometimes debate and approve the instrument before the joint committee has reported. In the House of Lords they operate a scrutiny reserve so that committee has to have reported before they will schedule a debate and approval motion. The problem with the made affirmative procedure is that, because of the time constraints and particularly the desire to lend approval as quickly as possible after the made affirmative has been laid and come into effect, there has been pressure to hold the debates quickly, not at the end of the 28-day period. That means that the scrutiny reserve in the Lords has had to be lifted. In effect, the House of Both Houses have been scrutinising the instruments without access to the committee's reports. On the vaccination regulations, there were a lot of criticism of ministers in terms of the lack of supporting information and evidence-based, inadequate impact assessments. The secondary legislation scrutiny committee hauled the minister in to give evidence before its committee about the lack of supporting information and the inadequacies of the impact assessment. Although that committee session was going on, the House of Commons was debating and approving it. There is a problem at Westminster in terms of the inadequacies of scrutiny in normal times in the House of Commons, which is exacerbated in circumstances of urgency. You have the problem of the bicameral scrutiny and the fact that much of the committee-based examination of the detail of both the policy and the legal aspects is done by their committees and to which the House of Commons does not have access. Do you see merit or benefit Dr Fox in giving the committee or the group of parliamentarians who look at the regulation as we do to have some authority to probe the policy and the impact of the policy to see whether it is not just the instrument that is well drafted, but to make sure that it leads to good outcomes when it is applied in policy terms? Is it a merit of bringing those two functions together within the same group? Sometimes the nature of the drafting seems to me that how it is drafted will impact upon policy and what you are trying to achieve in policy terms will affect the drafting. It always has seemed a bit of an odd demarcation at times, but that has certainly been the way that Westminster has handled it for many years. I think that one of the issues, particularly with the made affirmative procedure through the pandemic, is that what in effect the system allows is the way that powers are framed inherently favours the Government. They can get their legislation through quickly, they can achieve their policy objectives, but Parliament gets nothing in terms of compensatory scrutiny provisions. One of the issues is whether it is with either the legal drafting issues or whether it is with the policy merit questions. Should there be some kind of bespoke procedure for these kinds of instruments that enables either one committee acting jointly or committees acting separately to have a second bite at the cherry, as they were? For a period of time, if the instrument is in force for a period of time, you would be able to come back after the approval motion has been granted with those committees having the time to look in more detail at the instruments, both on legal and policy matters, and then to report back. That would require some kind of sunset provision perhaps to enable that to happen. That is the direction of thinking at Westminster that certainly both the secondary legislation scrutiny committee and the delegator powers committee, which looks at the powers in all bills that are laid before the Lords, that is the direction of travel that they are looking at for the future. Thank you. Okay, thanks Craig. Grym Simpson. Thanks very much, convener, and thank you both for coming. It's been very interesting so far. Dr Fox, I've just got to praise you for some of your work so far, including your book Devil is in the detail, which I was thinking of putting on my Christmas card list, but knowing my family, I'll probably end up having to buy it myself, but it looks like an absolute bargain, so I'll be rushing out to get that. Morag Ross, you mentioned earlier, you made a very interesting point, I thought a number of interesting points, but one was how do we as parliamentarians deal with stuff? If it's been put through under a made affirmative, it's already a law and then we're scrutinising it as opposed to something that's not law already, and I think you're absolutely right. There is a tendency for parliamentarians to look at stuff that's already a law and say, well, it's done, we'll just nod it through. Sometimes the law is already being overtaken or there's been amendments laid or it's null and void, so you just think, well, I'm not going to bother with this. That's not the way it should be, and that's the purpose of this mini-inquiry, is to look at that. In the interests of time, I won't go over some of the ground, I'm keen to explore solutions, as to how we improve things, so in terms of debates, when the Scottish Parliament debates regulations, it will go through this committee and we've got a remit, then it will go to a policy committee, and in terms of this inquiry, mostly the Covid committee, and then it will go to the full parliament, and when it gets to the full parliament, the opportunity for most of us as MSPs to debate that regulation is extremely limited. You'll have a minister, you may have one member of each party taking part, and there's some really, really important stuff going through. Craig Hoy has mentioned vaccine passports, but the debate as such is extremely limited. I'm just wondering whether there's something there. Maybe this is a question for Ruth Fox. You, Ruth, mentioned that in Westminster they get a 90-minute debate, we don't get that, so do you think there's something there for us to look at in Scotland? I wouldn't take the Westminster model as a model for anything in relation to delegated legislation, because even in normal times, the scrutiny is really very, very poor. The reality, for legislators, and you've alluded to it, is that if members can't amend and don't reject an instrument, then the scrutiny process is very difficult, and having an effect and being able to influence the regulations is difficult. As a consequence, we see certainly this at Westminster, I can't speak to how the approach of members and the Scottish Parliament is, but certainly at Westminster, members want to get that 90-minute debate over as quickly as possible. They have 90 minutes, but in reality the average is just under half an hour. Sometimes the debates can last just a few minutes. There is a problem with the relationship between the power that is set out in legislation perhaps decades ago, as we see with the 1984 act, and the content of the regulation that's laid today. The scrutiny process doesn't match up with the importance or otherwise of the regulation that's before members. There needs to be, at Westminster, an overhaul of the entire system, not just in relation to made affirmatives, but as part of a much bigger process of reforming how members of both houses scrutinise instruments. Now, I'm very glad that you enjoyed our book. I can send members of the committee free copies. We have quite a few in our office still. From our perspective, the Hansol Society has recently launched a review of delegated legislation to look at these issues precisely because the processes are so inadequate. There may be things that Westminster does differently to the Scottish Parliament and that might appear to be an improvement on perhaps what you feel you have available, but certainly there is huge dissatisfaction now among many members across parties and across both houses with the way delegated legislation generally is being scrutinised. I would be very wary of thinking that Westminster offers much in terms of lessons for the future. I think that you're looking for solutions and looking ahead, and of course you'll need to be giving thought, as I'm sure you are, to what happens when legislation, the coronavirus legislation enforced for a particular purpose, comes to its natural conclusion and what you put in place in the longer term after that. I think that there is one particular word of caution, which is in how you treat the experience of legislating over the past 18 months, two years, and to what extent you come to see that as exceptional, you collectively as politicians as a whole see that as truly exceptional. I think that the important, starting this inquiry and stepping back and saying, are we getting it right and how can we do it better, is an absolutely critical part of addressing that question. For this committee to ask, is the way we've done it, is that going to be a change which sets us on a course for the future, or do we see this as ring fence, time limited only for coronavirus? When things have changed in response to an emergency and where that emergency, however understood, continues, then there is a risk that things become permanent. If they're going to become permanent, you have to decide that they're going to become permanent and not just allow it to drift into permanence by inertia. I think that is a real risk. You can see an analogy with, I suppose, the substance of some policy matters. For example, on measures that were only ever intended to be in place or which people thought would only be in place for a few weeks or perhaps a couple of months. I'm not making no comment on the benefits of mask wearing or school closing. When we first started thinking about masks, we thought, well, maybe for a short time, when we thought about school closures, maybe for a short time, but as things go on, that becomes something to which people are habituated. The analogy that I'm seeking to draw is that if you start to use provisions that are put in place on an emergency basis and those start to become routine, as time passes, the routine becomes quite attractive and easy and straightforward. It can be a real effort to say, remember how it used to be when we regarded those as exceptional. The step of asking those questions in the context of this inquiry and giving advanced thought now to what future legislation with enabling powers should look like is a really important part of answering that question. The risk otherwise is that ground shifts under your feet. If you don't notice two, three or four more years down the line, then it's a much harder step to take to say, actually, what does good scrutiny in a normal environment look like? I'll be quick and convenient because I realise we're up against the clock, so I'm going to roll two questions into one here, again on the theme of what do we do now? I'm really frustrated at the use of the made affirmative procedure, I think it's been overused in both parliaments, it's been overused. My view is that ministers, when bringing forward these regulations, should have to justify why something is urgent or an emergency. I think that they should have to come to a committee or at least write to a committee and make the case. Also, picking up on the House of Lords report on this subject, I think that it would be a good idea that every piece of legislation made under the made affirmative procedure should be subject to sunset provision. There are two things there. Should the Government have to make the case that it's urgent or not, should that be subject to a vote in a committee or the Parliament, and should those regulations be subject to a sunset provision? If so, what should that be? What length should it be? I'll start with Morag on this one. I think that it is certainly worth looking at having a sunset provision as a default, and that is different from what already exists in the made affirmative procedure. In the case of these particular primary pieces of primary legislation, the 28-day provision is different from that. There may be a benefit in just making it standard that it will fall after a certain period. I think that that has been the case in at least some of the instruments that you've looked at made under the primary legislation here, that they do have that provision in place. You have to guard against, of course, just the rolling extension, the moveable feast. I think that it was described in court in the case involving churches, where it did just get continued. Should there have to be a justification, inevitably there is a level of trust that has to be observed, that Parliament and Government have a mutual relationship of trust, and it should be assumed that there is a basis for advancing something on an emergency or urgent basis. It would be important for a requirement for justification, not just to become a token that you just have to tick a box. It would be unfortunate, it would just be a waste of time, frankly, if you reduced it to that. Should that relationship of trust be formalised to make it a requirement? I think that that probably is a political matter. Would it add to the clarity, visibility and accessibility of it? I'm not sure, but it might be a helpful check in circumstances where, as Dr Fox says, a lot of the power lies with Government. Dr Fox? In terms of the obligation to explain and justify urgency, yes. We advocated that at the time the European Union withdrawal act was going through the Westminster Parliament in 2017-2018, because there is an urgency provision in that as well. There are some examples on the statute book where the use of the made affirmative procedure has been hemmed in a little bit. The Misuse of Drugs Act 1971, which has the power to reclassify drugs, a minister has to consult an advisory council before using the procedure and has to explain the position of the advisory council on the policy decision that they are proposing. That is a slightly different use of the made affirmative procedure, because it is not necessarily on grounds of urgency, but it applies to the procedure. Perhaps the more relevant one is the legal aid sentencing and punishment of offenders act 2012, in which the Lord Chancellor, if he or she considers it desirable for regulations to come into force without delay, they have to set out an urgency statement explaining why. The instrument cannot come into force before the instrument and the regulations and the urgency statement are laid before Parliament. For the pandemic, you might have to have a slightly different approach. Clearly, you do not want to reduce it to a tick box exercise, but having something that requires the minister to do more than simply put a line in an explanatory memorandum that says, I think that this is urgent, raises the bar a little in terms of thinking within the department, both at a civil service and drafters level and also at a ministerial level. Whether that would be in the form of a written statement, an oral statement to the house, which would raise the bar even further, because, of course, you are then taking up valuable parliamentary time and the business managers will not want that, so there will be a competing pressure bearing down on ministers. Is that really necessary? Of course, one wants to assume that, in the circumstances, there is a basis for the urgency, but to give you one example, reverting back to the face covering regulations in the summer of 2020, when those were debated in a delegated legislation committee in the House of Commons in September 2020, the minister was asked what the basis was for urgency, and she said, I do not know, I will have to go back and check. You would think that that would be a basic point that would be covered off in the briefing, but that was a very good example of the use of the made affirmative procedure that was clearly not necessary and not urgent in those circumstances, given the way that the timings had worked. With Dr Fox's views in relation to that, and perhaps to add that one is entitled to expect that, when the ministers consider that that is reasonable and that it is qualified by reasonableness, there may be circumstances in which you have to make that express. I think that the sorts of examples that are given illustrate why that is important. Bill Kidd. Thank you very much. I just want to thank both of our guests today for the fact that they have covered just about everything that I was going to ask. However, in fact, they are only just a moment ago part of it. Just for the sake of re-emphasis of the rationale behind this committee's role in Parliament, because scrutiny is for the provision of clarity of the messaging law and enhancement of this for us all, I just once again ask if there are any possible transparency implications around the use of the made affirmative procedure. Are there dangers that it is used just in order to press home a political point of view or whatever? I do not know if that is put near the spot, but is there a danger of that and therefore a necessity that scrutiny is very much before it goes through the parliamentary debate that takes place within committees? Does that make sense to you? Yes. To answer that, it is important to go right back to the beginning and to first principles about the public good that exists in having not just law that is clearly drafted or which hangs together from a technical perspective or even law that meets policy objectives in a satisfactory and useful way. You could do all that without inadequate scrutiny. It would be possible sometimes just to get everything right without scrutiny, but that is not what the rule of law properly means. For society to be governed by law, that law has to be properly made. It does not just have to be well prepared and able to be justified by government, it actually has to happen and it has to come before Parliament. That might sometimes be seen as a formality, it might sometimes be seen as a bit dull, and it might sometimes be seen as actually not very political at all. There might not actually be a whole lot of controversial debate, but it is absolutely essential that everybody, and this is speaking as a lawyer, but it is far more important than that, that everybody has confidence that law has been made in a way that follows proper process, which gives an opportunity, which might be limited certainly with negative procedure, but even with affirmative procedure it might be limited. Nevertheless, there is the opportunity for elected representatives, part of a democracy, to fulfil their function and contribute to the process of making law. If I can offer this thought, I am not sure that you were asking about the political implications, and I want to be careful as to how far I can go, but if I can offer this analogy about a possible way of looking at made affirmative procedure, that it is a little bit like strong medicine. Strong medicine is valuable in some circumstances, and indeed in some circumstances it can make the difference between life and death. You can see the analogy if you have a life and death situation, being able to change the rules immediately overnight might be essential. Strong medicine has to be handled with great care and only used when it is genuinely needed. Perhaps more importantly, it goes back to a point that was made earlier, and this is perhaps where some of the political considerations come in. Strong medicine can become addictive, and if it is used too much over time it loses its efficacy. It can become easy to use, and those who find that it solves a problem can decide that it is going to solve that problem and the next one, even though they do not demand that sort of treatment. I am reluctant to stretch the analogy too far, but there are side effects, and one of the negative side effects is the diminution of respect for the role of Parliament. I think that all politicians, whether they are in government or working in the way that they do, have to be aware of the potency of what the made affirmative procedure is and does. When you are looking at how it is deployed in the future, you treat it with the care that it needs. I do not know whether Dr Fox wants to add anything to that at all. For Parliament, there is a statutory process for the delaying of instruments before Parliament for the publication process, and that is there for a reason in relation to transparency, public notice, public access and public understanding. Clearly, when you are in a situation, as we have been during the pandemic, where instruments have been laid 30 minutes before they come into force and that the made affirmative procedure facilitates that, that is clearly extremely difficult in terms of Parliamentarians, let alone the public, being able to understand what the legal obligations are and what the implications of them are. For example, we saw social distancing rules were imposed at Westminster in a change announced on 9 September 2020, but the regulations were not published until 30 minutes before they came into force on 13 September. Certainly, one of the lessons of this pandemic is experiences that the difficulties of communication at a governmental level for several days beforehand about what the regulations are going to do, but nobody having access to the legal text know explicitly what they say. One of the difficulties that has to be looked at by Parliamentarians is that the Government, particularly in Westminster, makes the case that those issues are being debated ad nauseam. They are providing time for debate on Covid each week on different aspects of the pandemic that there are lots of ministerial appearances before committees, but the actual legislative scrutiny, the scrutiny of the technical detail and the policy merits and the context of all that supporting information that you would ideally have before you is a very different form of scrutiny for the more generic debate you have about policy direction in a general debate in the chamber on a fairly general motion. I think that that is one of the things that we really need to drive home, that Parliament needs bespoke procedures or that kind of detailed technical scrutiny in an emergency or when ministers want to use the urgent procedure in the future. It's very helpful and thank you both very much indeed. Thank you Bill and Paul Sweeney. Paul, can you repeat the question please? Can you hear me all right now? You can now, yes. Paul, very good. Sorry about that. It's been a really interesting discourse to follow. Thanks very much for your insights. If I ask Ms Ross, just in general, perhaps a view from my historical perspective as much as any else, do you think that the made affirmative procedures use and increasing use represents a general shift away from a legislative power from the Parliament towards the executive? Is that a sort of valid observation to make? Clearly, the numbers that have been given earlier in this meeting and are known to you indicate that that's the case, that there has been a very definite shift whether that can be attributed absolutely entirely to coronavirus or whether it says something about other trends, I think, is something that you need to explore. Coronavirus is the obvious explanation whether there is something else going on and whether that fits into a wider pattern. It's been really interesting to hear from Dr Fox about how that fits into the wider perspective at Westminster is something to be aware of. It would seem that you can't just take it as coronavirus in isolation. That's a helpful insight. I think that just controlling for the pandemic, Dr Fox will have a perspective on the study that they've done in 2017 in the House of Commons. What would your general impression be from a more historical perspective? Is that a long-running or a long-term trajectory of the erosion of parliamentary power relative to the executive that has to be something that will concern to members of Parliament in both the House of Commons and the Scottish Parliament? Yes. One of the features of the debate about delegated legislation generally, not just the made affirmative procedure but how statutory instruments are laid and scrutinised generally, is that people were having the exact same debates in the 1930s. Books were published about Government by Dictat about the use of emergency provisions setting a precedent for the future in the aftermath of the Second World War. There was a committee on ministerial powers in the early 1930s, the Donnellmore committee. They were having almost exactly the same debates. History suggests that the concern about the concentration of legislative power with the executive and the shift of influence away from Parliament and the balance of power between the institutions has been a long-running sore. Whether it has gotten worse in recent years, the suggestion is yes, because what you are seeing over the last 25 to 30 years is the greater use of skeleton bills with broad powers, with policy ill-defined giving ministers considerable scope for the way in which they choose to exercise those powers through regulations at a later date. The sheer breadth of the powers and the volume of them obviously gives ministers more power to exercise in the future. Certainly, the perspective at Westminster is that, although the general trend continues, it has sharpened, it has gotten worse. The volume of it is greater than it used to be. In recent years, in the context of the extraordinary political developments of Brexit and the pandemic and the combination of the two, it has coupled at Westminster with a situation in which it has a Government now that has a significant majority and that can therefore effectively ram through the House of Commons quite often what it wants. Therefore, although a group of Conservative fact benches are unhappy about the scrutiny issues, generally speaking, they have got the numbers, particularly if the opposition is supporting these pandemic measures, they have generally got the numbers to drive through the regulations. That is really interesting. I suppose that the perils of elective dictatorship is an interesting point to hold in perspective with the Scottish Parliament, because the parliamentary arithmetic is somewhat different from the scope for potentially scrutinising and holding the Government at the executive's feet to the fire on inadequate provision on the face of bills and making sure that there are not just skeletons as you put it, would be a worthwhile thing to consider going forward. I was hoping to get that explicitly stated, I think, for the purposes of what we are trying to achieve here. Thank you both for that non-technical take. Is there anything further that you might want to add that you have not considered about the made affirmative procedure and how we might want to look at the scrutiny process for made affirmative procedures? I will put that up to both of you. Feel free to jump in. I think that from my perspective, I am happy that I have answered your questions. I hope that I am happy that if there are further questions, I am happy to deal with them, but I do not have anything to add to what I have provided already. Thank you. Dr Fox. I think that there is perhaps just one issue to throw in at the end to perhaps consider. The reason, as we have discussed, is that a bespoke procedure, either at Westminster or in your Parliament in Edinburgh, for urgent situations is the use of the made affirmative procedure under the Public Health Act or similar provisions. However, at the UK level, the Civil Contingencies Act 2004 gives a sense of what Parliament expected in an emergency in terms of scrutiny. Those provisions have not been used and there is quite a lot of debate about why the Government chose to bring in the Coronavirus Act and chose to use the Public Health Act rather than to use the Civil Contingencies Act. However, that act provides for an emergency and considerable breadth of powers. All regulations must be laid before Parliament as soon as reasons will be practicable. Parliament has to approve them within seven days. It has to approve the renewal of them every 30 days. Parliament can, in some circumstances, amend the regulations and Parliament can be recalled if it is not sitting. I think that it is worth looking at that as the sort of top end of Parliament's prior expectations for how scrutiny might work in an emergency and comparing it with where we have ended up during the pandemic on an on-going basis and thinking about how those provisions might have applied and what impact they might have had during the pandemic if that had been available to members as a scrutiny model instead or whether that, too, would need tweaking into some form of bespoke model that was for use in urgency but not for use necessarily using the powers and the Civil Contingencies legislation. Thank you for that, Dr Fox, and thank you for your questions, Paul. Just before we do close this session, I just got one final question for our two witnesses. We also have the affirmative procedure and the affirmative list for today's period. Would a procedure in between that be useful in the current circumstances that we face, particularly regarding the Covid regulations that are coming through? I am not sure what you mean by in between. Do you mean an accelerated procedure or with different time limits? It is something with different time limits. If there was a new procedure to be created with that, could it be beneficial to enable the committee and Parliament to undertake the scrutiny work that has been discussed this morning? There is always room for testing. If you are looking at future primary legislation, which would seek to draw on the experiences of what is going on and has gone on in the last months, there is always room for striking and drawing the line in a slightly different place. I am particularly struck by Dr Fox's example a minute or two ago about the civil contingencies legislation, the older legislation that sets out perhaps more exacting requirements of emergency legislation that is broadly expressed. If it is in between, potentially yes, you might have different options according to the level of urgency. I think that there would have to be a word of caution that—and it comes from observations made just about complexity—that if you are going to introduce grades of expedition according to the level of urgency, you would need to be very clear about it. I think that rather than multiple stages, it is important to be clear about what is realistic and what can you do to make it very clear that exceptional circumstances are justified on their terms case by case or what you expect. Okay, thank you, Mr Ross. Dr Fox, I think there is an issue with your sound— Okay, can you hear me? We can now. Yes, thank you. I am afraid that I have lost all sound on the system. Okay. Okay, I feel like—I am afraid that I lost what Morag Ross was saying earlier, so apologies if anything I am going to say duplicates or you wanted to ask a slightly different question. I think that we were asking about the possibility of a bespoke or some kind of accelerated procedure. I think that there are two aspects to it to consider. The first is the question of democratic accountability and wanting to look at and approve the instruments as soon as possible after they come into force and not waiting necessarily as long as 28 days. The problem with that and we have seen that at Westminster where commitment was made to ministers last autumn under pressure from the Government's back benches who were unhappy about the length of time it was taking for debates to be scheduled. They agreed to schedule debates as soon after important national regulations were brought in. The problem is that you are then debating instruments within one or two days after they have been published. Of course, you can debate them, but it is quite difficult to do a full assessment and scrutinise them in detail and you lose the committee scrutiny process from that. Members are in a sense scrutinising and debating them without access to the important work of your committee and the important work of the committees in the House of Lords. For example, at Westminster, that kind of scrutiny needs time, so it may all most be worth thinking about a bespoke procedure that has two aspects to it. Yes, if the Government wants to bring the regulation in, it can be debated and approved fairly quickly, but a provision of being able to do that is that there is an opportunity, some form of sunset on the regulations so that members can come back and debate again in some form and possibly approve again the continuation enforce of the regulations once they have access to the technical scrutiny work that is being done by the relevant committees. You get two bites of the cherry, but you get the democratic accountability dealt with early. The more detailed scrutiny can be looked at slightly later, with a little bit of the advantage of time for that, if that is felt appropriate. Clearly ministers will not like that, because that creates an element of uncertainty about whether the regulations are going to come in remaining force. Obviously, it takes up more time, but again, if the objective is to put some pressure on ministers about whether or not they really need to use those procedures, that might be beneficial from Parliament's perspective in terms of the balance of power between the institutions. Thank you very much for that, Dr Fox. Just before we suspend, I would like to thank Morag Ross QC and Dr Ruth Fox for your helpful evidence this morning, and I am sure that the committee will extend our appreciation to you for that. Also, if there are any additional questions that the committee might have, we will write to you after the session, if that is okay. Thank you very much to you both. With that, I will briefly suspend this meeting. Under agenda item number 3, we are considering an instrument laid under the European Union Withdrawal Act 2018. The committee is considering if the appropriate scrutiny procedure and the appropriate category has been applied to. SSI 2021-432 is the animal products transitional import conditions miscellaneous amendment Scotland regulations 2021. The instrument has been laid under the negative procedure and is considered by the Scottish Government to be of low significance. A systematic intent with the appropriate scrutiny procedure has been applied to this instrument. Members will note that the instrument removes the requirements for products of animal origin and animal byproducts to be accompanied by health certificates. That differs from the previous instruments that have been postponed so that they have postponed the implementation of border control measures. Given that this approach appears to constitute a policy choice, does the committee agree that the categorisation should be of medium rather than low significance? Also, with some of the policy areas that are highlighted in the instrument, does the committee agree that we should write to the relevant committee to highlight our thoughts on those? Under agenda item number 4, we are considering instruments subject to the made affirmative procedure. No issues have been raised on SSIs 2021-425, 440, 441 and 443. Is the committee content with those instruments? Yes. In relation to SSIs 2021-425, that is the health protection coronavirus international travel and operator liability Scotland amendment number 7 regulations in 2021. Does the committee wish to highlight the Scottish Government's response to the committee's questions regarding eligible vaccinated arrivals status to consider from a policy perspective? Yes. Note that the SSI addresses an issue identified by the committee at its meeting on 9 November 2021 in relation to 4D of SSI 2021-359. Under agenda item number 5, we are considering instruments subject to the affirmative procedure. No points have been raised on the draft town, country planning, short-term let control areas Scotland amendment regulations 2022 and the relayed draft civic government Scotland act 1982 licensing of short-term let's order 2022. Is the committee content with those instruments? Also, the committee wishes to welcome that the relayed draft civic government Scotland act 1982 licensing of short-term let's order 2022 addresses issues reported by the session 5 committee at its meeting on 12 January 2021 in respect of the draft civic government Scotland act 1982 licensing of short-term let's order 2021. Under agenda item number 6, we are considering instruments subject to the negative procedure. An instrument that has been raised on SSI 2021-438, that is the ethical standards and public life etc Scotland act 2000 register of interests amendment number 2 regulations 2021. That instrument amends the ethical standards and public life etc Scotland act 2000 register of interests regulations 2003 in light of changes made to the code of conduct for councils and the model code of conduct for members of the evolved public bodies. SSI 2021-397, the ethical standards and public life etc Scotland act 2000 register of interests amendment regulations 2021, was laid before Parliament on 8 November 2021 and was considered by the committee at its meeting on 23 November. The committee resolved to report the instrument on the reporting ground I due to a failure in the instrument to make provision for all registerable interests set out in the revised model code contrary to the policy intention. That instrument would have come into force on 8 December. The current instrument was laid on 25 November 2021 and came into force on 7 December 2021 to rectify the errors in SSI 397 and make further provision. It is in breach of section 28-2 of the interpretation and legislative reform at the Scotland Act 2010, which requires that instruments subject to the negative procedure are laid at least 28 days before the committee force, not counting recess periods of more than four days. Does the committee agree to report the instrument under reporting ground J for failure to lay it in accordance with laying requirements under the interpretation and legislative reform Scotland Act 2010? Also is the committee content with the explanation provided by the Scottish Government for breach of the requirement in section 28-2 of the 2010 act. Finally, does the committee wish to welcome that the Scottish Government laid the instrument timuously to rectify an error previously identified by the committee at its meeting on 23 November 2021? Also, under this agenda item, no points have been raised on SSIs 2021, 4-3-1, 4-3-2 and 4-4-2. Is the committee content with these instruments? Under agenda item number seven, we are considering instruments not subject to any parliamentary procedure. No points have been raised on SSIs 2021, 4-2-8. Is the committee content with this instrument? With that, I will move the committee into private.