 The next item of business is debate on inquiry into the use of made affirmative procedure during the coronavirus pandemic. I would invite members who wish to participate to press the request to speak at buttons now or as soon as possible. I will place an art in the tap function if they are joining us online. I call on Stuart McMillan to speak on behalf of the Delegated Powers and Law Reform Committee for around seven minutes, Mr McMillan. First of all, I am delighted to open this debate and the Delegated Powers and Law Reform Committee's inquiry into the use of the made affirmative procedure during the coronavirus pandemic. At the outset, I would like to thank all those who appeared before the committee and provided written evidence at very short notice. We only agreed to hold the inquiry in late November, so we are very grateful to hear from so many in such a short space of time. I also want to thank the clerking team and also the legal team who have been valuable during the inquiry and who have ensured that our report was turned around in such a short time frame that we allocated ourselves. I have been able to hear from witnesses remotely and have allowed us to take evidence despite new restrictions due to the Omnic Invite variant. Although I know that meeting in person is always preferable and beneficial, virtual meetings have their place and they can sometimes be challenging as we know, Presiding Officer, but they provide Parliament with another option to hear from witnesses in addition to helping to reduce the carbon footprint of Parliament and individuals. Before I cover the committee's main findings, I want to first mention why this work was important and should matter to us all here in Parliament and also not just to the five members of the committee. The use of the made affirmative procedure since March 2020, which has allowed the Scottish Government to bring into force a large number of very significant powers immediately, is a classic case of a debate that predates us here in the Scottish Parliament, namely the balance of power between Parliament and also the Government of the day. Dr Ruth Fox, director of the Hansard Society, reminded the committee that debates on how statutory instruments are laid and scrutinised were taking place in the 1930s. Books were published in the aftermath of the Second World War about the Government by Dictat and the use of emergency provisions. Dr Fox told us that concerns about the concentration of legislative power with the executive and the shift of influence away from Parliament has been, and I quote, at a long-running sore, so the committee's report should be read in the context of that history. The committee is clear in the report that we do not wish to remove the made affirmative procedure. The committee has regularly acknowledged that the made affirmative instruments have allowed the Scottish Government to respond quickly to the many challenges presented by the coronavirus. However, we do want to ensure that bringing such substantial changes into force immediately changes that have often impacted on all aspects of our lives before any parliamentary scrutiny should only be used if essential, and such emergency powers should not, as we have often heard from witnesses, become a habit. We want to make sure that the balance of power between the Parliament and the Government is indeed balanced. Each of the committee's recommendations has sought to do just that. Our first set of recommendations focus on the clarity and accessibility of law. We heard from Sir Johnston Jones QC, the former head of the UK Government's legal department, that, within the Westminster context, there were times during the pandemic when extreme urgency was prioritised over the quality and comprehension of legislation. The Law Society of Scotland highlighted concerns about the clarity and accessibility of made affirmative instruments, which are subject to frequent and significant amendments. It suggested that, when amending an instrument, the Government should produce a consolidated version showing the whole instrument as amended. The committee agrees. We want to ensure that all legislation is properly and clearly drafted so that it is legally accurate. It should also be easy to find and can be interpreted by all, particularly given that many regulations made during the pandemic placed significant restrictions and potential criminal sanctions on individuals and businesses. Our various practical recommendations seek to help that to happen. The report then calls for a number of changes to how made affirmative instruments are brought forward. Currently, the majority of made affirmative instruments are laid under the 2020 coronavirus act and the 2008 Public Health Scotland act. Under both acts, it is for the Scottish Government to determine whether the regulations need to be made urgently. The University of Birmingham's Covid-19 review and observatory found that the frequent use of the made affirmative procedure since the start of the pandemic raised questions about how the urgency threshold is operating as a constraint. Others spoke of the potential for the made affirmative to become a habit. The Deputy First Minister told us on the committee that the use of the procedure is not the default view of the Scottish Government. He also said that he would consider adding a statement of urgency to all made affirmatives. The committee has called on the Scottish Government to do just that. If the committee is not satisfied with the government's justification, it reserves the right to seek to raise this matter in the chamber and to do so quickly. The committee has suggested options for how this might work in practice during the current procedures. It has also invited the Standards, Procedures and Public Appointments Committee to explore further procedural options as part of its inquiry into shaping parliamentary procedures and practices for the future. The committee would be very grateful for the SPPA committee to consider this as part of its work. I will move on to how the Parliament looks at the proposals that were made affirmative powers in new bills. It is already very precinct to the committee that had an initial look at such proposals in the coronavirus recovery and reform Scotland Bill this morning. Professor Stephen Tierney, the professor of constitutional theory at the University of Edinburgh, told the committee that adequate scrutiny of primary legislation, which creates delegative powers, is a key part of robust lawmaking. The committee agrees. To ensure that robust approach, we have outlined a set of four key principles that we will use to scrutinise any such proposals. I go back to my opening comments to hope that they will help to ensure that there is an appropriate balance of power between the Parliament and the Government of the day. Finally, I would like to briefly highlight the expedited affirmative procedure. The affirmative procedure enables the Delegative Powers and Law Reform Committee and the lead committee to conduct their respective technical and policy scrutiny rules before proposed changes are made into law. As Morag Ross Cusie, representing the Faculty of Advocates, noted that individuals might scrutinise legislation already in force, differently from legislation, which is still prospective. The committee would therefore be happy to consider, with the Scottish Government, that the Covid-19 recovery committee and the Parliamentary Bureau are a case-by-case basis for when the use of an expedited affirmative procedure as an alternative to the use of the made affirmative procedure might be appropriate and the parliamentary time scales for such scrutiny. I refer members to sections 106 and 107 of the committee report. We acknowledge that the Scottish Government did not start out in 2020 with a plan to use the made affirmative 146 times. However, we did embark on the short inquiry because of the importance of proper parliamentary scrutiny that leads to good law, which is accessible to all. I thank you very much and look forward to hearing the rest of the contributions in the debate. The Government welcomes the opportunity to participate in this debate, and I have listened with interest to the convener's explanation of how the committee conducted its inquiry and his explanation of the committee's key recommendations. I responded yesterday in an initial response to the committee's conclusions, as requested by the committee, to give a sense of the Government's response to the issues that have been raised. I will amplify that in my comments today, and I hope that the committee and its convener found the response yesterday helpful, but we will of course reflect in full on this debate and on the report in due course and submit a substantial response to the committee's inquiry. It is important at the outset of this discussion to provide some context from the Government's perspective. When I gave evidence to the Delegated Powers and Law Reform Committee on its inquiry last month, I put on record the Government's general position on the use of the made affirmative procedure. I emphasised that the made affirmative procedure is a very unusual power, granted by Parliament in those situations, usually related to safeguarding public health, when action may need to be taken more quickly than the normal affirmative procedure allows for. I assured the committee that the Government does not take lightly the use of the made affirmative procedure. It is a quite exceptional power, but it has been required in these quite exceptional times. It is clear to me from the vantage point that I have that it has been an essential tool in enabling the Government to deal with the coronavirus pandemic. The Government has a duty to protect public health, and it is important that we continue to have the option of using the made affirmative procedure when urgent action is required to protect public health. However, I recognise the challenges that the use of the made affirmative procedure gives in terms of parliamentary scrutiny and the challenges that that throws up for committees and for Parliament. I recognise why the committee wishes to conduct an inquiry into how that power has been exercised and any licence that can be learned from that experience. I turn to the committee's report and its recommendations. I think that it would be fair to say that none of us could have envisaged at the beginning of the pandemic just how long the public health crisis would be with us. I think that it would be fair to say that none of us could have envisaged how regularly we would need to make regulatory changes to deal with the pandemic. I therefore think that it is helpful that the committee's report recognises at paragraph 108 that the made affirmative procedure has been, and I quote, a vital tool in the handling of the pandemic. The committee rightly emphasises the importance of ensuring that regulations brought forward under the made affirmative procedure are robust, are clear in their meaning and are accessible to those they apply to. I share that view and the Government aspires to those characteristics in all of the legislation that it brings forward. The committee also rightly emphasises that the Government should make clear why it considers urgent action to be necessary when the use of the made affirmative procedure is proposed. I recognise the committee expects that justification to be made on a case-by-case basis and that the Government accepts that point. However, I think that it is worth making a general point here, as I did when I gave evidence to the committee, about why it is necessary to have the made affirmative procedure at all. That general point is the timing constraints that apply under the normal affirmative procedure. Standing orders allow for 40 days of committee scrutiny before a chamber vote is taken on whether the regulations should pass. The reason for the existence of the made affirmative procedure is to enable regulatory action to be taken much more quickly to safeguard public health. As we have seen from our experience in the course of the pandemic, a period of 40 days is an extraordinarily long period of time in the handling of the challenges of the pandemic that we have faced. Indeed, if Mr Simpson allows me to provide an example, I will then give way. At the end of November last year, the Government had a Cabinet meeting on a Tuesday at which we considered the pandemic to be in a relatively stable position. 48 hours later, my colleague Mr Matheson was on calls with the United Kingdom Government about the disclosure of the information around Omicron and the advancing pace of circulation of that virus. 48 hours changed fundamentally our view of the type of conditions with which we were resting. I make that point to register the need for swift action where that is necessary to do so. I thank the Deputy First Minister for giving way and taking the intervention. Would he accept—this was a recommendation that was made in the report—that it is possible to have an expedited procedure so that Parliament can act at pace? It does not need to take 40 days if we have an affirmative procedure. We could change things if we need to act quickly. Deputy First Minister, I will give you the time back. I think that that is an eminently deliverable proposition, but it depends on how long we are talking about it. I do not want that in any way to sound like the length of a piece of string, but it is relevant. I cited the example there, and if we go back to the events of March 2020, in that period in March 2020, events moved at an absolutely ferocious pace, and we had to take decisions of a dramatic nature in a very short space in time. Indeed, some decisions that we took, which we thought were dramatic, had to be taken even quicker, of even more dramatic nature, very short thereafter. I think that there is a possibility of doing what Mr Simpson talks about, and that might be in the light of the pandemic valuable for the Government and the Committee to consider, perhaps in a slightly more relaxed context, what that might look like so that we all are aware of what a super expedited procedure might look like if we want to give it some terminology. The Government is very happy in relation to the points raised by the Committee to explain on a case-by-case basis what is driving urgent action, but the fundamental issue that the Government has to determine is whether the action needs to be taken more quickly than is provided for under the normal affirmative procedure, and that might open up some of the space that I have just discussed with Mr Simpson for further dialogue. The Committee also rightly emphasises that the use of the made affirmative procedure should not become the new normal. I want to confirm with Parliament what I said to the Committee that that is also the Government's view. I am happy to confirm that the Government has no intention of made affirmative powers routinely being included in Government bills. However, such powers have a place and the Committee will know, for example, that made affirmative powers have been included in the Covid Recovery and Reform Bill because in that context that bill is envisaged to create a set of powers that might have to be used because of the urgency and gravity of the situation that we face. I am happy to give way for the group. I am very grateful, Deputy Presiding Officer. Would the Deputy First Minister also agree that, if those bills that embed this procedure should be properly scrutinised by this Parliament before they go forward? Deputy First Minister, would you be grateful if you could be winding up? Unreservedly. That is what the Government is providing for in the parliamentary timescale that is available. Of course, the usual scrutiny of stages 1, 2 and 3 will be available for the Covid Recovery and Reform Bill. I look forward to engaging with Parliament on that question, Mr Fortfield. I fully accept that the Government will need to justify why such powers are appropriate for inclusion in that bill. I note the set of principles that the Committee has identified to support its scrutiny. I emphasise that the Government accepts that the made affirmative power is an exceptional power. I welcome the helpful analysis from the committee of the use of the power over the past two years and will reflect further on its recommendations. I think that it is important that Parliament considers the impact of the pandemic on its legislative basis, which is why we have brought forward other legislation that will, as I confirmed to Mr Fortfield, be subject to further scrutiny within Parliament. Thank you very much indeed, and I call on Graham Simpson for around five minutes. Thank you very much. I am in my second spell on the DPLR committee. My first was as convener and you might be forgiven for thinking that I earned a second stint because my chief whip does not like me, which may well be true. However, I actually made the schoolboy error of telling him how important the committee is. It is the gatekeeper. We see everything, we see the tricks the Government is up to, though a committee report would never use such a phrase, but that is what this inquiry was about. In layman's terms, this inquiry was about the way in which this Government has been making law without Parliament scrutinising it and voting on it first. Does Mr Simpson agree with me that the language he uses belittles the challenges of the pandemic? Graham Simpson. Not at all. It is the way I see it. The figures bear it out. Between 2012 and 2019, the made affirmative procedure had only been used nine times, but between March 2020 and February the first this year it was used 146 times. When I described it as becoming the norm and John Swinney described that as ludicrous, I was right and he was wrong. It has become ridiculous at times. Quite often Parliament has been voting on things that are no longer there. Now you see it, now you don't. It is like the Darren Brown school of legislating. The ridiculous Manchester travel ban is a good example. Nicholas Sturgeon had come to us senses before MSPs could tell her to wise up. Had it come to us in advance, we could have spared the First Minister a needless spat with Andy Burnham. Can I thank the committee clerks and all our witnesses and the convener for helping us to produce an excellent report? Jonathan Jones QC told us that using the no scrutiny route had become a habit here and at Westminster and it was a bad one. I agree. Dr Ruth Fox of the Hansard society reminded us that the tension between Governments wanting to push the boundaries and Parliament wanting to keep them in check was as old as the hills. Professor Stephen Tienney agreed with me that if you give Governments an inch they'll take a mile, which is what has happened. Morag Ross QC was of the view that rapidly changing legislation can become confusing and this led to our recommendation that legislation should be consolidated so it can be easily read. In order to use the no scrutiny route, all the Minister has to do is decide that something is urgent. He or she doesn't have to say why they don't have to justify it and the University of Birmingham COVID-19 review observatory said the urgency requirement is not an effective constraint on the use of the made affirmative procedure. It said the use of that procedure should be justified to ensure that all SSIs are treated as exceptional and the committee agreed with that. Now the committee was very clear on this. If you think something is so urgent that you feel you have to legislate without the normal checks and balances then you need to say why. If the committee disagrees then the matter should be brought to the chamber and if it can be debated then it should be open to all members to contribute. This Government has been ramming through legislation at will without scrutiny on a weekly, sometimes daily basis and that has to stop. We are long past the stage where Governments need to legislate at the kind of pace that might be justified in wartime and I would argue that actually we could have scrutinised every piece of legislation prior to it coming into force and we certainly should be doing that from here on in. The committee makes just that point. Both the DPLR, well I think I'm in my last minute but I'll take an intervention if I'm given time. Would you accept, thank you for giving way, that there are at least some cases like the travel restrictions to foreign countries which are both at a UK and a Scottish level which in fact even two days was probably too long. They should have been immediate. Well I am making the point Mr Mason that I believe this Parliament is up to the job of scrutinising any piece of legislation and we can do so at pace and given that we have a hybrid form of working now people can do that from home. I'd be prepared to work weekends if it was necessary. Now both the DPLR. Thank you very much and I'm now going to ask the question, not as convener but obviously as an SNP member, but I would give him some knowledge that at the outset of the pandemic there were challenges in terms of the hybrid working. There were challenges with the Parliament in terms of the hybrid working. So as the Deputy First Minister speaking all around regarding some of the early instruments that had to go through the Parliament, his comments regarding the hybrid working might not actually have been acceptable and suitable at that particular time. I think Stuart McMillan has a point because hybrid working wasn't there initially so we may have struggled but now it is. So I think Stuart McMillan actually agrees with this point that he might not be able to say it but I think he does that we could act at pace. Now both the DPLR committee and the Covid committee have unanimously said the affirmative procedure should be the default so I do hope that the Covid committee will reject anything done otherwise forthwith unless it is to get rid of restrictions. Deputy Presiding Officer and I'll close too many committee reports are ignored by Government. This report is for Government but it's also for Parliament and I hope you and your colleagues will take us down too because you're there to defend Parliament and we've been bypassed for the past two years and it has to stop. Thank you Mr Simpson and I call on Neil Bibby who joins us remotely for around four minutes. I commend the committee for their thorough and insightful reports. It is of course right that Government should be able to act swiftly and decisively when faced with unprecedented challenges. There's always attention when legislating between urgency and scrutiny but democratic accountability is vital and it is what Parliament is for. The burden of proof for a proposed sacrificing of democratic accountability even in the name of urgency must be very high. This is the basic principle from which I and Scottish Labour approached this matter. The Scottish Government went from using the made affirmative procedure on average once or twice per year prior to the pandemic to using it over 140 times since the pandemic began. This is understandable. The Covid emergency obviously necessitated urgent action that made the use of made affirmative powers entirely appropriate. Nevertheless, as the committee has also acknowledged, proper parliamentary scrutiny is vital and we must ensure that those powers do not in any way become normalised. scrutiny and debate make for better legislation. Unrestrained and unaccountable ministerial powers do not. We therefore endorse entirely the committee's findings that there would be significant dangers in Government using procedures like this if the public was not aware of what was being done and why and if Parliament not fully informed and able to hold the Government to account. There are also important concerns around the need to have high standards of drafting. High-quality drafting takes time and effort. Legislation made in a hurry is unlikely to be of the same quality as legislation where due care and attention has been paid. Rectifying errors in drafting can also be complex and time consuming. Therefore, echo the committee's call for the Scottish Government to outline its internal checks and balances obtained when making changes to the law. This is entirely reasonable. Parliament and the people deserve to know what has been done in order to avoid errors in legislation. In line with all those concerns, the committee makes important recommendations regarding a test of urgency. Given the significant use of made affirmative instruments, it is wholly reasonable to ask for guarantees that they only be used in exceptional circumstances. We therefore support the committee and its calls for the Scottish Government to publish criteria on whether a situation is suitably urgent to provide a written statement prior to the instrument coming into force and to ensure that such regulations are published as quickly as possible so that those impacts fully understand the changes made. The committee also raises a further important point regarding the parliamentary process. The report points out that there is a present no obvious mechanism by which ministers could debate a made affirmative issue with sufficient speed. Perhaps, then, the challenges of the pandemic have identified some weaknesses with scrutiny in this place that need to be addressed more generally. Perhaps it is time to consider recommendations to strengthen the role of Parliament, including perhaps use of an expedited affirmative procedure as an alternative to the use of made affirmative procedure. This is a proposal raised in the committee's report, and it is worth looking at seriously. The committee sets out four principles. First, the use of the affirmative procedure should be the default position in all but exceptional and urgent circumstances. Second, when use of made affirmative powers is proposed, Parliament requires an assurance that the situation is urgent and with an opportunity for a debate in a timely manner. Thirdly, ministers should include an assessment of the impact on those affected by any instrument in the explanation that they provide. Fourthly, legislation containing provision for made affirmative provision must contain done-set clauses. Those four principles are strong ones and should be supported. Thank you, Presiding Officer. Thank you very much indeed, Mr Bibby. We now move to the open debate, and I call firstly Jenny Mintow, who will be followed by Murdo Fraser, for around four minutes, please, Ms Mintow. Thank you, Presiding Officer. I attended the Delegated Powers and Law Reform Committee as a substitute for its meeting on 11 January 2022, so unlike Mr Simpson, I was not steeped in the history of that committee. This was the final evidence session of the committee's inquiry into the use of the made affirmative procedure during the coronavirus pandemic, and evidence was being taken from the Deputy First Minister, as he has stated, so I have no pressure that day at all. Reading the evidence already provided by the two earlier sessions, there was much agreement from all the witnesses on the key areas of questioning, clarity and accessibility of law, how to define urgency and scrutiny of the executive by Parliament. I will look at each of those separately, but briefly. I have the ability to do so from two different points of view. First, as a parliamentarian, and secondly, in my previous life, as a community activist, when we were looking for up-to-date and clear guidance set out in a way that was easy to understand and to pass on to those who we were supporting during the Covid pandemic. The law should be clear and accessible to all, especially where the law is continually changing and sometimes coming into force with immediate effect, as has been the case during the pandemic. Sir Jonathan Jones said that, ironically, it is probably true to say that it is easier to legislate for a lockdown with very tight controls and only minimal exceptions by drafting very tight and clear laws than it is to legislate, as we saw later in the pandemic, for partial closures and multiple exceptions. From my own experience during the lockdown and the emergence of it, I recognise that analysis. Throughout the pandemic, individuals, businesses and communities were looking for clear guidance and timely guidance as to what they should or should not be doing. Emerging from the lockdown was difficult. The resilience group that I was part of discussed this long and hard as to how we achieved it safely on Islay. The Scottish Government's route map provided the blueprint for our work. To ensure that the laws are clearly understandable to everyone affected, the DPLR committee has concluded that policy notes and explanatory notes be written in plain English and in insufficient detail. Defining urgency was seen as key in determining the use of the made affirmative procedure. In her evidence, Morag Ross QC suggested that it would be tempting to think that we could narrow that down to say that urgency definitely means x or y and that it doesn't mean z, a, b or c. She went on to say that things change, so there must be flexibility to allow decisions to be made that respond to changing circumstances. Urgency might mean one thing in one week and something else in week two, so you have to allow for responses to be developed. The example that the Deputy First Minister has just given in his speech actually talked about 48 hours. He concluded in his evidence by saying, in my book, that is why urgent action is required because the situation has changed before our eyes in a very dramatic order and fashion. In its conclusions, as others have said, the committee has asked for transparency as to the criteria for determining in a situation is suitably urgent to merit the use of a made affirmative procedure by requesting a written statement of justification and evidence prior to the instrument coming into force and to ensure that any such regulations are published as quickly as possible. All witnesses raised concerns about the increased use of the made affirmative procedure during the coronavirus pandemic and how that has impacted on Parliament's scrutinising or holding the executive to account. Professor Tierney commented that, from my work in scrutinising legislation over many years, I have come to realise that all Governments like powers, they like to get more of them. In answering my question on what the Scottish Government has learnt from the pandemic and how it could shape future decision making and the use of made affirmative procedures to allow proper parliamentary scrutiny, the Deputy First Minister said that, in the circumstances of the global pandemic, that requires swift action. The measures that have been taken are appropriate. However, we should always be open to learning lessons from the situation and the Government will consider with care any output from the committee's inquiry. The DPLR report and its conclusions provide a number of suggestions. As to how the decisions around the made affirmative procedure could be enhanced, I hope that the Scottish Government considers its findings with care. I welcome the opportunity to make a short contribution to the debate on the made affirmative procedure and its use during the coronavirus pandemic. I commend the members of the Delegated Powers and Law Reform Committee for taking the time to look into the topic. I also remind members on my register of interests in that I am a member of the Law Society of Scotland. The debate may seem to be about a dry and arcane issue of parliamentary procedure but raises some really quite serious issues around our democracy and proper parliamentary scrutiny of Government action. It is important that we put all that in context. We have seen an unprecedented public health emergency that requires Governments across the world to act quickly in the public interest, restricting individual liberties and bringing in restrictions that, in normal times, would be deemed to be totally unacceptable. Because of the speed of changes throughout the pandemic, Government sometimes had to act very quickly without going through the normal parliamentary processes and opportunities for scrutiny, and all that is understood. However, there is an important point being made by the committee in their report, in that the made affirmative procedure, in other words regulations coming into force instantly on their being laid, with any scrutiny in Parliament taking place retrospectively, perhaps weeks after the event, can lead to poor quality of legislation and bad law. Giving evidence to the committee on behalf of the Faculty of Advocates, Morag Ross QC warned that, in general, legislation that is made in a hurry is unlikely to be of the same quality as legislation to which great thought has been given and for which preparation has been undertaken. A very good example of this situation arises in the case of vaccine passports. Vaccine passports remain a very controversial part of the Covid legislation, and we have argued previously that there is little or no evidence of their effectiveness. Indeed, in the evidence paper that the Scottish Government published in November last year, it effectively conceded that vaccine passports had very little value in preventing the spread of Covid or in increasing the uptake rate for vaccination. Indeed, the First Minister confirmed just an hour or so ago that vaccine passports would be removed in a few weeks' time. The Scottish Government used the made-affirmative procedure to introduce the regulations for vaccine passports, although there was time for a more considered approach. A month passed between the date when the Scottish Government announced that vaccine passports would be introduced and the original implementation date for the policy. Indeed, there was any two-week grace period when the Government accepted that the regulations, although implemented, would not be enforced on businesses. There would therefore have been time for proper parliamentary scrutiny of what was being proposed, rather than it being done retrospectively, as was the case. Indeed, the only reason we had parliamentary scrutiny, if I remember, was that the Conservatives allowed Opposition debating time to be used to shine a light on those proposals. There are two other points that I will make briefly, which have been highlighted by the committee. One is about the clarity and accessibility of instruments, which have been amended many times. That was raised by the Law Society of Scotland in its evidence. It cited the example of the health protection coronavirus international travel of Scotland regulations 2020, which were amended no less than 25 times. That undoubtedly causes a great deal of confusion for those who are trying to consolidate the rules. The committee called for consideration to improve accessibility of consolidation of such instruments. The committee also called for criteria to be published by the Scottish Government for the circumstances in which it would use made-affirmative procedure in future. That is a very helpful recommendation, one that I hope the Government will listen to. To conclude, I would accept that there is a case for the use of the made-affirmative procedure in emergency circumstances, but the concern that I would have, reflecting that of the committee, is that the use of the procedure bypassing proper parliamentary scrutiny has become too frequent. As we move out from the phase of the Covid pandemic and relax restrictions rather than impose them, I hope that lessons will be learned by the Scottish Government for any future situation that arises. Thank you very much indeed, Mr Fraser. I am afraid that we have now exhausted all the time that we had available, so I would be grateful if colleagues would stick to their time limits. Over to you, Martin Whittle, who will be followed by John Mason for around four minutes. I am very grateful, Deputy Presiding Officer. I hear your cry to stick within time, and I will do that for you. I welcome the report and thank the committee and the convener for their excellent work in taking the evidence. I echo Stuart McMillan's comments about the use of the hybrid proceedings to allow those people to contribute. Indeed, interestingly, in comments that have been made so far, the hybrid proceeding has been noted as one of the reasons why perhaps better parliamentary scrutiny could indeed take place, and this is something that I know this Chamber and those outside will look forward to as we move on. The conclusions of the report are very much welcome, but I would like to stand here to address the Chamber partly as convener of the Standards Procedures and Public Appointments Committee, and to thank Stuart McMillan for his letter, which has been received and appears on our work schedule in due course, and we will take a look at it. It is concerning that one aspect highlighted in the report shows one of the absences within the standing orders and parliamentary procedures that we have here within this building, and that is the inability to hold to account the Government. If the Chamber is of any use, its role must be to hold the Government to account. We have heard and I very much welcome John Swinney's comments that this is an exceptional power used in exceptional situations, but I have found and I think is evidenced from other legislatures that sometimes the habit of easy power comes very easily and is repeated. I am grateful for the Deputy First Minister's comments about it, and I hope all those that hold his post and other Government posts going forward will also remember that this is an exceptional power and in an exceptional situation, but also because of that it is right that this Chamber should hold to account those decisions, and provision should be able to be made so that this Chamber can take account and hold, question, and hopefully, and I say this carefully, improve legislation, which, as Mido Fraser so rightly points out, if is put through too fast often lacks in clarity understanding, and that's reflected in those that read this legislation outside of this place of what their understanding should be. So the committee that I have the pleasure to convene has been invited to consider this matter, and although of course I can't speak on behalf of the committee, I can undertake both to this Chamber and to the committee that's produced this report, that we will discuss it and liaise with the convener to seek any additional information that may be available, because there must be, there must be a way of holding to account Government decisions which don't leave just the convener of the committee in this place to hold to account, or indeed the use of an urgent question, or indeed supplementary questions. So in order to allow this debate to get on time, can I undertake to do what I have said to do? Can I welcome this report, but can I also welcome the Government's assurances that this will remain an exceptional power used in exceptional circumstances? Thank you Mr Whitfield, impeccable timing, and I call on John Mason who will be followed by the closing speakers again four minutes Mr Mason. Thank you very much, I can always use Martin Whitfield's extra time perhaps. Thank you for the opportunity to take part in today's debate. I have to say I'm not currently a member of the DPLR committee, although I have been, and I have huge respect for those members who find its normal work interesting. However, I was keen to take part in this debate today, especially as I am a member of the Covid Committee, and it is largely because of Covid that more use has been made of the made affirmative procedure. Virtually all of us accept that many decisions had to be made quickly during the pandemic, and there was not time for the usual often lengthy consultation and scrutiny process to take place. We are all loyal to our parties and generally vote along party lines. However, we also have responsibilities as parliamentarians to ensure that Parliament works well, as I am convinced that when Parliament works well, Scotland has a whole benefit. I have said that I am disappointed by some of Graham Simpson's comments, which I think got the balance wrong between taking a party line and being a parliamentarian. Therefore, I welcome the fact that the DPLR committee was carrying out this inquiry, and I commend it on its report. I also accept that we are needing to strike a balance between acting quickly and potentially giving a longer notice period to those who are affected by particular regulations on the one hand, and acting more slowly to allow Parliament more time for scrutiny, even though that meant less time for those who are affected to know where they stood on the other hand. An example of that, as Murdo Fraser said, was the vaccine certificates or passports, and that is referred to in paragraph 37 of the report. More time was given than with other decisions between this policy being announced and it is actually coming into effect. That meant that the Covid committee had more time to take evidence from witnesses and potentially there was time for the affirmative procedure to be used. On the other hand, the night clubs and others were demanding certainty as far ahead as possible so that they could prepare, and their preference was for a decision to be made as quickly as possible, albeit only after their voice had been heard. I particularly like the statement in the report recommendations 10.1 that use of the affirmative procedure should be the default position in all but exceptional and urgent circumstances. Legislation making provision for the made affirmative procedure must be very closely framed and its exercise tightly limited. Also recommendation 11 that an expedited affirmative procedure might be preferable to made affirmative on a case-by-case basis and with agreement of the Government, the Bureau, the lead committee and DPLR. That would certainly be my personal preference if at all possible and there was support for this within the Covid committee as evidenced by our letter to the DPLR committee, which was referenced in paragraph 93. I might take a slight issue with recommendation 13, although it may just be the way it is worded. I agree that considering legislation before it comes into effect should not come at any cost. However, I do not think that it should become habitual, i.e. if that means considering it before it comes into effect. I note the point that John Swinney makes, which is quoted in paragraph 46, that we have had almost weekly statements for the last two years and have had ample opportunity to ask questions of the Government and also to have relevant witnesses at committee. I suspect that few other countries have had such opportunities. However, there is a slightly separate point from scrutinising the actual legislation for which the timescales have been much more compressed. Morag Ross QC makes the very valid point that we all inevitably look at legislation differently depending on whether it is already in force and effectively a FETA company, compared to how we would consider an instrument that will come into force in 28 days' time. Overall, I commend the DPLR committee for its inquiry and report. It was very important that we as a Parliament considered this issue, and I hope that it will be a learning experience for all of us going forward. Thank you very much indeed. Mr Mason, we now move to the closing speeches and I call on Paul Swinney for around four minutes, Mr Swinney. Thank you, Deputy Presiding Officer. It was a pleasure to take part in this inquiry and to the use of this procedure, which is very unusual in the history of devolution and, indeed, across our legislative framework in the UK. I think that we all agree that there were exceptional circumstances, but now that we have an opportunity perhaps in the coming months to reflect on how that was used, that particular report will hopefully help to guide Parliament in deliberating on how we can improve our processes, how we can improve the scrutiny of quality legislation. I thank the convener for his chairing of the committee. I also thank the convener of the Public Procedures and Standards Committee for coming forward as well, because I think that there is a symbiotic relationship in what we are doing to try to improve Parliament and ensure that the quality of our legislation is safeguarded. There will inevitably be a tension between the executive and the legislature, and that was borne out by the witnesses who came forward. I noted Dr Fox in particular, as mentioned by the convener's historical perspective on things, where there has been a decades-long debate about the nature of the tension between the executive and the legislature. This particular situation offers us some insight to how it tends to be a ratcheting process. Although it might be virtuous of Government ministers to say that they will happily surrender powers as soon as they are not necessary, the general trend of behaviour has been a ratcheting or one-way effect where power is hoarded by the executive, and it has to be an act of push or pullback from the legislature in order to recover that power and offer scrutiny to Government. I think that that is what we are proposing in a decent balance. The made affirmative procedure might be unusual, but it offers us an opportunity to build a new type of legislative framework, and that is what has been suggested by some of the witnesses to the inquiry. This goes back to Lord Halsham's description of the House of Commons, which often has been an elective dictatorship in 1976. Of course, the nature of the electoral system in the House of Commons means that it generally produces executive control of the chamber. It is something that is less likely in Holyrood because of the electoral system. In Holyrood, there is a greater scope and opportunity for us to apply a balance of power that provides an effective check on the executive's execution of it. That is also borne out in the committee, because it is opposition members who hold the balance of power. That offers a degree of effective check on executive control. I think that that is a welcome thing. I noted, particularly Sir Jonathan Jones' contribution, where he mentioned that we should go further and have a new statutory instruments act. He mentioned that there was a very outdated statutory instruments act of 1946, which probably is getting passed at sell by date. Perhaps that is a watershed moment for the Government to reflect more fundamentally on the suitability of existing procedures to deal with the modern threats that we face, the modern challenges that we face as a legislature. I would also say that the innovations that are mentioned by the convener of the public procedures and standards on the opportunity for the hybrid chamber to use that in a better way. We know, for example, that there are huge opportunities for us to work in real time. Why can't we have live committees working in real time, committees of the whole chamber, if necessary, to work with the Government to craft those bills, those fast-track legislative processes? I am grateful to Mr Sweeney for giving way. He said that the Government had to consider some of those issues. I think that there is also a scope for Parliament, a necessity for Parliament to consider those issues, because I am sure that he would accept from me that waiting for 40 days for an urgent provision to be enacted is, in a public health emergency, far too long for us to wait, but there are quicker ways of doing it with good scrutiny, which the Government is perfectly happy to consider. I welcome the Deputy First Minister's comments on that, and I think that that is really important. I am particularly reflecting on Professor Tierney's point about the need to be a legislative code that underpins all this, because we cannot simply rely on the goodwill of ministers and parliamentarians to make this work. The sort of goodchaps theory of government has very much been put to the test in recent years, and I think that we need to look at a better way of codifying it all. I welcome the Deputy First Minister's comments on that regard. That spirit let us work together to enact some of the recommendations, the commitments of this report and build a better legislative framework, because we can build a new system of statutory instruments that better reflect the pace and change that is needed in our democracy today. Thank you, Deputy Presiding Officer. I would like to open by thanking my colleagues on the Delegated Powers and Law Reform Committee for the report that we are debating today, and I would also like to thank the clerks and the wider committee team for their support. Despite the nature of this issue, today's debate has been neither technical nor dry, and that is because it goes to the heart of parliamentary democracy, as Paul Sweeney has just said. Today's debate answers why it is important that MSPs acting independently and collectively as a legislative body have the proper powers and processes in place to scrutinise laws and regulations, and through that to hold the Government to account. Deputy Presiding Officer, in the face of unprecedented public health emergency, we handed powers to ministers to an extent that we would never have considered acceptable before. We handed them those powers on an emergency basis and we handed them those powers to ministers on a temporary basis. We accepted the need for legislation to be brought in at speed, sometimes with little or no parliamentary scrutiny at all, and we also accepted that hastily written regulations, which might prove through time to be far from perfect where at times likely to be better than no regulations at all. However, as the public health emergency recedes, it is time to ask ministers to hand those powers back to Parliament and ultimately to the people. However, ministers now want to enshrine many of those powers from shutting schools to closing pubs into law on a permanent basis, and that leads me to conclude that ministers are punched drunk on powers that do not ultimately belong to them. Having got the taste of those powers, they want to keep them now and into the future, and that's why, as Neil Bibby said, the four principles set out in this report are fundamental to this Parliament and its secure workings in the future. At this point in time, I think it is safe to conclude that the use of the main affirmative procedure is now a habit and a bad habit, so is the shift towards using skeleton legislation to give the Government greater powers through delegated regulatory processes, even if that is identified in the report, a long running sore. However, as my committee colleague Graham Simpson noted, between 2012 and 2019, the main affirmative procedure had only been used nine times in this Parliament, but between March 2020 and February the first of this year, it was used 146 times. So, when it comes to whether or not I agree with Mr Simpson or Mr Swinney, as to whether this is now the norm, laying party loyalties to one side, I found myself on balance siding with Mr Simpson. Presiding Officer, this approach has become the norm, and this Parliament should rightly be concerned about this. Had this Parliament been given the opportunity to fully scrutinise the Manchester travel ban or Covid passports, ministers would have been caught out. They would have been caught out passing laws that were disproportionate or ineffective, or, in the case of vaccine certification, both disproportionate and ineffective, something that I suspect deep down the Deputy First Minister knows himself. I will give way. John Mason. Would members at least accept that, with the vaccine certificates, the Covid committee spent a considerable amount of time on it and looked at it quite thoroughly? Only after we rejected the use of the main affirmative principle in order to be able to get some more scrutiny offered, I seem to recall asking some questions of the business minister and being told that, in asking questions, I was quotes, a rascal. That is their commitment to parliamentary scrutiny. During the course of our inquiry, we heard witnesses raise real concerns about the increased use of the main affirmative procedure. Murdo Fraser is quite rightly reflected today on the evidence from Moragros QC, who warned that legislation made in a hurry is unlikely to be of the same quality as legislation that is carefully drafted over time. This report could have gone much further, but it is solid and so are its recommendations, and this debate has shown that the Government cannot simply brush it aside. Members of this Parliament are being sidelined. Parliament is being bypassed and proper parliamentary scrutiny is being undermined. That is why I hope that MSPs, including those on the Government benches, will stand up to ministers on this important issue and that, in turn, ministers will accept the recommendations of this report. I now call on George Adam, minister, to respond to the debate on behalf of the Scottish Government, around four minutes please. Thank you very much, Presiding Officer, and thank you for everyone who has taken part in this debate. I, too, gave him some mention that he had been in the committee for some time for the DPRR committee. I, too, did some time in the DPRR committee during my period. It is an important part of the parliamentary process and one that I appreciate as the minister as well. I appreciate the work that most of our colleagues have done on that committee. I do not think that Mr Simpson's chief whip does not love him. He has done that in any shape or form. He is just your expertise, Mr Simpson's expertise, Presiding Officer, on the issue. Although I did not agree with a lot of what he said, however, he will get there eventually. It was interesting to hear some of the members in this debate today. Paul Sweeney set out a case of us working together and finding solutions in many of those issues. That is something that I personally welcome. It is a debate that we have on-going as time proceeds with Mr Sweeney, because it gives us an opportunity to see how we can learn the lessons that we have over the past two years. John Mason has always framed the debate and went thoroughly through the committee report. I added something a wee bit different, Presiding Officer. He added some humour into the whole debate. I have to say that it is something that I look forward to hearing more of from Mr Mason in the future. However, the whole part of the debate is that we have to frame it on the fact of the two years that we have all lived through. Many of the members, Murdo Fraser, did mention it during his part on the public health crisis that we have all had to deal with. The Government has had to balance with the public health crisis and deal with the public issue and at the same time deal with the parliamentary process. It has been a difficult decision. I am not one that the Deputy First Minister has said on numerous occasions that they have taken lightly. The idea that we have continually as a Government gone power mad and just want to retain this is just comical. It is not really worth discussing any further. Craig Hoyg said that there is a general shift towards framework builds. That is completely inaccurate. When I listened to what the convener said, Stuart McMillan said, I followed a lot of what was said during the committee's debate process. When he said that Dr Ruth Fox gave evidence in saying that there was a problem about retaining power, Governments retaining power, much of how I read that was she was talking from a UK Government perspective and the lack of scrutiny that is in the UK Government itself, not at the Scottish Government dealing with the public health crisis that we had in front of us at that moment. On the whole, the Government welcomes the spirit of the committee's report and will consider carefully all the recommendations that it makes. We have already acknowledged the importance of ensuring that the regulations brought forward under the made affirmative procedure are robust, clear in their meaning and accessible to those that they apply to. Those principles that the Government always aspires to and with regard to all legislation that it brings forward and is open to challenge where Parliament sees fit to do so. The Government is also happy to engage with the committee with any issues around the justification of use of the made affirmative procedure, but under existing legislative frameworks or in the event of seeking parliamentary approval of any fresh use of the tool. From a Government perspective, the made affirmative procedure is an exceptional power, granted to ministers by Parliament to be used in exceptional circumstances. The fundamental basis for the procedure is to allow to be taken more quickly than the normal affirmative procedure. We all know that the idea of the made affirmative procedure leads to less scrutiny, which is not the case, because there has been scrutiny at all times. However, the committee's conclusion about the made affirmative procedure should not be every normal practice. It is an important one, and it is one that we all agree with. It is one that the Deputy First Minister has said earlier on, and it is one that I agree with as well. That is not the way forward for us all. In closing, I would like to say that we have had to deal with a public health issue over the past couple of years that has been unprecedented, a word that has been used often, and it has been a situation where we have had to balance between that and dealing with the parliamentary process. Lessons have been learned, and as we move on, I look forward to working with colleagues to finding new ways of being able to work in this place. I now call on Bill Kidd to wind up the debate on behalf of the Delegated Purs and Law Reform Committee up to five minutes. I will take a few notes here. To be quite honest, there has been a lot of duking about, if I can put it that way, a lot of the conversation that has taken place so far has been fairly repetitive among people, although everyone has their own opinions. I try not to miss anybody out, but to be quite honest, if I get it wrong, he can sue me. I am delighted to close this debate on the Delegated Purs and Law Reform Committee's inquiry into the use of the made affirmative procedure during the coronavirus pandemic, and I am grateful for the contributions from all members today and also from the Government. There has been a range of comments on the committee's work, so I will try to capture some of those against the four sets of recommendations, which is where the difficulty comes in, because I do not think that many people really address the four recommendations. On the need for clear and accessible law, as has been said, the committee wants to ensure that all legislation is properly and clearly drafted, and it should be easy to find and be interpreted by all. The Deputy First Minister stated that 40 days is too long to wait for the enactment of such legislation during the pandemic, and the made affirmative power was necessary during the public health concerns to require urgent action. Nonetheless, it requires oversight, he says, by the Parliament, and that is something that others agreed on. Neil Bibby said that there were exceptional circumstances and that it was only outlined by the Scottish Government and that the need to scrutinise in order to ensure fair and proper legislation is delivered. Jenny Minto said that it must be clear and accessible law at all times for the benefit of broader society and that everyone must be able to understand what is coming forward. Craig Hoy said that the debate showed how we accepted in committee the necessity of speed in legislating during Covid, but that the powers enacted must be repealed at this stage and going forward. The minister towards the end said that he did not believe that the made affirmative power was overused during Covid, as it had been necessary and consideration of how that might be used in the future. I am moving on, the report called for a number of changes as to how made affirmative instruments are brought forward. In particular, the committee wanted to test whether regulations do in fact require to be made urgently. Deputy First Minister stated in paragraph 108 that it was a vital tool to have that power in handling the pandemic and that the Deputy First Minister and the Scottish Government agree that, for the safeguarding of public health, the Scottish Government needed that, but it has no intent to use the made affirmative power as a matter of course going forward. Graham Simpson said that the use of the made affirmative power was only 20 times during 2012-2019, but up to 146 times during the one-year period 2020-2021. That made it a bad habit that the Scottish Government had fallen into and should only be used in exceptional circumstances and more or use of it should be debated and scrutinised in the chamber. John Mason said that vaccine passports was given more time for discussion, however nightclubs and others were asking for urgency, and it was reflective on the Parliament that they should have to actually try and address both elements there. Paul Sweeney said that a new type of framework should be built in order to avoid powers being retained by government, although the Scottish Parliament is well set up to achieve that. It is something that we should be using strongly going forward, the powers that we do actually already have here. Comments were also made on how the Parliament looks at proposals for made affirmative powers in new bills. As has already been noted, that is very relevant, given the proposals in the coronavirus recovery and reform Scotland bill. Murdo Fraser said that, over how such made affirmative powers as in vaccine passports should have taken more time for scrutiny by the Parliament as a whole, and the use of the power has been too frequent. Martin Whitfield said that overfast legislation is very undesirable and hybrid procedures should be considered for further use in holding government to account. He welcomed a report and said that the Scottish Government is stating that it wants to avoid the necessity of the use of made affirmative powers as something that will be looked at by the SPPA, I believe, committee. That was strongly supported by Neil Bibby in his contribution also. To conclude, Presiding Officer, if I have not rambled on too long, I want to end this debate where it began by re-emphasising what our convener, the other DPLR committee, Stuart McMillan, said about why all this actually matters. It matters because we have no interest in the balance of power between the Parliament and the Government. That is not just important for today, it will be important tomorrow and it will be important for years to come. In that vein, the committee recognises that this report is only the first step in this work. It hopes that its recommendations will help guide the Parliament's scrutiny of future primary and secondary legislation in the coming months and years and working with the Scottish Government to ensure that that is delivered. Thank you. That concludes the debate on inquiry into the use of the made affirmative procedure during the coronavirus pandemic. It is now time to move on to the next item of business, and I will allow a very short pause to facilitate change of front bench teams.