 Rydw iddo cam e cred shipodir yn pawb mewn aws whent, er efallai bydd i'raráf iaith y dylaiogi hefyd iaithiau y Cymysgl Uganda winig wnaeth iaith ar gyflos oed yn rhowen. Rydw wedi rad Ling practices efu gyfgaldogш i nodi yn ni Fel M end 와ll, wrthy fenn ni. felly i gwybod gyda'r Commision气паigon a mewn iaith y gyrdd fwrdd, Ayna Gwyrdd yn fwyl wneud — i'r gweithio i gifer gan Gwydd ag solid yn ymddangos. As we're meeting online today, it will be more challenging for members to indicate agreement to the items being discussed, and we have had a bit of a talk about this. Therefore, can you raise your hand if you're not content with the question being put or if you wish to speak about an instrument? The first item of business is a declaration of interest in accordance with section 3 of the code of conduct. I invite Jenny Minto MSP to declare any interest relevant to the remit of the committee. Jenny Minto. Thank you, convener. I have no relevant interest to declare with regard to the remit of this committee. Thank you very much for that. The next item of business is to decide whether to take item 8 in private, is the committee content to take this item in private. Yep, no member has indicated that they are not content or that they wish to speak, and so we are agreed that item 8 will be taken in private. Moving to agenda item 3, today we are taking evidence from John Swinney MSP, Deputy First Minister and Cabinet Secretary for Covid Recovery, on the committee's inquiry into the use of the made affirmative procedure during the coronavirus pandemic. The Deputy First Minister is accompanied by three Scottish Government officials, Rachel Rayner, SGLD Deputy Legislation Coordinator, welcome to Rachel, Elizabeth Blair, unit head Covid coordination, Elizabeth Blair and Stephen MacGregor, head of the Parliament and Legislation Unit. We welcome Stephen MacGregor. I welcome you all to the meeting, and we are very grateful that you are able to attend virtually today. I remind all attendees not to worry about turning on their microphones during the session as they will be controlled by broadcasting, so you don't have to worry about that at all. I am going to invite the Deputy First Minister to make some opening remarks, but just to let you know, Deputy First Minister, that the procedure will be slightly different from the usual questioning today, in as much as it has been agreed that members will ask a series of questions followed by then another member, then another and then another. It is not going to be back and forward so much as it normally is. It is going to be a run of questions per member. The first member with his questions, Graham Simpson, please. Oh, sorry, I beg your pardon, I do apologise. I am so excited here. Can I first invite the Deputy First Minister to make some opening remarks, please? I welcome the opportunity to give evidence this morning in relation to the committee's inquiry into the use of the made affirmative procedure. I have nothing with interest of use expressed by previous witnesses, and I am grateful for the opportunity to be able to make a brief opening statement. In the past almost two years, and indeed very recently, the decisions that we have taken in bringing forward regulations using the made affirmative procedure in relation to Covid SSIs have been based on the need to address the very serious threat posed by coronavirus. I can assure the committee that the Government does not take lightly the use of the made affirmative procedure for those SSIs. The powers are exceptional powers, which have been required for the exceptional circumstances that we find ourselves in. The made affirmative procedure has provided the Government with the necessary flexibility to deal with crisis situations when immediate action has been necessary, for example when imposing or removing public health restrictions both domestically and in terms of international travel restrictions. It has also been necessary when urgent action has been required to deal with the continuing effects of the pandemic and when that action has to be taken more quickly than the normal draft affirmative procedure allows for. The continued need for this flexibility has been demonstrated clearly by the impact of the Omicron variant. In recognition of the exceptional nature of those powers, the Government is committed to working with Parliament to ensure that it can conduct effective scrutiny of Covid-related regulations. In the last session of Parliament, we agreed a process that ensured that the Covid-19 committee was provided with a copy of the relevant draft made affirmative regulations and had an opportunity to consider those before they were brought into force. We have also sought to explore whether the normal draft affirmative procedure can be expedited in appropriate cases. Successfully, for example, the health protection coronavirus requirement Scotland, amendment 4, regulations 2021. I recognise the concerns that have been expressed that the Government should not view use of the made affirmative procedure as a normal approach to legislating and can assure the committee that the Government shares that view. The Government did not, for example, make use of the power contained in the first coronavirus act to convert any existing draft affirmative procedure into statute into the made affirmative procedure because of the impact of Covid. Indeed, that power has now been expired. Nor do I expect that the made affirmative procedure will become a more regular feature of future Government legislation. It has its place, but only in a very limited set of circumstances. For example, for legislation dealing with the continued impact of the pandemic, such as the current compensation for self-isolation bill or, indeed, relevant tax-related legislation. I hope that the committee has found these remarks of help, and I am very happy to answer any questions that the committee may have. Thank you very much indeed, Deputy First Minister. I will now invite members to ask questions, and we will begin with Graham Simpson, MSP Graham Simpson. Thank you very much, convener, and I also welcome the Deputy First Minister to the meeting. I think that we are all grateful that he is here, and I am interested to hear what he has got to say. I note, Mr Swinney, that you have brought three officials with you. I wonder if I could start off by perhaps hearing from them, because they are the people who have to draft the laws. It has been done at bright next speed a lot of the time. Before I question you, Mr Swinney, if we might hear something from the officials about their experiences during the pandemic of having to make legislation, that is such great speed. Deputy First Minister, is that all right with yourself? Let me say a couple of words first, convener, and then I will hand over to my officials. The first thing that I would say is that, over the course of the pandemic, officials in the Scottish Government have had to work at pace across a whole range of different areas of policy and activity within the Government's responsibilities. So, working at pace has not been something that has been unique to this legislative team. The second point that I would make is that, when ministers are considering what are the right steps to take, there will be, in most circumstances, a number of possibilities. Drafting is likely to take place across a range of those different possibilities before a concluded position has arrived at and then put into the draft instrument. There is preparatory time for officials to be working on some of those questions before ministers take their final decisions. We rely heavily on the quality of drafting skills within the Government to prepare legislation of this type. I think that, generally, that is of a very high quality and has been consistently demonstrated to be so. Obviously, when things are having to be done at pace, there is the potential for there to be errors made, which we try to minimise, but our officials, in my opinion, do a tremendous job in making sure that quality of legislation can be produced in accordance with the circumstances with which we all wrestle at these times. I am very happy for my officials to add some remarks. Thank you very much indeed. On that basis— I think that Mr Rainer might want to say something. Rachael Rhaner's name has been mentioned. Rachael Rhaner, would you care to make a contribution here, please? Microphone on. Ms Rhaner, do you have a microphone available? Yes. Lawyers have been very closely involved in the policy development process for all those Covid SSIs and have worked very closely with policy colleagues. As the Deputy First Minister has indicated, we would often prepare contingent drafting for different options so that, when decisions are made, drafting can be finalised as quickly as possible afterwards. We recognise that, in the situation that we have been in, that decisions in relation to Covid need to be made with the most up-to-date data, so preparing contingent drafting allows this to happen. In addition, we have our usual checking process that is undertaken at the end of the drafting process to ensure that drafting maintains a high standard. Occasionally, issues will arise and that can happen on non-Covid legislation as well, and where that does, we would always consider it carefully and reflect on the issue and what can be done to avoid this happening in future. Thank you, Ms Rhaner. Graham Simpson, you are happy with that. Can I carry on, convener? Yes, carry on. Yes, thanks very much. I will spare the officials from now on. They will be pleased to hear. I noted the Deputy First Minister's comment that he does not want the use of the made affirmative procedure to become normal. Well, it has become normal. If we look at some figures, the made affirmative procedure was used since the start of session 4, up to the end of 2019, nine times. Then, from 20 March 2020 and 2 December 2021, it was used 132 times and most of those, the vast majority of those, were coronavirus regulations. The percentage of those reported generally for mistakes, which is what this committee picks up on, a lot of the time is 11.6 per cent. That is quite a high number, so it has become normal. It has become normal because the Government has got into the habit of using this procedure and it is a procedure. If I can put it in layman's terms and I don't ask Mr Swinney to respond to this once I have finished, you have been ramming through laws at breakneck speed with little to no oversight. In my view, that is in affront to democracy. In fact, the secondary legislation scrutiny committee at Westminster called it Government by Dictat. I agree with that. When, retrospectively, the laws do eventually come before Parliament, there is very little debate and there is no procedure actually in this Parliament for a proper debate. I think that all that is very unsatisfactory. I think that my first question to Mr Swinney would be, do you recognise the problem and if you do recognise the problem, what do you intend to do about it? Blotly convener, I don't recognise the problem and I completely, utterly and unreservedly reject the ludicrous narrative that Graham Simpson has just put on the record. Mr Simpson said that the made affirmative procedure had been used nine times before the 20th of March 2020 and 132 times afterwards. That might have something to do with the fact that prior to the 20th of March 2020, under the life of the Scottish Parliament, we had never faced a global pandemic. Yes, there have been a lot of made affirmative instrument, but they have been required because of the necessity of acting quickly and swiftly in a public health emergency. Mr Simpson is one of a number of members in Parliament who regularly criticise me and my colleagues for bringing in a Westminster or a UK perspective to the debate, and Mr Simpson has just done it himself because it suited him to do it. I think that what Mr Simpson's question ignores is the reality of a public health pandemic. If you look at the list of made affirmative instruments, there is a vast amount of them undertaken to put in place measures that are necessary to protect the public health of individuals in Scotland. Some of them are related to international travel, which again was about trying to protect the public health of people in Scotland. The nine occasions in which the made affirmative procedure has been used prior to the 20th of March 2020, in almost a large number of circumstances, they were about public health requirements as well. I totally reject the characterisation of that by Mr Simpson. In relation to parliamentary scrutiny, we have come to agreements with the Parliament and with committees about how added scrutiny can be given. There is always the opportunity for business managers of different parties to ask for more debating time on more questions. I certainly was not handling all the legislation from 20 March 2020 until the election. I have handled it since the election, but I would be very happy to consider any requests for debates about legislation, if members wished to have that, in addition to what is provided for them. The starting point of all this has to be an acceptance that there is a public health emergency that has to be addressed. I thank the Deputy First Minister for his comments. He described my comments as ludicrous. That is his view. However, I referenced the coronavirus in my opening comments. Quite clearly, that is the reason why the Government has been using the made affirmative procedure. Nobody denies that. The question that the committee is addressing is moving on is whether that should become a habit. It has become a habit, and we have heard from various witnesses who have described it as a habit. Jonathan Jones QC described it as a bad habit, and he said that a bad habit is hard to break. It is not just this Government—the Westminster Government as well—that is a debate that is going on down there as well. The question for this Parliament is what do we do moving on, because we do not want to, and I think that the Deputy First Minister has appeared to recognise that in his opening remarks, have that become the norm. One of the issues that we have addressed while we have taken evidence is the reality that, in order for the made affirmative procedure to be used, all that needs to happen is that a minister—it could be Mr Swinney himself—decides that something is urgent. They do not need to justify that. They do not need to come to Parliament and say why they think that it is urgent. They just need to, in their own head, decide that this is urgent, and, with a flick of a ministerial pen, something becomes law. There is no scrutiny of that. I will put a question to Mr Swinney, which has come up in our evidence. Forgetting what has gone before, should ministers have to come to Parliament, either the full Parliament or a committee, and justify why they think that something is urgent? I will come on to answer the specific point that Mr Simpson has put to me in a moment. I do hope that we are not going to go through a morning of my position in comments to the committee that was misrepresented by Mr Simpson. In my opening remarks, I said that I recognise the concerns that have been expressed that the Government should not view the use of the made affirmative procedure as a normal approach to legislating. I can assure the committee that the Government shares that view. This Government has only used the made affirmative procedure as much as we have because of the global pandemic. It is not a default view of the Government that this is the approach to legislating. It is a necessity of the incredibly difficult circumstances that we have faced and the need for us to act with urgency to protect the public. I would point out that substantial numbers of the orders that are put in place in the made affirmative procedure lapse and are not renewed simply because of the temporary nature of the questions that are put in place. Mr Simpson alleges that the flick of a ministerial pen makes something law. Well, there is an element of substance in that view, but it stops being law if Parliament does not approve it within 28 days. There is the parliamentary control and protection. Parliament does not like it and does not have to approve it. In relation to the definition of urgency, I have seen the representations from the Law Society among others on this question, the Law Society of Scotland. I think that it is a reasonable point. If it would help to create greater reassurance, ministers could readily make a statement of arguments for urgency and that could be made to a committee provided it still enables the Government to act with urgency and does not undermine the principle that the law provides for the made affirmative procedure. I should point out that the use of the made affirmative procedure under the coronavirus legislation was by virtue of an act of the United Kingdom Parliament and not an act of this plan. Some of the early examples of the use of the made affirmative procedure under the years of devolution is as a product of the utilisation of pre-devolution United Kingdom legislation in relation to good quality and hygiene, which has been reserved under which we are operating in the rule of law. It is important that it is recognised that the made affirmative procedure is part of the legal firmament of the United Kingdom and where we are entitled to use that power, we are free to do so. If that would be enhanced in the committee's eyes by the provision of a statement of urgency, I am sure that it would be a good idea. I think that that would be helpful if there was a statement. I think that it would be even more helpful if Parliament was allowed to take a view on that, but I suppose having a statement would be a good first step at least having ministers justify their position where we had the recent case where the vaccine passport scheme was introduced. In fact, the committee took a view on that. It had been planned and trailed for several weeks and yet it was put through under the made affirmative procedure. Our view was that it was not, you could not say that that was urgent because it had been planned for weeks. That was a good example recently of why justifying your view that something is urgent is important. In terms of parliamentary oversight, the Deputy First Minister says that Parliament gets a vote. Parliament does get a vote, but it is only after the law has come into effect. My view is that that is the wrong way round. A lot of the time now that we could be using different procedures, it does not always have to be made affirmative, Parliament could take a view before something comes into law. As a general question, I would ask the Deputy First Minister if he agrees that moving on more of those regulations could be put through using the affirmative procedure, which would allow Parliament to vote on things before they become law. The Deputy First Minister, if there is at any point you want to bring any of your officials in, then your liberty will do so. The question here really hinges on the question of urgency. Generally, the affirmative procedure essentially relies on—we budget within Government—on that requiring 54 days to be able to confirm that legislation can be enacted. There is a world of a difference between a timetable of 54 days and the requirement to act, for example, to apply international travel restrictions or to apply some other form of regulated instrument around the opening hours of hospitality, as we have had to do recently. In the circumstances in which urgent acts are required, we cannot wait 54 days to do that. My response would be that I would be interested to hear what the committee suggests in that respect. If the choice is between a made affirmative procedure that enables us to act urgently to protect public health and an affirmative procedure that takes 54 days, I am afraid that I will come down on the side of made affirmative. The decisions that the Government has had to arrive at have been decisions that have had a material impact on the protection of life on land. The timescales that are normally associated with affirmative regulations frankly do not allow for that. I am very open to looking at how those measures can be enhanced. We took the assessor in handling those issues. Michael Russell came to pragmatic agreements with the Covid-19 committee around the making available of regulations and drafts, so that they could be discussed and questions could be asked about them at the routine meetings of the Covid-19 committee before they were enacted. Those were pragmatic measures to try to enhance the way in which the legislative system could operate, but I am very happy to consider what else comes out of the committee. Thank you, Deputy First Minister. Graham Simpson, I am afraid that I have to throw it at you. I can let you in for just one last word. I am aware of taking up quite a bit of time, convener. I am very grateful for that. I completely agree with the Deputy First Minister, so he does not want to be having to wait 54 days to put through regulations that have a certain degree of urgency about them. It is a question of Parliament being flexible, perhaps coming up with a bespoke procedure. I will leave my comments there because I know that other members will have things to say. Thank you very much, Mr Simpson. Thank you for answering those questions, Deputy First Minister. Can we move to Craig Hoy, MSP, please? Thank you, convener, and good morning, Deputy First Minister, and welcome to you and your officials. If we could step back from the pandemic for a moment and just think in a slightly more abstract sense, do you think that the increased use of gelatine legislation and the use of the widespread, now relatively common use, of delegated powers within them is consistent with the need for parliamentary scrutiny and accountability? Just before I answer that question, I just asked Mr Hoy that there was a slight interruption in the line, and I just missed what I think was a pretty crucial word on this question. Was this question dedicated on delegated legislation? Principally, firstly, in terms of the skeleton legislation and then the delegated legislation that stems from that, do you think that that is consistent with the need for parliamentary scrutiny and accountability? I am glad to ask for clarification because I had it, in fact, on this heard word. Skeleton legislation and delegated powers. That is a question that I think has to be considered on a case-by-case basis in relation to individual legislative instruments. Obviously, there can be arguments for skeleton primary legislation that is required to be completed by delegated legislation. If I give Mr Hoy a real-live example, Parliament in the last session legislated for the legislation on the redress scheme in relation to historic abuse. That was a pretty detailed legislation, but there were certain elements of it that were left to be followed up by regulation. It was in relation to particular points of detail about—one of the particular issues that I resolved with recently in the secondary legislation was about remedying errors that had been made. When I saw the detail of the secondary legislation, I balked because I thought there was an immense amount of detail in that secondary legislation. I wrestled with how Parliament would react to that, having had extensive discussions about the redress legislation. However, when I looked at it and thought about it and discussed it with my legal advisers and officials, there was such detail required in that secondary legislation that to have put that on the face of the bill as primary legislation would have made for a colossal amount of detail more than ordinarily would be on the face of primary legislation to be in place. I think that it is important that we wrestle with those questions on a case-by-case basis. What I would say is an absolute requirement is that there must be a clear argument made for anything that may be described as skeleton legislation to be put in place and a clear justification for that, which, of course, must satisfy the test of parliamentary scrutiny when the legislation is being considered. The Deputy First Minister, would you concede that it is unhealthy to go down the route of having very broad-brush legislation that then effectively allows you, the ministers, to free from the constraints of parliamentary scrutiny to then flesh out those regulations and laws? Ultimately, Parliament must decide what it judges to be appropriate to be the contents of legislation. That is what we are all here for. There are 129 of us here as legislators and we must decide through a very detailed process of scrutiny what is appropriate to put on the face of legislation and what is appropriate to put in secondary legislation. I think that our council, Mr Hoy, is away from some of the terminology that he has used in his question. Even when ministers are given delegated powers to act in secondary legislation, we still have to bring that back to Parliament. Parliament has got to scrutinise that under different procedures, but that still has to be scrutinised. Of course, there is legislation over many, many years that is delegated. If I go back to legislation that underpins many aspects of the operation of our public services, the executive power of ministers has been an implicit part of that legislation by parliamentary design not in the last year, two years or five years, but over the past 50 years or 70 years. The question that Mr Hoy puts to me is a question that Parliament has to wrestle with on every piece of legislation. If Parliament has to be satisfied that there is a robust case for legislating in the terms that it finally agrees to do so? Obviously, the inquiry is looking specifically at the use of made affirmative. I think that the committee has general concerns about the use of delegated legislation more widely. Obviously, the fundamental element of the made affirmative is that the scrutiny comes after the law is introduced and implemented. What was it about Covid passports that made you determine that there was an emergency situation and that it had to be introduced under the made affirmative? The simple reason in rationale was the belief that vaccination certification would be a valuable tool in boosting the levels of participation in the vaccination programme among key groups in our society and that that would help us to protect public health. There was a necessity to make as first progress as we could make on the vaccination programme to enable that to be the case. Of course, an integral part of the strategy to protect the public from Covid has been the effective participation within the vaccination programme, so pushing and driving the participation in that programme was an absolute necessity. It was a major change with quite wide-reaching implications. You thought about it for a long time and then you subsequently delayed the enforcement. You could quite rightly conclude that it was not an emergency, could you? No, because we put it into force to enable participation within the scheme so that we could ensure that we encouraged as much as possible a higher uptake of the vaccination when there is a consequence protected public health. The rationale for urgency, which I have just shared with Mr Hoy, was the rationale that governed the approach that we took to the bringing forward of that instrument. I would perhaps challenge that and maybe take up Mr Simpson's point, which is that I think that it could be perceived to be an example of the Government getting into bad lawmaking habits here where regulations are published too late and with undue scrutiny. If you look at the evidence from the children's commission or the submission from them, they make that specific point that in their submission they say that too often the regulations are published too late and they say that it is not always clear that such short notice for publication was necessary or that it was not possible for parliamentary scrutiny to have taken place in advance. That is a pretty fair criticism, is it not? No, it is not, because I have read the children's commission that was evident and I do not think that it is criticism that is warranted because the Government has a duty to protect public health and, on countless occasions, we have had to exercise that duty and to exercise it, certainly, to protect the public. I do not have the luxury of waiting for the example of the normal person referring to orders of 54 days. I do not have the luxury of waiting for that when there is a clamour, but I have advice in front of me to take action that is justified in proportionate to protect public health. I do not have the luxury of waiting 54 days to consider that. I have got to move. Yes, to be accountable, of course I am accountable for it. If Parliament does not like it, it can vote against the orders within a 28-day period. Those options are all available to Parliament, and I am accountable for all that, but the luxury of having lots of time on my hands is not a luxury that I have when dealing with these difficult issues. One of the concerns is that we have to take Governments' word for it, and we have to take you at face value. I am not making a specific point in relation to humanistic. I think that the same criticism has been levelled to the UK Government in its increased use of the made affirmative. I would just use an example of the Manchester travel ban that came and went before Parliament could have rejected it, had they thought that it was not sound. I will move on to a remark that has perhaps been interesting to get your reflections on from Lord Lisvane, who you might have known from your time at Westminster, who was the former clerk of the House of Commons, who in a recent House of Lords debate said that the real losers of the made affirmative process are citizens in business, because in his words I quote, the in-industry, our national institutions and civil society need to know how the law will be changed to have the opportunity to comment and make representations, and to know how it will end up applying to them. I was thinking about the Manchester example, for example. Isn't that a fair comment? Obviously, it is an interesting comment, but again I put it into the same category that I put the children's commissioners comments that it doesn't really acknowledge the pressing urgency of action in a public health emergency. I go back to one of my comments in my opening remarks and my comments to Mr Simpson earlier on. I don't think that the made affirmative procedure should be used habitually within the legislative process. Indeed, as Mr Simpson helpful pointed out, it's been used nine times between the first to July 1999 and 20 March 2020. Those nine examples, some of them in front of me, are for absolutely justifiable reasons in my view, not exercised by me, exercised by my predecessors and ministers in other political administrations, but they acted in my view appropriately on those questions. However, I don't think that it's a procedure that should be used in the ordinary sphere of life. However, if we are dealing with a global pandemic with very serious material threats to the life of individuals of our citizens, then I'm afraid that we have to act. Yes, there are opportunities for parliamentary challenge about those questions. I don't think there's been any lack of opportunity for people to raise their concerns about any issues within Parliament over the past, in the period since March 2020. First Minister has been making statements virtually weekly since 2020, the ability for members to raise issues, committees have been meeting, there's been a bespoke Covid committee, endless opportunities for people to raise issues. In relation to awareness of legislation, yes, there is a need for people to be aware of legislation and, obviously, if it changes abruptly, we have to take steps to make sure that it's communicated. The Government does that. We try to make that available as widely as we possibly can do. Obviously, we're very open to listening to how we might enhance that process. I have one final question. There is still an underlying concern that the Government in general perhaps has used Covid and the pandemic to do what the Government often likes to do, which is to take decisions free from as much scrutiny of Parliament as it possibly can. Jonathan Jones' QC suggested to us that perhaps one solution would be for every and each piece of delegated law to be propped by the minister to the floor of Parliament for even brief consideration and debate. It could be 10 or 15 minutes, given that a lot of it is relatively uncontentious, but that would then mean that that delegated legislation is questioned and subject to scrutiny. Wouldn't that overcome the view that you have something to hide and that you are running from scrutiny in respect to certain regulations? No. Obviously, Mr Hoy and Mr Simpson have decided that this is going to be the ludicrous line of argument that they deploy. There is plenty of scrutiny of the Government. There is going to be a statement this afternoon from the First Minister who will take 40 minutes of questions from members of Parliament in relation to her statement this afternoon. The idea that this Government is not under scrutiny about Covid is just ludicrous. You might argue that the somewhat bad-tempered response to legitimate questions has proved my point that you are not overly happy with parliamentary scrutiny at the moment. No. There is nothing intemperate about me, Mr Hoy. I am simply pointing out the absurdity of the point that you and Mr Simpson are putting to me this morning. There is endless opportunity for parliamentary scrutiny of all of those issues. The statement that the First Minister gives is that one of my ministerial colleagues is in front of the Covid recovery committee every week and has been on a constant basis. Other committees are interrogating ministers. There has been extensive. The coronavirus legislation—I appreciate Mr Hoy—was not in the Parliament when that was put through in 2020. There is a very extensive piece of legislation put through Parliament, scrutinised by members of Parliament. I am not in any way concerned about scrutiny. I submit myself to parliamentary scrutiny on a constant basis. I think that it is right to ludicrous the argument that Mr Hoy puts to me this morning. In relation to the suggested alternative of a 15-minute debate in the floor of Parliament, I think that that would frankly attract the charge of tokenism, to be honest. I think that Mr Hoy himself made the point that that might be satisfactory because most of the material is—I think that he used the word non-contentious. If it is non-contentious, I think that that perhaps undermines the argument that Mr Hoy has put to me, that if members of Parliament generally see that as legislation that has to happen to protect public health and that it is non-contentious in nature, then surely that makes my argument for me that the made affirmative procedure is the appropriate procedure for this to be undertaken. If there are issues of accumulative nature that arise out of the legislation, then of course those can be resolved and they can be resolved by further scrutiny. It does indicate that perhaps a mountain has been made out of a molehill on some of those issues. I think that our committee finds that a lot of what comes before us is not necessarily contentious, but by having that process of scrutiny it will give Parliament and the public the reassurance that things are not going through that should be subject to a rigorous process of scrutiny. I think that what we are all agreed on here is the need to make sure that there is appropriate parliamentary scrutiny of any less of the instruments that are coming forward. I think that that is vitally important in all scenarios, but I am simply making the argument that, if we are to look dispassionally at what has happened in relation to legislation since March 2020, most of what has been brought forward under the made affirmative procedure has been essential, non-contentious material that has been required to protect the public in a public health emergency. I appreciate that there is a difference of view about vaccine certification. I understand that. There is a philosophical difference of view in members of Parliament. On countless other measures that have gone through with unanimity across the political spectrum, I take from that that there is an acceptance by members of Parliament of all political persuasions of the validity and the necessity of individual pieces of legislation. Thank you, Deputy First Minister, and thank you very much to Craig Hoy. I am afraid that my computer fell out about there, so I missed some of the excitement in the past 20 minutes, but I think that we can move on now to Paul Sweeney MSP, please. It has been an interesting discussion so far, and I think that this inquiry actually itself, whilst initially it might have appeared on the face of it quite a dry exercise, has actually been really interesting, certainly from his new MSP. Just looking at the broader historical issues, so some of our witnesses have described the broad trends of the tension between the executive and the legislature over decades being a source of contention, which has been an interesting thing to reflect on. Obviously, we have seen recent change in the manner in which the Government is legislating by using the made affirmative procedure, so bringing forward a large amount of made affirmative procedures. I would like to ask that the Deputy First Minister, based on his experience as an Opposition and Government member, looking at how that has played out in the past two years or so, how do you feel that the made affirmative procedure has worked in terms of the quality of the measures introduced? Obviously, we are aware of the necessity of them and the requirements of speed. On reflection, are you aware of any instances where that may have led to things going awry for one to strut in your greater patience and looking at how the practical implications of those measures were actually going to work? I recognise that, in any legislative process, flow or quick, there is always the potential for errors to be made. Sometimes we find ourselves in the generic of Government ministers overall time that provisions can be put in place in a stage 1 draft of a bill and you find, during the passage of the bill, that there is an error with it or a mistake has been made. You have opportunities to remedy that, to have to remedy that at stages 2 or 3, so errors can be made. I do not think that the process or the people involved in that are infallible. Generally, we are fortunate in having very high levels of quality in the drafting of legislation. We are also served well by Parliament and parliamentary officials in the way in which they scrutinise and highlight any issues that arise around legislation. The interaction between Government and Parliament is helpful and welcome and adds to the process. Obviously, the scrutiny by members of Parliament is in the process, but nobody is infallible. Obviously, when you move at such pace, the risk of error increases, but we have minimised that in the process of what has been a necessary use of the made affirmative procedure, but not a habitual use of the made affirmative procedure in terms of our future actions as a Government. Paul Swinney, I think that there is a broad reflection of that, not just on the made affirmative procedure, but certainly some of our witnesses have argued that adequate scrutiny of the primary legislation is a key part of the robustness. Professor Tierney mentioned that the real problems are not simply with the made affirmative procedure downstream, but with the fact that primary legislation that created the powers itself was drafted and passed very quickly without adequate scrutiny. If you look at how he is then piled up and you have a situation where the initial legislation becomes so distorted that it is hard to actually understand what it has any meaning for Parliamentarians or members of the public, the witnesses have discussed the accessibility of instruments that have been the subject of multiple amendments. So, as Jonathan Jones has seen, the Law Society has suggested that the publication of consolidated versions of instruments that have been the subject of multiple amendments would be a good improvement to the current procedure. Is that something that you might consider introducing? Is it something that the Government might take away and reflect on in terms of improving transparency and what the implications are when you have multiple changes to legislation so that there is a greater understanding of what it means, despite all those changes? Thank you, First Minister. The current situation is not my ideal model of how we should legislate. We should always take care and time over legislation. Indeed, this Parliament has very good procedures in place for ensuring that that is the case. However, as Mr Sweeney acknowledges, we are dealing with a necessity of acting to hear, so the process requires to act in that fashion. In relation to the question of accessibility of legislation, I am conscious of the challenge that this has represented to different individuals and to different groups. I would be happy to consider whether there is a way that we could improve and enhance any of the arrangements that are in place, so that the marshalling of that legislation is more accessible and more visible. The website legislation.gov.uk has been ensuring that Covid regulations are updated as soon as possible after they are amended, which gives a consolidated place where that legislation is available. However, I accept that that can by its nature. It is a very helpful website, but it is complex. Legislation itself is complex, but I am certainly willing to give some full consideration to the points that witnesses have raised in which Mr Sweeney puts to me, which I think may well help us in taking this issue forward. Paul Sweeney I would also like to follow up on that. You mentioned that you attend the Covid-19 committee relatively frequently. That is a fair point about how the Parliament interacts with the executive in holding the take-out, particularly under such unusual circumstances. However, in its submission to the Covid-19 recovery committee, it has suggested that the affirmative procedure as opposed to the made affirmative procedure as a more default measure would enable the committee to gather views from affected stakeholders before proposed policy changes are made into the law. That process is an essential part of the committee's role in delivering the Scottish Parliament's mission statement to create good quality, effective and accessible legislation. Furthermore, we have also had some evidence about the idea of greater parliamentary scrutiny ahead of those measures coming into force. It was suggested that there would be a parliamentary debate that is fairly regular that would enable greater discussion and comment upon regulations and questions to the minister on the use of the made affirmative procedure. The idea would be that there would be a regular parliamentary time allotted, clearly, to discuss perfectly the made affirmative procedures. Certainly, when you are making statements in Parliament, they are very general and it cannot necessarily, by nature of them, hone in on the technicalities of some of the issues that are debated in the made affirmative procedures. Perhaps that would be something that the Government might consider looking at parliamentary time on the parliamentary timetable to make more specific parliamentary time in the chamber available for close scrutiny and discussion of the made affirmative procedures before they are brought into force. I think that that is very happy to consider that point, although I would say that I view myself very much in this respect as the servant of Parliament on that question. If Parliament wishes to exercise more scrutiny, to ask me to be available to answer more questions on measures that are going through the made affirmative procedure, if Parliament asks me to do something providing that is within the law, I will do it. I am a servant of Parliament. I have made it clear to the Covid-19 committee that with providing their reasonable notice, I will appear in front of them at any time because I view that to be my primary channel of parliamentary accountability. Those are very fair and reasonable issues that Mr Stooney puts to me. If the Parliamentary Bureau was to consider them in relation to the parliamentary timetable or committees were to decide to act in a particular way, I am a servant of Parliament in that respect, so I would be entirely happy to participate in such an approach. I appreciate that response and perhaps it is something that the committee can consider. I suppose that if we are looking at the continuous improvement of the Parliament in those procedures, that is something to consider. Just more generally, there was discussion earlier about skeleton bills and how that form of legislation has become an increasingly attractive trend for Government, because it allows a broad general principle to be outlined, but there is not necessarily the clear specific actions that are detailed in the legislation. It leaves a lot of leeway subsequently for ministers to direct where they want to go through secondary legislation, and that perhaps presents some complications. One example that springs to mind is the 2019 Transport Act, which had a number of amendments made to, for example, an introduction of franchising local authorities setting up their own municipal bus companies and bus service improvement partnerships, which are a general public-private partnership model, which is a bit more like touch, more akin to the status quo of the deregulated model. Even though all those provisions were provided in the legislation, the Government and Transport Scotland agency have only resourced and pushed forward on bus service improvement partnerships and the other options for local authorities to pursue that are not resourced in any meaningful way. It is an example of where legislation is fleshed out in a skeleton sense, but how it is implemented and driven by secondary legislation means that a lot of the provisions in legislation are not taken forward. One or more generally, the Government might want to reflect on skeleton bills, how they are designed, that that has been a long-term trend across Governments in decades, and whether it leads to problematic issues later on, where there is Parliament's expressed a view that things should happen in the country yet, in reality, they do not actually happen. Sorry, Deputy First Minister, think about that general principle and some of the problems that we are seeing with the tendons to use skeleton bills, and then we see lots of provisions that are put in place that are not actually taken forward in secondary legislation. I do not think that there is an increasing trend to use skeleton legislation, but it comes down to one of the answers that I gave earlier on to Craig Hoy, which is about judging this on a case-by-case basis. If I go back to the legislation that I talked about in Man City to Mr Hoy about the redress scheme, I suppose that I could have brought forward a bill that said that Parliament will legislate for a redress scheme and ministers will decide what the redress scheme should be. That would have been very skeletal legislation. I think that that would have been wholly inappropriate because there were some big issues that had to be determined about the nature of the redress scheme, and Parliament decided all those questions. To some of the detail that underpins those big questions, I accept that it is left to secondary legislation, but I would not, in any shape or form, describe the redress Scotland bill as skeletal legislation. I would not describe the Transport 2019 legislation as skeletal legislation either. I think that it was accepted that there are provisions that require either executive action or secondary legislation, but I think that Parliament will have decided on the key questions that should be applied there. I think that there is always tension or a debate about what is the appropriate level of data to be on the face of a bill. I think that Parliament rightly agonises about that with every piece of legislation. There will be voices that will say that there is far too much detail here. There will be voices that will say that there is far too much detail here because it runs the risk of becoming inflexible, versus that there is far too little detail here if it remains vague and gives far too much power to ministers. There is a spectrum that I think that Parliament has to wrestle with, and I think that it has to wrestle with that on a case-by-case basis. I do not think that there is a blast trying to get at Mancers to Mr Hoy earlier on, and I would give a similar kind of response to Mr Sweeney just now. I do not think that there is a precise model that you can say is appropriate in all circumstances, because in certain circumstances, indeed, a member of Parliament may decide to pursue an issue—I have seen this on countless occasions—where, if you look at a bill as a whole, a particular provision in it looks significantly more detailed and focused than every other clause in the bill. That is because a member of Parliament has made it their business to try to get something of that specificity into the bill for a particular purpose. I do not criticise it. I admire it. That is the use of the parliamentary procedure to make something happen. Members of Parliament should be entitled to do so. That is open to members of Parliament, but there is also a wider philosophical debate. Mr Sweeney is right about that. It has been going on for all my lifetime. Before that, what is the right balance between specificity and flexibility in legislation? A lot of that hinges on what is the level of executive power and responsibility that is granted by Parliament in every circumstance. I thank Paul Sweeney for the questions. They are very helpful to open things out there, just like the previous questions. I thank Jenny Minto, please. I thank the Deputy First Minister for joining us today. Like Mr Sweeney, I am a new member of Parliament and new to the committee. I found this morning's discussion informative and the evidence that was submitted useful. I turn back to the objectives of what the review has been on. Part of it is to help to ensure that there is an appropriate balance between flexibility for the Government in responding to an emergency situation while still ensuring appropriate parliamentary scrutiny and oversight. I was not a member of Parliament when the pandemic all started and I was very clear that what was so important to me was clarity of law, how it affected my life and how the public health emergency was being addressed. It has been said in evidence to the committee that perhaps it was easier for us to legislate to go to lockdown than to start emerging from it. I am interested to hear what you have learned from the experience and how it can shape the future decision-making in the Parliament and the use of the made affirmative procedures. First of all, I think that the Parliament has some very strong procedures around how it goes through the creation of new legislation. Our processes are very transparent, engaging and give adequate time and opportunity for scrutiny. That is not to say that they cannot be enhanced, but generally I think that Parliament has some pretty strong transparent procedures around the formulation of legislation. For that reason, we should use the mechanisms that the Parliament has, which is why I come back to my comments in my old-name remarks. The Government does not want to make a habit of using the made affirmative procedure because it does not allow all the time that other procedures allow for engagement, consultation and scrutiny in advance of legislation being enacted. However, the necessity of the public health emergency has required the use of the made affirmative procedure. The Parliament is well served by the arrangements that it has in place, but it has recognised with pragmatism the necessity of acting swiftly to put in place mechanisms and measures for the handling of the public health emergency. Indeed, Jenny Minters predecessor, who is a member of Parliament for Argyll and Bute, Michael Russell, was the author of the coronavirus legislation within Parliament and steered that legislation through Parliament and presented over much of the scrutiny of the measures as a consequence of that in the last parliamentary session and did so with great distinction. Because there was a necessity for us to act in those circumstances to ensure that we had measures in place that could protect the public, the questions that we wrestled at all times what is the right approach to take? Generally, I think that the arrangements that the Parliament has in place are the appropriate measures to take. In the circumstances of a global pandemic that requires swift action, I think that the measures that have been taken are appropriate, but I think that we should always be open to learning lessons from that and obviously the Government will consider with care any output that comes from the committee's inquiry in this process. Thank you, Deputy First Minister. I think that some of the evidence that I read talked about when you're setting up or when you're describing or giving a definition of what an emergency is but also what an emergency is, then there's a lot of—there has to be some personal input into that. I'm interested to know how you personally weighed up what you felt was urgent and also what was an emergency. I think that this has been an incredibly challenging period and it revolves around essentially the wrestling with that very question and I've wrestled with it on countless occasions. If I give an example a year ago, just around about this time last year, Parliament rose, if my memory serves me right, on 22 December 2020. As a group of ministers, we met that evening at the end of the parliamentary session and our judgment around the state of the pandemic was that we felt that it was in a reasonably stable situation. A week later, we reconvened to deal with the emergency Brexit legislation—I may have my dates, because they might not be absolutely correct, but it was around about the 29th of the 30th of December—and we reconvened. Once we did the Brexit legislation, we gathered again just where we thought things were at. We were slightly more concerned about the situation, but we felt that we still had the right measures in place. By the end of New Year's Day 1 January 2021, I was on conference calls with other ministers being briefed about a rapidly deteriorating situation. I recall the Parliament on 4 January 2021 to hear from the First Minister and for us to enact very restrictive measures on people's freedom of movement and activity with immediate effect, which was the subject of the made affirmative procedure. We have an example of where, in the space of 40 hours, the situation deteriorated dramatically and necessitated urgent intervention. If I give another example—this has been vividly in my mind very recently—the Cabinet met on 23 November 2021. Our view generally was that the situation was relatively stable, and we felt that we had a reasonably sustainable pathway through the Christmas and New Year period. On 25 November, we were called to a briefing to be advised of the early findings of the research in South Africa on Omicron. By that night, my colleague Mr Matheson was on a United Kingdom call, putting in place travel restrictions around South Africa and various southern African states. We had quite literally gone from thinking on a Tuesday morning—indeed, Parliament had been advised on a Tuesday afternoon by the First Minister—of our view that we were in a relatively stable position of acute concern by Thursday. In my book, that is why urgent action is required, because the situation has changed with and performed our eyes in very dramatic order and fashion. That necessitated action of the speed and pace that the Government has taken. Thank you very much, Deputy First Minister. Thank you, convener. We have one quick follow-up question from Graham Simpson here on the back of this. Yes, thanks again, convener. I just want to ask Mr Swinney about something else that has been raised by witnesses to the committee, but we have not covered it yet. That is the idea that we should introduce sunset provisions, both in primary legislation and secondary legislation. I wonder what your thoughts are on that. Obviously, in relation to primary legislation, Parliament is at liberty to apply sunset provisions if it judges them to be appropriate. By their nature, many of the statutory instruments that have been introduced in relation to the handling of Covid through the made affirmative procedure have sunset provisions in them already. Indeed, a large number of them have expired of their own pre-will, so there is a role for sunset provisions. In relation to much of the made affirmative procedure, there is a sub-setting provision explicit in that if Parliament does not hope for the legislation within 28 days at lapses. There is that provision there already. Obviously, there is a role for that, and the Government would be happy to consider those measures and possibilities as part of the legislative process. I think that we have reached our stage now. I would like to thank the Deputy First Minister and the officials, Elisabeth Blair, Stephen MacGregor and, on this occasion, the most particular Rachel Rainer, who had to make some comments there and were very helpful. I would like to thank you all for helpful evidence. Just to add that the committee, as it has been suggested, may follow up by letter with any additional questions stemming from the meeting, if that will be suitable, Deputy First Minister. The questions are exhausted. No doubt, the Deputy First Minister is as well. I will suspend the meeting for a few minutes to allow the witnesses to lead blue jeans. I have one or two wee things to get sorted out at this end as well, so thank you. Hi everyone. Thank you very much indeed for your patience during the suspension of the meeting. We are moving on now under agenda item 4, and we are considering instruments subject to the made affirmative procedure. No technical points have been raised on SSIs 2021, 475, 478, 496, 497 and 498. However, I can invite any comments from members on the instrument, and I believe that Graham Simpson had comment first of all. I can comment on them all. We have regulations 475, 478, 496, 497, 498. 478, which will come to, I don't think, is contentious, and I won't be saying a great deal on that. That relates to a technical issue in the chamber where MSPs were unable to vote on a previous regulation and therefore it expired and this has been relayed. That happened and that's out of the way. The other regulations, however, I take a different view. They relate to the regulations that came in over Christmas, over the festive period, shall we say, in relation to leisure, sporting events, theatres, pubs and nightclubs. That is what all those four regulations do. Members of the public and people involved in those sectors know very well what happened. In fact, we had the closing down of sporting events in the football calendar. Certainly, the Premier League was put on pause. My view is that the use of the made affirmative procedure, which had just been discussed, for those regulations was not appropriate and they could have benefited and they would have benefited by some scrutiny and they had no scrutiny. I think that the affirmative procedure and Parliament could have made time for that. We have acted at times previously. I think that the affirmative procedure would have been a better procedure in those instances, so I would be moving against them on that basis. Thank you very much, Graham Simpson and Paul Sweeney. Thank you, convener. On reflection, having read through the clerk's documentation on that and actually the real-life implications of some of the measures that were brought in over the festive period, for example, I've had constituents come to me over the Christmas period from ambassador theatre group, for example, who have had short notice cancellations of their productions over Christmas pandemimes at the King's Theatre, for example. However, the upshot of that has been that because of the insufficient specification of support to that sector, it has meant that the employees have been left with up to five weeks without pay in January, which is a pretty horrendous situation. An example of how the made affirmative procedure has perhaps been inappropriately used here, because there hasn't been Jewish scrutiny in making sure that this was watertight to make sure that the potential negative effects on the real public were avoided. Therefore, I'm minded to express dissatisfaction with the use of this procedure. Thank you, Paul Sweeney. I recognise some of what Paul Sweeney has described. However, I think that we need to be cognisant of the evidence that we have just received from the Deputy First Minister with regards to Oma Cron and the research that was presented which showed a huge increase of the virus. Really, as he said, the situation changed before our eyes in dramatic order, but I think that we need to be aware of that. From my perspective, I think that the made affirmative procedure was the correct one to be using. Thank you very much. Thank you, Jenny Minto. I don't know if Craig Hoye wishes to say something, Craig. I know that it's cold in this building, but you appear to be frozen. Sounds to correct me. I think that I may look on. I don't want to rehearse the discussion that we just had with the Deputy First Minister, but I would agree with Graham Simpson and Paul Sweeney that I think that the instruments and the regulations that they brought into effect would have benefited from that scrutiny so that some of the unintended consequences that were negative wouldn't have occurred. I think that one of the other things in relation to it, the justification for bringing them in through the made affirmative route, is that they had to be implemented in some cases the very next day. Again, we didn't have the justification from the Government as to why the next day, rather than a week's time or 10 days' time, would be the right moment to introduce those. On that basis, given that Parliament was sitting when the measures were first introduced, I would support both Graham Simpson and perhaps Paul Sweeney in suggesting that the affirmative route would have been the better route in those circumstances. Thank you very much indeed. People are members agreed that 4.7.8 is more of a technical nature and it's certainly an issue that we don't need to vote on, but that we should vote on the four other instruments 4.7.5, 4.9.6, 4.9.7 and 4.9.8. Are members agreed on that? I think that they are. As the points are all similar, I suggest that we consider those four together. If we have a vote, that will show the feeling of the committee in general. I am content with that approach, everyone. SSIs 4.7.5, 4.9.6, 4.9.7 and 4.9.8. What we are going to do because of the nature of how we are running the committee today, we are going to take each of the members' names in alphabetical order and they can simply answer whether they agree, do not agree or wish to abstain on that. First of all, I will call Craig Hoy, please. Craig Hoy, agree, not agree or abstain, please. I do not agree. I do not agree. Jenny Minto, agree, not agree or abstain. Graham Simpson, agree, not agree or abstain. Not agree. Paul Swinney, agree, not agree or abstain. Not agree, convener. I conclude with myself. I do agree. Therefore, the clerks will put the result on the Blue Genes chat function because that is the correct procedure and I will then read this out. Meanwhile, I can say that no points have been raised on SSIs 2021, 4.6.5, 4.7.7. Is the committee content with those instruments? We are. Okay, so that's fine. Thank you. Right. We have the result of the division. It is 4.2 against 3. Densions 0 as an SSIs 2021, 4.7.5, 4.9.6, 4.9.7 and 4.9.8 and therefore not agreed as the result. Thank you very much indeed everyone for that and thank you to the clerking team for putting up with my procedure. Finally, under agenda item 7, we are considering instruments not subject to any parliamentary procedure. An issue has been raised on SSIs 2021, 4.6.8, the act of sedent sheriff appeal court rules 2021. As instrument makes provision for the procedure and forms to be used for appeals in the sheriff appeal court, the instrument will replace the 2015 court rules. The committee identified an error in respect of an incorrect reference in rule 33.1 to section 44 brackets 3 of the Age of Criminal Responsibility Scotland act 2019, which should have been to section 463 of that act. The Lord President's private office has committed to rectifying the error at the earliest appropriate opportunity, so does the committee agree to draw the instrument to the attention of Parliament on the general reporting ground in respect of this incorrect reference? We do agree. Okay. And I can also ask that the committee welcome the Lord President's private office having committed to rectifying the error at the earliest opportunity. Okay. No member has indicated that they are not content or that they wish to speak, so we are agreed. I thank everyone for that. Okay. I'm a bit confused now because I've got so much in front of me. Anyway. I think that I may have missed something here. Under agenda item 5, we're considering an instrument subject to the affirmative procedure and no points were raised in the draft. Closer security information sharing Scotland amendment regulations 2022, so is the committee content with this instrument? Thank you everyone for that. Under agenda item 6, which I also missed, we are considering instruments subject to the negative procedure and no points were raised on SSIs 2021, 4.6.5 and 4.7.7, so is the committee content with these instruments. No member has indicated that they are not content or that they wish to speak, so we are agreed. Further, under section 7, where I jumped on too quickly, under agenda item 7, we also had no points had been raised by members on SSIs 2021, 4.6.4, 4.7.2, 4.7.4 and 4.8.0, so is the committee content with these instruments. We are. No member has indicated that they are not content or that they wish to speak, and so we are agreed and I will move the committee into private. Thank you very much indeed.