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Health Protection Coronavirus Requirements Scotland Amendment No2 Regulations 2021 SSI 2021 349

Letter from the Convener to Minister for Parliamentary Business, 8 October 2021

Dear George,

At Tuesday’s meeting of the Delegated Powers and Law Reform Committee it considered the Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No.2) Regulations 2021 (SSI 2021/349). As you will know, the Committee was not content with the instrument. This was due to concerns about the instrument being laid using the made affirmative procedure, so bringing the Regulations into force immediately, rather than the affirmative procedure, where the Regulations could only come into force following parliamentary approval.

The Session 5 Delegated Powers and Law Reform Committee highlighted to your predecessor, Graeme Dey MSP, the need for the made affirmative procedure to only be used when essential. Indeed, it highlighted this in its handover report to the Session 6 Committee:

“Over 90 of the coronavirus SSIs have been made subject to the made affirmative procedure. This allows the Scottish Government to bring regulations into force immediately but generally requires them to be approved by the parliament within 28 days in order to remain in force. The Committee had only previously considered a small number of these prior to the pandemic.

“The Committee has continually acknowledged the requirement for made affirmative instruments during the pandemic so as to allow the Government to respond quickly to the many challenges presented by coronavirus. Nevertheless, it has also said that bringing such substantial changes into force immediately, before any parliamentary scrutiny, should only be used when essential and should not become standard practice when time would allow the affirmative procedure to be used.”

When you appeared before the Committee in September, you said of the use of the made affirmative procedure that: “...parliamentary scrutiny and accountability are extremely important, so I agree that wherever possible we should give the Parliament the chance to scrutinise regulations before they come into effect.” In a subsequent written response to the Committee, you gave further reasoning as to why the made affirmative procedure was appropriate when bringing forward Regulations for the proposed COVID-19 vaccine certification scheme:

“I absolutely accept that the made affirmative procedure must only be used when the test for using it set out in Schedule 19 of the Coronavirus Act 2020 is met. Here, I am clear that the relevant regulations will need to be made urgently, given the state of the pandemic and the need to take steps without delay to address the harms posed. I also accept that made affirmative procedure should not become “standard practice.” I believe that in this instance however that the proposed approach is justified.”

The Committee continues to accept that there is a place for the made affirmative procedure to be used in certain circumstances. However, given the COVID-19 vaccine certification scheme was first discussed in September and will not now be enforced until later this month, the Committee considered that in this case time could have been afforded to allow the Parliament to scrutinise the Regulations under the affirmative procedure.

Given the Committee’s view on these Regulations, will the Government reflect on how it determines whether the made affirmative procedure is the appropriate procedure to be used in future?

I would be grateful for a response by midday on Thursday 21 October. I am also copying this letter to the COVID-19 Recovery Committee for its interest.

Yours sincerely,

Stuart McMillan MSP

Convener of the Delegated Powers and Law Reform Committee