Letter from the Deputy First Minister and Cabinet Secretary for Covid Recovery to the Convener, 21 February 2022
Dear Convener,
I am happy to provide the Committee with this initial Government response to the report in advance of the Committee’s debate in the Chamber on 22 February.
In my evidence to the Committee on 11 January I put on record the Government’s general position on the use of made-affirmative procedure. I emphasised that the made-affirmative procedure is an exceptional power in the statute book, granted by Parliament in circumstances where it is clear that action is likely to require to be taken more urgently than is provided for under the standard affirmative procedure. That is typically in situations where it will be necessary to take urgent action to safeguard public health.
I assured the Committee that the Government does not take lightly the use of the made-affirmative procedure, but it is a power which has clearly been essential in enabling the Government to deal with the exceptional circumstances arising from the current 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 requires to be taken. That perspective will inform the Government’s response to the Committee’s report and our approach to the use of made-affirmative procedure more generally in the future, for example in relation to the Coronavirus (Recovery and Reform) (Scotland) Bill.
In terms of the specific recommendations set out in the Committee’s report, I recognise the importance which the Committee attaches to quality assurance, and clarity and accessibility of the law, when using the made-affirmative procedure. I can assure the Committee that the Government shares that view, and aspires to maintain very high standards in any legislation which is brought before Parliament. If the Committee has concerns about the clarity or quality of any specific regulations made under the made-affirmative procedure I would be happy to look at those examples and consider what lessons might be learned.
I also recognise the importance which the Committee attaches to understanding why the Government considers urgent action to be necessary when the use of the made-affirmative procedure is proposed. I will be happy to consider further how best to give effect to that recommendation in any future uses of the made-affirmative procedure.
I note the Committee’s view that there should be a set of principles which underpin the Scottish Government’s approach to including provision for the made-affirmative procedure in primary legislation to be passed in future. I can assure the Committee that the Government continues to view the made-affirmative procedure as an exceptional power and would expect to have to fully justify its inclusion in any new primary legislation, as we have in the Coronavirus (Recovery and Reform) (Scotland) Bill.
I note the Committee’s in-principle support for negotiating expedited scrutiny of instruments under the normal affirmative procedure as an alternative to using the made-affirmative procedure, and the proposed development of a protocol to underpin this. Whilst I would be happy for my officials to explore this with their parliamentary counterparts, I would wish to emphasise that any such protocol must be sufficiently flexible to enable the Government to deal with the realities of responding to the circumstances of a public health emergency.
I hope the Committee will find these initial views of the Government on the recommendations set out in the report to be helpful. I look forward to hearing views from across the Chamber when the report is debated, and I will provide a full response to the report in due course.
John Swinney