Seòmar agus comataidhean

We are about to close but, before we do so, I ask the witnesses whether they have any additional comments or points that they would like to highlight that they feel have not been covered.

The final point that I raised was about writing to the Cabinet Secretary for Justice and Veterans, and we will certainly incorporate members’ thoughts.

Is the committee content with those actions?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Item 6 is consideration of instruments that are not subject to parliamentary procedure and on which no points have been raised.

Before our consideration of Scottish statutory instruments, I suggest to members that, as we are meeting online, you will find it more challenging to indicate agreement to the instruments under discussion. I therefore ask you to raise your hand if you are not content with the question being put or if you wish to talk about an instrument.

Agenda item 3 is consideration of made affirmative instruments, on which no points have been raised.

An issue has been raised on this instrument, which amends the Prisons and Young Offenders Institutions (Scotland) Rules 2011. As it was laid before the Parliament on 30 November and came into force on 13 December 2021, it does not respect the requirement in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2021 that at least 28 days should elapse between the laying of an instrument that is subject to the negative procedure and the coming into force of that instrument.

Before I invite comments from members on whether the breach of the 28-day rule was appropriate, does the committee agree to report the instrument on reporting ground (j) for failure to lay it in accordance with laying requirements under the Interpretation and Legislative Reform (Scotland) Act 2010?

No member has indicated that they are not content, so we are agreed.

As well as the explanation provided by the Scottish Government for the breach, members will have seen the correspondence from the Scottish Centre for Crime and Justice Research. Although the letter probably focuses more on wider policy concerns instead of issues that fall within our technical remit, it also refers to the speed with which the changes have been implemented.

Do members have any comments?

Agenda item 5 is consideration of a negative instrument.

Yes, it does. My question is on the matter of urgency, which Jonathan Jones has touched on and which Dr Fox commented on last week. My question is for both witnesses. Do you have any recommendations on the definition of urgency or the mechanisms that should be put in place that Governments would have to follow before using the made affirmative procedure?

Professor Tierney touched on September 11. As I prepared for today, I was struck by the events of 9/11 and by the situation when mad cow disease came into the UK. Are you aware of measures that were brought in at that time regarding the made affirmative procedure? Was any other scrutiny brought in with that? Those two huge events have had an impact on life ever since.

Okay—no problem.

Sir Jonathan, you spoke a moment ago about some things that could happen to try to provide more scrutiny. Graham Simpson gave the example of the Covid passport instrument. I am not sure whether you are aware of this but, prior to the final instrument coming to the Parliament, a statement was given in the chamber, and there were questions to the relevant minister. The Minister for Parliamentary Business also came before our committee and took questions from us.

There was some pre-scrutiny in that instance. I accept that there was not so much scrutiny of the instrument itself, but there were opportunities for dialogue and scrutiny with the relevant ministers. Clearly, colleagues might not have been happy with some of the responses from the minister, but that happens in every Parliament. However, that approach has not been taken with every made affirmative instrument that has come to the Parliament. I cannot comment about what happens elsewhere. I wanted to make you aware of the actions that took place, because that instrument clearly had a lot more public and political interest to it than many of the other made affirmatives that have come into the committee and the Parliament.

I have a question for both Professor Tierney and Sir Jonathan on the issue of legislation and the legal requirement to provide evidence of urgency. From what you have both said, it is clear that more information should be presented. Should that requirement be put on a legal footing? If that is the case, do you have any examples of existing legislation that could help with the situation that we currently face? Clearly, Covid is not going away any time soon and we will be living with it for some time, whether in an emergency situation, as at present, or further down the line when society has returned to a more normal state.

I thank Professor Tierney and Sir Jonathan Jones for their helpful evidence. The committee might wish to follow up by letter any additional questions stemming from the meeting—we will discuss that later on this morning. Thank you very much to you both, gentlemen.

I briefly suspend the meeting to let the witnesses leave BlueJeans.