Seòmar agus comataidhean

I agree with the recommendation. However, it has to be said that this is very sloppy drafting practice and should not be happening. We need to get the title right. It is all very well for the Scottish Government to say that it will put something in footnotes, but that means that ordinary members of the public will, frankly, find the regulations very difficult to follow. People should not need legal training to follow regulations, which are coming fast and furious at the moment. Perhaps that is why we are seeing more and more mistakes—it is because legislation is being drawn up at pace.

I am concerned about the checks and balances that have—or have not—been put in place. We just should not see such mistakes. It is probably worth sending a letter to the Scottish Government from the committee to highlight that we are not satisfied that such errors are being made.

Thank you. That takes us seamlessly back to the convener.

I want to ask a quick question on the subject of urgency. If we were to develop—[Interruption.] I am sorry, but my camera keeps going; I will have to hold it in position.

If we were to develop a procedure whereby a minister has to justify why something is urgent, we could imagine any minister considering the process as just something that they have to do, or a bit of a tick-box exercise. They might have to go along to some bothersome committee, but they will just get through it and, at the end of the day, if they decide that something is urgent, then it is urgent. Should we build into any system the power of veto for Parliament and/or a committee?

Professor Tierney, I suspect that you would agree with that, so I will ask you a slightly different question about something that both you and Sir Jonathan have touched on.

Do you think that, right now, we are in an emergency whereby we have to legislate at such speed? I will give an example. In the Scottish Parliament, we have legislation to deal with vaccination passports. This committee pushed back on that, but eventually, it was put through under the made affirmative procedure. Westminster is at least getting a vote on the issue—we did not have that luxury. The legislation was pushed through at speed, yet it had been planned for weeks. Are we in an emergency of the sort that was clear at the start of the pandemic, which might justify the use of the made affirmative procedure?

Convener, you might already have covered this, but I think that it is important that we write a quite strongly worded letter to the Government and relevant minister to reflect the committee’s thoughts on the matter. We will report to the lead committee, as is entirely right, but we need to get what has just been said down on paper and send it to the Government.

Would you specify a time period in sunset clauses or should it depend on the instrument?

That is useful.

I will now ask you about the possibility of introducing sunset provisions. The convener might want to explore later the question about whether situations are urgent, so I will leave it to him to ask about that.

Would it be good to introduce sunset clauses? Do you have any other ideas that might improve transparency?

With our previous evidence session in mind, I think that this instrument highlights why scrutiny is important. Indeed, the reason for the 28-day rule is to allow some form of scrutiny.

On the face of it, a lot of people will think that the Scottish Government has done the right thing by pushing the instrument through. However, you mentioned the letter that the Parliament has received from the Scottish Centre for Crime and Justice Research, which puts forward a counterargument. That shows why we need to have scrutiny.

We need to tell the Government in no uncertain terms that breaching that 28-day rule, whatever one thinks of the policy, is really not acceptable.

I am not stopping you—go for it.

It is good to see you, Professor Tierney and Sir Jonathan.

The figures highlight the scale of the issue with which we are dealing. Between 2011 and 2019, there were nine made affirmative instruments in Scotland; between 20 March 2020 and 2 December 2021, there were 132. The use of the procedure has exploded. The vast majority of those instruments were Covid related.

You both talked about the complexity of the law. I agree that the law becomes extremely difficult for people to follow unless it is consolidated, which it generally is not; it is certainly not consolidated here, and I suspect that it is not consolidated in Westminster either. I agree with Sir Jonathan that we should move in the direction of consolidation. The law needs to be understandable. It is okay for you guys: you are experts who can probably work things out, but most of us are not in that position. The law needs to be easily understood, particularly when it is made at speed and we are expecting the public and businesses to know what is going on.

Sir Jonathan, I enjoyed reading your comments to the Statute Law Society on the rule of law and subordinate legislation. There was a good deal of humour in them. You seemed to accept many of the reservations that some of us have about the instruments that we are talking about, and you called for

“a reset of our use of subordinate legislation”—

as you have done today. However, on whether that will happen, you rather gloomily concluded:

“I won’t hold my breath.”

I have to agree with you on that. My question for you and Professor Tierney is this: if you give Government an inch, will it take a mile?