Seòmar agus comataidhean

It has been an interesting day, and I am glad that I have sat through the meeting.

This is a relatively small but important group of amendments. Members know that I sit on the Delegated Powers and Law Reform Committee, which scrutinises every piece of legislation and produced an excellent and balanced report on the bill. However, prior to that, we held a mini inquiry into the use of the made affirmative procedure during the pandemic. That inquiry shaped the recommendations that we arrived at for the bill. The made affirmative procedure can be used in relation to five powers in the bill, one of which this committee is concerned with today: the power to free prisoners early.

I will remind members what the made affirmative procedure does, because that gives the background to the reasoning behind my amendments 1024 to 1026. The procedure allows a Scottish statutory instrument to be made and to come into force even though it has not yet been approved by the Parliament. That approval comes later. Law is made with no scrutiny and no parliamentary backing—there is no vote. The procedure was not commonly used before 2020, but it became very common after that.

In the DPLR Committee’s report, we held to four principles, the first of which was:

“Given the lack of prior parliamentary scrutiny and risks to legislative clarity and transparency in the made affirmative procedure, use of the affirmative procedure”—

which, of course, allows such scrutiny—

“should be the default position in all but exceptional and urgent circumstances. Legislation making provision for the made affirmative procedure must be very closely framed and its exercise tightly limited.”

Secondly,

“The Parliament will require an assurance that a situation is urgent. Provision in primary legislation will need to encompass a requirement to provide an explanation and evidence for the reasons for urgency in each case where the procedure is being used. There should be an opportunity for debate in a timely fashion and open to Members to seek to contribute”.

That does not happen at the moment.

Thirdly,

“Any explanation provided by Scottish Ministers should also include an assessment of the impact of the instrument on those affected by it and Ministers’ plans to publicise its contents and implications. This could include details of the relevant Scottish Government website where links to the instrument, including where relevant any consolidated version of the instrument it amends, as well as any associated guidance, can be found.”

People find it quite difficult to find their way through the legislation.

Finally,

“There will be a general expectation that legislation containing provision for the made affirmative procedure will include provision for sunset clauses to the effect that (a) Ministers’ ability to use the power will expire at a specified date and that (b) any instrument made under the power will be time-limited.”

We recommended that the Scottish Government lodge amendments on each power that can be used through the made affirmative procedure to ensure that the following requirements would be included. Scottish ministers should provide a written statement, prior to the instrument coming into force, that contains an explanation of and evidence showing why the Government thinks that it needs to be made urgently. Moreover, when using the made affirmative procedure, Scottish ministers should include an assessment of the impact of the instrument and ensure that statutory instruments made under the powers are subject to a sunset provision. Nevertheless, the committee restated that it expects the default position to be that the Scottish Government use the affirmative procedure

“in all but exceptional and urgent circumstances.”

My amendments in this group merely reflect the committee’s unanimous view.

The effect of amendment 1024 would simply be that any such regulations could be made only through the affirmative procedure, which is my preference. If the committee agrees to that amendment, the others in the group fall. If that does not happen, we move on to the other amendments.

Amendment 1008, in the name of Keith Brown, merely allows a minister to provide an explanation of why they think the made affirmative procedure should be used. If members have read the amendments in the group, they will have immediately realised that that amendment does not go as far as the others. It would be very easy for a minister to say, for instance, “We need to act quickly. That’s what the experts are telling us.” That would be the explanation. They could dress it up a bit, but if Mr Brown’s amendment is agreed to and mine are not, that is what the Parliament will be left with.

My amendments put Parliament front and centre in deciding whether the Government has got it right. When we are dealing with something as serious as freeing prisoners early, it is not good enough just to say, “We need to do this—okay?”

Amendment 1025 states:

“Ministers”

must

“have made a statement to the ... Parliament”

with

“an explanation, and”—

crucially—

“evidence, as to why ... regulations need to be made urgently”.

More importantly, it says that Parliament must agree to that.

Amendment 1026 is similar, but it calls for

“an assessment of the impact”

of the regulations, and it includes a sunset clause with a figure of one year.

I think that I have got this right. The Government is sympathetic to the idea of sunset clauses in general, but it has not—as far as I can tell—put a figure on the limit, as I have clearly done. I think that one year is a reasonable timescale.

I hope that that is a good summary for the committee that helps members to understand the reasoning behind the amendments.

I move amendment 1024.

The two instruments relate to the surrender of, and a compensation scheme for, what are known as zombie knives. Obviously, I am in favour of getting rid of what look to be pretty offensive weapons—if you google “zombie knife”, you will see what I mean. However, the lead committee should be absolutely certain that the regulations are clear on what is meant by a zombie knife, as opposed to any other knife. Obviously, the law needs to be absolutely clear, and we do not want knives to slip through the net. We should raise with the lead committee the need for it to be absolutely certain that the instruments are clearly defined.

Convener, I have no further questions but I invite the committee to take these allegations extremely seriously. They relate to your brief and I think that you should be delving deeper into what has been going on at the college.

I understand that, but the very commissioning of that report makes me feel that the committee needs a little bit of background to all this that it has not had.

I have the minutes from the 8 June 2021 board of management meeting. Under a section entitled, “Internal Audit Update”, it says:

“The Chair updated members ... on a number of allegations of potential staff misconduct within one of the college faculties. The allegations related to 3 separate matters:

Systematic bullying and intimidation of a number of staff over a prolonged period

Potential financial irregularities (of private businesses operating from college premises, using college materials and lecturing staff time)

Potential timetabling anomalies (fabrication of hours, of students, of classes).”

This has been reported in the press previously—I am not saying anything new. However, we have here, in black and white, in the board of management minutes, an allegation of private businesses operating from college premises.

Earlier, Auditor General, you said that millions of pounds of public money were not being overseen. That point is extremely relevant here. Were you aware of any of those allegations?

Okay. A report from the Scottish Funding Council has been mentioned, we have investigations that seem to be stuck, for some reason—they do not seem to be going anywhere—and two key members of staff have been suspended for six months. That does not seem acceptable to me.

However, there is another report, which was commissioned by the now-suspended principal, Aileen McKechnie, from a company called Azets. Are you aware of that report and do you know what it covers?

So it was in November.

Okay. I think that the same point applies, though. There were brand-new members who had not gone through proper training by then, and a representative of the Scottish Funding Council was present at that meeting, so the same question applies, whether the suspensions happened on 4 November or 30 November.

Okay.

My view is that this could be a police matter. Do you have a role, if people want to come to you in confidence with information?

Thank you very much, convener. It is good to be back at the committee. I served on the Public Audit and Post-legislative Scrutiny Committee in the previous session, but I should say that I have no relevant interests to declare—I do not think that what is declared carries over from one session to another.

It has been interesting to listen to the lines of questioning from members. I will pick up on some of what has been said, but I also have questions of my own. I have been aware of concerns about the college for some time now, and I have been approached by people at the college. Willie Coffey asked about the impact on staff. I have been an elected member—both as a councillor and as an MSP—for some time, and I have never come across a situation in which people are as scared as they are in this case. That applies to current staff and former staff. I have never seen anything like it. I will give the committee some background to that, because it has not had it yet.

Craig Hoy mentioned the meeting on 4 November last year, at which there were six new board members. Of course, that was the meeting at which the principal, Aileen McKechnie, and the interim clerk to the board, Brian Keegan, were suspended. There is a question about whether a board with six new members who had not gone through proper training should have taken such a big decision. A representative of the Scottish Funding Council was also present at that meeting. Was that appropriate?