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I appreciate that.

Professor Tierney, we heard last week from Morag Ross QC, who expressed fears about the repeated use of delegated legislation and the accessibility of the law. She said:

“The more instruments are made and the more they add to, qualify, revoke in whole or in part or update existing regulations, the more complex the picture becomes.”

She went on to say:

“Repeated cycles of changing this or that are not conducive to accessibility.”—[Official Report, Delegated Powers and Law Reform Committee, 7 December 2021; c 9.]

In the light of the fact that, when delegated legislation is made urgently, it comes into force before being considered by Parliament, does that lead to challenges involving the accessibility of the law? What specific concerns do you have in that regard?

We need to look at how we got here, in light of Mr Simpson’s remarks and the evidence that we took earlier about the Government getting into bad habits, drafting and laying instruments too late even though it knew the policy intent earlier.

I think that my colleague Russell Findlay first raised the issue with Keith Brown at the Criminal Justice Committee on 1 September. The issue was raised again with Keith Brown in the chamber on 15 September. Russell Findlay wrote to the justice secretary on 16 September, and raised the issue again with the Minister for Drugs Policy on 29 September in the chamber and in a further letter on 26 October. The intent to introduce the policy was then announced on 2 November.

The Government’s reason for bringing the policy forward is that a major incident occurred at the end of November. We are perhaps seeing that ministers had been asleep at the wheel to some degree and were only really awoken by Russell Findlay. The 28-day rule could have been adequately covered had the Government introduced the policy earlier.

We could have what I think is potentially a good piece of legislation that introduces a proportionate, timely and practical policy, provided that it does what it says on the tin. However, the situation exposes the fact that we do not have adequate scrutiny if the Government does not plan properly for the introduction of that kind of legislation. For such legislation to have public confidence, the public expect us to have had due time for consultation and that all-important scrutiny.

I support the intent of the policy but there are concerns that it might not do what it sets out to do. I am very much in favour of the principle behind it, but I share Mr Simpson’s concerns that how we got here is not sufficient or adequate.

You alluded to another possible delay to the census. Do you know whether anything has been done since the first delay to look again at the contracts and to make provision for a delay that might not impact the finances of NRS quite so extremely as the first delay seems to have done?

Good morning. I want to probe a little bit deeper into the additional costs of delaying the census, to ensure that the costs have arisen because of the delay and not because the project was going off kilter prior to that. Your report says that moving the census from March 2021 to 2022 will cost an additional £21.6 million, which is about 20 per cent of the programme’s overall costs, and that £14.4 million of that increase is due to

“an increase in the cost of goods”

and

“extending supplier contracts”.

Can you provide more detail on the costs? Are you concerned that, perhaps because of the way in which the contracts were framed, people are being paid for doing nothing as a result of the delay instead of producing more?

If the census had gone ahead in 2021, there would have been costs for Covid-19 mitigations. Do you have a view on what those additional expenses might have been? Would you have expected NRS to have quantified those costs?

You referred to £1.5 million-worth of financial pressures, which you said had been reduced to £0.5 million by mitigating actions. What were those actions? Are they continuing? Are you certain that those actions will bring balance in the coming financial year?

I will backtrack a bit. Is there a contradiction or tension between the necessity for emergency legislation to be urgent and of significant importance, and the fact that it gets the least, or a limited, amount of scrutiny? One example, to which Ms Ross might have been alluding, is the recent Covid passport scheme regulations, which were before this committee. As a new member of the committee, I was concerned that, although the regulations might have been framed exactly as they should have been, the policy to which they gave effect was sadly deficient. The passport did not prove that the person who presented it was the person to whom the passport had been issued, so there was an element of possible impersonation. In addition, when we introduced lateral flow tests to the scheme, it did not involve proof that a person had had a negative test; they could simply declare themselves negative, whether or not they had had the test.

The question that I am getting at is this: how do we manage the tension between the debate that is held and what seems to be an absence of scrutiny, both of the detail of the made affirmative instrument and, more importantly, of the policy to which it gives effect? How do we manage that tension between the debate and the lack of scrutiny when the legislation comes forward?

Do you foresee that there would be more recourse to the courts as a result of continued application of the made affirmative procedure if we carried on in these circumstances? Would that be a route that industry would look to utilise if Parliament is not effectively scrutinising instruments or holding the Executive to account for those laws?

Do you see merit or benefit in giving a committee such as this one or the group of parliamentarians who look at the regulations some authority also to probe the impact of the policy? Should that committee or group consider not only whether the regulation or instrument is well drafted, but ensure that it leads to good outcomes when it is applied in policy terms? Is there merit in bringing those two functions together within the same group?

Dr Fox, I have a question about the differences between the ways in which Holyrood and Westminster look at such instruments. We were able only to ensure that the Covid passport regulations were soundly framed; we could not dig deeper into the policy, although some members of the committee thought that that was defective and deficient. How does that differ at Westminster? Would those who were looking at the instrument also look into the policy, or would they look only at how the legislation is framed?