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I will, of course, do so, convener.

The issue hinges on the question of urgency. The Government budgets on requiring 54 days to be confident that legislation can be enacted under the affirmative procedure. There is a world of difference between a timetable of 54 days and the requirement to apply, for example, international travel restrictions or some form of regulation of the opening hours of hospitality businesses, as we have had to do recently. In circumstances where urgent action is required, we cannot wait 54 days to do that, so I will be interested to hear what the committee suggests in that respect.

If the choice is between a made affirmative procedure that enables us to act urgently to protect public health and an affirmative procedure that takes 54 days, I am afraid that I will come down on the side of the made affirmative procedure, because the decisions that the Government has had to arrive at have had a material impact on the protection of life and limb. To be frank, the timescales that are normally associated with affirmative regulations do not allow for that.

I am open to considering how such measures can be enhanced. My predecessor in handling such issues, Michael Russell, came to pragmatic agreements with the COVID-19 Committee on making regulations available in draft so that that committee could discuss them and ask questions about them at its routine meetings before they were enacted. Those were pragmatic measures to enhance the operation of the legislative system. However, I am happy to consider any other proposals that this committee makes.

Before I answer that question, there was a slight interruption in the line, so I missed what I think was a pretty crucial word in Craig Hoy’s question. Was it about delegated legislation?

The simple rationale was the belief that vaccination certification would be a valuable tool in boosting levels of participation in the vaccination programme among key groups in society and that that would help us to protect public health. There was a necessity to make progress with the vaccination programme as swiftly as we could. Effective participation in the vaccination programme has been an integral part of the strategy to protect the public from Covid, so it was an absolute necessity to drive participation in the programme.

This has been an incredibly challenging period. In essence, it revolves around wrestling with that question. I have wrestled with it on countless occasions. I will give an example from around this time last year.

If my memory serves me right, the Parliament rose on 22 December 2020. A group of ministers met that evening, at the end of the meeting of the Parliament, and our judgment was that the state of the pandemic was reasonably stable. A week later, we reconvened to deal with the emergency Brexit legislation. My dates might not be absolutely correct, but it was round about 29 or 30 December. Once we had dealt with the Brexit legislation, we gathered again to discuss where things were at. We were slightly more concerned about the situation, but we still felt that we had the right measures in place.

By the end of new year’s day, 1 January 2021, I was on conference calls with other ministers being briefed about a rapidly deteriorating situation. It was deteriorating so rapidly that the Presiding Officer recalled the Parliament on 4 January 2021 to hear from the First Minister and for us to enact very restrictive measures on people’s freedom of movement and activity with immediate effect, which were subject to the made affirmative procedure. That is an example in which, in the space of 48 hours, the situation deteriorated dramatically and necessitated urgent intervention.

I will give another example, which has been vividly in my mind recently. The Cabinet met on 23 November 2021 and our view was that the situation was relatively stable. We felt that we had a reasonably sustainable pathway through the Christmas and new year period.

On 25 November, we were called to a briefing to be advised of early findings of the research in South Africa on omicron. By that night, my colleague Mr Matheson was on a United Kingdom call that was putting in place travel restrictions around South Africa and various southern African states. We had quite literally gone from thinking on a Tuesday morning that we were in a relatively stable position—indeed, Parliament was advised by the First Minister of that view on the Tuesday afternoon—to a position of acute concern by the Thursday.

In my book, that is why urgent action is required—because the situation has changed before our eyes in a very dramatic order and fashion. I think that that necessitates action of the speed and the pace that the Government has taken.

Parliament has some very strong procedures in relation to the creation of new legislation. Our processes are very transparent, engaging and give adequate time and opportunity for scrutiny. That is not to say that they cannot be enhanced, but in general, Parliament has some pretty strong and transparent procedures for the formulation of legislation. For that reason, we should use the mechanisms that Parliament has. I come back to the comment that I made in my opening remarks, which is that the Government does not wish to make a habit of using the made affirmative procedure, because it does not allow all the time that our other procedures allow for engagement, consultation and scrutiny in advance of legislation being enacted. However, the necessity of the public health emergency has required the use of the made affirmative procedure.

The Parliament is well served by the arrangements that it has in place but has recognised with pragmatism the necessity of acting swiftly to put in place mechanisms and measures to handle the public health emergency. Indeed, Jenni Minto’s predecessor as member of the Scottish Parliament for Argyll and Bute, Michael Russell, was the author of the coronavirus legislation in the Parliament, steered it through the Parliament and, as a consequence, presided over much of the scrutiny of the measures in the previous parliamentary session—which he did with great distinction—because, in the circumstances, there was a necessity for us to act to ensure that we had measures in place to protect the public.

We wrestle at all times with the question of what approach it is right to take. In general, the arrangements that the Parliament has in place habitually are the appropriate measures to take. In the circumstances of a global pandemic that requires swift action, the measures that have been taken are appropriate. However, we should always be open to learning lessons from the situation and the Government will consider with care any output from the committee’s inquiry.

No. Mr Hoy and Mr Simpson have obviously decided that that will be the ludicrous line of argument that they deploy. There is plenty of scrutiny of the Government. There will be a statement from the First Minister this afternoon on which she will take 40 minutes of questions from members of Parliament. The idea that the Government is not under scrutiny in relation to Covid is ludicrous.

Good morning. I welcome the opportunity to give evidence in relation to the committee’s inquiry into the use of the made affirmative procedure. I have noted with interest the views expressed by previous witnesses, and I am grateful for the opportunity to make a brief opening statement.

In the past almost two years—and very recently—the decisions that we have taken to use the made affirmative procedure to bring forward regulations in Covid-related Scottish statutory instruments have been based on the need to address the very serious threat posed by coronavirus. I assure the committee that the Government does not take lightly the use of the made affirmative procedure for these SSIs. The powers are exceptional powers that are required for the exceptional circumstances in which we find ourselves.

The made affirmative procedure has provided the Government with the necessary flexibility to deal with crisis situations when immediate action has been necessary, such as when imposing or removing domestic public health restrictions or international travel restrictions. It has also been necessary when urgent action has been required to deal with the continuing effect of the pandemic, and when that action has been needed to be taken more quickly than the normal draft affirmative procedure allows for. The continuing need for such flexibility has been demonstrated clearly by the impact of the omicron variant.

In recognition of the exceptional nature of the powers, the Government is committed to working with Parliament to ensure that it can conduct effective scrutiny of Covid-related regulations. In the previous session of Parliament, we agreed a process that ensured that the then COVID-19 Committee was provided with a copy of the relevant draft made affirmative regulations, and that it had an opportunity to consider those before they were brought into force. We have also sought to explore whether the normal draft affirmative procedure can be expedited successfully in appropriate cases, as it was in, for example, the Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No 4) Regulations 2021.

I recognise the concerns that have been expressed that the Government should not view use of the made affirmative procedure as a normal approach to legislating, and I assure the committee that the Government shares that view. The Government did not, for example, make use of the power contained in the Coronavirus (Scotland) Act 2020 to convert any existing draft affirmative procedure in statute into the made affirmative procedure because of the impact of Covid. Indeed, that power has now expired. Nor do I expect that the made affirmative procedure will become a more regular feature of future Government legislation. It has its place, but only in a limited set of circumstances, such as in legislation dealing with the continuing impact of the pandemic—the current Coronavirus (Discretionary Compensation for Self-isolation) (Scotland) Bill, for example—or for relevant tax-related legislation.

I hope that the committee has found my remarks helpful, and I am happy to answer any questions that you have.

Let me say a couple of words first, then I will hand over to my officials. During the pandemic, officials in the Scottish Government have had to work at pace in a whole range of areas of policy and activity within the Government’s responsibilities. Working at pace is not unique to this legislative team.

Secondly—Rachel Rayner might have a little more to say about this—when ministers are considering the right steps to take, there will be a number of possibilities in most circumstances. Drafting is likely to take place across a range of those different possibilities before a conclusion is arrived at and put into the draft instrument. There is, therefore, preparatory time for officials to be working on some of these questions before ministers take their final decisions.

Thirdly, we rely heavily on the quality of drafting skills in the Government to prepare legislation of this type. Generally, it is of a very high quality, as has been consistently demonstrated. When things are having to be done at pace, there is the potential for errors to be made, which we obviously try to minimise. However, our officials do a tremendous job in making sure that quality legislation is produced in accordance with the circumstances with which we all wrestle at the moment.

I am very happy for my officials to add some remarks.

No. We put it into force to enable participation in the scheme so that we could, as far as possible, encourage greater uptake of vaccination and therefore protect public health. The rationale for urgency that I have shared with Mr Hoy was the rationale that governed our approach to using that instrument.

No—it is not. I read the evidence from the children’s commissioner and I do not think that the criticism is warranted. The Government has a duty to protect public health. On countless occasions, we have had to fulfil that duty swiftly to protect the public. I do not have the luxury of waiting for 54 days, which is the period in the normal process for affirmative orders, when there is a clamour and I have advice in front of me to take action that is justified and proportionate to protect public health. I do not have the luxury of waiting for 54 days to consider that; I must move. Of course I am accountable for that and, if Parliament does not like an order, it can vote against that in a 28-day period. Such options are all available to Parliament, and I am accountable for all that. I do not have the luxury of having lots of time on my hands when dealing with these difficult issues.