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I do not think that there is an increasing trend to use skeleton legislation, although I accept that some is introduced. It comes down to one of the answers that I gave earlier to Craig Hoy, which is about judging the situation case by case.

Going back to the redress scheme legislation that I talked about in my answer to Mr Hoy, I suppose that I could have introduced a bill that said that the Parliament would legislate for a redress scheme and that ministers would decide what the redress scheme should be. That would have been very skeletal legislation and it would have been wholly inappropriate, because there were big issues that had to be determined about the nature of the redress scheme. The Parliament decided all those questions. I accept that some of the detail that underpins those big questions is left to secondary legislation, but I would not describe the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill as skeletal legislation in any shape or form.

I would not describe the Transport (Scotland) Act 2019 as skeletal, either. I accept that there are provisions that require either executive action or secondary legislation, but the Parliament decided on the key questions that should be applied.

There is always a debate about the appropriate level of detail in a bill. Parliament agonises about that with every piece of legislation. Some voices will say that there is far too much detail because it runs the risk of becoming inflexible and other voices will say that there is far too little detail and it therefore remains vague and gives far too much power to ministers. Parliament has to wrestle with that spectrum on a case-by-case basis.

I was trying to get at this point in my answers to Mr Hoy and I give a similar response to Mr Sweeney: there is no precise model that we could say was appropriate in all circumstances. In certain circumstances, a member of Parliament may decide to pursue an issue—I have seen that on countless occasions. If you look at any act as a whole, a particular provision may appear to be significantly more detailed and focused than every other section. That will be because a member of Parliament made it their business to get that specificity into the bill for a particular purpose. I do not criticise that—I admire it. That is the use of the parliamentary procedure to make something happen, and members of Parliament are entitled to do that.

Mr Sweeney is right that there is also a wider philosophical debate that has been going on for my lifetime—and before that—about the right balance between specificity and flexibility in legislation. Much of that hinges on the level of executive power and responsibility that is granted by the Parliament in every circumstance.

To be blunt, I do not recognise the problem, and I completely, utterly and unreservedly reject the ludicrous narrative that Graham Simpson has just put on the record. He said that the made affirmative procedure had been used nine times before 20 March 2020, and 132 times afterwards. That might have something to do with the fact that, prior to 20 March 2020, during the lifetime of the Scottish Parliament, we had never faced a global pandemic. Yes, there have been a lot of made affirmative instruments, but they have been required because of the necessity of acting swiftly in a public health emergency.

Mr Simpson is one of a number of members of the Scottish Parliament who regularly criticise me and my colleagues for bringing a Westminster or United Kingdom perspective to the debate, but he has just done that himself because it suited him to do so.

Mr Simpson’s question ignores the reality of a public health pandemic. When we look at the list of made affirmative instruments, it is clear that a vast number of them were brought forward to put in place measures that were necessary to protect the public health of individuals in Scotland. Some of them related to measures on international travel, which—again—were about trying to protect the public health of people in Scotland. Indeed, the nine occasions on which the made affirmative procedure was used prior to 20 March 2020 were, in a large number of circumstances, also to do with public health requirements. I totally reject Mr Simpson’s characterisation of the situation.

With regard to parliamentary scrutiny, we have come to agreements with the Parliament and with committees about how added scrutiny can be undertaken. There is always the opportunity for business managers from different parties to ask for more debating time or more questions. I was not handling all the legislation from 20 March 2020 until the election, but I have handled it since the election, and I would be happy to consider any request for a debate about legislation if members wished to have one in addition to what is provided. However, the starting point in all this has to be an acceptance that there is a public health emergency that has to be addressed.

I recognise that, in any legislative process, whether slow or quick, there is always the potential for errors to be made. Sometimes, provisions can be put in place in a stage 1 draft of a bill but, during its passage, we find—I use “we” in the generic sense of Government ministers over all time—that there is an error with it or that a mistake has been made, and we have opportunities to remedy that, as it has to be remedied, at stage 2 or 3. Errors can be made. I do not think that the process or the people involved in it are infallible.

Generally, we are fortunate in having very high levels of quality in the drafting of legislation, and we are also served well by the Parliament and by parliamentary officials in the way in which they scrutinise and highlight any issues that arise around legislation. That interaction between Government and Parliament is helpful and welcome, and it adds to the process. Obviously, the scrutiny by members of Parliament assists in that process. However, nobody is infallible. When people move at such a pace, the risk of error increases, but we have minimised that in our use of the made affirmative procedure, which has been a necessary but not habitual part of our actions as a Government.

First, I note that the current situation is not my ideal model for how we should legislate. We should always take care and time over legislation, and the Parliament has in place very good procedures for ensuring that that is the case. However, as Mr Sweeney acknowledged, we are dealing with the necessity of acting swiftly, so we are required, in undertaking the process, to act in that fashion.

On the accessibility of legislation, I am conscious of the challenge that that has presented to various individuals and groups, and I would be happy to consider whether there is a way in which we could improve and enhance any of the current arrangements so that the marshalling of the legislation is more accessible and more visible.

The legislation.gov.uk website has been ensuring that Covid-19 regulations are updated as soon as possible after they are amended, so it provides a place where the consolidated legislation is available. I accept that the website, although it is helpful, is by its nature complex, but legislation itself is complex. Nevertheless, I am willing to consider further the points that witnesses have raised, which Mr Sweeney put to me, as that may well help us in taking the issue forward.

The comment is interesting, but I put it in the same category as the comments from the children’s commissioner—it does not really acknowledge the pressing urgency of action in a public health emergency.

I go back to my opening remarks and my comments in response to Mr Simpson. The made affirmative procedure should not be used habitually in the legislative process. As Mr Simpson helpfully pointed out, it was used nine times between 1 July 1999 and 20 March 2020. Those uses—some are listed in front of me—were for absolutely justifiable reasons. The powers were exercised not by me but by my predecessors in other political Administrations, who acted appropriately.

The procedure should not be used in the ordinary run of life but, when we are dealing with a global pandemic with serious material threats to the lives of our individual citizens, we must act. There are opportunities for Parliament to challenge such questions, and there has been no lack of opportunity for people to raise their concerns in Parliament about issues since March 2020—the First Minister has made statements almost weekly since March 2020; members have had the ability to raise issues; committees have met; and a bespoke Covid committee has been created. There have been endless opportunities for members to raise issues.

People need to be aware of legislation and, if it changes abruptly, we must take steps to communicate that—the Government does that and we make information available as widely as we can. We are open to listening to comments about how we might enhance the process.

I will answer the specific question that Mr Simpson has put to me in a moment. However, I hope that we are not going to go through a morning of Mr Simpson misrepresenting my position and my comments to the committee. In my opening remarks, I said:

“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 has used the made affirmative procedure as much as we have only because of the global pandemic. It is not a default view of the Government that that is the approach to legislating; using the made affirmative procedure has been a necessity because of the incredibly difficult circumstances that we have faced and the need for us to act with urgency to protect the public. Substantial numbers of the orders that are put in place through the made affirmative procedure lapse and are not renewed simply because of the temporary nature of the provisions that are put in place.

Mr Simpson has alleged that the flick of a ministerial pen makes something law. There is an element of substance to that view, but something will stop being law if Parliament does not approve it within 28 days. That is the parliamentary control and protection. If Parliament does not like it, it does not have to approve it.

I have seen the representations from the Law Society of Scotland, among others, on the question of the definition of “urgency”, and I think that a reasonable point has been made. Ministers could regularly make statements of arguments for urgency if that would help to create greater reassurance—such a statement could be made to a committee, provided that that would still enable the Government to act with urgency and would not undermine the principle of the made affirmative procedure that the law provides for.

I should point out that the use of the made affirmative procedure under the coronavirus legislation was by virtue of an act of the United Kingdom Parliament, not an act of the Scottish Parliament, and that some of the early examples of the use of the made affirmative procedure in the years of devolution were the product of the utilisation of pre-devolution United Kingdom legislation in relation to food quality and hygiene. That has, of course, been reserved legislation under which we have operated within the rule of law.

It is really important that it is recognised that the made affirmative procedure is part of the legal firmament of the United Kingdom and that, obviously, where we are entitled to use that power, we are free to do so. If, in the committee’s eyes, that would be enhanced by the provision of a statement of urgency, I would be very pleased to think about that.

I am glad that I asked for clarification, because I had misheard the word “skeleton”.

That is a question that must be considered on a case-by-case basis in relation to individual legislative instruments. Obviously, there can be arguments for skeleton primary legislation that requires to be completed by delegated legislation.

I can give Mr Hoy a real, live example. In the previous session, Parliament legislated for the redress scheme in relation to historical abuse. That was pretty detailed legislation, but certain elements were left to be followed up by regulation. One of the points of detail that I wrestled with recently in the secondary legislation was about remedying errors that had been made. I balked when I saw the immense amount of detail in that secondary legislation, and I wrestled with how Parliament would react to that, after having had extensive discussions about the redress legislation, so I looked at it, thought about it and discussed it with my legal advisers and officials. So much detail was required in that secondary legislation that including it in the primary legislation would have made for an act with a colossal amount of detail—more than would ordinarily be on the face of primary legislation.

Therefore, it is important that we wrestle with those questions on a case-by-case basis. When legislation is being considered, it is an absolute requirement that, for anything that might be described as skeleton legislation to be put in place, a clear argument must be made, and clear justification provided, to satisfy the test of parliamentary scrutiny.

Ultimately, Parliament must decide on the appropriate content of legislation. That is what we are all here for. There are 129 legislators in Parliament. Through a very detailed process of scrutiny, we must decide what is appropriate to put into primary legislation and what is appropriate to put into secondary legislation.

I would counsel Mr Hoy against using some of the terminology that he used in his question. Even when ministers are given delegated powers to act by secondary legislation, that still has to come back to Parliament for scrutiny. I acknowledge that that happens under different procedures, but it must still be scrutinised.

Legislation has been delegated for many years. There is legislation that underpins many aspects of how our public services operate. By parliamentary design, ministers’ executive power has been an implicit part of that legislation not in the past year or two or the past five years, but for the past 50 to 70 years.

Mr Hoy’s question is one that Parliament must wrestle with for every piece of legislation. Parliament must be satisfied that there is a robust case for legislating in the terms on which it finally agrees to do so.

Do you mean with regard to any change to the self-isolation position?

I will say a few words about it, for the record. Following a four-nations review of the international travel regulations, this instrument removed from the red list at 4 am on Wednesday 15 December the 11 countries that had been added temporarily. The rapid growth of omicron around the world meant that it was appropriate to do so at that point.

In addition, technical amendments were made to allow children travelling to Scotland who are aged 11 and under to leave self-isolation if their accompanying adult’s day 2 test comes back negative. That does not change the position in which the adult’s test is positive; in that case, children must remain in isolation. If one adult in the travelling group or family tests positive and another tests negative, the domestic isolation guidance applies; household contacts of any person who tests positive are asked to isolate for 10 days.

If a child under the age of 11 arrives unaccompanied, they are no longer required to self-isolate.

Motion moved,

That the COVID-19 Recovery Committee recommends that the Public Health (Coronavirus) (International Travel and Operator Liability) (Scotland) Amendment (No. 13) Regulations 2021 (SSI 2021/470) be approved.—[John Swinney]

Motion agreed to.