���˿���

It would be helpful if such statements were made. It would be even more helpful if the Parliament was allowed to take a view on any such statement, but I suppose that having one would be a good first step, because ministers would at least have to justify their position.

When the vaccination passport scheme was introduced, the committee took a view on the matter. The scheme had been planned and trailed for several weeks, but it was put through the Parliament under the made affirmative procedure. Our view was that the Government could not say that that was urgent, because it had been planned for weeks. That is a good recent example of why it is important for ministers to justify their view that something is urgent.

On parliamentary oversight, the Deputy First Minister says that Parliament gets a vote. It does, but that happens only after the law has come into effect. That is the wrong way round. A lot of the time, we could use different procedures. We do not always need to use the made affirmative procedure. Parliament could take a view on a measure before it comes into law. Does the Deputy First Minister agree that more regulations could be introduced using the affirmative procedure, which would allow the Parliament to vote on measures before they become law?

I thank the Deputy First Minister for his comments. He described my comments as “ludicrous”—that is his view. I referred to coronavirus in my opening comments; it is quite clear that that is the reason why the Government has been using the made affirmative procedure—nobody denies that. The question that the committee is addressing is whether, as we move on, it should become a habit.

Using the made affirmative procedure has become a habit—various witnesses have described it as such. Sir Jonathan Jones QC described it as a “bad” habit and said that bad habits are hard to break. It is not only the Scottish Government—the Westminster Government has also got into that habit, and the same debate is going on down there. The question for this Parliament is, moving on, what do we do? As the Deputy First Minister appeared to recognise in his opening remarks, we do not want this approach to become the norm.

One of the issues that we have addressed in taking evidence is the reality that, in order for the made affirmative procedure to be used, all that needs to happen is that a minister—it could be Mr Swinney—decides that something is urgent. They do not need to justify that or to come to Parliament to say why they think that it is urgent; they simply need to decide in their own head that it is urgent and, with the flick of a ministerial pen, something will become law. There is no scrutiny of that.

I will put to Mr Swinney a question that has come up in evidence to us. Moving on and forgetting what has gone before, should ministers have to come to Parliament—either the full Parliament or a committee—to justify why they think that something is urgent?

I am very grateful—I am aware that I have taken up quite a bit of time.

I completely agree with the Deputy First Minister: we do not want to have to wait 54 days to put through regulations that have a certain degree of urgency about them. It is a question of Parliament being flexible and perhaps coming up with a bespoke procedure. I will leave my comments there, because other members have things to say.

Thank you.

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?