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That is useful.

I will now ask you about the possibility of introducing sunset provisions. The convener might want to explore later the question about whether situations are urgent, so I will leave it to him to ask about that.

Would it be good to introduce sunset clauses? Do you have any other ideas that might improve transparency?

With our previous evidence session in mind, I think that this instrument highlights why scrutiny is important. Indeed, the reason for the 28-day rule is to allow some form of scrutiny.

On the face of it, a lot of people will think that the Scottish Government has done the right thing by pushing the instrument through. However, you mentioned the letter that the Parliament has received from the Scottish Centre for Crime and Justice Research, which puts forward a counterargument. That shows why we need to have scrutiny.

We need to tell the Government in no uncertain terms that breaching that 28-day rule, whatever one thinks of the policy, is really not acceptable.

I am not stopping you—go for it.

It is good to see you, Professor Tierney and Sir Jonathan.

The figures highlight the scale of the issue with which we are dealing. Between 2011 and 2019, there were nine made affirmative instruments in Scotland; between 20 March 2020 and 2 December 2021, there were 132. The use of the procedure has exploded. The vast majority of those instruments were Covid related.

You both talked about the complexity of the law. I agree that the law becomes extremely difficult for people to follow unless it is consolidated, which it generally is not; it is certainly not consolidated here, and I suspect that it is not consolidated in Westminster either. I agree with Sir Jonathan that we should move in the direction of consolidation. The law needs to be understandable. It is okay for you guys: you are experts who can probably work things out, but most of us are not in that position. The law needs to be easily understood, particularly when it is made at speed and we are expecting the public and businesses to know what is going on.

Sir Jonathan, I enjoyed reading your comments to the Statute Law Society on the rule of law and subordinate legislation. There was a good deal of humour in them. You seemed to accept many of the reservations that some of us have about the instruments that we are talking about, and you called for

“a reset of our use of subordinate legislation”—

as you have done today. However, on whether that will happen, you rather gloomily concluded:

“I won’t hold my breath.”

I have to agree with you on that. My question for you and Professor Tierney is this: if you give Government an inch, will it take a mile?

What do you think, Dr Fox?

I thank both witnesses for coming. It has been very interesting so far.

I have to praise Dr Fox for some of her work so far, including her book “The Devil is in the Detail: Parliament and Delegated Legislation”, which I was thinking of putting on my Christmas list. However, knowing my family, I will probably end up having to buy it myself. It looks like an absolute bargain, so I will be rushing out to get it.

Morag Ross made a number of interesting points earlier, one of which was about how we as parliamentarians deal with stuff after it has become law. When something has been put through under made affirmative procedure, it is already law, and we scrutinise it as such—as opposed to as something that is not already law. She is absolutely right that there is a tendency for parliamentarians to look at stuff that is already law and say, “Well, it is done; we will just nod it through.” Sometimes, the law has already been overtaken or amendments have been lodged or it is null and void, and so we think, “Well, I’m not going to bother with this.” However, that is not the way it should be, and the purpose of this mini-inquiry is to consider that issue.

In the interests of time, I will not go over the same ground. I am keen to explore solutions as to how we improve things. When the Scottish Parliament debates regulations, they go through this committee, as we have a remit; then to a policy committee—in terms of this inquiry, coronavirus-related regulations go mostly to the COVID-19 Recovery Committee—and then to the full Parliament. When regulations get to the full Parliament, the opportunity for ���˿��� to debate them is extremely limited, as there is only a minister and possibly one member from each party taking part. There is some very important stuff going through the Parliament—Craig Hoy has mentioned vaccination passports—yet the debate is extremely limited.

Perhaps this is a question for Ruth Fox. You mentioned that, in Westminster, MPs get a 90-minute debate, which we do not get. Is there something there for us in Scotland to look at?

I realise that we are up against the clock, so I will roll two questions into one. They are also on the theme of what we do now.

I am really frustrated by the use of the made affirmative procedure. It has been overused in both Parliaments. When ministers lay such instruments before the Parliament, they should have to justify why a measure is urgent or an emergency. They should have to come to—or at least write to—a committee and make the case. Also, to pick up on the House of Lords report on the subject, it would be a good idea for every made affirmative instrument to be subject to a sunset provision.

Should the Government have to make the case that an instrument is urgent? Should that have to be subject to a vote in a committee or the Parliament? Should such instruments be subject to a sunset provision and, if so, what length should that be?

Obviously, it is good that the instrument is being dealt with under the affirmative procedure, as that allows the Parliament some time—although not much, it has to be said—to scrutinise it. We probably need more time, but something is better than nothing, which is the alternative that we could have been faced with.

As you said, convener, the instrument adds an alternative to the existing vaccination passport regulations, which we all know about and which we have debated in this committee and in other committees. The instrument adds an alternative for people who want to get into certain events, which is that they would have to take

“a lateral flow test, the results of which have been submitted through the NHS public reporting system.”

Most people who take such tests will do so with a kit at home. My problem with the instrument is that, if it is to meet the policy intent, as set out in the draft policy note, of reducing

“the risk of transmission of coronavirus”,

it relies entirely on people being honest about that. If people are absolutely desperate to get into events such as football matches or concerts, all that they need to do is open their kit and report that they have a negative test result, whether or not they have such a result, or have actually done the test. It is really easy for people just to say that they have done a test and had a negative result and then, 24 hours later, to go to an event. The system relies completely on people being honest. To be fair, the First Minister has admitted that.

I am not convinced that the instrument meets the policy intent as stated in the note. However, there is no basis on which the committee could report the instrument. I do not think that it is badly drafted; I just do not think that it will achieve what it sets out to achieve.

As you rightly say, convener, the policy note attached to the regulations points out the effect of the United Kingdom Internal Market Act 2020, which is that the policy intent behind the regulations might not be achieved. The result is that the ban that the instrument imposes will apply to products that are produced in Scotland, but it will not apply to products that are produced in other parts of the UK where they are not banned.

It is a significant measure to ban any product, whatever it is, and to stop its supply. As you said, the negative procedure applies to the instrument. I would normally argue that that was not appropriate and that it should be the affirmative procedure, but that is not legally available in this case. Therefore, if it is okay with you, convener, we should highlight the issue to the lead committee, which I think is the Net Zero, Energy and Transport Committee, possibly saying that, although the instrument is subject to the negative procedure, that committee can still take evidence on it. If I was a member of that committee, I would want to do that, because I would want to hear from Scottish producers that are potentially affected by the measure.

I should point out that a consultation is going on in England—I read about it at the weekend. Ideally, we probably want the same policy to apply across the UK, so that we do not end up with one set of rules in one area and a different set of rules in another, which is potentially what will happen. The lead committee could address those matters. We should write to the lead committee to point that out and maybe suggest to it that, if it wishes, it could write to the Scotland Office, and probably the department that is dealing with the issue in England, which I think is the Department for Environment, Food and Rural Affairs. I think that the issue sits under the Environment Act 2021.

I am content with the recommendations, but we should highlight a number of issues to the lead committee.

I appreciate that you are up against the clock, convener, as the committee always is. I will be as brief as I can be.

The committee will be aware of the Delegated Powers and Law Reform Committee’s decision on the regulations. I sit on the committee, but I am not the convener, so I cannot report back in that sense. However, the committee took the view that the procedure for bringing in the regulations—they come into effect and then the policy committee looks at them, as it is today—was inappropriate and wrong. On a point of information, we are in discussions with the Government about setting up a series of protocols to determine when the made affirmative procedure should be used. I think that that will be useful for everyone.

If I have time, I want to make a comment that people, if they wish, can respond to. Professor Leitch mentioned his experience of the rugby on Saturday and also referred to football matches. I did not go to the rugby, but I have spoken to people who did, and they said that they were just being waved through. Someone told me that one of the stewards said, “The app’s down—in you come.”

I have been to three football matches since the scheme came into effect, and the checks, such as they were, were cursory. You flash a bit of paper at a steward, it is not looked at in any great detail—it could be anything—and you get waved through. If any club in Scotland did anything different, it would cause absolute chaos. If they were to start scanning everyone they would not get everyone in.

I therefore think that the way in which things are working on the ground makes the scheme pointless. People are not being checked properly and are still getting into events. I have to say that I am comfortable with that, because I cannot see how else you can do it.

When I was last here, I asked about theatres. Ms Sadler told me that all Scottish theatres are exempt from the scheme. That is the case legally, but the picture out there is rather confused. For example, some events at the Usher Hall here in Edinburgh are requiring a vaccination passport to be shown, while others are not. Other theatres seem to be doing their own thing. The Playhouse—