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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?

Thanks very much. I will spare the officials from now on, which they will be pleased to hear.

I note the Deputy First Minister’s comment that he does not want the use of the made affirmative procedure to become normal. Well, it has become normal. If we look at some figures, we see that, since the start of session 4 up to the end of 2019, the made affirmative procedure was used nine times. Then, from 20 March 2020 to 2 December 2021, it was used 132 times, the vast majority of which were for coronavirus regulations. The percentage of those that were reported—generally for mistakes, which is what this committee picks up on—was 11.6 per cent. That is quite a high number.

It has become normal because the Government has got into the habit of using the procedure—and it is a procedure. If I can put it in layman’s terms—I will ask Mr Swinney to respond to this when I have finished—the Government has been ramming through laws at breakneck speed with little to no oversight. It is an affront to democracy. In fact, the Secondary Legislation Scrutiny Committee at Westminster called it “government by diktat”. I agree with that.

When, retrospectively, the laws eventually come before Parliament, there is very little debate—in fact, there is no procedure in this Parliament for a proper debate. All that is very unsatisfactory. Do you recognise the problem? If so, what do you intend to do about it?

Ms Rayner might want to say something, convener.

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.

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?

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?

Thank you. That takes us seamlessly back to the convener.