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There is a broad reflection to add that is not just about the made affirmative procedure, as certainly some of our witnesses have argued that adequate scrutiny of the primary legislation is also a key part of robustness. For example, Professor Stephen Tierney mentioned that

“The real problems are not simply with the made affirmative procedure downstream but with the fact that the primary legislation that created the powers was itself drafted and passed very quickly without adequate scrutiny.”—[Official Report, Delegated Powers and Law Reform Committee, 14 December 2021; c 4.]

It is clear that, once the instruments pile up, the initial legislation becomes so distorted that it is hard to understand what it means for parliamentarians or members of the public.

Witnesses have discussed the accessibility of instruments that have been subject to multiple amendments. Sir Jonathan Jones QC and the Law Society of Scotland have both suggested that the publication of consolidated versions of instruments that have been subject to multiple amendments would be an improvement on the current procedure. Would you consider introducing that? Will the Government take away and reflect on that suggestion in respect of improving transparency and the implications of making multiple changes to legislation so that there is greater understanding of what it means, despite all the changes?

I appreciate that response. Perhaps that is something for the committee to consider as we look at the continuous improvement of the Parliament and its procedures.

More generally, there was discussion earlier about skeleton bills and the trend of that form of legislation becoming increasingly attractive to Government, because it allows broad general principles to be outlined without necessarily having specific actions detailed in legislation. That leaves a lot of leeway for ministers to subsequently direct where they want to go, using secondary legislation. That perhaps presents some complications.

One example that springs to mind is the Transport (Scotland) Act 2019, which had a number of amendments made to it with the introduction of franchising, local authorities setting up their own municipal bus companies and bus service improvement partnerships. The latter have, in general, a public-private partnership model that is a bit more light touch and is more akin to the status quo of the deregulated model. Even though those provisions were all in the legislation, the Government and Transport Scotland have resourced and pushed forward the bus service improvement partnerships only. The other options for local authorities to pursue are not resourced in a meaningful way. That is an example of legislation that was drafted in a skeleton sense only. The way in which it has been implemented and driven by secondary legislation means that a lot of the provisions in the legislation have not been taken forward.

I wonder whether the Government will reflect on skeleton bills, how they are designed, the fact that their increasing use has been a long-term trend across Governments for decades and whether they lead to problems later on, when a Parliament expresses a view that things should happen in a country but they do not happen. What does the Deputy First Minister think about the general principle of there being problems with the tendency to use skeleton bills and there being provisions put in place that are not taken forward in secondary legislation?

I have significant concerns with the policy, which I think represents abuse of power and Executive overreach; I also think that there has been insufficient scrutiny and insufficient evidence that it will achieve its desired effects. For all those reasons, this is an inappropriate use of the procedure and should be resisted.

I am inclined at the very least to write to the lead committee on justice policy and to the minister dealing with the drug deaths emergency. The instrument flies in the face of public health approaches to management of the issue, particularly given that no evidence exists that illicit substances have been responsible for any deaths in prison in Scotland—the primary driver of drug-related deaths in prison is prescribed medications. We need to make greater efforts to understand the nature of the problem, rather than jumping the gun, particularly given that the Scottish Prison Service has a problematic issue with deaths in custody at the hands of prison officers.

Professor Tierney, do you have any thoughts on that?

I appreciate those answers.

That is helpful. I suppose that necessity is sometimes the mother of invention. You have described the time constraints that might drive behaviours that are not necessarily malicious or malign in intent but that are simply a by-product of other pressures in the system. Your suggestions are helpful and could assist.

Dr Fox, in her evidence to the committee, described the trend towards drafting “skeleton bills” that are, because of their architecture, prone to be massively expanded on by secondary legislation. That trend in the design of legislation might be why the propensity to use delegated powers in such a way has expanded significantly in recent years. What might recent primary legislation and the nature of the powers that have been given to ministers mean for the exercise of executive powers in future? Do you agree with the observation about skeleton bills and that the architecture of bills has substantially changed in recent years, which has perhaps driven some of the behaviours that we have talked about and expanded the use of secondary legislation?

That could tie into your points about a code, Professor Tierney, or even legislation to tighten up the design of bills.

It is certainly a cause for concern. Sir Jonathan, do you have any thoughts on that question?

Thank you to our witnesses for giving such comprehensive and expert evidence. It seems to me that perhaps this is all a function of the lack of a codified constitution, but perhaps that is a more fundamental debate that we need to have.

I was intrigued by the idea of introducing a definition of urgency as a check. Could that be a lever for stopping the ratchet from tightening? What practical impact might that have on the future exercise of executive power? I direct that question, in the first instance, to Sir Jonathan.

Sorry about that. The discussion has been really interesting to follow, and I thank both the witnesses for their insights.

I have a question for Ms Ross. From a historical perspective, as much as anything else, does the increasing use of the made affirmative procedure represent a general shift of legislative power away from the Parliament towards the Executive? Is that a valid observation?

That is a helpful insight. I am sure that you will have a perspective on that, Dr Fox, given the study that you did in the House of Commons in 2017. Controlling for the pandemic, what would be your general impression from a historical perspective? Is there a long-term trajectory of the erosion of parliamentary power relative to the Executive? Should that be of concern to members of the Scottish Parliament as well as members of the House of Commons?