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We seem to be putting quite a lot of store in the training that has been provided to date. How effective has that been in ensuring that staff know what their roles and responsibilities are? How will that be measured in future to ensure that we do not fall back into bad habits?

Good morning, Mr Brannen, Mr Kerr and Mr Scott.

At the outset, and for the record, I wonder whether you would like to give us a flavour of the Scottish Government’s views on why the leadership and governance arrangements at the commission broke down in 2020-21 after a period of apparent stability.

A fortnight ago, we heard from the chief executive and the board that they thought it was in large part because of the change in circumstances due to Covid, but I am not sure that we necessarily took much assurance from that that there was not a latent dysfunctionality. It would be good to get your impression of why those arrangements, in effect, broke down.

Like you, I am new—I am a new member of this committee. One of my early impressions is that, when the full glare of the spotlight from the Auditor General and the committee is on a body, we can get quite a quick turnaround in relation to certain practices—and, potentially, outcomes.

In the longer term, how do you perceive your role and the Scottish Government’s role in monitoring implementation of the audit recommendations, and how will you ensure that concerns are being addressed effectively, not just now but in the future?

How did the Scottish Government respond to the vote of no confidence? What were your views at the time on the reasons why the board decided to pass that vote of no confidence?

Thank you. Mr Brannen, it would be good to get your view, from a sponsoring and oversight perspective, on the action that has now been taken through the framework agreement, in terms of training and so on. Will that be sufficient to rebuild trust in the commission and to rebuild trust in the relationships between the various parties involved?

I appreciate that.

Professor Tierney, we heard last week from Morag Ross QC, who expressed fears about the repeated use of delegated legislation and the accessibility of the law. She said:

“The more instruments are made and the more they add to, qualify, revoke in whole or in part or update existing regulations, the more complex the picture becomes.”

She went on to say:

“Repeated cycles of changing this or that are not conducive to accessibility.”—[Official Report, Delegated Powers and Law Reform Committee, 7 December 2021; c 9.]

In the light of the fact that, when delegated legislation is made urgently, it comes into force before being considered by Parliament, does that lead to challenges involving the accessibility of the law? What specific concerns do you have in that regard?

We need to look at how we got here, in light of Mr Simpson’s remarks and the evidence that we took earlier about the Government getting into bad habits, drafting and laying instruments too late even though it knew the policy intent earlier.

I think that my colleague Russell Findlay first raised the issue with Keith Brown at the Criminal Justice Committee on 1 September. The issue was raised again with Keith Brown in the chamber on 15 September. Russell Findlay wrote to the justice secretary on 16 September, and raised the issue again with the Minister for Drugs Policy on 29 September in the chamber and in a further letter on 26 October. The intent to introduce the policy was then announced on 2 November.

The Government’s reason for bringing the policy forward is that a major incident occurred at the end of November. We are perhaps seeing that ministers had been asleep at the wheel to some degree and were only really awoken by Russell Findlay. The 28-day rule could have been adequately covered had the Government introduced the policy earlier.

We could have what I think is potentially a good piece of legislation that introduces a proportionate, timely and practical policy, provided that it does what it says on the tin. However, the situation exposes the fact that we do not have adequate scrutiny if the Government does not plan properly for the introduction of that kind of legislation. For such legislation to have public confidence, the public expect us to have had due time for consultation and that all-important scrutiny.

I support the intent of the policy but there are concerns that it might not do what it sets out to do. I am very much in favour of the principle behind it, but I share Mr Simpson’s concerns that how we got here is not sufficient or adequate.

Should it be accepted that, on some occasions, the urgency of the situation and the need to have legislation in place should take precedence over clarity? The legislation can be revised later on. Can you think of any recent examples where that has been the case, and where it has been better to have an unclear law than no law at all?

There is probably not a formula that can be applied to this, but would it be your general impression that the more a law is amended, the less accessible and understandable it is?

Thank you, and good morning, Sir Jonathan and Professor Tierney.

Last week, the committee heard from Dr Ruth Fox, who talked about the impact of repeated urgent delegated legislation on the clarity and therefore the accessibility of the law. She said:

“One problem with the made affirmative procedure is that, due to the pressure of urgency, legislation is pushed through quickly; therefore, the scrutiny and the technical legal checks ... are missing. Therefore, the drafting problems get through, and you have to either amend the regulations, which adds to their complexity, or revoke them.”—[Official Report, Delegated Powers and Law Reform Committee, 7 December 2021; c 10.]

Sir Jonathan, in light of those concerns and the potential risks of using the made affirmative procedure, do you think that, when it comes to the technical drafting of instruments, there is a tension between drafting at speed and the clarity of the instrument that is produced? In your experience, what can be done to mitigate the risks that are associated with drafting potentially quite complex legislation at speed?