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Is the committee content with the regulations?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

An issue has been raised on the draft regulations, which are made as part of a wider legislative framework for the administration of social security assistance in Scotland provided for by the Social Security (Scotland) Act 2018. Section 97(9) of that act includes a requirement on Scottish ministers at the time of laying the instrument to lay a response to the Scottish Commission on Social Security’s report on the proposals for the regulations or a statement explaining why ministers consider it appropriate to lay the draft instrument before the commission has submitted its report on the proposals for the regulations.

One set of amendments in this instrument was not reported on by the commission prior to the instrument being laid. A statement under section 97(9)(b) of the 2018 act was sent to the Social Justice and Social Security Committee on 1 December but the statement was not laid until 3 December. In a written response to a question from the committee, which can be found in the public papers for this meeting, the Scottish Government has apologised for that administrative oversight.

Does the committee agree to report the instrument on the general reporting ground in respect of a failure to lay the necessary statement when laying the draft instrument on 29 November 2021 as required under section 97(9)(b) of the 2018 act?

Although the committee might wish to welcome the Scottish Government’s apology for the administrative oversight and to acknowledge that it related only to one set of minor technical amendments and was corrected within four days, it was still a clear breach of the laying requirements. Does the committee also wish to write to the Minister for Parliamentary Business, highlighting its desire for all instruments to be laid correctly?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Also under this agenda item is another set of draft regulations, on which no points have been raised.

I will comment on one thing before I hand over to Graham Simpson. Last week, Dr Fox indicated to the committee that this type of debate has been going on since the early 1930s. It is obviously not a new debate, and it is clear that nobody has managed to reach a successful outcome since that time. I would imagine that, even if a successful outcome had been found at some point in the past or were to be found, different events will happen and different solutions will be required for them, too.

I will come back on that point, Sir Jonathan. There are three devolved Parliaments in the UK as well as the UK Parliament. I do not have a specific example, but if the UK Government brought in a made affirmative instrument to change travel restrictions to make things harder or easier, but the devolved Administrations decided not to and to keep separate arrangements, I am sure that there would be political discourse challenging the devolved Administrations on why they were not following suit and keeping the arrangements as tightly drawn as possible to enable a four-nations approach on the issue. Do you agree?

I hand over to Paul Sweeney.

Yes, it does. My question is on the matter of urgency, which Jonathan Jones has touched on and which Dr Fox commented on last week. My question is for both witnesses. Do you have any recommendations on the definition of urgency or the mechanisms that should be put in place that Governments would have to follow before using the made affirmative procedure?

Professor Tierney touched on September 11. As I prepared for today, I was struck by the events of 9/11 and by the situation when mad cow disease came into the UK. Are you aware of measures that were brought in at that time regarding the made affirmative procedure? Was any other scrutiny brought in with that? Those two huge events have had an impact on life ever since.

Okay—no problem.

Sir Jonathan, you spoke a moment ago about some things that could happen to try to provide more scrutiny. Graham Simpson gave the example of the Covid passport instrument. I am not sure whether you are aware of this but, prior to the final instrument coming to the Parliament, a statement was given in the chamber, and there were questions to the relevant minister. The Minister for Parliamentary Business also came before our committee and took questions from us.

There was some pre-scrutiny in that instance. I accept that there was not so much scrutiny of the instrument itself, but there were opportunities for dialogue and scrutiny with the relevant ministers. Clearly, colleagues might not have been happy with some of the responses from the minister, but that happens in every Parliament. However, that approach has not been taken with every made affirmative instrument that has come to the Parliament. I cannot comment about what happens elsewhere. I wanted to make you aware of the actions that took place, because that instrument clearly had a lot more public and political interest to it than many of the other made affirmatives that have come into the committee and the Parliament.

I have a question for both Professor Tierney and Sir Jonathan on the issue of legislation and the legal requirement to provide evidence of urgency. From what you have both said, it is clear that more information should be presented. Should that requirement be put on a legal footing? If that is the case, do you have any examples of existing legislation that could help with the situation that we currently face? Clearly, Covid is not going away any time soon and we will be living with it for some time, whether in an emergency situation, as at present, or further down the line when society has returned to a more normal state.

I thank Professor Tierney and Sir Jonathan Jones for their helpful evidence. The committee might wish to follow up by letter any additional questions stemming from the meeting—we will discuss that later on this morning. Thank you very much to you both, gentlemen.

I briefly suspend the meeting to let the witnesses leave BlueJeans.

Is the committee content with the instruments?

No member has indicated that they are not content or that they wish to speak, so we are agreed.