‘Ministers must justify future use of emergency rule-making powers’

The Delegated Powers and Law Reform committee has been examining the use of the 'made affirmative procedure'.

‘Ministers must justify future use of emergency rule-making powers’ iStock
The made affirmative procedure allows legal changes to be made before MSPs see them.

The Scottish Government should publish a justification for any future use of emergency rule-making powers, a committee of MSPs has said.

Holyrood’s Delegated Powers and Law Reform committee has been examining the use of the “made affirmative procedure” – a ministerial power which has been used more than 140 times during the pandemic.

The procedure allows legal changes to be made before MSPs have a chance to see them, though the Scottish Parliament must approve the changes within 28 days for the new rules to stay in force.

The committee said it understood the need for the procedure in response to the public health emergency.

However it called on the Scottish Government to publish the criteria it uses to decide when the made affirmative procedure is used.

It also asked the government to provide a justification for each future use of these powers.

If a justification is not provided, the committee said it would raise the matter in the debating chamber.

Convener Stuart McMillan said: “The challenges created by the coronavirus pandemic have required the Scottish Government to act quickly.

“The committee understands this and we can think of numerous occasions where this has been vitally important.

“However, we all also understand and wish to underline the importance of proper parliamentary scrutiny.

“We do not want to end the use of these useful powers, but we believe there are some areas where changes could help ensure these powers deliver good, accessible law.

“We were reassured by the commitments that we received from the Scottish Government that the use of these powers would not become the norm.

“However, our suggestions are intended to ensure that the Parliament can best respond to their potential use in the future.”

Last month, deputy first minister John Swinney appeared before the committee and defended the government’s use of the powers.

He said the government did not use the made affirmative procedure lightly.

He told the committee: “The made affirmative procedure has provided the government with necessary flexibility to deal with crisis situations when immediate action has been necessary.”