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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?

Would you specify a time period in sunset clauses or should it depend on the instrument?

That is useful.

I will now ask you about the possibility of introducing sunset provisions. The convener might want to explore later the question about whether situations are urgent, so I will leave it to him to ask about that.

Would it be good to introduce sunset clauses? Do you have any other ideas that might improve transparency?

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

I want to ask a quick question on the subject of urgency. If we were to develop—[Interruption.] I am sorry, but my camera keeps going; I will have to hold it in position.

If we were to develop a procedure whereby a minister has to justify why something is urgent, we could imagine any minister considering the process as just something that they have to do, or a bit of a tick-box exercise. They might have to go along to some bothersome committee, but they will just get through it and, at the end of the day, if they decide that something is urgent, then it is urgent. Should we build into any system the power of veto for Parliament and/or a committee?

I am not stopping you—go for it.

I realise that we are up against the clock, so I will roll two questions into one. They are also on the theme of what we do now.

I am really frustrated by the use of the made affirmative procedure. It has been overused in both Parliaments. When ministers lay such instruments before the Parliament, they should have to justify why a measure is urgent or an emergency. They should have to come to—or at least write to—a committee and make the case. Also, to pick up on the House of Lords report on the subject, it would be a good idea for every made affirmative instrument to be subject to a sunset provision.

Should the Government have to make the case that an instrument is urgent? Should that have to be subject to a vote in a committee or the Parliament? Should such instruments be subject to a sunset provision and, if so, what length should that be?

I thank both witnesses for coming. It has been very interesting so far.

I have to praise Dr Fox for some of her work so far, including her book “The Devil is in the Detail: Parliament and Delegated Legislation”, which I was thinking of putting on my Christmas list. However, knowing my family, I will probably end up having to buy it myself. It looks like an absolute bargain, so I will be rushing out to get it.

Morag Ross made a number of interesting points earlier, one of which was about how we as parliamentarians deal with stuff after it has become law. When something has been put through under made affirmative procedure, it is already law, and we scrutinise it as such—as opposed to as something that is not already law. She is absolutely right that there is a tendency for parliamentarians to look at stuff that is already law and say, “Well, it is done; we will just nod it through.” Sometimes, the law has already been overtaken or amendments have been lodged or it is null and void, and so we think, “Well, I’m not going to bother with this.” However, that is not the way it should be, and the purpose of this mini-inquiry is to consider that issue.

In the interests of time, I will not go over the same ground. I am keen to explore solutions as to how we improve things. When the Scottish Parliament debates regulations, they go through this committee, as we have a remit; then to a policy committee—in terms of this inquiry, coronavirus-related regulations go mostly to the COVID-19 Recovery Committee—and then to the full Parliament. When regulations get to the full Parliament, the opportunity for MSPs to debate them is extremely limited, as there is only a minister and possibly one member from each party taking part. There is some very important stuff going through the Parliament—Craig Hoy has mentioned vaccination passports—yet the debate is extremely limited.

Perhaps this is a question for Ruth Fox. You mentioned that, in Westminster, MPs get a 90-minute debate, which we do not get. Is there something there for us in Scotland to look at?

What do you think, Dr Fox?

Obviously, it is good that the instrument is being dealt with under the affirmative procedure, as that allows the Parliament some time—although not much, it has to be said—to scrutinise it. We probably need more time, but something is better than nothing, which is the alternative that we could have been faced with.

As you said, convener, the instrument adds an alternative to the existing vaccination passport regulations, which we all know about and which we have debated in this committee and in other committees. The instrument adds an alternative for people who want to get into certain events, which is that they would have to take

“a lateral flow test, the results of which have been submitted through the NHS public reporting system.”

Most people who take such tests will do so with a kit at home. My problem with the instrument is that, if it is to meet the policy intent, as set out in the draft policy note, of reducing

“the risk of transmission of coronavirus”,

it relies entirely on people being honest about that. If people are absolutely desperate to get into events such as football matches or concerts, all that they need to do is open their kit and report that they have a negative test result, whether or not they have such a result, or have actually done the test. It is really easy for people just to say that they have done a test and had a negative result and then, 24 hours later, to go to an event. The system relies completely on people being honest. To be fair, the First Minister has admitted that.

I am not convinced that the instrument meets the policy intent as stated in the note. However, there is no basis on which the committee could report the instrument. I do not think that it is badly drafted; I just do not think that it will achieve what it sets out to achieve.