Quell fel diolch, a ch ymddangos i ddif Tigr ein cyfleion nesaf ei ddod yn gweithio ar gyfer y dylai powers i lawr y rwyfyrn cymaint. Ar wefael yn ddim yn y ffordd ag ymddangos iau i gyd, a gynnwch yn gy terroristi ag maen nhw i ddiweddig byw速yn ar gyfer yr� yn gwybodaeth am dierwyl. Yr ymgyrch yn y pwyllwydd i ddifud gallu iau i ddifud yn cyfrifwyr £6,7,8, ond mae'n gofyniau'r pryd yn ffwysig i ddynt ymddangos iau i gyd. Under agenda item number two, we are taking evidence from John Swinney MSP, the Deputy First Minister and Cabinet Secretary for Covid Recovery. On the coronavirus recovery reform, Scotland Bill is stage one. Mr Swinney is accompanied in the room by Stephen McGregor, who is the head of Parliament and legislation unit, and Rachel Rainer, the Scottish Government legal department's deputy legislation coordinator. Also joining us online are three policy leads in the bill. They are Claire, Morley, Craig Robertson and Erin McCreary. I welcome you all to the meeting. I invite the Deputy First Minister to make any opening remarks. Thank you, convener, and I welcome this opportunity to make a brief opening statement about the proposed made affirmative powers in the coronavirus recovery and reform Scotland Bill. The delegated powers memorandum prepared for the bill set out the details of 15 delegated powers proposed for Scottish ministers in the bill. Of those, five are capable of engaging the made affirmative procedure, and I expect the committee will have some questions on that issue. It is worth emphasising that the default for those powers is the normal affirmative procedure, but we consider there is justification for having the option of made affirmative procedure when urgent action is necessary. It is also worth emphasising that the prisoner release power is an extended temporary power rather than making the Covid-specific provision attempt a permanent power. The committee also now has my full response to its report on the use of the made affirmative procedure. I explained in the covering letter to that response that I was responding in general terms to the committee's recommendations. I hope that the committee has found that to be a helpful explanation of the Government's position. I have also said that I would be happy to consider specific recommendations from the committee in more detail in the context of its scrutiny of the coronavirus recovery and reform bill, and I stand ready to do so. The committee will now be familiar with my views on the intricacies of subordinate legislation procedures. Rather than repeating those, I will happily answer questions from the committee. Thank you very much, Deputy First Minister. Certainly, when the committee considers proposed delegated powers in any bill, its first question is always to consider whether or not it is appropriate to delegate the powers in the first place. There are five powers in the bill that would allow the made affirmative procedure to be used, as you have quite rightly indicated. Can you explain why you considered it was appropriate to delegate those powers? In relation to the delegation of powers involved in the bill, the rationale is to recognise the necessity of us taking sufficiently comprehensive action should we face the challenges of intensification of the coronavirus pandemic or another comparable incident of a similar style and scale. There are existing provisions in legislation in the Public Health Scotland Act 2008 that give some limited localised powers to deal with what I describe as localised outbreaks of concern. However, when it comes to dealing with a situation of the magnitude that we have been dealing with around Covid, the statute book is ill-equipped for such measures. What we are trying to do is to complete the statute book to ensure that it has the adequate powers available and that there is a scheme of delegation in place that is appropriate to deal with both the necessity of parliamentary scrutiny but also the necessity of urgent action should that be required given the circumstances that we face. Of the five instruments that delegate powers, the fifth one is paragraph 24.1 of the schedule, which is a power to release early from prison or young offenders institution. That one is only related to Covid, as you indicated, whereas the other four are to be extended. Can you explain the reasoning behind that, please? The reason behind why you limited the delegated powers on the release of prisoners to be only for Covid? Because of the necessity of the situation in relation to Covid, it might require us to take particular steps, as we had to do during the Covid pandemic. However, as a general rule of thumb, it was not envisaged as being a power that was appropriate to be contained within legislation of this type on a long-term basis. While recognising that any primary legislation would likely have to be expedited, it could provide greater options for parliamentary scrutiny, while also taking into account the specific nature of the current situation. Can you set out how you decided to include delegated powers in the bill rather than introduce primary legislation at the point of necessity? It relates essentially to the issue of predictability. We can be pretty certain that we will face further challenges in the form of a pandemic in the years to come. We cannot be certain about the exact presentation of the challenges that will come from that. What we are trying to do is to create an approach that equips the statute book with the necessary powers to enable us to act in all circumstances in which we face a national public health emergency. It also provides sufficient scope for us to tailor the interventions and the specifics of legislation that we put in place to reflect those circumstances, which would be the subject to parliamentary scrutiny, either through the affirmative process or in a sense of necessity and urgency. Essentially, what it is trying to do is establish the statute book with the necessary powers and responsibilities to be exercised after full and proper parliamentary consideration. It will also leave the scope for us to adapt and adjust to the challenge as it presents itself but still enables parliamentary scrutiny of those measures, as to whether they are appropriate or not in given circumstances. Of course, even with the made affirmative procedure, there is scope for parliamentary scrutiny, albeit once the measures have come into force. I will hand over to Graham Simpson. Thank you very much, convener. Hello again, Mr Swinney. Can I start by just asking you something about the letter that the committee received yesterday from yourself? Having gone through it, it seems to me that the general tone of that letter seems to be that your view appears to be that the Scottish Government is not doing much wrong in terms of made affirmative. When you consider our report and the debate that we had in the chamber, I was disappointed. I will be honest, I was disappointed when I read that letter. You do not seem to be accepting much of what the committee has been saying. If you think that I have got that wrong, please say so. Well, bluntly, I do think that Mr Simpson has got it wrong. I think that my response to the committee either in the giving of evidence or in the contributions to debates or in the correspondence of exchange with the committee has broadly gone on the lines that the nature of the pandemic is such that it has required us to act at pace, which is why we have had to use the made affirmative procedure on the number of occasions that we have used it on. That has been of necessity. Mr Sweeney raised, when I was here last week, the possibility of whether there is a hybrid option between made affirmative and affirmative. I am happy to engage in that. I confirm that in the submission that I gave to the committee yesterday. I am happy to confirm that. However, if in a public health emergency ministers are faced with the choice of a very difficult scenario today and wait for 40 days for parliamentary scrutiny, I am afraid to say that I am going to consider act now, because people might die if I do not. The response is set within the context of that. I accept in the statement in the response a number of other points. I indicate that the Government operates to high standards of drafting. If there are issues with that drafting, which we do not get right, we accept that, we confront it, we address it. If there are others that the committee does not believe that we have done that, then I have said in my submission that I will happily consider those. I also go on in the response to talk about a specific issue where the committee asks for consolidation of instruments, which, in principle, I am sympathetic to, but there are a lot of practical issues that come into the resources that are required to consolidate all of those instruments whilst we are dealing with a public health emergency. I welcome such an approach. That is the substance of the response that the Government has designed to be helpful. However, I suspect that, if Mr Simpson was looking for me in that submission to abandon the necessity of the made affirmative procedure, I am afraid that I cannot do that because I would be endangering the lives of members of the public if I did so. I would not expect you to do that. What I am trying to achieve is to get to a point at how we move on from our report and your response. You give a response to the committee saying that whenever you use a made affirmative procedure, there should be a statement as to why you believe that it is urgent. You say in your response that my view—that is your view—is that the Scottish Government already provides a clear explanation of the rationale for urgency, but you go on to say that you are happy to work with the committee to consider how that could be better codified in practice. I am keen to get to a point of how we can work together to get to a point where you provide something, in my view, better than you are doing at the moment, a proper explanation of why something is urgent. I think that what we have set out in that particular response is entirely appropriate. The Government makes a statement about why we consider the made affirmative procedure as required because something is of an urgent nature. We set out the rationale for that, but I go on to say that I am happy to work with the committee to consider how that could be better codified in practice for current and future made affirmative powers. That is an indication of my willingness. I think that we are doing that if the committee wishes to say to me, if you did it this way, if you covered that detail, if you covered that point, I will happily consider that. If the committee makes suggestions of that type, I will happily consider them as to how we do that. Can I ask a general question about the bill then? It covers a wide range of areas ranging from education to tenancy rights to justice and, indeed, health matters. Why did you put all that in one bill and not split it up? Some of the things in this bill are quite far-reaching. For example, when you look at tenancy rights, you could argue that what is in the bill has got nothing to do with public health, but it has everything to do with tenancy rights and changing the way that we do rental law in this country. Why not just introduce a separate bill when there is work going on already in this area—consultations out there? Why not do it that way? There are choices that are available to ministers in the formulation of legislation and one of the issues that I considered along with my ministerial colleagues was whether we should do exactly what Mr Simpson has talked about, which is to put those measures in their compartments in different pieces of legislation or whether we should essentially take the route of consolidation, which is to consolidate the legislative change that was required as a consequence of the pandemic. The purpose of the legislation is essentially to equip the statute book across a whole range of different legislative questions with the capacity to handle a pandemic should that come our way again. There is an arguable case on either point to either compartmentalise it and do it in a number of different pieces of legislation or to take the consolidation route. I opted to take the consolidation route because I felt that there was a rational basis in the aftermath of the pandemic for us to update the statute book to learn the lessons from our experience and to put in place the changes that were required. There is a different character to some of the proposals in the bill. The justice provisions, for example, in part 5, are titled temporary justice measures. They are there quite simply because if we do not undertake those changes, the implications for the exercise of judicial responsibilities will be significant. However, they are not permanent changes, they are there to put in place a framework that is envisaged and will operate until 2025. Some of the others are about powers that we may use if we face a pandemic, but we will not use them if we do not. Others are some relatively straightforward. Indeed, I think that Mr Simpson said to me last week when I was here that some of the changes that we were making in relation to digital access were perfectly straightforward reasonable propositions. The argument is quite simply between consolidation in the aftermath of a pandemic or multiple pieces of legislation that stand alone. Quite a number of those would face significant delay in getting round to doing them because of the other legislative burdens that Parliament wrestles with. The relevant point is that this is primary legislation, so Parliament can scrutinise every single letter in this legislation. It can indeed, but it just covers such a wide area. The Education Committee has already taken evidence saying that there is a view that some of the education provisions may well be unlawful. If that all goes through or facing a narrow legal challenge relating to the education part, the whole thing could fall. From my point of view, I do not like the bill full stop. From your point of view, you want to get it through, but the whole thing could fall because you have decided to lump in together and there is a legal challenge. There is always a risk of legal challenge. The incorporation of the United Nations Convention on the Rights of the Child into Scots law is a standalone bespoke provision that looks to incorporate the United Nations Convention on the Rights of the Child into our domestic legislation. One provision of that has been challenged by the United Kingdom Government, because the UK Government does not want the application of the provisions of the UNCRC to be applied in areas where it has historically legislated. That is one part of a compartmentalised bill. Mr Simpson totally undermines his whole argument by the practice of his colleague, who is the Secretary of State for Scotland, who has done exactly what Mr Simpson is talking about on one compartmentalised bill. There is no substance to the view that Mr Simpson is putting to me.  I am asking you about your bill. I am just going to put something to you because you gave an answer to the convener. I have just got two more short questions. The convener asked you about the power to release early from prison, and he said rightly that that just related to Covid. The rest of the bill is rather wider. You say in the delegated powers memorandum—I am not really making a comment on this, I am just going to read it out because I found it curious—in your justification for using delegated powers, you say that, in addition to Covid, there have been relatively recent outbreaks of new diseases, SARS and MERS, and instances of contamination such as Salisbury. Obviously, Salisbury was limited to Salisbury, so why is that in there? It is simply in there to indicate that there are threats and challenges of a public health nature that can have potentially widespread effect. That is why it is in there as an example. The others are examples of significant outbreaks of new diseases, which to a greater or lesser extent have had an effect within our society but have had much greater effect in other societies, but it does not mean that it will not have an effect here of a similar and comparable nature. Therefore, having the capacity and the ability to respond to the circumstances that we face is an important point of this legislation. I will go back to what I was asking you about last week, Deputy First Minister. That is the regulations to close school boarding accommodation and student accommodation. Last week, we spoke about your desire to have an extra six months of that power, even though you have never used it, and now you want it permanently. How do you justify having that power permanently when it has never been used or needed? I think that the point comes back to the principle about the purpose of the statute book. The statute book is there for a variety of different reasons. It is there to codify and define the rule of law in relation to certain provisions. It is there to provide for clarity on the law in scenarios that happen, have happened and might happen. The statute book is there to provide crystal clear information to individuals and organisations about their obligations. There are just three points about what is the purpose of the statute book. There are provisions in statute that relate to events and circumstances that have never happened, but they are there to provide us with the capacity of dealing with them should they happen. If I take the logic of Mr Simpson's argument, we should have no civil contingencies legislation because we have not had to face a civil contingency issue. I would argue that the pandemic was pretty close to a civil contingency, so there is the justification for having powers in the statute book, which we might never use. However, if we face a situation and we do not have the powers in place, that gets us into tricky territory. That is the fundamental issue that the bill is about. The fundamental issue that I disagree with Mr Simpson about is whether or not the statute book should be prepared for different eventualities that may come our way. I was asking about a specific part of the bill and I do not think that the Deputy First Minister has addressed that point. That is my justification. I think that the statute book may be a need for us to take action to close or restrict access to boarding school accommodation. There has never been that need. You have relied on guidance. You have never needed to do it. Why can't you just rely on guidance? What if we encounter an unwilling partner? Like who? Who would be unwilling if you relied on guidance? I simply want there to be clarity in the statute book so that we know that we have the ability to act should we face those circumstances. Paul Sweeney I think that we are keen to make sure that the bill is as shovel-ready as possible given any eventuality. One matter that the committee really wanted to make clear was that it should be a statutory requirement for the Scottish ministers to provide a written statement prior to any instrument combined to force. The five powers as drafted in the face of the bill, however, do not provide for that statement clearly. Is that an area where the minister might consider putting that on the face of the bill? There is a clear and controversial explicit requirement to provide that written statement. That is an adjustment that we would really appreciate. I think that that is an adjustment that we can consider and would be likely to move to. I have taken an approach in relation to the recent self-isolation bill, in which we took on an explicit responsibility to set out the rationale for the necessity of acting with urgency. I am very happy to consider that, but it strikes me as a change that the Government would be likely to embrace, given what we have done in the self-isolation bill. That is positive, so thank you very much for that. I noted the letter that was sent to the committee yesterday from you and, certainly in respect of the expedited affirmative procedure that we discussed, which welcomed the indication from the Government that they would explore the idea of developing that protocol. Can we tie it to the bill and the development of the bill in a way that would help to inject some pace into the development of it? I know that it is in a fine hypothetical sense to say that we will develop it in due course. Perhaps it is a worthwhile exercise in the course of developing the bill to try to establish that protocol in the development of the legislation. It is tested. There are certainly examples, for example, where, in the course of the past couple of years, there have been affirmative procedures that have been used that we could then say, what would we have done had we used this expedited procedure, how would we model it, and then we could perhaps try and, between the committee and the Government, try and establish what that could look like. Of course, with the parliamentary bureau, if necessary, to try and say that, in such a future scenario, this would be a more balanced approach and it would reach a kind of equilibrium and then maybe we could try and codify it to some extent in the development of the bill. It seems like it might be a potential way just to try and nail that and anchor it in some way that is firmer. The first thing I would say is that I am wholly committed to exploring that, if I may call it the third way, if that is not too offensive. I am very happy to explore that. I think that the challenge is that the details of that—I will maybe take some advice from Stephen MacGregor, perhaps, in a moment, having said what I am about to say, but I think that we would need input from the standards committee perspective on standing orders so that it becomes slightly broader undertaking. I am not familiar with where the standards committee workload is just in terms of addressing that within the same time scale for the scrutiny of the bill. However, what I would want to say is that I would not want anything—if the Government—if we proceed with the timetable for the legislation—that in no way dampens the Government's willingness to participate in the discussion about how we should get an alternative proposition put in place that is somewhere between made affirmative and an expedited procedure. I am very happy to look at how we might apply that. If there are different ways of doing it, you can do it by a protocol that gives us more flexibility and we have done that in relation to EU legislation, and we would need to amend the bill to achieve that. If we are looking at creating a whole new procedure in legislation, I think that that is much more complicated and might take a bit more time and probably would involve the standards committee and other interests. I think that we have established in principle options. It might be worth perhaps taking that away as an action to look at lasing with the standards committee. We could maybe maintain correspondence about what might be an appropriate measure. I think that we have probably agreed on the desirability of the outcome. It is a question of what is the most practical mechanism to deliver it, whether it is a protocol or whether it is something more formalised on the face of the bill. I guess the committee would need to reflect and take a view on that itself, but it might be worth continuing that discussion. Some of that discussion could be influenced by the first question that Mr Sweeney put to me, which was about what is the nature of any undertaking and explanation that the Government gives about the use of the made affirmative procedure, for example, which can have certain characteristics about it that give demonstrable reason why the made affirmative procedure should be used in a particular circumstance. I was just trying to clarify the timescale of the bill in terms of stage 2 and stage 3. Do you have that information to hand at this stage? I do not have that information to hand at this stage. Obviously, the Government is working with Parliamentary timetables on the passage of the legislation, but I suspect that we will be depending on the nature of the process that we are going through, we may find ourselves in a different timescale. It is important to establish that the desire is to develop this capability within the Parliament, because it is a gap that has been identified rightfully. The Government agrees with that. It necessitates the mother of invention, so let us use this as a lessons learned exercise. There is a bit less urgency in trying to drive the bill in that sense, because we can take time to get it right. If there is a degree of flexibility, it seems that it is not a firm timetable that is already established, so we can work collaboratively with the different interest groups in the Parliament and the Government to try to come to an agreement on that. If that can be agreed principle today, that is a good thing. The Government will happily co-operate with all those processes, as I have indicated that we will do so. Good morning, Mr Swinney. I suppose that just two or three general questions before I go into some questions of specific detail in relation to some of the delegated measures. One is obviously just looking at this bill. Obviously, this bill will be in place beyond this present Government, beyond the statute book. Although I do not want to question the character or the motivations of this Government, we are giving future Governments considerable powers here. A lot of it rests on the definition of a public health emergency or a public health threat, so I just give the committee—we have seen Covid—some other examples of where a public health emergency or a threat might arise. We do that in the delegated powers memorandum, as I was rehearsing there with Mr Simpson. Fundamentally, the judgment on those questions is informed by advice that the Government would receive from its chief medical officer, who obviously has a role in statute to provide such advice to Government. Already, in a whole variety of other different statutes, the chief medical officer's view is what drives a number of provisions. There is nothing to do with this bill, which is in the existing statute. Obviously, the chief medical officer is making a view based on his or her professional assessment of the situation that we face. I would argue that that is exactly as it should be, so that we are influenced by high-quality independent clinical and epidemiological advice about the situation that we face. The other point that I would make is that, in trying to answer Mr Hoy's question and to understand exactly why it is asked, it almost invites me to define the undefinnable, because we do not know quite what might become of our way. If we did not feel that over the past two years, we certainly have felt it over the past two weeks in relation to the awful situation in Ukraine. The nature of how our statute book is constructed on many of those issues around public health, which hinges often on the advice of chief medical officer is designed to essentially give us that ability to interrogate and to interpret events as they are unfolding to then come to a view as to what merits the necessary action by ministers. I suppose that the challenge of any part of legislation is to make sure that that advice can be offered, it can be considered by ministers and Parliament can exercise accountability over that judgment. You would accept that it is so difficult to legislate in a Donald Rumsfeld approach to known, known and unknown, so there has got to be some specificity to it. Is the more that you could do on the face of the bill to flesh out what you mean by a public health emergency or public health threat, otherwise it could be open to interpretation or misinterpretation by future Administrations? Ultimately what Parliament has got to satisfy itself about is does it have the right legislative arrangements in place to deal with any given scenario? I think that the statute book has a number of very strong characteristics about it, not least of which is the ability of the chief medical officer, for example, to offer his view as to what is the nature of a situation that we face. That is an influence to the judgment that has gone into the construction of this legislation, obviously. It is a matter for Parliament to scrutinise as to whether or not it believes that appropriate descriptions and explanations are in place in the legislation and the Government will consider that further. Parliament will do that, but the courts might also scrutinise the legislation or the implementation or enactment of that legislation at some point in the future. What seems to distinguish this bill and the measures that it would affect is that we are passing it into law on a permanent basis. The European Convention on Human Rights, article 15, which we could have challenged many of the measures that have been brought in during the pandemic, gave you the safeguard and the certainty that they could not be challenged because it says that Governments can act in exceptional circumstances in a limited and supervised manner, free from obligations, secure certain rights and freedoms under the convention. However, one of those elements is that it is obviously limited and supervised, whereas passing it into legislation on a permanent basis means that you are losing that time-limited nature. Are you certain that this bill or article 15 would give you some safeguards if this bill was passed into law? I think that it does, because the powers that are envisaged in the bill are powers that can only be used should certain scenarios arise that are in themselves compatible with article 15. Those are not routine, everyday powers, and the statute book has other powers in place that can only be used in certain given circumstances, which potentially could come into the same scope that Mr Hoy puts to me in his question. Without that, we would end up with a statute book that was ill-prepared for certain emergency circumstances. Given what we have gone through in the past two years, given the way that we have had to address those issues in extremis, I do not think that that is a desirable outcome. Indeed, I think that the Parliament itself, if I think back to the passage of the legislation, there was a lot of parliamentary goodwill to get the legislation passed in the fundamental legislation in the previous session. Although there was a lot of goodwill, there were quite a lot of complaints about the fact that we were not doing this in slow time, so I think that it would be better to do this in slow time, do it carefully, put it into statute but make sure that it can only be used in the situation of extremis. Just a couple of specific questions in relation to the measures. You referred obviously to the fact that the Government takes advice from the chief medical officer in terms of protecting the public health, and regulations will flow from that. In relation in particular to education and educational establishments, there does not appear to be in the bill any requirement for the powers that are about to be exercised through the made affirmative procedure for any impact assessment to take place of the impact of the instrument that will be made under those powers. Do you agree that it is important that those affected understand the impact of the regulations and that that information is accessible, clear and published in a timely manner? Would you consider amending the bill so that such a requirement for that process is included? I will take that point away and reflect on it. My first reaction is to say that all the requirements and points that Mr Hoy puts to me, I would have judged would be covered by our obligation in terms of the variety of impact assessments that we are required by other statute to do in any given circumstance. Where it is appropriate to undertake a business regulatory impact assessment, where it is necessary to undertake an equality impact assessment and there will be other statutory requirements, I would have thought that they would have all been the point that has been put to me would have been caught by all those existing obligations. However, I will take that point away to satisfy myself that there is not a gap there because the sentiment is one that I accept unreservedly. The measures in relation to release from prison and young offenders institutions are exceptional in relation to the bill because they are specifically Covid-related and time-limited. I will take you back to your opening remarks. If you want a statute that is fit for purpose, why would you not want to have the capacity to release prisoners early in another pandemic situation or beyond 2025? Simply because those are not ordinary elements of policy that we would want to have in place. It may be a necessity of its time and we do not particularly want to be releasing prisoners out of the necessity of the time. The logic takes one or the other. Surely you want a statute book that gives you the capacity to do it in certain defined circumstances or you do not. That is why Mr Simpson is challenging the whole nature of the bill because you are effectively passing into law certain powers that you would like to keep into the future and telling us that you require them and other legislation that you are saying that you are happy to let it fall in 2025, whereby your own logic surely you would want to keep the capacity to do that in place? No, because essentially there is a question of necessity kicks in on these questions and the necessity to for example move to a situation where our schools were not functioning in the normal fashion to which we were accustomed was a particular necessity that we had to face. We want to be in a situation to avoid the necessity of releasing prisoners because courts have decided that prisoners must serve particular sentences and there is no particular rationale and reason why that should be there in perpetuity because it conflicts with fundamental elements of our legislative framework and the expectations of members of public about the nature of how we handle those circumstances. Are you saying that it is politically unpalatable to extend it beyond that? I am simply saying that it is a provision that would not be one that ordinarily the Government would want to in the emergency have the necessity to undertake. But if your first priority is to safeguard the public, including those who are in prison, surely you would want to keep that power in the statute book to utilise at some point in the future? Essentially we are codifying where we can do that and where we believe we have the basis of so acting to enable us to exercise those powers. I am not sure that I necessarily follow the logic of that position but just finding relation to the measures relating to the private sector tenancies. Obviously, Mr Simpson referred to it. The new deal for tenants draft is out for consultation until 15 April 2022. I am slightly at a loss to work out why legislation that effectively pre-empts that consultation is being included in the bill and would not be far better to be removed from the bill and to be included in any future housing legislation so that you can be cognisant of the consultation responses. I think that that comes back then to the question in principle about whether or not we are taking a consolidated route to the handling of the issues that have arisen around about pandemic handling, if I can call it that, or whether or not we are taking all those issues out element by element and putting them into the wider policy development work that we undertake on wider questions around housing and tenancies. The choice that ministers have made, that I am ministers have made, have been to put a bill together that essentially tries to update the statute book in the light of the pandemic experience rather than to take the compartmentalised approach. Just on this particular measure in section 37, you were just putting the car up for the horse here. Wouldn't you be better just to pause wait for the consultation and then come back for the primary legislation as and when it is required? I do not think that we are doing that because for all the reasons that I have just given that we have reflected on the experience of the pandemic, we have taken account of those experiences and formulated a legislative proposition that gives us the powers to act in certain circumstances. Obviously, if there is further legislative change, I would imagine in the years to come there will be further tenancy changes. I imagine that to be the case. So, there is obviously the opportunity to reflect on any provisions at the time that that legislation is being considered by Parliament. Thank you very much, convener. Thank you, Deputy First Minister. You have covered a very great range of things that I was thinking I might be asking anyway, but just to look at the principle that the committee has, that there should be a statutory requirement that any instrument made using the affirmative procedure must contain a sunset provision. Can you outline your approach when setting such review requirements? How the Scottish Government decides on what the sunset should be, basically? How far it may go? I think that there is obviously an argument for sunset provisions. I think that the difficulty is that we cannot predict the moment at which we might face a pandemic, for example, and how long it will go on for and whether it will coincide with the intricacies of parliamentary sitting arrangements to be blunt about it. We could find ourselves in a situation where we have a gap in the statute book because Parliament is not sitting, but there would be a necessity for us to undertake particular provisions. It is about taking an orderly approach to ensuring that the statute book is in a fit state to be able to respond to different challenges. Thank you. Just on that then, when you are bringing forward legislation for consideration by Parliament, is that considered at that time, rather than waiting until we see how things are going to develop? It would have to be considered at that time. Obviously, there are certain arrangements in the bill where, for example, in the made affirmative procedure, if that is applied, but Parliament does not support or endorse the provision, it lapses after a given period of time. Those provisions are built into the legislation at its design, but there is the provision for ministers to consider any other provisions that may come forward of that nature, which members may wish to add to the bill during the course of its passage. I want to come back on the point about freeing prisoners early, because I genuinely am struggling to understand the logic of your position. Obviously, we do not want to be in a position where we are freeing people early. However, your position appears to be that, if it is Covid-related, that is something that we should consider. If it is not Covid-related, we should not consider it. I read out to you earlier your delegated powers memorandum—I will redo another bit—to deal with future public health threats that could pose a significant risk to public health, as they are, by the nature, unpredictable and sometimes unforeseeable. Your whole rationale for this entire bill is that we need those powers because we do not know what is going to happen in the future. It could be anything, it could be the stuff that you have listed in this document, it could be something else. However, when it comes to releasing prisoners early, you want to restrict that power to just Covid. There appears to be no logic to that. I think that the logic is quite simply that we do not want, in any circumstances, to be taking a policy approach that envisages releasing prisoners early. However, we have had to do it once in May 2020. We still have the Covid threat hanging over us just now. We do not think that that is a provision that we should have available to us on an on-going basis for that policy element. However, in other respects in the bill, there is a range of options that we have to have at our disposal to help us to deal with the public health emergency. That is the simple distinction that I would make. It is just an illogical position. It would be more logical to remove this entirely from the bill. However, Mr Simpson is free to advance the amendment to that. I might well do that to help you out. So, do colleagues have any final questions before we move on? I thank the Deputy First Minister and his colleagues for coming in front of the committee today. I will suspend the meeting briefly until the cabinet secretary and officials to leave the table. Moving to agenda item number three, we are considering an instrument subject to the affirmative procedure. It is the draft prohibition of smoking outside hospital buildings at Scotland regulations 2022. Is the committee content with this instrument? Did this appear a couple of weeks ago? Was it something similar in the committee papers? We cannot recall. The policy is the first time. Is the committee content with the instrument? Under agenda item number four, we are considering instruments that are subject to the negative procedure. No points have been raised on SSIs 2022, 66, 68, 70, 71, 72 and 73. Is the committee content with these instruments? Under agenda item number five, we are considering instruments not subject to any parliamentary procedure. No points have been raised on SSIs 2022, 67 and 78. Is the committee content with these instruments? Thank you. I will move the committee into private.


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