3. Dr Pablo Hidalgo

DR PABLO GREZ HIDALGO (affirmed).

Questions From Counsel to the Inquiry

Mr Tariq: Good afternoon, my Lady. May I please call Dr Pablo Grez.

Could I confirm that you prefer to be called as Dr Grez?

Dr Pablo Hidalgo: That’s correct. Thank you.

Counsel Inquiry: Thank you for your assistance to date with the Inquiry. There are a few preliminary matters. Could you please keep your voice up, and speak into the microphone so that a stenographer can record your evidence. If any of my questions are unclear, please say so, and I will rephrase.

You’ve provided a statement to the Inquiry dated 12 December 2023. The statement is at INQ000369759, and you’ll see that it’s on the screen before you.

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: Is this your statement?

Dr Pablo Hidalgo: Yes, it’s my statement.

Counsel Inquiry: Are the contents of this statement true to the best of your knowledge and belief?

Dr Pablo Hidalgo: Yes, they are.

Counsel Inquiry: I now want to turn to your professional background before we get to the substance of your evidence. You’re currently a lecturer in public law at the law school at Strathclyde University; is that correct?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: And you hold an undergraduate law degree from Chile?

Dr Pablo Hidalgo: Yes.

Counsel Inquiry: A PhD in law from the University of Edinburgh and a Master’s in public law from University College London; is that correct?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: You were previously a research associate at Birmingham Law School; is that correct?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: During your time at Birmingham Law School you worked on a project called the Pandemic Review: Rights and Accountability in COVID-19 led by Professor Fiona de Londras; is that correct?

Dr Pablo Hidalgo: That’s correct, I was part of a research team.

Counsel Inquiry: Who were the other members of the research team?

Dr Pablo Hidalgo: Well, Professor Fiona de Londras was the principal investigator and Dr Daniella Lock, currently at Oxford, and myself were research associates to that project.

Counsel Inquiry: If you could keep your pace slower so that your evidence can be noted.

That project that you were involved with led to the establishment of the Covid Review Observatory; is that correct?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: Are you able to tell me about the Covid Review Observatory and the aims of that project?

Dr Pablo Hidalgo: Yes. So, the research project was mainly focused at looking at the ways how the different parliaments in the UK, either the Westminster Parliament, Holyrood, the Welsh Senedd or the Northern Ireland Assembly to the extent to which they were holding governmental responses to Covid pandemic to account.

There were a set of criteria we were interested in, we wanted to look whether these processes of review were evidence-based, whether they were participatory, and whether they were taking into account the human rights impacts that the responses led by the governments had for the rights of individuals.

Counsel Inquiry: We will come to your research shortly, but the project led to a number of publications; is that correct?

Dr Pablo Hidalgo: Yes.

Counsel Inquiry: And I think is it five academic journal articles, 20 blog pieces, 16 submissions to the UK parliamentary committee inquiries, six to the Scottish parliamentary committee inquiries, two to the Welsh parliamentary committee inquiries, and two submissions to the UK and Scottish Government’s consultation processes; is that correct?

Dr Pablo Hidalgo: Yes, that’s right.

Counsel Inquiry: Can we now turn to your statement. It’s at page 3, paragraph 6 and 7. I wanted to look at paragraphs 6 and 7. Paragraph 6 says:

“In my view, the Covid-19 pandemic is a textbook, of legitimate use of emergency powers, including delegation of emergency law-making powers to the executive. A pandemic requires an effective, fast and flexible response that keeps pace with the ever-evolving nature of the virus. The legislative process is designed to slow the pace of law-making by requiring a series of readings that prompt reflection, debate and improvements in the quality of legislation. Hence, the normal pace of the legislative process may not be suited for situations of emergency, although as I explain below an emergency may evolve, thus enabling a more paused law-making process.

“7. A framework of emergency powers must strike a balance between the need for an effective response to the emergency and the demands of constitutional principle. Among the latter is a requirement to secure parliamentary scrutiny of the governmental response. Parliament must hold the government to account for its Covid-19 policies, for instance to ensure that the response is evidence led, that, whenever reasonably practical to do so the government has consulted with relevant stakeholders, and that it fulfils the human rights requirements, while also not having a disproportionate and unequal impact on those rights.”

At a very kind of high level, what purpose does parliamentary scrutiny of the government serve in our democratic system?

Dr Pablo Hidalgo: Well, the starting point is that in this jurisdiction this is a jurisdiction that abides by the idea of a constitutional democracy, and Parliament performs a key role in legitimising the exercise of powers in this jurisdiction, either exercise by Parliament itself or by any other bodies, including, certainly, the executive.

It is the role of Parliament to hold ministers to account for their policies, their extending, and the implementation of their policies, and that certainly takes place in the context of normal circumstances, but it should also take place in the case of exceptional circumstances such as a pandemic.

Counsel Inquiry: In the context of exceptional circumstances, can the balance between the need to pass laws fast and the need for Parliament to scrutinise those laws change over the course of, say, a pandemic?

Dr Pablo Hidalgo: So, when we are in the context of an emergency, there might be competing considerations at stake. Although we might want to protect to the extent that it’s possible the idea of parliamentary accountability, compromises may be needed in order to accommodate the situation of urgency.

Our view in the Covid Review Observatory, after looking at the literature, the evidence and the way how the pandemic developed through time is that the balance between these considerations of expediency and effectiveness on the one hand and constitutional principle on the other is dynamic.

We know that pandemics manifest themselves in waves, and there are moments where the virus spreads quite quickly and moments when that spread is more slowly, and there is room for the freedoms.

Using an analogy, we could say also that this balance also manifests itself in waves, and at different stages of the pandemic you can have different balances.

We argue that at the very initial moment of the emergency response, the balance quite heavily shifts towards the need for an effective, fast and flexible response, and therefore unfortunately there might be a compromise in terms of the level of scrutiny that Parliament MSPs or MPs might be able to perform.

But our view is that as we go along in the pandemic, as we gain further knowledge of how the pandemic develops, as we gather further evidence, as we learn from our previous responses, this situation of emergency can shift towards a situation of crisis management, and in the crisis management the demands of constitutional principle might weigh more significantly than those of effectiveness and flexibility.

Counsel Inquiry: So at the initial stage of the pandemic, at an emergency situation, the balance between the need to enact fast legislation, the balance might be different in terms of – with the constitutional principles of parliamentary scrutiny and oversight, but as we move from that initial phrase into crisis management, say, for instance, summer of 2020, the balance perhaps changes, it’s dynamic; do I understand that correct?

Dr Pablo Hidalgo: Yes, yes, that would be an appropriate summary of what I’m trying to say.

Counsel Inquiry: I want to turn to the Scottish Government’s legislative response to the pandemic.

The response, the Scottish Government’s response was enacted by way of primary and secondary legislation. Are you able to explain to me the difference between primary and secondary legislation?

Dr Pablo Hidalgo: Yes. So, both primary and secondary legislation are different forms of law-making. From the point of view of constitutional principle, we could say that primary legislation is a superior form of law-making, because it enables full scrutiny of the policies that the government is trying to push forward and implement through legislation. Through us, in the statement that you quote, was explained, through a series of readings, which are designed in order to prompt reflection, paucity(?) in law-making, engagement with potential stakeholders or individuals that might be affected by the legislation, and then taking into account all of this contribution as well as the potential impacts that these measures might have on the rights of individuals.

By contrast, secondary legislation is a form of delegated legislation whereby ministers are able to draft legislation and to enact legislation subject to a lesser form of parliamentary scrutiny or maybe we can also call it “light touch” parliamentary scrutiny.

Counsel Inquiry: As far as the Scottish Government’s response to the pandemic, the core of that response, in terms of public health measures and international travel restrictions, that was enacted through secondary legislation, this being Scottish statutory instruments; is that correct?

Dr Pablo Hidalgo: Yes. So in terms of the enabling framework, as you rightly mention, there are pieces of primary legislation coming from the UK Parliament, the Coronavirus Act, there are also two core pieces of primary legislation enacted by the Scottish Parliament, and exercising the powers contained in those pieces of primary legislation, the Scottish Government enacted public health regulations which are those regulations that introduced most of the lockdown measures or any other restrictions that we all experienced, such as mask wearing, restrictions on gatherings, restrictions on businesses, et cetera, et cetera. And on the other hand there was another piece of Scottish legislation which you also mentioned, the Public Health etc (Scotland) Act 2008 which enabled the Scottish Government to introduce measures to restrict international travel from Scotland.

Counsel Inquiry: So before we turn to the legislation that was passed, could you describe to me the key milestones in the life cycle of a Scottish statutory instrument, this being the form that was used to enact most of the public health restrictions?

Dr Pablo Hidalgo: Okay. So we were distinguishing between two types of legislation: primary and secondary. Secondary legislation is legislation where most of the burden is on the shoulders of ministers, who have these powers to enact regulations. They are subject to different sort of procedures, and therefore we distinguish different sorts of secondary legislation, secondary legislation which is enacted through what is called the affirmative procedure, whereby the minister drafts the legislation and then lays the legislation before Parliament, Parliament has 40 days to approve that legislation, or to reject that legislation, and that legislation won’t be – won’t enter into force unless Parliament approves it.

Then you have the negative procedure, which is a procedure whereby ministers enact legislation and Parliament has a window of opportunity to reject those instruments, but if they don’t approve it, that’s okay, it can become law anyways.

And there is also the made affirmative procedure, which is a very prominent procedure in the context of the pandemic, whereby ministers are able to make legislation that can enter into force even before Parliament approves it, but legislation that will lapse unless it is approved by Parliament within 28 sitting days.

Counsel Inquiry: So you’ve described three types of different procedures that can be used, there’s the affirmative procedure, the negative procedure and then the last procedure you touch upon is the made affirmative procedure?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: And it’s the made affirmative procedure that seems to be most prominently used by the Scottish Government across the pandemic; is that correct?

Dr Pablo Hidalgo: Yes.

Counsel Inquiry: I think the made affirmative procedure is described in some of your academic work as an extreme example of light touch parliamentary oversight, even more so than the other procedures; is that correct?

Dr Pablo Hidalgo: Yes, and that’s correct for a number of complex reasons. These procedures are a bit difficult to understand, and digest, but I guess that the simple way to put this is to imagine that a Scottish minister drafts public health regulations which contain a series of measures that, for instance, prevent people from going outside their homes, they must stay at home, and that legislation enacted by a minister can enter into force almost immediately after being made, without the need for Parliament to discuss whether this is an appropriate measure or not, and to either manifest its approval to that decision or its decision to reject that measure, and the measure will enter into force immediately and can last for up to 28 sitting days, as I said, unless there is an approval by Parliament.

Counsel Inquiry: So the way that made affirmative procedure works is that a minister – and we’ll come to this shortly – decides to use that process, the regulations come into force almost immediately without there being a parliamentary debate or a vote, and then within 28 sitting days there has to be a parliamentary vote on whether to approve the regulations or not?

Dr Pablo Hidalgo: Yes.

Counsel Inquiry: And if the regulations are voted down at that point, they no longer remain in force; is that correct?

Dr Pablo Hidalgo: Yes. And you said that our view was that it was an extremely light touch procedure, and the reason for that is that, as you just mentioned, by the moment where Parliament will have a say on this set of regulations the regulations would have been in place, being in force, being followed, being in the media, for days, weeks and, according to our research, even months before Parliament has an opportunity to have a say about the details of those regulations. And if that is the case, then we might want to wonder what would be the point of parliamentarians voting down a set of regulations that have been in place for days, weeks and months?

If I may expand on this, regulations come to Parliament under the made affirmative procedure as a fait accompli. The police have been enforcing these regulations for a long time. Guidance has been produced in order to illustrate citizens about their duties and obligations under this set of regulations. So it could be that – and it might well be, if the pandemic is evolving, quite rapidly, that those regulations are about to be superseded by a new set of regulations or there might be a change in the policy which might require those regulations to be amended. And that puts parliamentarians in a very difficult position.

On top of that, parliamentarians might have other substantive reasons to be concerned about amending or rejecting – sorry, about rejecting those regulations. It might be that by rejecting regulations they may undermine the real(?) response of the government to the pandemic, or it might be that they have a specific point of concern about a certain specific regulation or rule, but they are happy with the overall content of the set of regulations that is put to a vote, and they don’t have the power to amend regulations, they can only accept them or reject them as a whole.

Counsel Inquiry: I think we’ll come to some of the challenges that were faced by a parliamentarian when having to vote on regulations that have been in force for at least 28 days. Before we turn to that, as far as I’m aware, the made affirmative procedure had been fairly – had been rarely used in the Scottish Parliament up to the pandemic. I think the Scottish Parliament’s Delegated Powers and Law Reform Committee says that between 1999 and 2019 the procedure had only been used on average once or twice a year. Is that correct?

Dr Pablo Hidalgo: That’s correct. It was very rarely used, and by contrast it became the normal way of law-making during the pandemic.

Counsel Inquiry: If we are able to turn to your statement, and it’s at page 11, paragraph 36, and I think you say it became the normal way of making legislation during the pandemic, this says:

“To employ the [made affirmative procedure], Scottish ministers must ‘consider that the regulations need to be made urgently’ … A similar test applies in section 122(6) of the Public Health etc (Scotland) Act 2008. The test is subjective, in the sense that there is no objective threshold or criterion, rather it is about whether the Scottish minister thinks there is an urgency situation. On the other hand, during the ‘specified period’ [and for us that’s January 2020 to April 2022] there was no ministerial duty to give reasons, for instance in the form of an oral statement before Parliament or a set of explanatory notes attached to the [Scottish statutory instrument] when laid. Nor a duty to provide evidence in support of the ministerial assessment. Scottish ministers enjoyed discretion to decide whether on a given situation the urgency test has been met.”

Can we then turn to paragraph 9, which is on page 3, I think, or is it page 4? Page 4. Here you say – if we can go to the last five lines of paragraph 9, you will see there’s a sentence that begins:

“The [made affirmative procedure] applies when a Scottish minister thinks that an SSI [that’s Scottish statutory instrument] needs to be made urgently. The consistent use of the [made affirmative procedure] throughout the pandemic indicates that the Scottish government took the view that there was a more or less constant condition of urgency. In other words, from their perspective, there was never a shift from emergency response to crisis management.”

If we can take that off screen, thank you.

Do you think that the Scottish Government overused the made affirmative procedure throughout the pandemic when there was other procedures such as the affirmative procedure that was available?

Dr Pablo Hidalgo: There’s no easy answer to that question. As far as the enabling frameworks are concerned, the default position is that public health regulations should be made under the affirmative procedure. The made affirmative procedure is only available when a minister takes the view that there are situations of urgency justifying the use of this very exceptional procedure. If you look at the figures, the figures that are contained in our sample of Scottish statutory instruments that we looked at and the way that they had been handled and approved, or if you look at the data, the actual – this Inquiry has gathered, it looks like the – what was supposed to be under the framework, the exception, became the rule. Because there is only one Scottish statutory instrument containing public health regulations that was made under the affirmative procedure.

In other words, the made affirmative procedure was the default position. All – almost all of the public health regulations were made under that procedure.

Counsel Inquiry: I think you’ve touched upon the research that you carried out. Can you explain to me – I think it was a sample size of 64 Scottish statutory instruments that you looked at. Can you explain to me how those were selected and which period they covered during the pandemic.

Dr Pablo Hidalgo: So we covered since the very beginning of the pandemic, I think that the first instrument dates from 26 March of 2020, until I think that the end of November of 2021, and throughout that period we were only looking at how law-making had taken place in terms of the public health regulations made under schedule 19 of the Coronavirus Act 2020, which are what we could call lockdown regulations or in general restrictions to individual liberties.

Counsel Inquiry: Of the 64 regulations that were within your sample size, how many had been made using made affirmative procedure?

Dr Pablo Hidalgo: 63.

Counsel Inquiry: I think we’ve already touched upon the discretion that the Scottish ministers had to use the made affirmative procedure. What was the Scottish Government’s practice towards providing reasons for using this made affirmative procedure during the pandemic, and did that practice change as we moved into 2021 and into 2022?

Dr Pablo Hidalgo: (Pause). There was no statutory duty to provide a statement of reasons, as you’ve mentioned, justifying to Parliament why there were reasons of urgency justifying the making of these instruments through the made affirmative procedure.

There was a practice, though not consistent, of a Scottish minister providing a letter to the presiding officer of the Scottish Parliament with a brief indication of why it was, in the view of the Scottish ministers, justified to make those instruments through the made affirmative procedure. But it was not a statement that was attached to the instrument itself.

The Covid – the Delegated Powers and Law Reform Committee took the view that throughout the period of the pandemic at least five statutory instruments had been made through the made affirmative procedure without a clear justification as to the necessity of using this very exceptional procedure. So here is one indication from Parliament that there might be instances where it was not justified.

From our point of view, the very fact that there are alternative ways of making statutory instruments that are more respectful of the opportunities for Parliament to hold the government to account for its policies in the pandemic, that very fact suggests that a different approach could have been taken at different stages of the pandemic.

In particular, we do understand the necessity of exercising the made affirmative procedure at the very early stages of the pandemic, but as we go through the pandemic we think that there were less compelling reasons for exercising in the pandemic which, even though might satisfy the view of the Delegated Powers and Law Reform Committee, maybe from the point of view of constitutional principle were insufficiently justified.

If I can give an example of this, when the Scottish Government publishes its policy frameworks outlining new strategies for approaching the pandemic, that provides a broad indication of what the direction of travel in terms of coronavirus regulations might be for the future, and therefore it would have been desirable that once the policy had been designed also the draft instruments could have been provided to Parliament, because eventually it would be through a draft – through a statutory instrument that those draft policies would be implemented in detail.

This is not only our view, this is also the view of parliamentary committees of the UK Parliament.

Counsel Inquiry: We’ve touched upon the 28-day period. What did your research show about whether there was in fact a 28-day period by which the regulations were brought before Parliament for a vote, or was it often more than 28 days?

Dr Pablo Hidalgo: So we took this sample of 68 statutory instruments and we identified certain milestones in the life cycle of a statutory instrument, being those when the instrument is made, when the instrument enters into force, when the instrument is approved, and debated, if it is debated.

What we found, in terms of your question, is that in the – only there were very, very exceptional circumstances where the Scottish Government did not comply with the 28 sitting – 28 rules – 28 days rule.

A different question is whether there was always adherence to the spirit of the rule. The spirit of the rule is to bring those statutory instruments to a parliamentary vote as soon as it is reasonably possible to do so, and there were instances where that didn’t happen.

Counsel Inquiry: One of the issues, I think, you’ve raised in some of your writings is the risk that it’s possible to chain regulations together so that – by one extending the expiry date of the other, so in effect you have one regulation which is due to expire on a certain date and it requires a vote and then it’s superseded by another set of regulations which extends the expiry date, so the concrete set of regulations or rules remain in force for longer than the 28 days by chaining regulations together, and all of this being without subject to a parliamentary vote.

Are you able to explain that concept in more detail?

Dr Pablo Hidalgo: Yes. So we would have to imagine a situation where a Scottish minister makes a set of regulations on day one and from that day that set of regulations will have – will enter into force potentially immediately or at the day that the minister might designate, but it would have to be approved by Parliament before 28 sitting days otherwise it will lapse and it will no longer be in force.

We identified one situation where that had happened and before that 28 sitting days period had lapsed, and before that instrument had entered – had been approved by Parliament, a new instrument, instrument 2, had been made which extended the lifetime of the first instrument. Therefore the 28-day sitting day period will be reset, and it will be a new 28 sitting days period that will be operating now.

So potentially, theoretically, one weakness that this finding unveils is the possibility of constantly evading parliamentary scrutiny through enacting a set of regulations and then extending the expiry date of that set of regulations through different new regulations that will renew the 28-day period.

We don’t argue that this possibility was abused by the Scottish Parliament – by the Scottish Government, I’m sorry. There were specific reasons why that had to be the case in that specific example that you mentioned. However, it does indicate that there might be a weakness in the procedure itself that might need to be dealt with in future legislation.

Counsel Inquiry: I now want to turn to the issue of debate, so when one of these regulations is brought before the Parliament.

Can we turn to page 17 of your statement at paragraphs 56 and 57. So if I can read paragraph 56:

“The [made affirmative procedure] had a significant impact on the Chamber’s ability to retrospectively scrutinise public health measures. When motions to approve [Scottish statutory instruments] were moved, MSPs were asked to consider public health regulations that had been in force for weeks, if not months in some cases. By the time the vote took place, the Scottish government had already published guidance to communicate the content of the regulations to the public, which was further communicated by the media. Hence, people, business and workplaces were abiding by these regulations, and the police enforcing them. For this reason, at the CVRO we argued that [Scottish statutory instruments] made under the [made affirmative procedure] came before Parliament as a fait accompli.”

“57. I think there may have been other reasons why MSPs refrained from voting against [Scottish statutory instruments]. For instance, MSPs could take the view that voting down an [Scottish statutory instrument] could confuse the population as it would require a new set of regulations to be put in place very quickly; it could undermine the overall pandemic response and the trust of the public in governmental decision-making; and/or it could be that they only had specific objections concerning some but not all of the rules enacted by a set of public health regulations, and an ‘all or nothing’ vote on the [Scottish statutory instrument] did not accommodate those distinctions.”

The final point there is when it comes to a vote there isn’t an ability to amend the regulations, is there?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: So it’s a binary choice that you either vote to keep the regulations in force or you vote to withdraw the regulations; is that correct?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: In your research, in the sample size that you used, of 64 Scottish statutory instruments between March 2020 and November 2021, were any of the Scottish statutory instruments made using the made affirmative procedure voted down by a majority of the Scottish Parliament?

Dr Pablo Hidalgo: No. Our finding is that during the pandemic Scottish statutory instruments containing public health regulations were virtually invincible because they would never be voted down.

Counsel Inquiry: I think in your research it shows that only 9% of the regulations in your sample size were debated in the Chamber of the Scottish Parliament; is that correct?

Dr Pablo Hidalgo: Yes, that’s correct. Regulations containing public health measures were very rarely debated. For a regulation to be debated there would be a need for a MSP to raise a point of concern about the broader policy containing that set of regulations or about the content of the regulations themselves, and there were a few examples of MSPs concerned about the procedure as a whole and trying to make a point by promoting a debate.

Counsel Inquiry: In the 9% of these regulations in your sample size that were debated, what was the typical length of the debate?

Dr Pablo Hidalgo: Well, debates were quite short, they would last between five to ten minutes.

Counsel Inquiry: And I think you say in your statement that in total the Scottish Parliament spent 35 minutes debating the 64 Scottish statutory instruments; is that correct?

Dr Pablo Hidalgo: That’s correct.

Counsel Inquiry: So that’s 35 minutes debating the regulations in your sample size that were passed between March 2020 and November 2021?

Dr Pablo Hidalgo: Yes. That’s as far as the Chamber is concerned.

Counsel Inquiry: The Inquiry understands that from autumn 2020 there were concerns about the lack of parliamentary oversight of the regulations that had passed, particularly these are regulations pertaining to the first wave of the pandemic from March 2020, and parliamentary and government officials engaged in conversations to enhance parliamentary scrutiny. What package of measures were introduced from autumn 2020 to tip the balance more towards parliamentary scrutiny?

Dr Pablo Hidalgo: So there were two main types of measures, and the first and maybe the more important one, I would say, were those that were trying to design or craft a system that would enable MSPs to conduct what we could call pre-enactment scrutiny of statutory instruments made under the made affirmative procedure, and the dynamic that was agreed was one where the Scottish Government will commit to make a policy announcement regarding public health regulations on a Tuesday afternoon. Usually they will reconsider whether changes were needed on that very Tuesday in the morning, then they will make available to Parliament the draft set of regulations that will be later made under the made affirmative procedure on a Wednesday, then the Scottish ministers and senior civil servants will be made available to attend the session at the – either COVID-19 Committee or the COVID-19 Recovery Committee, depending on whether we were in session 5 or 6 of the Scottish Parliament, to give evidence and answer questions arising out of this draft set of regulations which would be then made into law either on Thursday evening or on a Friday, and might potentially enter into force the next day.

Counsel Inquiry: So could you explain in a bit more detail the role of the committees, this being the COVID-19 Committee of the Scottish Parliament, which later became the COVID-19 Recovery Committee, in terms of parliamentary oversight?

Dr Pablo Hidalgo: The Scottish Parliament, being a unicameral Parliament, relies quite heavily on the contribution of its select committees to perform scrutiny, not only of policies, and its implementation, but also of legislation. The scrutiny of primary legislation and synergy of secondary legislation relies significantly on the work that these committees perform. The Delegated Powers and Law Reform Committee performs technical scrutiny, it looks at the vires of the instrument, it looks at any other technical issues that might arise such as lack of clarity and aspects of a similar nature, and then there is a lead committee, which is usually the one that, in terms of the policy, matches the remit of the committee, which will look at the policy implemented in that instrument.

During the pandemic, the Scottish Parliament decided to create a bespoke Covid-19 committee which would look at the policies in terms of the pandemic, and it was that committee the one that was in charge of scrutinising those instruments in more detail.

Counsel Inquiry: There is a particular instance of the Scottish Government’s use of the made affirmative procedure which I want to explore with you.

In summer 2021 the Covid-19 vaccination certificate scheme was being considered, and the certificate scheme policy was announced in Parliament by Nicola Sturgeon on 3 August 2021. Then on 9 September 2021 the Chamber in the Scottish Parliament debated for around two hours a motion on the Covid vaccine certification scheme, and the motion provided very broad guidelines on how it was proposed that the policy would work, and in addition the government had published, I think it was, a plan or strategy with the proposals.

So it was at a very high, general level about how the policy would work, and the debate was a clear indication that the proposal was fraught with difficulties, because the Scottish Conservatives, Scottish Labour and the Liberal Democrats all voted against the motion.

However, despite this being an issue that was fraught with controversy and difficulty, the Scottish Government used the made affirmative procedure on 30 September 2021 and the regulations came into force on 1 October 2021. I think speaking about some of the improvements that had been made to parliamentary oversight, the government had shared a draft of the regulations with members of the Scottish Parliament to scrutinise only one day in advance of the regulations being made, that was 29 September.

So what we have here is a policy announcement made on 3 August 2021, there seems to be quite a lot of political controversy, and then the regulations are introduced using made affirmative procedure and they’re introduced, that’s the operational regulations, with all the details of how the scheme would work in practice, all without an ability of the Scottish Parliament to debate the details of the policy.

What was the urgency that, between 3 August and the end of September, required this procedure to be used as opposed to, for instance, the affirmative procedure?

Dr Pablo Hidalgo: Well, the example that you provide is a case in point of the tensions that in terms of parliamentary scrutiny arose, and the dissatisfaction that at certain points in time, rightly, members of the Scottish Parliament had powers, the way how law-making was takes place in the pandemic. There had been a policy announcement more than a month in advance of the detail of the implementation of that policy being put to Parliament, and there was also, as you say, a debate on the policy which had been preceded by a publication of a more fully fledged policy document outlining the content of the policy, and the Scottish Government was aware of the fact that there was some dissatisfaction, certainly among certain political parties in the Scottish Parliament represented, over the policy. So it is hard to understand why those regulations containing the details of that policy that had been controversial had not been shared in advance with the Covid committee and other members of the Scottish Parliament.

What you mentioned at the very end shows that what they did was to apply the measures, the enhanced scrutiny measures, but it was clear that a different approach was possible because that policy had been worked out by weeks at that time.

Counsel Inquiry: Overall, should the made affirmative procedure be used or exercised with caution and self-constraint, because of the extremely light touch parliamentary scrutiny that exists if you use that procedure?

Dr Pablo Hidalgo: I would agree with that claim. I think that the governments in general should exercise more caution when deciding whether to make certain sets of regulations through the made affirmative procedure or whether to opt for a different procedure.

In fact, you were referring to the example of the Covid certificate scheme. When the Covid certificate scheme was amended, since it had been controversial, those amendments were introduced through a statutory instrument that was made under the affirmative procedure. And although there were still certain considerations of urgency that needed to be taken into account, an agreement was reached between the government and the COVID-19 Recovery Committee to have an accelerated timetable to introduce those amendments through the affirmative procedure. So the standard affirmative procedure provides 40 days for Parliament to approve regulations in draft; in this case it was agreed that it would have only four days.

Counsel Inquiry: Before we turn to lessons learnt, in the context of the pandemic, where the governments and then parliaments were having to consider legislation that was perhaps some of the most draconian that people have ever had to live through, is that the sort of scenario where in fact even more caution and self-restraint is required with comes with more parliamentary debate so that better legislation can be passed that is evidence-based?

Dr Pablo Hidalgo: I will go back to the idea that there needs to be a compromise and we need to look at on the ground what the circumstances are in order to assess whether we need an emergency procedure for the making of legislation in a given context and circumstance.

There might be circumstances where we need a rapid response, where the virus is evolving too quickly or there are many uncertainties, and therefore there is justification for using the made affirmative procedure. There might be other situations where that might not be the case. The made affirmative procedure should be in the toolkit, I would argue, but, as you said, should be exercised with caution.

Counsel Inquiry: I think that’s a distinction that you’ve made between the initial phase of the pandemic and then moving into the crisis management phase where there is a little bit more time and scope to have better parliamentary scrutiny; is that correct?

Dr Pablo Hidalgo: Yes.

Counsel Inquiry: I want to finally turn to lessons learnt, and the Inquiry understands that from June 2022 the Scottish Parliament passed the Coronavirus Recovery and Reform (Scotland) Act 2022, which reflects some of the lessons learned during the pandemic. Are you able to outline the main changes that now exist from the legislative framework that existed at the start of the pandemic?

Dr Pablo Hidalgo: So during the first semester of 2022 the Scottish Parliament had the opportunity to discuss different ways of improving the enabling framework. It was a decision of the Scottish Government to make the powers granted by the UK Coronavirus Act part of Scottish legislation for future pandemics and, in the context of introducing that legislation, some improvements were made. The first and maybe more noticeable improvement is to demand from Scottish ministers in the future to make a statement of the reasons that support the urgency of making regulations under the made affirmative procedure, a requirement that was absent during the pandemic, and that the COVID-19 Committee advocated very strongly in favour of.

On top of that, to trigger these emergency powers, now the Scottish Government has to do a declaration of public health emergency, which is subject to a vote in the Scottish Parliament, so now there needs to be a say for MSPs in order to trigger this set of emergency powers.

And there are duties to consult relevant stakeholders whenever it is feasible or possible to do so before enacting public health regulations.

And finally, wherever Scottish ministers exercise their powers to make public health regulations under the made affirmative procedure, there is a duty to introduce a sunset clause, so that the regulations expire at a certain point in time.

Counsel Inquiry: So you would welcome all of those changes in terms of striking a better balance.

In your statement I think you say that your view remains that more can be done to achieve a better balance in use of these procedures in a future emergency situation. I think you identified two alternative pathways which you recommend for consideration.

The first is, in terms of preparing for a future emergency, to amend the statutory framework so that different levels of public health response are outlined in primary legislation with delegation to trigger these powers through secondary legislation.

Can you explain that suggestion in more detail.

Dr Pablo Hidalgo: So I think that during this Inquiry a lot has been spoken about pandemic preparedness from the point of view maybe of material resources, but we can also think about pandemic preparedness for the future in terms of the legislative and regulatory measures that might be in place in the future. A lot has been learned in terms of whether the sort of broad responses or broad principles that should govern the emergency response for future pandemics, and perhaps there is therefore an opportunity to not only improve our procedures, but also to give Parliament a say or an opportunity to reflect on how the substantive response should look like.

And we envisage at least two ways in which that could be possible. One way would be to incorporate into primary legislation some core elements or principles of, for instance, a tier system of lockdown regulations, certainly providing certain flexibility for the government to tailor the specificities of that response to the circumstances that are at hand.

Or, alternatively, to draft future public health regulations that are subject to scrutiny. We have some information that the Coronavirus Act took some elements of legislation that had been drafted in the context of Cygnus exercise, so perhaps a similar effort can be made to draft regulations. Or, alternatively, we can think of different ways of accommodating the affirmative procedure to a more constrained timetable but providing an opportunity for Parliament to have a say before regulations are made and entered into force.

Counsel Inquiry: Your second recommendation was to incorporate a ministerial duty on the exercise of emergency powers every two months. Are you able to explain that proposal?

Dr Pablo Hidalgo: The Scottish Government developed a quite robust, I would say, practice of reporting on the exercise of the powers under the UK Coronavirus Act and the two Scottish Coronavirus Acts. Those reports provided information of what measures had been taken, how many statutory instruments had been made, when they had been made, what evidence had been taken into account to support those measures, and also – I would say also a significant engagement with the human rights impact of those legislation. Each of those reports were preceded on publication by a statement made by a relevant senior member of the Scottish Government to Parliament which would introduce very briefly what the content of the report was, and that there would be opportunity for questions. And on top of that the COVID-19 Committee had the opportunity to scrutinise in more detail those reports.

Parliamentary accountability, to be possible it needs to be enabled by the government. Transparency and information about what the evidence is, what the impacts of the measures are, et cetera, et cetera, are essential to enable the MSPs to hold the government to account. And in that sense I think that this was a practice that should be kept in mind and should be operating in future pandemics because it was of a good quality.

Mr Tariq: My Lady, there are no further questions from me, I understand there are no live Rule 10s, so if I, on behalf of the Inquiry team, can just thank you, Dr Grez, for your evidence today.

Lady Hallett: Thank you very much, Dr Grez, very helpful.

(The witness withdrew)

Lady Hallett: Thank you, I shall return at 3.15.

(2.58 pm)

(A short break)

(3.15 pm)

Lady Hallett: Mr Tariq.

Mr Tariq: Good afternoon, my Lady.

May I please call Professor Susan McVie.