Meeting of the Parliament (Hybrid)

Meeting date: Tuesday, June 28, 2022

Official Report 1553KB pdf

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Coronavirus (Recovery and Reform) (Scotland) Bill: Stage 3

The next item of business is stage 3 proceedings on the Coronavirus (Recovery and Reform) (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, which is SP bill 9A, the marshalled list and the groupings of amendments.

The division bell will sound and proceedings will be suspended for around five minutes for the first division of stage 3. The period of voting for each division will be up to one minute.

Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons as soon as possible after I call the first amendment in the group.

Members should now refer to the marshalled list of amendments.

Section 1—Public health protection measures

Amendment 1, in the name of Alex Rowley, is grouped with amendments 8, 2, 6 and 7.

Amendment 1 is the only amendment to the bill that I have lodged. I did so at stage 2 and it was not passed, but I thought that it was crucial to come back with the amendment and raise the issue in the chamber.

I have been clear from day 1 on the COVID-19 Recovery Committee that I support a lot of the bill and that a lot of it should be supported but, after following the evidence, I have consistently raised concerns about the so-called Henry VIII powers. They take powers away from the Scottish Parliament—the legislature—and put them into the hands of the executive, which cannot be right.

As a parliamentarian, I consistently try to follow the evidence, consider the evidence and not simply take party-political lines on issues.

Does the member accept that the Deputy First Minister made major concessions on the bill and that the Parliament now has much more of a veto than it had previously?

The Deputy First Minister made major concessions, but it is a sentence of six words that I propose to remove. Although major concessions were made, and I will come on to those, for me and my party, they were not enough. There is no justification for taking powers away from the legislature—this Parliament—and putting them into the hands of the executive.

Following on from the most recent debate, I have persistently and continually argued that the Parliament should have significantly more powers than it has, and that those powers should not be put into the hands of the executive. Mr Mason made the point at stage 2 that, if this is the way that Governments take powers when they have majorities, a precedent could be being set for the future.

I want to pick up on that point, because it was in the evidence. Mr Swinney said at stage 2 that the academics who gave the committee advice and put forward their views on the so-called Henry VIII powers welcomed the change that had taken place, and I accept that. After Mr Swinney made those comments, I found something from Dr Andrew Tickell on Twitter.

He said:

“Much of the critical attention on this Bill has focused on the first section of the legislation, which recasts public health law in Scotland in important ways in the light of recent experience. As first introduced, the proposals were described by some as a ‘power grab.’

The committee asked me and my ... colleague @ProfABritton for a view about what legal merit—if any—this claim had in terms of the public health provisions in the Bill. It is fair to say we reached ambivalent conclusions.

On the one hand, the Bill updates Scots law to reflect public health powers already held by UK ministers since 2008, enshrining powers which fit into the World Health Organization’s ‘all hazards’ approach to emergent threats to public health and appropriate legal responses.

On the other, as first drafted, the Bill gave Scottish Ministers extensive and problematic powers (often described as Henry VIII powers) to amend any legislation during a public health emergency without resort to parliament. We suggested this required scrutiny and justification.

After committee scrutiny @JohnSwinney introduced important amendments which will significantly enhance the role of parliament in sanctioning any legal changes. In essence, a gateway vote in favour will now be required to exercise any such emergency powers.”

I accept that the academics give credit to Mr Swinney for the changes that he has made, but my view is that the approach did not go far enough and that the bill should not be introducing these Henry VIII powers. For that reason, I will move my amendment.

I move amendment 1.

I thank Mr Rowley for setting out his arguments, and I recognise the important points that he has made about protecting the vital role of the Parliament in the legislative process. I support that perspective.

I recognise that there was reasonable concern that that role was not given sufficient recognition in the bill as originally drafted. As Mr Rowley has fairly put on the record, we acted at stage 2 to address that, and many commentators have recognised the significant movement that the Government has applied on that question.

As a result of the changes announced, the bill now requires that any regulations that are made under proposed section 86A(1) of the Public Health etc (Scotland) Act 2008, to modify primary legislation—that is to say, the so-called Henry VIII provision—could be made only under the draft affirmative procedure. That means that the Parliament will always have full opportunity for scrutiny before primary legislation can be modified under proposed section 86A and that the made affirmative procedure can never be used to diminish that role. I hope that the Parliament recognises that that demonstrates that we have listened to concerns and made real improvements to that part of the bill.

I also note—as I did at stage 2—that the amendment adds to the considerable safeguards that were included when the bill was introduced. I spoke to those at length during stage 2, so I will not set out that detail again. What I will say is that it is imperative that Parliament retains its scrutiny role, and I am grateful to those who have pointed out that we had not done enough to achieve that. However, we have now remedied that so that modifications to primary legislation using those public health powers can never be made without the consent and full scrutiny of Parliament. Members can therefore safely resist Mr Rowley’s amendment with confidence that their vital role has been protected and that the power itself is suitably limited.

Amendment 8 is of a minor and technical nature, so I hope that it is uncontroversial. It will simply ensure that the correct cross-references are inserted in the new sections that the bill will add into the Public Health etc (Scotland) Act 2008.

Amendment 2 would remove the public health regulation-making power entirely from the bill. I have already documented clearly throughout the bill process why we consider it vital to have those public health powers, having learned lessons from the recent pandemic. I will therefore not repeat the points that have already been made against the amendment. I will simply say that the Government amendments that were agreed to at stage 2 add significant safeguards to those that were already included when the bill was introduced. I hope that that reassures members that their voices have been heard and that the bill is better as a result.

I have substantive and, I believe, compelling objections to amendments 6 and 7. However, before I set out those objections, I must point out that, even if members were sympathetic to them, the provisions that they refer to will come into force automatically on the dates that are set out in section 46 of the bill, as agreed at stage 2. Amendments 6 and 7 cannot prevent that from happening. However, even if they could achieve the desired effect, I cannot support them for the reasons that I already set out at length in my comments on similar amendments at stage 2.

We know that there is a gap in our legislative framework. Crucially, that gap does not exist in England and Wales, where such powers have been held for more than a decade. It would be ill-advised to delay closing that gap. In the past few months alone, we have seen unusual presentations of hepatitis in children and the outbreak of monkeypox, so nobody should be in any doubt that public health threats can and do emerge with very little warning. Faced with that reality, the Scottish Parliament would rightly be criticised were another threat to emerge and once again, we had to resort to emergency legislation, as we did during the early days of the Covid pandemic.

That same rationale underpins my resistance to amendment 7. Without wishing to presuppose any findings, I acknowledge that there could be a call for further changes to the statute book once the public inquiry reports. However, that should not prevent us from acting now to remedy an area where we have already identified a weakness in our statutory framework.

At the start of what might be a long afternoon, I remind members of my relevant interests: I am a member of the Law Society of Scotland, I derive some income from rental properties and I am a member of the Church of Scotland.

I have three amendments in the group. Amendment 2 seeks to remove section 1, which deals with the public health provisions, from the bill entirely. It goes to the heart of our concerns. Is it necessary to legislate now to make permanent what were extraordinary emergency powers that were granted to the Scottish ministers to deal with a public health crisis?

We debated those issues at great length at stage 1 and stage 2. I will not rehearse all those arguments this afternoon. It is fair to say that there was substantial public opposition to the bill from stakeholders and the public. The consultation that was run by the COVID-19 Recovery Committee showed 90 per cent opposition to what the Government proposed. There is a great deal of concern about the way in which the bill approaches public health issues and there was an alternative route that the Government could have taken should it have so wished.

Should amendment 2 not be agreed to, amendment 6 seeks to qualify section 1, which would require ministers to conduct an assessment of the impact of regulations before they are introduced and, in so far as practical, consult with the affected parties. That seeks to recognise the concerns that have been raised by the business community with many members, the COVID-19 Recovery Committee and other parliamentary committees about the impact of measures brought in at very short notice by the Scottish ministers, with little or no prior discussion or consultation, or any assessment of the likely economic impact.

We saw that happen, for example, in the case of vaccination passports, which were brought in at short notice, were vigorously resisted by the business community, which believed that the policy was very damaging, and were very quickly withdrawn by the Scottish Government when it realised that the policy was not having the intended impact. That is the sort of policy that we could avoid if we were to accept amendment 6 and introduce such a change to the bill.

In the COVID-19 Recovery Committee at stage 2, similar amendments to amendments 2 and 6 were both rejected only on the convener’s casting vote. That is why I have brought them back to the chamber for discussion this afternoon.

Amendment 7 states that section 1 and parts 2 and 4 of the bill cannot come into effect until after the conclusion of the public inquiry into the Covid pandemic. That is important because we need to learn the lessons of what has happened during the past two years before we can move on to legislate for future events.

I lodged a similar but broader amendment at stage 2. Amendment 7 has a much narrower focus and applies only to certain aspects of the bill. I think that that is a reasonable compromise on my part.

We have seen public inquiries run for years. I believe that the Edinburgh trams inquiry is still running, eight years after it was first established. It seems extraordinary that the second Edinburgh tram line is being built at a time when we have not even learned the lessons from the construction of the first tram line.

We should not make the same mistake twice—that is what amendment 7 seeks to address.

Would the member accept that we do not know when the next pandemic or some other emergency might arise and that it is better to be prepared for it, rather than to wait for some inquiry?

15:45  

That goes to the heart of the issue that Mr Mason and I, and other members of the committee, have been debating for some weeks, which is whether we need to legislate now or whether some other approach could be taken. Parliament demonstrated two years ago how quickly it could move to legislate in an emergency situation. I believe that we should trust Parliament to make such decisions and not hand powers over to ministers, as Mr Mason proposes to do.

Finally, on the other amendments in the group, I can see no difficulty with amendment 8 from Mr Swinney. I am happy to support Mr Rowley’s amendment 1, which seeks to remove the Henry VIII powers. I supported a similar amendment from Mr Rowley at stage 2. When he spoke to amendment 1, Mr Rowley made some powerful points about the overreach by the Scottish ministers in terms of Henry VIII powers. I hope that Mr Rowley will not be tempted by the cabinet secretary not to press amendment 1, because it makes an important point.

We have heard from the Scottish Government throughout the passage of the bill that it reflects legislation already in place in England and Wales. However, in this respect, that is not the case, because the Henry VIII powers in this bill do not reflect comparative legislation south of the border. Even though the Scottish Government has brought in some qualifications compared to what we had previously, it still does not go far enough. I believe that the Henry VIII powers should be removed entirely, which is why I support amendment 1, in the name of Mr Rowley, and I hope that Parliament will support it, too.

I agree with much of what Alex Rowley and Murdo Fraser have said. As has been rehearsed previously in debates, this is effectively an emergency powers bill without an emergency. As a result, Parliament is diminished by the bill. Parliament has shown previously that, when it matters, we can come together, see the seriousness of the occasion and expedite powers for the executive to cope with the pandemic. I see no reason why we cannot follow the same model, with the benefit, this time, of being able to learn lessons from the public inquiry and come up with a new set of powers, which we will debate over the coming years, in order to have legislation on the shelf, ready to be implemented when an emergency occurs. That is a far preferable route. What is the point of having a public inquiry if we do not learn the lessons of the public inquiry? That includes lessons for legislation.

The Liberal Democrats will support amendment 1, in the name of Alex Rowley, to prevent the Henry VIII powers. We should also support Murdo Fraser’s call for a meaningful consultation in amendment 6, and his amendment 7, on learning the lessons of the public inquiry. Those amendments are perfectly reasonable. There is no doubt that Mr Swinney has improved the process for approving regulations in future, but it is still not sufficient. There is no reason why we have to have emergency powers when we do not have an emergency. We need to learn the lessons and produce legislation for this Parliament that is fit for purpose.

I have acknowledged that the Government and Mr Swinney have introduced changes—they have listened—but I am afraid that that does not go far enough. This is a matter of principle. I do not believe that we should take powers away from the legislator and hoard them into the executive. That is a dangerous precedent and, for that reason, I will press amendment 1.