Health and Sport Committee,

Meeting date: Wednesday, May 14, 2008

Official Report 230KB pdf

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Public Health etc (Scotland) Bill: Stage 2

We will now deal with amendments to the Public Health etc (Scotland) Bill. I welcome the Minister for Public Health and her team.

Section 54—Duty to keep quarantine orders under review

Amendments 124 to 126 moved—[Shona Robison]—and agreed to.

Section 54, as amended, agreed to.

Section 55—Duty to keep hospital detention orders under review

Amendments 127 to 129 moved—[Shona Robison]—and agreed to.

Section 55, as amended, agreed to.

Sections 56 and 57 agreed to.

After section 57

Group 1 is on recall of part 4 orders. Amendment 130, in the name of the minister, is grouped with amendment 134.

In the bill as introduced, a person who is subject to a quarantine, detention or exceptional detention order can appeal to the sheriff principal against the decision of the sheriff who made the order. I know that some members of the committee, following advice from the Law Society of Scotland, were concerned that the provision did not represent a speedy or effective enough route of appeal for those who were not represented when the order was made.

We have listened to members' concerns and have lodged amendments 130 and 134, which provide that, where a person is subject to a quarantine, detention or exceptional detention order and the order has been made without the person to whom it applies being present or represented, that person may apply to the sheriff for recall of the order within 72 hours of the order being made. A person who does not apply for recall of an order and a person who has that order confirmed by the sheriff on recall will still be able to appeal to the sheriff principal.

I move amendment 130.

Amendment 130 agreed to.

Amendment 131 moved—[Shona Robison]—and agreed to.

Section 58—Appeal against exclusion orders and restriction orders

Amendments 132 and 133 moved—[Shona Robison]—and agreed to.

Section 58, as amended, agreed to.

Section 59—Appeal against quarantine and hospital detention orders

Amendments 134 and 135 moved—[Shona Robison]—and agreed to.

Group 2 is on the period for appeals against quarantine and hospital detention orders. Amendment 136, in the name of the minister, is the only amendment in the group.

Section 59(4) states that an appeal to the sheriff principal against a quarantine or detention order must be made within 21 days. All other appeal provisions in the bill either are silent on the time limit that is to apply—in which case court rules will impose a limit of 14 days—or provide for an appeal to be made within 14 days. To ensure consistency, it is intended that a 14-day time limit should also apply to section 59(4).

I move amendment 136.

Amendment 136 agreed to.

Section 59, as amended, agreed to.

After section 59

Group 3 is on exclusion and restriction orders: appeal to sheriff principal. Amendment 137, in the name of the minister, is grouped with amendments 138 to 148 and 150.

The bill currently provides for a person to appeal against an exclusion and restriction order, first to the sheriff and then to the Court of Session. Appeals against quarantine and detention orders go first to the sheriff principal and then to the Court of Session. There is a slight inconsistency in that approach and it is more normal for appeals that result from a sheriff's decisions to be heard by the sheriff principal. Amendment 137 rectifies that, and provides for a second-level appeal in respect of exclusion and restriction orders to be made to the sheriff principal rather than to the Court of Session. That appeal is to be final.

Amendments 138 to 148 are consequential on amendment 137, removing references to Court of Session appeals against a sheriff's decisions in respect of exclusion and restriction orders from section 60. Amendment 150 is a consequential amendment to section 61.

I move amendment 137.

Amendment 137 agreed to.

Section 60—Appeal to Court of Session

Amendments 138 to 148 moved—[Shona Robison]—and agreed to.

Group 4 is on the effect of appeals. Amendment 149, in the name of the minister, is grouped with amendments 151 and 242.

A quarantine or detention order may be appealed to the sheriff principal and then further appealed to the Court of Session. Amendment 149 provides for the second-level appeal to the Court of Session against a quarantine or detention order to be final, and mirrors similar provision elsewhere in the bill.

Amendment 151 addresses a minor drafting issue. Section 61 states:

"Despite the making of an appeal under"

the relevant sections of the bill,

"the order, modification or decision appealed against has effect".

There is no need for the further words

"pending determination of the appeal",

which are superfluous. Amendment 242 will clarify that the appeal to the Court of Session under section 80 against local authority notices will be a final appeal.

I move amendment 149.

Amendment 149 agreed to.

Section 60, as amended, agreed to.

Section 61—Effect of appeal under section 58, 59 or 60

Amendments 150 and 151 moved—[Shona Robison]—and agreed to.

Section 61, as amended, agreed to.

Sections 62 and 63 agreed to.

Section 64—Obstruction

Group 5 is on offences under parts 4 to 6. Amendment 152, in the name of the minister, is grouped with amendments 153 to 156, 238, 243, 246, 158 and 159.

The amendments seek to plug gaps in the offence provisions in the bill. They will create three new offences. The first is obstructing a person who is authorised to take someone to a place of quarantine, and the second is breaching any conditions that are imposed in a quarantine order. The third offence will apply where a child is subject to an exclusion order, a restriction order or a quarantine order. It is the parents or the person with day-to-day care and control of the child who is responsible for ensuring that the child does not go to the place from which they are excluded.

Amendment 156 therefore makes it an offence for the parent or the person with day-to-day care and control of the child to fail, without reasonable excuse, to ensure that the child does not breach the order. However, because clearly there could be circumstances in which a parent had exercised all due diligence and taken all reasonable steps to avoid the child breaching the order and yet the order was still breached, we have included a defence along those lines in the provision. In addition, for consistency with other offence provisions in the bill, and to ensure fairness, a reasonable excuse defence is being included against prosecution in relation to obstruction and breach of part 4, 5 and 6 order offences. Amendments 152, 154, 238, 243 and 246 will do that. Amendment 156 has implications for section 101, which sets out the level of penalties that will be associated with offences that are committed under the act.

I move amendment 152.

I want to be clear about this. The offence as proposed in amendment 156 will be committed by the parent if the parent

"fails, without reasonable excuse, to ensure that the child does not breach the order".

It appears that, under subsection (5) of the new section that the amendment inserts, that will include

"a volunteer for a voluntary organisation".

Have I got that wrong? I do not quite follow it. Subsection (5) states:

"The person referred to in subsection (4) is a person who … is 16 or over; and … has (otherwise than … as a volunteer for a voluntary organisation),

day-to-day care or control of the child."

Does that mean that volunteers are excluded?

Yes, they are excluded.

That is fine. I just wanted to be clear about that.

Amendment 152 agreed to.

Amendment 153 moved—[Shona Robison]—and agreed to.

Section 64, as amended, agreed to.

Section 65—Offences arising from breach of orders under this Part

Amendments 154 and 155 moved—[Shona Robison]—and agreed to.

Section 65, as amended, agreed to.

After section 65

Amendment 156 moved—[Shona Robison]—and agreed to.

Section 66—Applications and appeals

Amendment 157 moved—[Shona Robison]—and agreed to.

Section 66, as amended, agreed to.

Section 67—Provision of facilities for disinfection etc

Group 6 is on minor amendments to part 5. Amendment 226, in the name of the minister, is grouped with amendments 227, 228 and 234.

Section 67(5) sets out that premises and things in or on them are infected or infested if they have been

"exposed to … an animal or insect which has or carries a disease or organism which is a risk to human health".

That wording is slightly ambiguous. The issue is not that the organism itself is a risk to human health; the risk to human health arises from the disease that the organism causes. Amendment 226 will make that clear for the definition of "infected". Amendment 227 makes a similar change to the definition of "infested".

Amendment 228 brings the wording in section 68(2)(c) into line with the rest of section 68(2). Amendment 234 inserts the word "infested" into section 71(1)(a) so that it is consistent with the other sections in part 5.

I move amendment 226.

Amendment 226 agreed to.

Amendment 227 moved—[Shona Robison]—and agreed to.

Section 67, as amended, agreed to.

Section 68—Notice on occupier or owner of infected etc premises or things

Amendment 228 moved—[Shona Robison]—and agreed to.

Group 7 is headed "Disinfection etc. of premises and things: forms of notice". Amendment 229, in the name of the minister, is grouped with amendment 235.

Sections 68 and 71 require local authorities to serve notices—for example, on a person to disinfect his premises—"in the form prescribed". As that means "in the form prescribed by regulations", it would be compulsory for local authorities to serve notices in that form. We now consider that that might place an unnecessary bureaucratic burden on local authorities, particularly in light of their experience in serving notices under other legislation. We therefore intend to cover the issue in guidance. Local authorities can use the form of notice that is set out in the guidance or, if they prefer, their own form, provided, of course, that it contains the information that is set out in sections 68 and 71.

I move amendment 229.

Amendment 229 agreed to.

Section 68, as amended, agreed to.

Section 69—Inspection of premises in relation to which notice served

Group 8 is on powers of entry under parts 5 and 6. Amendment 230, in the name of the minister, is grouped with amendments 231 to 233, 236, 237, 244 and 245.

Members will recall that several amendments in relation to the powers of entry of authorised officers under parts 3 and 5 were discussed last week. The amendments in group 8 make similar amendments to sections 69, 70, 71 and 88 to ensure consistency on who may accompany an authorised officer of a local authority who is entering premises. The amendments allow a constable to attend if the officer has reasonable cause to expect serious obstruction in obtaining access to premises.

I move amendment 230.

Amendment 230 agreed to.

Amendments 231 and 177 moved—[Shona Robison]—and agreed to.

Section 69, as amended, agreed to.

Section 70—Failure to comply with notice

Amendments 232 and 233 moved—[Shona Robison]—and agreed to.

Section 70, as amended, agreed to.

Section 71—Power of local authority to disinfect etc premises or things

Amendments 234 to 237 moved—[Shona Robison]—and agreed to.

Section 71, as amended, agreed to.

Section 72 agreed to.

Section 73—Warrant to enter and take steps

Amendments 178 to 184 moved—[Shona Robison]—and agreed to.

Section 73, as amended, agreed to.

Section 74—Use of powers in emergencies

Amendments 185 and 186 moved—[Shona Robison]—and agreed to.

Section 74, as amended, agreed to.

Section 75—Obstruction

Amendment 238 moved—[Shona Robison]—and agreed to.

Section 75, as amended, agreed to.

Section 76—Recovery of expenses

Group 9 is on recovery of expenses by a local authority. Amendment 239, in the name of the minister, is grouped with amendments 240 and 241.

Section 76 provides that a local authority may recover any reasonable expenses that it incurs in doing anything that it is entitled to do under sections 68, 70, 71 and 73 from a person on whom a notice is served for disinfection, disinfestation or decontamination of premises as appropriate. Expenses for action that is taken under the emergency powers in section 74 had been omitted from that provision because action under that section was to be taken by virtue of powers in other sections. However, amendment 185, which was debated last week, changed the approach to setting out the powers, which are now contained in section 74. Amendment 239 is a consequential amendment to ensure that expenses that are incurred in taking emergency action under the powers that are set out in section 74 may be recovered under section 76.

Amendments 240 and 241 clarify the text on the recovery of expenses by local authorities and how the sums that are recoverable may be paid.

I move amendment 239.

Amendment 239 agreed to.

Amendments 240 and 241 moved—[Shona Robison]—and agreed to.

Section 76, as amended, agreed to.

Section 77—Compensation

Amendment 187 moved—[Shona Robison]—and agreed to.

Section 77, as amended, agreed to.

Section 78—Appeals against notices under this Part

Amendment 188 moved—[Shona Robison]—and agreed to.

Section 78, as amended, agreed to.

Section 79—Appeal to sheriff principal

Amendment 189 moved—[Shona Robison]—and agreed to.

Section 79, as amended, agreed to.

Section 80—Appeal to Court of Session

Amendment 242 moved—[Shona Robison]—and agreed to.

Section 80, as amended, agreed to.

Sections 81 to 84 agreed to.

Section 85—Restriction on release of infected etc bodies from hospital

Amendment 243 moved—[Shona Robison]—and agreed to.

Section 85, as amended, agreed to.

Sections 86 and 87 agreed to.

Section 88—Power of sheriff to order removal to mortuary and disposal

Amendments 244 to 246 moved—[Shona Robison]—and agreed to.

Section 88, as amended, agreed to.

Section 89—International Health Regulations

Group 10 is on international health regulations. Amendment 205, in the name of the minister, is grouped with amendments 206 to 212, 214 and 224.

When the bill was introduced, the committee was made aware that section 89 would be amended at stage 2, following the outcome of work between the Scottish Government and the other Administrations in the United Kingdom to ensure that similar powers—and, therefore, a similar level of health protection—are available at points of entry into our countries. That work has now been completed. The powers that are proposed in amendments 205 to 212, 214 and 224 will ensure that there is consistency of approach between this bill and the Health and Social Care Bill, which is currently progressing through the Westminster Parliament, providing a comprehensive system of health protection regulations throughout the UK.

I recognise that these are broad powers. They will enable us to update the Public Health (Ships) (Scotland) Regulations 1971, as amended, and the Public Health (Aircraft) (Scotland) Regulations 1971, as amended, which broadly implemented the international health regulations of 1969. Those regulations are confined to dealing with a limited number of diseases and are ineffective in dealing with diseases such as severe acute respiratory syndrome or threats from contamination.

We have talked before about the increased risk to health protection from modern-day travel and trade. That risk is heightened at places of arrival in and departure from the country. New or rare diseases may travel quickly from other parts of the world, and health protection professionals may have limited time on the arrival of persons in Scotland to identify persons at risk, any vessels and so on that might cause risk and the action that may be required to protect both individuals and the wider population in Scotland.

Swift action at a point of entry has the potential to deliver significant health protection benefits, justifying the availability of the powers that can be used on such occasions. Those powers are separate from the general powers that are available in the rest of the bill, which apply, more appropriately, to domestic situations. We also have an international obligation to do what we can to protect people in other countries from those planning to leave the UK who may be a risk to health.

I reassure the committee that regulations made under the powers in section 89, which are being developed with officials and stakeholders, will be the subject of comprehensive consultation, including consultation on draft regulations. They will, of course, be subject to the affirmative procedure in the Parliament. Where Scottish ministers consider that regulations need to be made as a matter of urgency, those regulations will be subject to emergency affirmative procedure in the Scottish Parliament. That means that they will be laid in Parliament and will cease to have effect at the end of 28 days unless they are approved by a resolution of the Parliament.

I move amendment 205.

Although single cases make for bad law, I wonder whether section 89, as amended, would have prevented the case—were it to occur in Scotland—of the Canadian with multiresistant tuberculosis who travelled on a plane after having been advised that tests were being done and that there was a possibility that they had tuberculosis. Would the powers that are now being taken allow for a person to be quarantined or restricted until tests are completed, thereby preventing the possible spread of disease to people on a plane?

They make it more likely that that would be the case.

Amendment 205 agreed to.

Amendments 206 to 212 moved—[Shona Robison]—and agreed to.

Group 11 is on penalties for offences. Amendment 213, in the name of the minister, is grouped with amendment 222.

Amendment 222 amends section 101 so that the maximum imprisonment penalty for a person who is convicted on indictment of an offence under the bill is reduced from five to two years. Amendment 213 makes the same change in respect of offences under regulations made under section 89.

The effect of the amendments is that any person who commits an offence under the bill or under regulations made under section 89 will be liable, on summary conviction, to imprisonment for a period not exceeding 12 months, a fine not exceeding the statutory maximum, or both; or, on conviction on indictment, to imprisonment for a period not exceeding two years, a fine, or both. Exceptions to the provision are penalties for the sunbed offences in part 8 and penalties for breach of exclusion or restriction orders, which are liable only to summary conviction.

I move amendment 213.

Amendment 213 agreed to.

Amendment 214 moved—[Shona Robison]—and agreed to.

Section 89, as amended, agreed to.

I am pleased to say that we have completed consideration of stage 2 amendments for today. We have rattled through them and made up time. I thank the minister and her team for their attendance. That concludes the committee's formal public business. I remind the committee that next week, at our third session dealing with stage 2 amendments, we will address the issues that were raised with us in evidence today.

Meeting continued in private until 12:32.