Thank you, convener. Since I provided evidence to the committee on 6 May 2025, the Tobacco and Vapes Bill has continued to progress through the UK Parliament. The third reading in the House of Lords took place yesterday.

I am delighted to say that there continues to be cross-party support for the bill and for creating a tobacco-free Scotland for future generations. I am also pleased to let Parliament know that there continues to be productive and constructive engagement across the four nations over the bill’s development.

The amendments that are covered in this supplementary legislative consent memorandum further strengthen the bill and are in line with the tobacco and vaping framework and the population health framework.

Today, we are focused on a second supplementary LCM that was lodged in our Parliament on 27 February. It covers amendments on filters, technology in devices, advertising for public health and liability for internet service providers.

When introduced, the bill did not cover filters. The amendments bring filters into the scope of the bill, ensuring that the legislation is as comprehensive and future proof as possible. The new powers to extend provisions in Scottish legislation to filters rest with the Scottish ministers and will be subject to the affirmative procedure, allowing appropriate scrutiny by the Scottish Parliament.

The powers that are included in the parts of the bill that cover product requirements and advertising rest with UK ministers but will require the consent of the Scottish ministers where regulations contain devolved provision. I want to assure Parliament that any future regulations on filters will be informed by consultation.

Unfortunately, the technology in vaping devices and tobacco-related devices is developing rapidly. There are now vapes that contain games, messaging capabilities or Bluetooth connectivity—features that will undoubtedly appeal to young people. The amendments on technology in devices give powers to the secretary of state to regulate technology in vaping products or tobacco-related devices, such as heated tobacco devices. There will be a requirement for the secretary of state to obtain the consent of the Scottish ministers if any future regulations contain provision that would be within the legislative competence of the Scottish Parliament.

The amendment on advertising for public health provides clarity around the intentions of the bill and will introduce a new defence for advertising offences when a person is acting in accordance with arrangements made by a public authority. That will ensure that public authorities can enter into arrangements with businesses such as pharmacies to show materials that promote vaping or other non-medicinal nicotine products for public health campaigns. However, that does not mean that we are proposing to change our stance on vapes. Vapes are helpful to some people who wish to quit smoking and services should support people who make the choice to use a vape, but they are not without harm and they are not available via stopping smoking services in Scotland.

The intermediary liability for internet service providers amendment will ensure that there are exceptions to offences where a completely passive internet service is being provided. That applies to devolved and reserved offences. The amendment will not change the intended policy but will provide clarity on where the liability rests.

We continue to work across the four nations on the bill and officials have started to consider co-ordinated implementation plans where they are appropriate and right for Scotland. Most of the relevant enabling powers will require consultation before regulations are made. The Scottish Parliament will have the opportunity to scrutinise the content of future regulations to ensure that they meet the needs of Scottish policy.

I finish by thanking the committee for its consideration of the LCM. I recommend that the Scottish Parliament gives its consent to the amended provisions in the Tobacco and Vapes Bill.

Where we believe that elements of the bill will come into devolved competencies—and public health is a devolved competency—we would do the necessary work on that, probably along with Public Health Scotland, which has just been speaking and giving evidence to you. We would be able to do that under devolved competencies.

As Dr Gulhane has indicated, the Scottish Government’s policy with regard to vapes has not changed. Vapes are one of a range of tools that smokers can choose to help them quit. We are clear that we do not believe that vapes are appropriate for non-smokers. However, the amendment that is in the LCM will ensure that, if the policy changes in the future, we can use the bill as needed to ensure that, if the view from a public health perspective is that vapes are a suitable tool for ceasing smoking, that can occur. Therefore, it is an important amendment.

I was also concerned and saddened having seen the coverage of the fire unfolding on Sunday, the devastation that it has caused to businesses and the disruption that it will cause to those travelling into and around Glasgow city centre. It is essential that the Scottish Fire and Rescue Service is now able to undertake full investigations with its multi-agency partners to understand the nature of the fire and why it spread as it did. It is inappropriate for me to comment further at this stage, but I want to be clear that we will consider the issues around the fire with an open mind, and, as the convener indicated, a topical question on the matter will be taken in the chamber this afternoon.

As you pointed out, those products are not currently captured by regulation on tobacco or vapes in the UK. As such, they are regulated only under general consumer product safety regulations. That means that there are currently no restrictions on the nicotine content. If it is passed, the Tobacco and Vapes Bill will introduce a range of restrictions, including on the age of sale, advertising, free distribution and retail register for the products. However, there would clearly be consultation on that.

:I have nothing to add to my previous statement.

I move,

That the Health, Social Care and Sport Committee recommends that the Civic Government (Scotland) Act 1982 (Licensing of Skin Piercing and Tattooing) Amendment Order 2026 [draft] be approved.

Motion agreed to.

I thank the committee for giving me the opportunity to speak to the draft Civic Government (Scotland) Act 1982 (Licensing of Skin Piercing and Tattooing) Amendment Order 2026. The instrument will amend an order made in 2006 that is used by local authorities to license and inspect any business that provides skin piercing or tattooing in Scotland and which lays out a number of requirements that are aimed at reducing the health risks to the public when accessing such procedures.

The amending order will remove the requirements for acupuncture therapists to wear disposable non-latex gloves when treating someone whom they know to be living with a blood-borne virus. Removing those requirements will remove any doubt for those therapists. It will be clear that they should not feel that they need to ask their client whether they are living with a blood-borne virus, which is a question that some people feel uncomfortable to answer. The amendment will also help to reduce the stigma that people living with a blood-borne virus might feel when accessing acupuncture treatment.

Other existing requirements to wear disposable non-latex gloves in certain circumstances will remain in place. For example, should the therapist be handling items that are contaminated with blood or bodily fluids, or if they or their client have open lesions, the requirement to wear disposable non-latex gloves will remain. Therapists make the decision on any other reason to wear disposable non-latex gloves through individual risk assessments case by case.

Since the original order came into force in 2006, there have been many advances in the treatment of blood-borne viruses. Vaccinations and antiviral medication mean that people can maintain healthy lives through the treatment options that are available. Those advances mean that transmission of HIV has greatly reduced. The hepatitis B vaccination that is offered today for babies and people who are at high risk provides protection against acquisition, and hepatitis C can also now be cleared with medication in most cases.

I must highlight that acupuncture is considered a low-risk procedure. Should therapists continue to feel that they need to ask their client about blood-borne viruses and treat them differently if they confirm a positive status, that is no longer considered to be justified, given the advances in treatment and the low risk that is posed by the procedure.

Sadly, people living with blood-borne viruses still face forms of stigma every day. The Parliament’s Equalities, Human Rights and Civil Justice Committee held a focused inquiry in 2024 on the importance of reducing HIV stigma. It heard from people living with HIV in Scotland, who spoke about the stigma that they encounter and its effects, particularly in healthcare settings.

The Scottish Government remains committed to helping to reduce the stigma through promoting the positive impact of effective treatment and prevention that is available today, and by championing the changes that are required to ensure that people who live with blood-borne viruses are not treated any differently from others. The amendment to the 2006 order will assist in ensuring that people are not asked unnecessary questions when they seek treatment and will support us in delivering our commitment.

I can advise that, throughout the consultation, no stakeholders objected to amending the 2006 order to remove the provisions, and no evidence was provided to support further amendments to that order. It is not expected that the amendment will have any detrimental effect on businesses in Scotland.

Thank you for considering the amendment. I request the committee’s support to progress the order, and I welcome any questions that you might have to assist in your decision.

11:00

:I thank Ms Mackay for lodging amendments 26 and 27. I am aware that concerns have been expressed about the level of penalties in the bill as introduced, and I thank the committee for its comments in the stage 1 report. It is vital that the bill has teeth and sets penalties that act as a meaningful deterrent to any practitioners who choose not to engage with the new regulatory scheme.

Having listened to the committee, I appreciate that the level of penalties set in the bill will not be a sufficient deterrent to businesses that could be earning up to £5,000 per day. Amendments 26 and 27 seek to allow the offences in the bill to be triable either under summary procedure or on indictment. In such circumstances, the penalty that could be imposed by the court would be a maximum fine of £20,000 on summary conviction or an unlimited fine on conviction on indictment.

As with any offence that is triable, either under summary procedure or on indictment, it will be for prosecutors to decide on the appropriate procedure based on the evidence provided to them. That represents a significant increase in the level of penalty that may be imposed, particularly in cases where more than one offence is committed—for example, providing a non-surgical procedure to a person under the age of 18 and outwith the permitted premises, or where repeat offences occur. In addition, no matter whether an offence had been committed under the bill, a person could still commit other offences if they caused harm, depending on the facts and circumstances of the case, and they would carry their own penalty. I therefore urge members to support amendments 26 and 27.

I recognise that Mr Golden’s amendments 56 and 57 and Mr MacGregor’s amendment 102 seek proportionality, transparency, good governance and accountability, but they also duplicate existing requirements on HIS and are therefore not required in the bill. With regard to amendment 56, I note that HIS inspections are based on publicly available standards, and it publishes its inspection reports for transparency purposes. It also has a complaints procedure, should providers not feel that those inspection reports are either fair or accurate.

In respect of amendment 57, HIS is required to comply with data protection legislation in relation to client information that it might obtain as part of its inspection processes. HIS also takes an improvement approach to support those whom it inspects to improve their services before it takes other action.

Like amendment 56, Mr MacGregor’s amendment 102 seeks proportionate enforcement. The Scottish Government is not aware of HIS having used its enforcement powers in a disproportionate way, but if Mr MacGregor or anyone else is aware of concerns in that respect, I ask them to raise those concerns directly with me. If those concern relate to proportionate penalties, I point out that there is discretion that the courts or prosecutors can use.

Dr Gulhane’s amendment 104 seeks to provide for a useful and insightful review. However, although I support the intention behind it, I consider that the asks that it makes could perhaps form part of a wider review provision of the kind that we will come on to when we discuss the group entitled “Review of Part 1”.

I ask Mr Golden, Mr MacGregor and Dr Gulhane not to move their amendments.

:I am grateful to members for the points that they have raised and I urge them to support amendments 9, 22 to 25 and 31. I ask Maurice Golden and Stuart McMillan not to move the remaining amendments in the group.

The amendments in my name are necessary to ensure that the “permitted premises” definition is as clear as possible for providers of non-surgical procedures and for HIS as the enforcing body. The other amendments in the group would undermine the core safety protections that the bill offers.

I will touch briefly on Dr Gulhane’s points about prescriptions. We are having conversations about those issues with the UK Government and the Medicines and Healthcare products Regulatory Agency. As you know, the matter is reserved. I acknowledge Dr Gulhane’s points and I am happy to discuss them further. HIS looks at such circumstances in its reviews and would refer any issues that it spotted to the MHRA.

I will repeat what I have said elsewhere, which is that I do not want to disrupt business unnecessarily, but nor am I willing to compromise on safety in order to reduce disruption. I am happy to continue to work with members on other approaches to mitigate the impact on businesses, including existing business support and any guidance that we can provide.

I want HIS to work with the Scottish Government to ensure that all its standards and requirements are appropriate to the services that it regulates and to consider any statutory standards in the same context. There is scope to make changes to regulations to better accommodate settings that do a mixture of procedures and other beauty treatments. I am happy to share more detail on that by correspondence.

In the lead-up to and during stage 3, I would be happy to hear any other suggestions from members on steps that might mitigate the impact on businesses.

Amendment 9 agreed to.

:This group of amendments relates largely to section 5, on the powers available to ministers to make further provision on non-surgical procedures.

I explained in my comments on previous groups why some matters needed to be dealt with under delegated powers. Our use of delegated powers was, of course, considered by the Delegated Powers and Law Reform Committee, and I was grateful to Stuart McMillan, who joins us today, for chairing that consideration. That committee recognised that certain matters were appropriate for regulations, but it also said that some additional safeguards were required in the exercise of that power.

As such, I turn to amendment 35, in my name, which requires Scottish ministers to consult in relation to all the affirmative regulation-making powers in the bill. I hope that all members will support that and agree that it is a proportionate approach to the issue identified by the DPLR Committee.

Amendments 54, 93 and 94 also seek to make consultation requirements, all of which are specific to the power in section 5. Amendments 93 and 94, lodged by Gillian Mackay and Sandesh Gulhane respectively, would require patient groups or those representing clients, clinical experts, regulators and enforcement bodies to be consulted. Dr Gulhane would add

“representatives of the beauty and aesthetics industry”

to the list and make other provision, which I will turn to shortly. Finally, amendment 54, in Maurice Golden’s name, also sets out consultation requirements, in this case with HIS, local authorities, and representatives of the industry and training institutions.

In respect of all those consultation requirements, I ask members to consider that the power in section 5 is capable of making very different sorts of provision. In fact, it is capable of making substantial provision, in which case consultation would be not only expected—and rightly so—but required to fulfil the range of duties on Scottish ministers in relation to impact assessment.

Amendment 35 strengthens that requirement. In such circumstances, some or all of the groups indicated might well be included in the list of consultees, but the power might also make quite small or technical changes, in which case targeted consultation would be more appropriate. Indeed, even more substantial matters might be of interest only to a subset of the groups that members have named. Again, it would be a better use of time if the Scottish Government were able to consult bodies that have an interest in the matter at hand. For that reason, I urge members not to press or move their amendments and to support the amendment in my name instead.

I note Maurice Golden’s amendment 53, which echoes some of the committee’s concerns and is unlikely to make the exercise of the regulation-making power in section 5(1) cumbersome. I do not consider the amendment to be necessary, as any Government proposing regulations would consider their enforceability, and I also expect the committee that scrutinises regulations to seek assurance in that respect. However, I am happy to discuss the issue further with Maurice Golden before stage 3.

On the other hand, I urge Mr Golden not to move amendment 55, which makes similar provision but also contains material that overlaps with a range of existing duties, including under the Equality Act 2010, and which is likely to make the regulation-making power more cumbersome and less capable of being used in a reactive way.

The next amendments that I will consider seek to impose certain requirements on ministers in exercising those delegated powers or restrain the way in which they may be used. In that category, I include amendments 48, 49, 52 and 90. Those amendments include different approaches to requiring transitional protections and ensuring that there are pathways for non-healthcare professional providers. The effect of amendment 52 also means that no provision can be made about training or qualification requirements for persons providing non-surgical procedures that does not also provide alternative routes to demonstrate competence, and provisions around continuing professional development, record keeping, audit, incident reporting and complications management. Those are not necessarily unreasonable matters to be considered, but putting those requirements against the whole exercise of the power would be cumbersome and often disproportionate to enact. They would remove the discretion to deal with issues in the most appropriate way, whether in regulations under this power, using other regulations, or in guidance.

11:30

Amendment 45 is relatively technical, as it seeks to amend section 5(2)(a) of the bill to prevent regulations made under section 5(1) from modifying sections 2, 3, 4 and schedule 1 of the bill once it becomes an act. The provisions in section 5(2)(a) are not unusual and are required to provide flexibility in how new provisions are written into legislation and be made as readable as possible. For instance, amendments making specific requirements in relation to the settings for the provision of a particular procedure may do so in stand-alone regulations, which would then need to be read alongside the bill provisions, or it may make sense to make modifications to section 4 of the bill to allow such matters to be included all in one place. For those reasons, the existing power in section 5(2)(a) is considered necessary.

Amendment 50, in Jeremy Balfour’s name, relates to creating a new regulatory scheme to facilitate certain categories of non-healthcare professionals to supervise procedures. That would be contrary to the strongly expressed views of consultees last year, who wish for supervision to be restricted to certain healthcare professionals. It would also conflict with the reasoning that I outlined in relation to group 3 around assurance of patient safety and dealing with complications. As such, I urge the member not to move amendment 50.

I return to amendment 94, in Sandesh Gulhane’s name. Like his amendment 97 in the previous group, amendment 94 would require certain material to be published before regulations can be made. In this case, the requirement is to publish training standards. I assure members that training standards are a priority, and it is a matter of great frustration to me personally that more progress has not been made on that issue. I am, however, hopeful that members will shortly approve my amendments on an individual assessment process that is a prerequisite to us resolving those issues.

As I have said elsewhere, it is still going to be necessary for the Scottish Government to work with the UK Government on those matters. It is also likely to benefit practitioners if, where possible, requirements in Scotland and England are aligned. That means that the timing of any standard of training is not entirely in the Scottish Government’s gift. On that basis, the requirement that Dr Gulhane has suggested in amendment 94 could prevent other matters being dealt with in a timely manner. On that basis, I urge Dr Gulhane again not to move the amendment.