Chamber and committees

Yes. Thank you very much, convener. I entirely endorse your comments.

Falconry, albeit that it is not a huge area of life in Scotland, is nonetheless an important part of rural life and the rural economy. Lots of things that falconers do are valuable and of real worth to society. I have seen falconers teach children about birds of prey at agricultural shows and game fairs such as the ones at Moy and Scone. They also take birds into schools. Children therefore learn about birds of prey directly—and probably primarily or even solely—from falconers.

From speaking to a leading falconer—not the petitioner, but another falconer—over the weekend, I know that falconers also rehabilitate birds; they make them better. That is surely something that should be recognised.

Falconry also plays a part in the control of pests, including in relation to the overpopulation of gulls, as has been mentioned, and it is part of the rural tapestry. I say that because I was very disappointed when I noticed that, in its first response last year, the Scottish Government did not say that it valued falconry; it just said that it recognised the history and culture of falconry.

On where we go from here, I am bound to reflect that, when the ban on mountain hare culling was introduced in 2020, the Werritty report, which preceded that, did not consider falconry at all. As far as I know, no one mentioned falconry in the stage 3 debate for the 2020 act, which was the first time that the proposed ban was introduced.

I have been in the Parliament for 22 years, and I think that falconers are in a unique situation, in that they have not only not had a fair hearing about their activity being banned; they have had no hearing whatsoever. They have been completely ignored. That seems to me to be redolent of the grim world that was created by the author Franz Kafka, in which people are banned from doing their preferred occupation without any opportunity to have that fair hearing, which is the first principle of natural justice—audi alteram partem.

Where do we go from here? I suggest that we take oral evidence and that the petitioner should have an opportunity to be heard and to put forward what I think is the very strong argument that the activities of falconers account for only a small proportion of mountain hares that are taken. I think that Dr Nick Fox said in the supplementary submission that we have just received that the figure is 1,000, but it is certainly a fraction of the number that are taken by shooting.

The petitioner should be heard, and I recommend that Dr Nick Fox should accompany him, if he so wishes, so that the petitioner is not alone. We should also hear from NatureScot, as it has licensing powers, which could be part of the solution, and from the Scottish Government.

I know that the committee is time constrained, but we should do that, given that we are talking about a group in society that has not had any hearing whatsoever from the Scottish Parliament. The purpose of the committee is to allow David to take on Goliath, if you like, and our particular role is to equip David with a sling.

Thank you.

Good morning to both professors. I will pick up on something that Professor Donaldson—I think—said about the fact that there are 40 extant unimplemented policies for secondary schools and 34 for primary schools. Have those been looked at as part of the report? Have you identified which, if any, of those policies should be implemented and which should be consigned to the dustbin of educational history?

Thank you for that answer. It strikes a chord with what I have heard in my constituency over the years from teachers and, in particular, headteachers, who complain that they spend too much time doing administration and that that detracts from their primary function of teaching.

However, Professor Muir, I do not see anyone coming up with a specific plan to debureaucratise the system. I note that, in your report, one of the opportunities that you identify for the new agency is to

“declutter and streamline the ‘middle ground’ in Scotland’s educational landscape”.

I also read something on, I think, page 47 or page 109 of the report. That sounds impressive but, if I am candid, I do not think that I quite made it through to the end. This is the point that interested me, so I stopped at page 47—I am sorry about that. The report quotes a primary teacher who said:

“We need less agencies, more support in classrooms, smaller class sizes and more prescriptive planning, not more agencies trying to justify how busy they are.”

I am impressed with the report and the obvious care for your task and for pupils, as Mr Marra said earlier, but where is the beef? Who is going to get to grips with the enormous bureaucracy that you have indemnified? Is not it incumbent on you, as the author of the report, to say how we will “declutter and streamline” and which policies should be suspended or removed?

We need somebody to lead the task of getting teachers back to teaching and away from administration, but is that too much to ask? Is it an unfair ask, Professor Muir? I am afraid that just expressing it as an aspiration does not cut the mustard. I say that with 13 years of ministerial experience in which frustration was an emotion that I suffered daily when coming up against a very large bureaucracy that, sometimes, appeared to impede the purposes that we are here to advance.

I have a final reflection, although I note that I am an outsider to the education world and you are insider experts—so who am I to opine when, arguably, I do not have the factual knowledge?

You have said that we want to

“declutter and streamline the ‘middle ground’”.

I do not quite know whether there is a plan for how that could be done, other than by the inspectorate identifying things to be culled and made more efficient, as Professor Donaldson just said. Would it not be an idea to ask a group of headteachers to say what should be dispensed with? Has that been tried? We could ask, say, five headteachers from primary and secondary schools around the country what they would do to simplify and declutter the middle ground.

In my experience, the people who do the work know what is wrong. With all respect, professors and MSPs, who are not in the classrooms and schools, often do not know what is going on. Whatever the walk of life, the people who do the work know what does not work, yet they are often the last people to be asked for their opinions. I put that to you. Maybe it is a daft-laddie suggestion, but could you add that to your recommendations, Professor Muir?

Following on from our discussion about the general issue of the nature and extent of the emergency powers and the rationale for them, I want to raise with the cabinet secretary the matters that are covered in paragraphs 55 to 65 of the policy memorandum and proposed new sections 86B(1) and 86C(1) of the 2008 act, as inserted by section 1 of the bill.

As I understand it, there needs to be, and there will be placed on the Scottish Government, in relation to the use of emergency powers, a new higher test or barrier called the proportionality test, which must be considered before any restrictions may be imposed by regulations. It goes beyond

“a significant risk to public health”,

which is the condition to be met by health boards. In other words, a protective barrier will be introduced by the bill specifically to address some of the concerns that you and Opposition members have expressed.

Before the powers in the bill can be exercised, a whole range of things will need to be taken into account, and the Government will need to demonstrate that they have been taken into account—namely, the severity of the disease; the transmissibility of infection; the size of the exposed population; the susceptibility of the exposed population to infection; the availability of diagnostic tests, treatments and vaccinations; and the impact on critical services.

Does the cabinet secretary wish to expand on that? Am I right in postulating that that is an additional safeguard that is designed to provide citizens in Scotland with the assurance that the Government will act only if it is necessary and proportionate in the circumstances?

I seek clarification from the minister about a point that was raised with us by the Scottish Private Nurseries Association, which represents private nurseries and those that operate in the voluntary and third sectors—that is, nurseries run by charities.

The SPNA seeks clarification on whether the benefits of the provision—the waiver of disclosure fees and of liability to pay certain fees—applies to nurseries that are in private or third sector ownership, as well as to local authority nurseries. If the principle is that the disclosure fee should not be payable, I assume that that would apply across the board.

We received the letter from the SPNA only in the past day or so, or we could have raised the matter with the minister before. It would be helpful if clarification could be provided on that point.

I welcome that.

I have one further brief supplementary question. In relation to how universities and colleges would proceed with their decision-making powers if they had a say over how emergency powers were to be constructed, Mr Sim said:

“student and staff representatives would ... be an important part of any structure ... put in place to address a further emergency.”—[Official Report, Education, Children and Young People Committee, 2 March 2022; c 25.]

If that were the case, is it not pretty obvious that all the consultation that Mr Sim said would take place in relation to decisions that universities and colleges would like to make about the content of our emergency powers would take time? Consultation takes time. To consult students and staff representatives would be, as Mr Sim said, essential—a sine qua non of the exercise of their role. However, doing all that would mean that taking decisions would take several weeks or much longer. Of course, the virus could spread and people’s lives could be put at risk during that time. Have not the distinguished academics hoisted themselves with their own petard by the evidence that they gave last week?

I had not planned to come in, but I feel that it is important to do so because colleagues have expressed the view that there is a consensus against providing the powers that the bill would confer. Although I respect that, I strongly dispute it and think that we need to redress that view.

Is it not the case, cabinet secretary, that if you fail to get the emergency powers that you are seeking to get in the bill and there is a further pandemic, we might find that we do not possess the powers that are required to protect public health and, conceivably, save lives? That would be the biggest failure of all.

I put that point in all seriousness, cognisant of the fact that this pandemic has thrown up huge challenges. There is no guarantee at all that further pandemics will throw up the same challenges. Therefore, ministers and Governments must create the widest possible range of powers in order to be sure that, in a future pandemic, we will have the necessary powers to act to save human life. Is that not a reasonable point and one that underlies the whole rationale for the bill?

Last week, I questioned Alastair Sim and Paul Little on their objections relating to the Government’s powers under section 8(5)(b) to (k) being too granular. The argument that I put to them was that, if there is a future pandemic, the Government needs to be able to act swiftly, and that delays even of a day or so could be critical in relation to stemming the flow and spread of a future virus, so there might not be time for consultation and for universities and colleges to go through their decision-making processes.

Does the cabinet secretary have any comments on that? Does she feel that colleges and universities have given any clear examples of what they are concerned about? I have no wish to misrepresent them, but the only example that was given in evidence was that by Mr Sim about podiatrists. I was a bit perplexed as to why podiatrists had made an unexpected debut in the issues relating to education.