Chamber and committees

I contend that there are adequate measures in the legislation that set out how that can be undertaken. I think that the question that the Parliament needs to consider is whether those powers are appropriate and whether they can be exercised in a proportionate and appropriate fashion. All those factors need to be considered, and I think that all of that is achieved by the terms of the bill, but if the committee or members make particular suggestions, I will, of course, engage on those questions.

I am certainly happy to consider that. The thrust of the legislation is to ensure that we have an appropriate way of making the process more efficient and minimising disruption. In doing my constituency work over the pandemic, I have been struck by how the use of technology has significantly enhanced my ability to conveniently engage with constituents. Instead of people having to drive from Rannoch station to Blairgowrie, because that is where I happen to be that day, a Zoom call can save them a round trip of about four hours to see their member of the Scottish Parliament. To my shame, that had never dawned on me until the pandemic.

There is a desire in that part of the bill to secure the opportunities for greater efficiency and effectiveness that arise from our experience of the pandemic. I think that we should be open to doing that, but not in a way that would make the process disadvantageous to individuals. Mr Fairlie’s point is that that approach might be disadvantageous to a licensing applicant.

An important point to add is that it is the responsibility of licensing boards and authorities to ensure that virtual meetings and hearings are conducted in a manner that meets the accessibility and engagement requirements of attendees. Therefore, the onus is on the body to make sure that its approach can meet the needs of the licence applicant. However, if there is a need for us to make that more explicit, I am happy to consider that.

I would. I am grateful to the committee for the opportunity to discuss a number of matters, including updates to Parliament on Covid-19. As the First Minister set out yesterday, we are currently experiencing high numbers of cases in Scotland, and that reflects the impact of the BA.2 variant, which we know to be even more infectious than the original omicron variant.

Alongside infection levels, the high number of people in hospital with Covid, even if they were admitted for another condition, is putting the national health service under severe strain. There are, however, some grounds for optimism that the latest wave of the pandemic may now have peaked, and we will continue to assess the data closely to see whether those early signs are indeed indicative of a sustained fall in cases.

Despite the infectiousness of the BA.2 variant, vaccination continues to provide good protection against serious illness, and our programme of booster jags for certain groups is now under way. The programme started three weeks ago in older people’s care homes and, from last week, appointments are being offered to everyone aged 75 and over. People with suppressed immune systems will have appointments scheduled during spring and summer. In line with the advice from the Joint Committee on Vaccination and Immunisation, vaccination of the wider five to 11-year-old age group started on 19 March and will continue over coming weeks.

Vaccination remains the most important thing that any of us can do to protect ourselves and others, and the Scottish Government is continuing to ensure that as many people as possible are vaccinated.

As I mentioned, our NHS is facing very significant pressure and, in tackling the virus, we must be attentive to its needs. For the period up until Easter, we are continuing to ask everyone to take a lateral flow test twice a week. People should take a test daily for seven days if they are a close contact of a positive case, and they should take a test before visiting someone who is vulnerable. Someone who has symptoms should get a polymerase chain reaction—PCR—test and, if they test positive, they should isolate and follow advice from test and protect.

Using the approach set out in our revised strategic framework, and based on clinical advice, our assessment is that the virus continues to present a medium threat, although we remain optimistic that it will move to being a low threat during the spring and summer.

We have largely moved away from using legally imposed protective measures to control the virus; instead, we are relying on vaccines, treatments and sensible public health behaviours and adaptations. When most legal requirements were lifted earlier in March, we retained in law the requirement to wear face coverings on public transport and in certain indoor settings. Cabinet has now agreed to convert the legal requirement to guidance in a phased approach. From 4 April, it will no longer be a legal requirement to wear a face covering in places of worship or while attending a marriage ceremony, a civil partnership registration or a funeral service or commemorative event. From 18 April, the wider legal requirement that applies to shops, certain other indoor settings and public transport will be converted to guidance. Through guidance, we will continue to encourage the wearing of face coverings where appropriate.

I am happy to answer questions from the committee.

I will address the last point first because it is a gateway to the whole question. All things being equal, I would like us to maintain a pretty significant level of lateral flow testing. That would be beneficial. It provides a lot of intelligence and assurance. However, I have to look at the hard financial realities in the wake of the United Kingdom Government’s decision on what it is prepared to fund, because of its direct effect on the consequential funding that is available to the Scottish Government. Because the decision limits that funding, it is difficult for us to sustain more than the larger proposition that we are already putting in place.

A testing environment will still be in place for health and social care staff, and it will continue to be free. As for school staff, I am obviously aware of the EIS campaign, and I am very familiar with the strength of opinion in the EIS and among school staff with regard to the importance of testing arrangements remaining in place. We are maintaining those arrangements for longer than in other parts of the UK but, unfortunately, the decisions of the UK Government are placing limitations on us.

The Government has looked carefully at all the temporary measures that were put in place, some of which had a particular time limit and have expired. The Government has operated on the principle that we do not want to keep in place temporary measures for any longer than is required.

A range of temporary provisions were put in place for the pandemic that we judge are no longer necessary and do not need to be included in the permanent legislation that we are proposing. We have identified in the proposed legislation a number of provisions that have arisen out of our experience of the pandemic, particularly with regard to the administration of public services, and which we judge to be of practical benefit to the public and, therefore, in the public interest. We have advanced proposals of that nature.

The bill proposes to take steps to ensure that we are in a position to manage for a longer period the disruption caused to the justice system by the pandemic. As a consequence, it includes a range of temporary justice provisions that purely and simply ensure that we can support the recovery of the justice system after the huge amount of disruption that the pandemic caused.

Essentially, I do not view that as being particularly different from the review process that ministers regularly undertake of the restrictions that we have found it necessary to put in place. Ministers have reviewed the measures that we have had in place every 21 days. We have had to consider whether the restrictions remain proportionate and we have had to report to Parliament about those provisions. My predecessors and I have appeared in front of the committee on a regular basis to consider those points.

What we have done until now in relation to scrutiny has generally been agreed with the parliamentary authorities. If members wish to advance specific amendments to the provisions as to what the review might look like or entail, we could consider that as part of the bill process. Fundamentally, the willingness to be open and accountable in relation to the explanation of any of the provisions lies at the heart of what the Government intends to do.

The provisions are broadly comparable to those in England and Wales. If my memory serves me right, those provisions have been in place for the best part of a decade or more. That gets to the nub of the bill, which is the necessity of ensuring that the legislative framework that we have in place is appropriate to deal with the emergence of a major national public health issue such as a pandemic.

The legislation that the Parliament considered in this respect in the past—the two coronavirus acts—was taken through Parliament at great speed. There was significant parliamentary co-operation to enable that but, of course, the level of scrutiny that was available for the provisions was limited. Therefore, with the bill, we are taking a calm period to consider with full parliamentary scrutiny the types of measures that could be put in place should we face a further pandemic and to ensure that we have the necessary statutory force to provide for that as well as sufficient parliamentary scrutiny if the Government takes any steps within the framework of the bill.

On the point made by the legal academics that you have just highlighted to me, convener, it is important not only that we have a structure of legislation in place to enable us to handle a future pandemic but that we consider that in slow time to ensure that we have the right arrangements in place. As I have indicated, the provisions are broadly comparable to the ones in England and Wales.

That theme has been the subject of extensive discussion with the committee during the pandemic, and it has been very much at the heart of the Government’s decision making about the handling of the pandemic. Indeed, it has been central to the decision making around the four harms framework and the strategic framework.

The question of proportionality is fundamental, because it is a legal test of whether or not any measures that the Government puts in place are appropriate in a certain set of circumstances. Ministers will make those decisions and must be satisfied that, on the basis of the evidence that is available to them, there is a proportionate case for applying restrictions.

We have wrestled with that question on countless occasions over the course of the past two years. We have come to conclusions about when we judge measures to be proportionate and have withdrawn measures, because we did not believe that they were proportionate at that particular time. Ultimately, those decisions are made by ministers and, as with all decisions that are taken by ministers, they are justiciable. There have been two legal challenges to the provisions that we have had in place, and at the heart of those questions, which the courts have wrestled with, was the question of proportionality. Proportionality is not a tabulated concept but one that is based on the availability of evidence to enable ministers to take rational decisions that can be defended in the courts, if necessary.

I suspect that other pieces of legislation have attracted public concern. I also suspect that the degree of public concern might have had something to do with the way in which some members of the Parliament characterised the legislation. I am sure that Mr Fraser understands the point that I am making with that remark.

It is important that members of Parliament concentrate their deliberations on the substance of the issue. For me, that substance is whether we have in place the right legislative framework to deal with the possibility of a pandemic. Clearly, in March 2020, we did not, because we had to rush through two pieces of legislation in a matter of days to provide the legislative force to handle the pandemic. Our statute book was not sufficient or appropriate to deal with the circumstances that we faced in March 2020.

The Government is now learning a lesson from that experience and putting in place legislation that we consider to be proportionate and appropriate for those circumstances. The public health provisions of that legislation are to be used only in those circumstances, and there is to be appropriate and effective parliamentary scrutiny of the Government’s exercise of those functions. That is the justification for the bill, and that wider appreciation of it would be clearly understood by members of the public.