Chamber and committees

Okay, if I must.

Amendment 3 proposes that a nominee should declare that

“they understand the role, duties, rights and responsibilities”

that are associated with becoming

“a named person”.

However, mental health legislation does not provide specific duties for named persons, as they vary in each case.

Current legislation already places duties on mental health officers that direct them to seek out, and talk to, a named person, so the potential for a person not to understand the role is minimal. In addition, the statutory code of practice is clear that it would be best practice for the mental health officer, or any other practitioner, to ensure that the nominee is provided with information about the role in a form that is helpful to them. That role will not change.

Legislation only places a statutory duty on a “prescribed person” to act as a witness to the nominee’s signature—nothing else. They are not required to explain the role to the nominee. The checking that a person understands that they have been nominated and that they wish to accept the role is a separate process, which a range of professionals can undertake. The change that amendment 3 proposes would extend the reach of that provision and would be difficult to verify, and it offers no new safeguard.

Amendment 4 would require the Scottish ministers to publish guidance on named persons. That guidance is already available and we are revising its content, in partnership with key stakeholders including the Mental Welfare Commission for Scotland.

Given the position that I have just set out, the suggested stage 3 amendments are not required and could actually be unhelpful, as they would introduce more procedure before a role supporting a patient takes effect.

Our intent is to remove a requirement that is currently experienced as disproportionately bureaucratic and might even be a disincentive to taking up the role. I believe that amendments 3 and 4 would take us backwards and so, although I understand the motivations behind them, I ask Murdo Fraser to accept the assurances that I have placed on the record, and not to press the amendments in section 28.

For the purposes of rule 9.11 of the standing orders, I advise Parliament that Her Majesty, having been informed of the purport of the Coronavirus (Recovery and Reform) (Scotland) Bill, has consented to place her prerogative and interests, in so far as they are affected by the bill, at the disposal of Parliament for the purposes of the bill.

I am not making the argument that the Government knows best. I am saying that, in the case of a pandemic that has national effect, the Government is required to put in place guidance that will have to be reflected and followed at local level. In those circumstances, we as a Government have a duty of care to the country, in general, to ensure that guidance is clear and accessible to professionals at local level, so that they can use their judgment in the context of the guidance. That is an important factor in establishing the framework that is envisaged in the bill provisions that are before the Parliament.

There is already scope for deviation from guidance or advice, where necessary, in line with the legal responsibilities that are exercised at the local level. Nothing in the bill is intended to undermine the professional judgment and knowledge of those in educational establishments. A provision such as the one contained in amendment 62 does not provide clarity on the action that providers need to take, and it would hinder swift and decisive national action.

Similarly, amendment 63 would place another unacceptable delay on ministers when they are, in effect, responding to a national emergency.

For the reasons that I have given, I invite Parliament not to vote in favour of any of the amendments in this group, with the exception of my amendments 9, 10 and 11.

I am simply making the point that the Government has made those commitments, and I have just set out and reflected the Government’s routine practice. Indeed, when the Minister for Parliamentary Business gave evidence to the DPLRC last week, he made it clear that the Government already carries out impact assessments and that the Government can continue to engage with the Parliament on this question.

Therefore, I do not think that there is a need for amendments 29, 54 and 96, so I invite Mr McMillan not to press amendment 29 and not to move amendments 54 and 96.

I have listened with care to Mr Fraser in the past few weeks. It strikes me that his objections are not only about the allocation of powers to ministers, albeit with, as he correctly notes, significant changes to improve parliamentary scrutiny. Is his objection to the Government putting measures in place to tackle the deficiencies in the statute book? Is he in fact objecting to that?

This is a large group of amendments, many of which are the same as or similar to those that were debated at stage 2, as Mr Mundell just put on the record.

First, I will speak to amendments 9 to 11 in my name. At stage 2, I set out that the Government had worked closely throughout the pandemic with the Covid-19 education recovery group and that we would expect to do similarly in future. I agreed with the principle behind the amendments on consulting stakeholders during a public health emergency and committed to look further at an amendment on that for stage 3.

Therefore, amendment 11 in my name provides that ministers must seek views about educational continuity regulations, and any regulations under sections 9 or 10 that may be in force at the time, at least every 28 days while those regulations are in force. Ministers must seek views from representatives of education establishments and from users of those establishments—including, importantly, representatives of children and young people—along with staff and any other stakeholders that are considered appropriate.

Amendments 9 and 10 are technical amendments that bring sections 9 and 10 into line with section 8 by requiring that all regulations under those two powers are limited to “a specified period”.

I now turn to the other amendments in the group.

At stage 2, the Government lodged amendments that further strengthened the safeguards that were already in the bill and established a process by which the education powers could be used only with parliamentary approval of a public health declaration by ministers. That ensured that those powers could be used only with parliamentary authorisation in the event of a future threat to public health. Amendments 57 and 58 would remove that gateway vote mechanism. I cannot understand that. Why remove a significant safeguard to the use of the powers to which Parliament has already agreed? I urge members to keep the gateway provisions in the bill and reject those amendments.

Amendments 30, 33, 35, 43, 45, 47, 52, 55, 61 and 65 would leave out sections 5 to 14 of the bill. Throughout the progress of the bill through Parliament, we have made clear the importance of those powers in the bill.

Amendment 56 would provide that education regulations could be in place only when public health protection regulations are in place. It may not necessarily have that effect, as some regulations made under the public health provision may be permanent preparedness regulations, in which case the amendment would not achieve its purpose.

Amendment 49 is similar to amendment 130, which was lodged at stage 2. We remain concerned about how the children’s commissioner could provide a view on whether regulations were proportionate or necessary without access to the full information and advice on public health that ministers would have. My amendment 11 now also ensures that the views of children and young people will be sought when education continuity regulations are in place.

Amendment 41 is similar to amendment 119, which was lodged at stage 2. It requires ministers to provide an electronic device and an internet connection where regulations under section 8 have been made. The Government is already committed to ensuring that every child has access to a device by the end of this parliamentary session and, indeed, made a significant investment to that effect during the pandemic.

Following amendments to the bill at stage 2 to provide for an explanation of urgency if the made affirmative procedure needs to be used in urgent circumstances and for a sunsetting provision to be included when appropriate, a supplementary delegated powers memorandum was considered by the Delegated Powers and Law Reform Committee.

In its report of 24 June, the DPLRC welcomed amendments that had been made at stage 2. The committee also recommended, as it had done in its stage 1 report, that if made affirmative powers were used, an assessment of the impact of the regulations should be provided. This group of amendments follows on from paragraph 10 of the DPLRC’s report.

The Government made it clear in its response at stage 1 that processes that are currently in place already provide the required scrutiny. Policy notes are prepared and, when appropriate, impact assessments are carried out for any SSI, not just for those that are urgent. We do not wish to add complication or delay when there is a need for urgent action.

We do not put all policy commitments into legislation. That is a statement of representative fact on the approach to legislation.

The Government has made the commitment that I have set out. We are working through the commitment with our local authority partners. We are working in partnership with local authorities in the best means possible at local level to implement schemes—many local authorities are taking them forward—and we are supporting them on the effort to deliver on that commitment.

With the greatest respect to Mr Kerr, I gave an answer to the question why it is not in the bill: it is because we do not legislate for all policy commitments. If I could give Mr Kerr some advice, I note that a way of supporting the implementation of the policy commitment—about which I acknowledge that he cares deeply—would be to vote for the Government’s budget that gives effect to those provisions. However, he did not do that earlier this year.

Amendment 38 would, in effect, give local authorities a veto over the closure of local authority-run schools in their area, which is undesirable in terms of managing a future public health emergency that requires a co-ordinated, national response. The same goes for amendments 39 and 36.

Amendments 37 and 51 are identical to those that were debated at stage 2, and I remain of the view that they would prevent regulations from swiftly and effectively addressing a public health emergency.

Amendment 40 was also debated at stage 2, and I remain of the view that it is unnecessary, because any regulations would be expected to include provision relating to ensuring continuity of educational provision and to be accompanied by guidance. Similarly, amendment 42 ignores the existing guidance and regulation-making powers in the bill, which we could use to make clear that pupil-school contact should be facilitated and to give operators appropriate flexibility for different stages of education or needs.

Amendment 50 would put in statute a requirement on ministers to seek voluntary arrangements with education providers before making any regulations. The amendment would significantly delay bringing forward any regulations. Where appropriate, ministers would expect to use voluntary arrangements where possible, but that might not always be the case.

Amendments 59 and 60 were debated at stage 2. They would add an additional requirement to review any regulations within seven days of a new member of the Scottish Government or a junior minister assuming responsibility for the regulations. That would undermine the principle of collective responsibility under the Scotland Act 1998.

Amendment 62, regarding relevant authorities using their professional judgment, could give them significant scope to make different decisions for their establishment despite national advice, guidance or regulations.