Chamber and committees

I have been absolutely candid with Parliament about the mistakes that were made in the SQA exam diet in 2020. If Mr Mundell wants to use the opportunity of the bill going through Parliament to revisit that, I am quite happy to do that, because, in all honesty, I took the best decisions that I thought were available to me on the evidence that was in front of me. I respected an independent examination authority that was undertaking the assessment and adjudicating that process.

I did not think that it was right for ministers to circumvent the law and take away an independent exams body’s responsibility; that was the judgment that I arrived at. I point out that that was the judgment that the secretary of state in England, the minister in Wales and the minister in the north of Ireland arrived at. I did not take a unique decision—I just respected the law. I am a great believer in respecting the law, which is what we have been talking about for a large part of this afternoon.

If Mr Mundell wants to use today as an opportunity to poke away at me about 2020, I have been completely candid with Parliament about the difficulties that I faced in 2020, and I faced up to the challenge that came from his colleagues. Thanks to consideration in Parliament, those challenges were addressed by the way that we responded to the challenges that young people faced, and we addressed them into the bargain.

I wish to move amendment 12.

Amendment 12 moved—[John Swinney]—and agreed to.

Amendments 62 to 64 not moved.

Section 14—School consultations: meetings and documents

Amendment 65 moved—[Oliver Mundell].

I thank Mr Rowley for setting out his arguments, and I recognise the important points that he has made about protecting the vital role of the Parliament in the legislative process. I support that perspective.

I recognise that there was reasonable concern that that role was not given sufficient recognition in the bill as originally drafted. As Mr Rowley has fairly put on the record, we acted at stage 2 to address that, and many commentators have recognised the significant movement that the Government has applied on that question.

As a result of the changes announced, the bill now requires that any regulations that are made under proposed section 86A(1) of the Public Health etc (Scotland) Act 2008, to modify primary legislation—that is to say, the so-called Henry VIII provision—could be made only under the draft affirmative procedure. That means that the Parliament will always have full opportunity for scrutiny before primary legislation can be modified under proposed section 86A and that the made affirmative procedure can never be used to diminish that role. I hope that the Parliament recognises that that demonstrates that we have listened to concerns and made real improvements to that part of the bill.

I also note—as I did at stage 2—that the amendment adds to the considerable safeguards that were included when the bill was introduced. I spoke to those at length during stage 2, so I will not set out that detail again. What I will say is that it is imperative that Parliament retains its scrutiny role, and I am grateful to those who have pointed out that we had not done enough to achieve that. However, we have now remedied that so that modifications to primary legislation using those public health powers can never be made without the consent and full scrutiny of Parliament. Members can therefore safely resist Mr Rowley’s amendment with confidence that their vital role has been protected and that the power itself is suitably limited.

Amendment 8 is of a minor and technical nature, so I hope that it is uncontroversial. It will simply ensure that the correct cross-references are inserted in the new sections that the bill will add into the Public Health etc (Scotland) Act 2008.

Amendment 2 would remove the public health regulation-making power entirely from the bill. I have already documented clearly throughout the bill process why we consider it vital to have those public health powers, having learned lessons from the recent pandemic. I will therefore not repeat the points that have already been made against the amendment. I will simply say that the Government amendments that were agreed to at stage 2 add significant safeguards to those that were already included when the bill was introduced. I hope that that reassures members that their voices have been heard and that the bill is better as a result.

I have substantive and, I believe, compelling objections to amendments 6 and 7. However, before I set out those objections, I must point out that, even if members were sympathetic to them, the provisions that they refer to will come into force automatically on the dates that are set out in section 46 of the bill, as agreed at stage 2. Amendments 6 and 7 cannot prevent that from happening. However, even if they could achieve the desired effect, I cannot support them for the reasons that I already set out at length in my comments on similar amendments at stage 2.

We know that there is a gap in our legislative framework. Crucially, that gap does not exist in England and Wales, where such powers have been held for more than a decade. It would be ill-advised to delay closing that gap. In the past few months alone, we have seen unusual presentations of hepatitis in children and the outbreak of monkeypox, so nobody should be in any doubt that public health threats can and do emerge with very little warning. Faced with that reality, the Scottish Parliament would rightly be criticised were another threat to emerge and once again, we had to resort to emergency legislation, as we did during the early days of the Covid pandemic.

That same rationale underpins my resistance to amendment 7. Without wishing to presuppose any findings, I acknowledge that there could be a call for further changes to the statute book once the public inquiry reports. However, that should not prevent us from acting now to remedy an area where we have already identified a weakness in our statutory framework.

On a point of order, Presiding Officer. I was not able to connect to the app. I would have voted no.

On a point of order, convener. For the sake of clarity, Mr Fraser’s amendment 7, which was disagreed to by the committee, sought to leave out section 1. I assume that, because of the result of that vote, you are not putting section 1 to the committee.

In the context of the judgment that you are talking about, what role do you envisage for public health advice of the nature that the Government and all public authorities received? You did not address Mr Mason’s point about the interface between the decision making of local authorities, as the bodies that are responsible for running education at local level in Scotland, and public health advice. Public health advice might lead to a conclusion with which a local authority was not comfortable, albeit that there was real danger to the public health of the local population.

However, it then says that we must have regard to it.

Amendment 29 exempts the non-educational functions of further and higher education institutions from the regulation-making powers in section 8. The effect of the amendment is that the power of ministers, under section 8, to make regulations in relation to the continuing operation of an educational establishment will continue to apply in relation to further education and higher education institutions but with the express limitation that any regulations that are made under section 8

“may not make provision relating to”

an institution’s

“non-educational functions”.

That will prevent any regulations having an effect on functions of further and higher education institutions that are not connected to the continuing operation of education.

In my response to the committee at stage 1, I committed to

“considering the scope of the regulation making powers”

for further and higher education institutions and to continuing our dialogue with stakeholders. I am grateful to Universities Scotland and Colleges Scotland for their engagement with ministers and officials on the bill, which has allowed us to make progress in that regard.

Throughout the Covid pandemic, we worked in partnership with the sectors and with student accommodation providers, trade unions and student representatives to ensure that appropriate guidance was in place to enable the safe operation of colleges, universities and student accommodation. I can confirm to the committee that, in the event of a future public health emergency, the Government’s preferred approach will be to continue that partnership approach, working with the college and university sectors and other stakeholders, as appropriate, to ensure that effective guidance is in place. We expect that the regulation-making powers in part 2, in so far as they relate to further and higher education institutions and student accommodation providers, would be used only should that partnership approach identify a need for regulatory certainty.

I hope that the amendment reassures members, and the college and university sectors, of our commitment to working in partnership with both sectors in the event of a future public health emergency. On that basis, I encourage the committee to support it.

I move amendment 29.

Amendment 29 agreed to.

Amendments 30 and 31 moved—[John Swinney]—and agreed to.

Amendment 118 moved—[Oliver Mundell].

The Government does not need any legislative encouragement to do that—we are getting on with doing it, and we have already accomplished a significant amount, as I have indicated.

I have slightly more sympathy for the proposal in amendment 142 regarding reporting on readiness for remote learning. However, it assumes that responsibility for implementing remote learning lies with the Scottish ministers. Education authorities have the relevant statutory functions in relation to provision of education, including on contingency planning. I am also concerned that an annual information-gathering exercise would create an additional bureaucratic burden on the education system, distracting operators from their core responsibilities.

As part of the continued recovery from the Covid pandemic, I would be happy to consider an approach that would review the education system’s readiness for future remote learning should that be required. If members are willing to reject amendment 142 today, I will look into that further and return with more detail ahead of stage 3. I would be happy to engage with Mr Mundell on that point.

Amendment 120 would effectively give local authorities a veto over closure of the wide range of educational establishments that are located in their area, including universities, colleges and independent schools. Whether that is the intended effect, the proposal is undesirable in terms of managing a future public health emergency that may require a co-ordinated, national response to protect those in educational establishments or the wider public.

The principle that I would put in place is that any approach in relation to dialogue cannot undermine the clarity of decision making that we require in a pandemic. I am happy to explore the matter, but that is the principle that I would bring to the conversation.

Amendment 143 would place another unacceptable delay on ministers’ ability effectively to respond to an emergency with regulations by placing on ministers a duty to explore alternatives and mitigations and then to report on their consideration through a statement to the Parliament that would accompany the regulations.

Therefore, I cannot support amendments 141 and 143.

I invite the committee to support amendments 36 to 39. I invite Oliver Mundell not to press amendment 112 and I invite him and other members not to press the other amendments in the group.