Chamber and committees

Will Mr Fraser set out what he would consider to be practicable in his consultation exercise? I would contend that there was extensive consultation with a myriad of organisations. What was difficult to secure was unanimity, which I think is the point that Mr Fraser is getting at.

The licensing board is subject to statutory requirements but is in control of its own proceedings. As a consequence of the provisions that are proposed in the amendments, licensing boards or authorities must consider any representations made to them but are not obliged to accept them. Mr Rowley will be familiar with legislative terms; language matters, which is a point that I have made in the course of today’s proceedings. Expressions such as “must take into account” or “must have regard to” are different from “must accept”. The licensing board or authority is required to consider the opinions and views expressed by participants, but is not obliged to accept those views.

Should the amendments be accepted, Mr Rowley would be free to return to the provisions at a later stage in proceedings, if there was a desire to strengthen them. I am willing to engage in dialogue on that question.

The amendments respond directly to the recommendation in the committee’s stage 1 report that amendments should make it explicit that those entitled to participate in licensing hearings and meetings are able to be involved in the process of decision making on the format of meetings. Following the stage 1 report, we have undertaken engagement with licensing stakeholders in relation to the decision-making process around the format of licensing hearings and meetings. The policy contained in the amendments reflects that engagement and codifies current good practice

The amendments ensure that licensing boards and licensing authorities retain flexibility and discretion to decide the format of licensing hearings and meetings as part of their overall responsibilities, but must ensure that any views expressed by participants are taken into account.

Ensuring that the licensing board or licensing authority retains overall discretion is important for two key reasons. First, licensing boards and licensing authorities have to ensure that licensing hearings and meetings are fair for all parties involved, not just one party; failure to do so may result in licensing decisions being appealed. Secondly, licensing boards and licensing authorities have to be mindful of the statutory timescales for determining a licence application. Because some larger licensing boards may hear 25 or more cases at a meeting, ensuring that the decision to be made on meeting or hearing format sits with the licensing board or licensing authority is important in allowing for the effective operation of the licensing system.

The amendments that I have lodged are a pragmatic and proportionate response to the committee’s recommendation and balance the goal of public participation alongside the need to be mindful of the responsibilities of licensing boards and authorities.

Members will recall that the preceding group included amendments that were intended to minimise digital exclusion risks. I acknowledge that the committee’s stage 1 report posited wider cross-cutting amendments requiring public authorities to preserve the option of in-person or paper-based services. As the Government committed to do in the stage 1 response, we have considered whether any further amendments to other aspects of the bill might be brought forward and I can confirm that we have concluded that none is needed beyond those in this and the preceding group. We are satisfied that, across the bill as it is now proposed to be amended, the potential for digital exclusion has been minimised.

I invite the committee to support the amendments on the licensing context.

I move amendment 60.

I understand the dilemma, and I know that the Church of Scotland has made representations to the Government about that point. There are further discussions to be had with it on those particular arrangements. I understand the context that the Church of Scotland sets out, but options for resolving those questions are available to aid churches.

I accept that those options are not guaranteed, because a tribunal has the ability to come to a judgment. Earlier, I made the point that a tribunal considers all the facts and must do what is reasonable in the particular circumstances of each case. I do not wish to draft the outcome of a tribunal judgment, but I would think that a church appointing a minister after a period of vacancy and therefore requiring the accommodation to house that minister is a reasonable set of circumstances to put to a tribunal, should that be required. The overwhelming majority of eviction cases do not go anywhere near a tribunal; they are resolved outwith the precincts of a tribunal.

There is an extensive amount of material in the group of amendments, so I have quite a lot to say. I will try to minimise what I have to say on later amendments.

The overarching amendment in the group is amendment 23. Alongside amendments 38 and 39 in group 2, it will strengthen parliamentary safeguards in the bill by introducing the gateway vote mechanism that was announced in the stage 1 debate.

I will repeat the key points that I set out in that debate. There is a clear and compelling argument for ministers to have public health protection powers in the bill. Action by ministers must be grounded in evidence, and Parliament must be involved in decision making more effectively than was originally proposed in the bill.

Amendment 23 proposes adding new sections 86AA and 86AB to the Public Health etc (Scotland) Act 2008. That would mean that key aspects of the public health protection power could have effect only after a parliamentary vote on, and approval of, a formal Government declaration. To ensure that Government action is grounded in evidence, such a declaration would be informed by the advice of the chief medical officer or another designated person.

The key aspects of the power could be exercised only while the approved declaration remained in place. Conversely, were ministers to revoke the declaration, those same aspects could not be used without a further declaration. A public health declaration’s coming into force would not require the Scottish ministers to make regulations; it would simply open up the potential for them to do so if the other tests for making regulations in the bill were met.

As I signalled in the stage 1 debate, provision is made for circumstances in which Parliament cannot meet to approve a declaration—for example, when it has been dissolved in a pre-election period. For clarity, I point out that weekends, public holidays and periods of recess would not ordinarily fall into that category. It would usually be practicable in those circumstances to seek a recall of Parliament in sufficient time for the necessary public health response to be put in place.

As I also signalled in the stage 1 debate, amendment 23 excludes standing preparedness measures that would be intended to strengthen the public health resilience framework. They would be subject to parliamentary safeguards and could not objectively be described as “emergency measures”.

By agreeing to amendment 23, the committee would preserve the ability for swift and effective action to be taken to respond to a public health threat, balanced with proper parliamentary scrutiny. Parliament can enact the bill’s public health protection powers with the confidence that, in the event of a future public health threat, lockdown and other emergency response measures could be imposed only if Parliament approves a declaration.

In speaking to amendments 25, 26 and 27, I am mindful of the significant concerns regarding the ability for regulations that are made under the power in proposed new section 86A(1) to amend primary legislation—the so-called Henry VIII power—and of the recommendations that the committee made at stage 1. Amendments 25 to 27 are designed to strengthen parliamentary scrutiny. If the amendments are agreed to, regulations that are made under proposed new section 86A(1) that would modify primary legislation could be made only using the draft affirmative procedure. That means that primary legislation could not be amended by proposed new section 86A regulations that are made using the made affirmative procedure, and that Parliament would always have the fullest opportunity for scrutiny.

I hope that that reassures members that the Government has acted on the concerns about the scope of the power, and that Parliament’s role in scrutinising regulations that would amend primary legislation has been secured.

I acknowledge that some members wish us to go further. Alex Rowley’s amendment 1 would entirely remove the ability to amend enactments. I believe that it is necessary to include the provisions that I have set out in the restricted form that amendments 26 and 27 would deliver. First, I reiterate that it is intended that the power would be used only for existing legislation that, without modification, would cause confusion—for example, where provisions in public health regulations conflicted with other primary legislation or lessened the effectiveness of a public health response.

Secondly, the public health provisions in the bill are rightly informed by our experiences of the pandemic, which demonstrated that measures that will be needed are not always foreseeable and that speed can be vital. As an example, I point out that the 2008 act requires health boards to pay compensation to individuals who are asked to isolate. Earlier this year, expedited primary legislation was required to ensure that boards were not overwhelmed by that duty when isolation was related to coronavirus. Using primary legislation was practical at that time, but it might not always be. Although I hope that the power will never be used or needed, it is prudent to ensure that it is available if necessary.

Thirdly, as I outlined to the committee in April, the provision in proposed new section 86F(2)(d) of the 2008 act is part of the wider power in proposed new section 86A, which contains important safeguards and thresholds. Those have been extensively documented. In particular, the power could be used only as part of a response to a public health threat that

“presents or could present significant harm to human health”.

Amendments 25 to 27 will also add the safeguard of parliamentary scrutiny before any changes to primary legislation can take effect.

My final point is that the power, although it is significant, is not without precedent.

The lessons of the pandemic have convinced us of the need to be able to amend other legislation, even though equivalent provision is not part of the English and Welsh model. I hope that the committee will acknowledge that our experience of the pandemic has led us to diverge from England and Wales in other areas, and that therefore the case is made on the matter.

In a later group, I will speak to amendment 67, which relates to commencement. However, for the present, I will set out why I do not support amendments 8 and 9. In general, my reason for opposing any delay to public health provisions is that the Covid pandemic clearly highlighted a gap in our legislative framework in respect of responding to significant public health threats. We had to rely on emergency United Kingdom legislation to provide Scottish ministers with powers to control the virus’s spread.

It would be ill-advised to delay closing a gap that we have already identified. Recent experiences of unusual presentations of hepatitis in children and the monkeypox outbreak are irrefutable evidence that public health threats can emerge with very little warning. The Government would be rightly criticised were another threat to emerge and we had once again to resort to emergency legislation. Moreover, the powers will merely align us with England and Wales, which have had the powers for over a decade.

On the specific content of amendment 8, first, there has already been a 12-week consultation on the bill, in addition to the usual evidence gathering by committees. Appropriate impact assessments were also carried out in line with standard parliamentary process. Indeed, that is one of the strengths of having the powers on a permanent basis, rather than relying on emergency legislation for future threats.

Secondly, section 1 provides a general power to make regulations; it does not impose restrictions or requirements. Therefore, consultation would yield very little about the impact of the power that has not been found in the already extensive consultation period.

Thirdly, the groups that are set out for consultation mirror the groups that have been significantly affected by Covid restrictions, but those might not be the groups that would be most impacted by future responses. As the Government has stressed from the outset, one public health threat might be very different from another; so, too, might the measures that are needed in order to respond be different.

For those reasons, consultation should be determined by the content of regulations as and when they are laid. Section 122 of the 2008 act already specifies that, where practicable, consultation should be carried out with affected persons. That requirement would apply to any regulations that are made under proposed new section 86A.

With regard to amendment 9, there are lessons to be learned from the Covid response, and the inquiry is an important part of that process. Following its conclusion, there might be recommendations for other legislative changes but, as I have noted, we have already identified a clear gap and should move quickly to address it. Additionally, amendment 9 would go considerably further by delaying commencement of all the public health measures in the bill.

Although I recognise that section 1 has been a source of concern, other matters in part 1, such as monitoring provisions, provisions to ensure that the regime governing potential travelling restrictions is consistent, and provisions to expand the range of individuals who can deliver vaccines, have been well received or are uncontroversial.

With regard to amendment 4, I understand Mr Whittle’s perspective. Before placing restrictions and requirements on people and business, gathering supporting evidence is crucial. However, there are very good reasons for the fact that we have not explicitly in the bill required chief medical officer advice in relation to making regulations under the public health protection powers.

The chief medical officer might not always be the person who is best placed to make a determination as to the threat and might, in exceptional circumstances, be unavailable to make such a determination. For example, in the event of a chemical agent attack, the most appropriate person could be the chief scientific adviser. Amendment 4 does not allow for substitutions.

On more substantive grounds, it is precisely because of the potentially significant impacts of public health regulations that, with advice from relevant authorities, ministers should take the decisions to lay regulations, and nothing should detract from that ultimate responsibility.

The purpose of amendments 60 to 63 is to ensure that any views that participants at a licensing hearing or meeting may offer with regard to the appropriate format for the hearing or meeting must be taken into account by a licensing board or licensing authority, prior to finalising its decision on the format. That applies to anyone who notifies the authority of their intention to participate, such as the licence holder or an objector.

There may well be an argument for further dialogue. However, one of the points that Mr Whittle made to me earlier is the importance of knowing where clear decision making can be undertaken so that we all know where we stand. My view—this is also my experience of the past couple of years—is that that is critical, particularly in a public health emergency.

Amendment 121 and its more general alternative amendment 131 require ministers to establish an educational advisory council after making regulations and to seek its views. I have sympathy with the intent behind the amendments to secure in statute a consultative mechanism for education stakeholders for the duration of a public health emergency.

I respect the role and responsibilities of local government in these matters, which it has highlighted to the committee in its support for amendment 121. As the committee knows, the Government worked very closely throughout the pandemic with the Covid-19 education recovery group and would expect to use similar arrangements in future. I do not think that the composition of the amendments is appropriate today, but I would be willing to explore the issue further with a view to lodging an amendment at stage 3 that delivers a consultative mechanism in a more practicable way.

Amendments 122 and 133 would prevent regulations from swiftly addressing a public health emergency, and would result in a 48-hour delay between regulations requiring school closures being made and coming into force, or a seven-day delay before compliance with regulations could be enforced.

Amendment 123 requires that all regulations are accompanied by a statement on ministers’ policy for continuity of educational provision. That is unnecessary, because any regulations would be expected to include provision relating to ensuring continuity of educational provision and to be accompanied by guidance that would explain their purpose and how they support the continuity of education.

Amendment 124 places a requirement on ministers to direct that weekly contact between children and young people and the educational establishment that they normally attend be facilitated during a period of closure. It is not clear who ministers would direct and what the consequences of non-compliance with such a direction would be. The amendment also does not differentiate between the stages of education that children or young people are in, and is not limited to term time. It would be better to make clear in guidance or in regulations that such contact should be facilitated and give operators appropriate flexibility for different stages of education or needs and to cover all users—for example, students.

Amendments 125 and 126—[Interruption.] I am sorry; I will make progress, convener.

Amendments 125 and 126 would provide discretion despite regulations closing an educational establishment for an operator to conclude that a young person would be best supported by opening the establishment or for a parent to request that their child attend the establishment in person. Apart from the lack of clarity on which age groups of child or young person each provision would apply to, and whether they would apply to all types of educational establishments, the amendments would appear to undermine a national approach to restrictions on establishments where those were necessary and proportionate, according to the tests in the bill.

In practice, it is likely that limited continued in-person provision might continue during a general restriction—for example, to support vulnerable children or the children of key workers, or for students and boarding school pupils who are unable to return home for good reason. An operator’s legal duties towards their learners, pupils and students would continue alongside any requirements that are made in regulations. It is not helpful to provide further discretion to deviate from restrictions that have been put in place following all the tests established in the bill, and would undermine tackling the public health emergency. I therefore encourage the committee not to support amendments 125 and 126.

Amendment 128 is, in my view, unworkable. It is for the Scottish ministers to make regulations in relation to student accommodation that they consider necessary and proportionate in view of CMO advice. That cannot be wholly contingent on the actions or views of relevant managers of student accommodation who will be required to comply with such regulations. However, the regulations themselves can make provision to ensure that students are to be provided with necessary support.

Throughout the Covid pandemic, we worked in partnership with stakeholders including colleges, universities and student representatives to provide guidance for the safe operation of student accommodation and support of students staying in student accommodation. That would be our preferred approach in any future public health emergency. The Government will also work with stakeholders to explore what possible guidance would look like in advance of any future public health emergency.

Amendment 132 would put in statute a requirement on ministers to seek voluntary arrangements with education providers before making any regulations under sections 8, 9 or 10, and would be unworkable. It would significantly delay bringing forward any regulations, and would be undeliverable if even a small number of operators were unwilling to observe a voluntary arrangement.

Where appropriate, ministers would expect to use voluntary arrangements. During the Covid pandemic, it was on that basis that advice and guidance, rather than directions, were given to all operators other than education authorities. However, a requirement to agree that with all operators before using the powers would not be workable. In some circumstances, statutory arrangements will remain the only and most appropriate option to provide legal certainty.

Amendments 138 and 139 would add an additional requirement to review any regulations within seven days of a new member of the Scottish Government or junior minister assuming responsibility for the regulations. Such an approach does not properly reflect the principle of collective responsibility that is enshrined in the Scotland Act 1998 and reflected in the Scottish ministerial code, so I cannot support those amendments.

The proposed approach also seems unnecessary, given that regulations under part 2 will be made for a specific period and ministers will be required to review them every 21 days. An earlier review and, if appropriate, urgent revocation of regulations, as is provided for in amendment 37, will be possible at any time.

Amendment 141, on relevant authorities using their professional judgment, is drafted in unclear terms that would, unhelpfully, add doubt about duties under the bill. It could be read as giving relevant authorities significant scope to make different decisions from their establishments, despite national advice, guidance or regulations. There is already scope for deviation from guidance and advice where necessary. For example, a relevant authority will continue to have other legal responsibilities and will be expected to balance its different duties.

I accept the spirit behind amendment 141, which is that central Government should respect the professional judgment and knowledge of the people who are responsible for education establishments. Nothing in this bill is intended to undermine that. Government’s actions must be reasonable at all times. However, amendment 141 would not add clarity for operators on the action that they needed to take and would hinder the bill’s purpose of providing the basis for swift and decisive national action to tackle a public health emergency.

I am pleased—but not surprised—to hear that Jackie Baillie had a constructive meeting with Lady Poole, and I very much welcome her reflection that what she took from that conversation is the importance that Lady Poole attaches to hearing the voices of people who have been affected. That was the feeling that I got in my conversations with Lady Poole. I hope that the mechanisms that she is developing to enable that to be the case will help to assist with the process of healing, of which the inquiry must be part.

Jackie Baillie asked about the supply of information. The Government will comply fully with all requests for information from Lady Poole and the inquiry. We have started to do that already—we have had some requests, to which we have responded, and more requests will come in. We will reply to the fullest extent that we can.

We will have to wait for the conclusions that come from Lady Poole’s inquiry but, once that material is available, the Government is committed to considering and assessing it, building it into our Covid recovery strategy and looking at other approaches that we can take, especially in the resilience planning space. We want to ensure that, if there are steps that it is recommended that we take in order to be equipped to deal with any future pandemics, we can assess those recommendations thoroughly and properly and apply them where it is appropriate for us to do so.

There are a number of complex issues in there and I may have to follow up my answer with the letter to give Mr Fraser absolute clarity. I can say that there will be no question of the Government signing off Lady Poole’s report and that it would be completely inappropriate for that to be the case. Whatever report is produced by the inquiry will be the work and conclusions of Lady Poole, and the Government will have no prior sign-off on the detail of that.

On the issue of redaction, certain legal and general data protection regulation issues may have to be considered. We will, of course, explain that to Lady Poole in the submission of evidence to her. For example, I can envisage a situation in which certain advice might be offered openly and in its full form to Lady Poole by the Government, but in which we might say to her that there might be legal or GDPR considerations regarding referring to or publishing that advice.

I will reflect on the response that I have given to Mr Fraser and, if I need to write to him to set that out in more detail or more specifically, I will do so. I think that that is the fairest way to respond to his question.

The best way to answer that question is to refer to the quote from Lady Poole that I read out:

“The Terms of Reference do not attempt to present a definitive list of every issue or every person that the inquiry will consider. Instead, they specify areas of investigation, and the Inquiry will interpret them with flexibility to ensure particular groups or themes are not excluded.”

I encourage members to reflect that the inquiry’s terms of reference have been written to be broad but that they should not be looked at as a checklist. The fact that a particular term is not in them does not mean that it is off limits to the inquiry. I hope that that reassures Tess White that the intention behind the writing of the terms of reference has been to keep the inquiry as broad as possible.