Chamber and committees

I encourage Alex Cole-Hamilton to listen to the arguments that I will develop during this opening speech, but I do not accept that there is material that we do not need to legislate for to enable us to prepare for future pandemics, because we can foresee a lot of what will emerge in that respect.

I and my ministerial colleagues have read with interest the recommendations that are contained in the various committees’ stage 1 reports. Although there are some recommendations that we are not persuaded are necessary, there are places where we agree that change may be needed, and we are now actively considering appropriate amendments at stage 2.

The Delegated Powers and Law Reform Committee’s report recommended that an explanation of the requirement for urgency be added when the made affirmative procedure is to be used for powers that are taken in the bill. I agree that it is appropriate to explain why regulations require to be made urgently, so the Government will lodge an amendment to that effect at stage 2. I can also confirm that my officials are working with parliamentary counterparts to develop a protocol for an expedited draft affirmative procedure, to be used in appropriate cases.

In relation to the proposed powers to modify primary legislation through future public health protection regulations—the so-called Henry VIII powers—I remain of the view that those powers are appropriate and that their use is already subject to significant safeguards. However, having considered the views of members, we will lodge amendments at stage 2 to add the further restriction that the powers will be available only when ministers make regulations under the draft affirmative procedure. That would mean that parliamentary approval would have to be in place before any modification to primary legislation took place.

I hope that Mr Greene will forgive me, but I have a lot of material to put on the record.

The second point that I recognise is the need for future action by ministers to be grounded in evidence. Throughout the Covid pandemic, decision making was guided by the advice of our chief medical officer and other advisers, as members saw most recently when key scientific evidence concerning the potential impacts of the omicron variant was provided to the Parliament in December.

Thirdly, I have acknowledged that there is a need to involve Parliament in decision making more effectively than was originally proposed. The need for swift and effective action in the event of a future public health threat must be balanced by proper parliamentary scrutiny.

Drawing those three points together, I consider that the most appropriate approach is to enact the necessary legislative framework now but to insert a mechanism that requires Parliament to authorise the use of such powers in a specific circumstance. We need the ability to co-ordinate a national public health response that could supplement local action that is already possible under existing public health legislation, and we also need adequate parliamentary oversight.

To ensure that the necessary parliamentary oversight is in place, the Government will lodge amendments to introduce a gateway vote mechanism, which would mean that key aspects of the public health protection and educational continuity powers would have effect only if a parliamentary vote on a formal Government declaration was held and the declaration approved. That would allow the Parliament to enact these powers with the confidence that lockdown, school closure and other emergency response measures could be imposed only in the event of a future public health threat—and in an emergency situation—if the Parliament has so authorised.

I do not consider that the standing preparedness measures would be subject to the gateway control, because they would be resilience preparations that would be the subject of regulations under the draft affirmative procedure and would be approved by Parliament before they were enacted. They cannot objectively be described as emergency measures. That capability is an important measure in our response toolkit. The powers to make such measures have not been available in Scotland as they have been in England and Wales, and the bill already sets out sufficient safeguards for their use, including, of course, parliamentary approval under the draft affirmative procedure.

Consideration will also need to be given to exceptional circumstances in which Parliament cannot meet—for example, when it has been dissolved in the pre-election period. I will provide members with more details at stage 2, for scrutiny at that point. Building on the practices with which we have become familiar through the Covid pandemic and the need that I have identified for an appropriate evidence base, the Government declaration underpinning those issues would rely on the advice of the chief medical officer.

I hope that the amendments that I have announced this afternoon, together with the further points that were made in the stage 1 report in relation to the Henry VIII powers and the introduction of a gateway provision, demonstrate the Government’s willingness to listen to Parliament as we bring forward necessary measures that are required to ensure that we have adequate protection in place for a future pandemic, but which—crucially—pay respect to and observe the importance of parliamentary accountability.

I move,

That the Parliament agrees to the general principles of the Coronavirus (Recovery and Reform) (Scotland) Bill.

Will the member take an intervention?

I welcome the opportunity to open the debate on the general principles of the Coronavirus (Recovery and Reform) (Scotland) Bill, and I thank committees of Parliament for their careful consideration of the bill’s provisions.

With the benefit of hindsight, I think that we can all agree that our statute book was not sufficient to deal with the circumstances that we faced in March 2020. Members will recall that we required two pieces of emergency legislation in a matter of days, to provide the legislative ability to handle the pandemic.

If it is passed, the bill will put in place legislation that we consider to be necessary, proportionate and appropriate to ensure that we can respond in the future, when the circumstances require it.

The measures in the bill fall into three broad categories: powers to counter future public health threats; the embedding of practical public service reforms that have demonstrated their value, irrespective of the public health position; and extended temporary measures to help to manage the impact of Covid, specifically on the Scottish justice system. The latter two categories have largely been endorsed in the scrutiny to date, but the first has generated significant difference of opinion, and my speech will focus mostly on that issue.

For the most part, the measures in the bill across all categories already exist in temporary legislation, but they will expire in September. The bill updates and equips the statute book in sensible and appropriate ways, based on lessons that have been learned from the pandemic. The measures were consulted on as a coherent package in a full 12-week public consultation that took place between August and November last year, and the measures in the bill collectively support the Government’s Covid recovery strategy and the recently updated Covid strategic framework.

I am pleased that the lead committee, having had regard to the other scrutiny committees’ reports, has endorsed the general principles of the bill and has recognised that it is appropriate to equip the statute book with powers to counter future public health threats.

It is my view that they do exist but that they require to be put in place with the necessary safeguards, which is what I am addressing today. If Mr Fraser thinks that I have already given ground, I encourage him to wait patiently for what is to come.

I will take some time to address a proposal that was developed in stage 1 scrutiny: that some key powers should be taken out of the bill and held in reserve or kept on the shelf for emergency enactment at a future point. I acknowledge the concerns behind that proposal and accept that the provisions in the bill as introduced did not strike the right balance between the legislative framework that we need and the necessary level of parliamentary oversight. There are three points to consider in that respect.

The first is that there remains a clear and compelling argument for ministers to have the public health protection and educational continuity powers that are in parts 1 and 2 of the bill. The statute book is currently not complete, and legislative action is required now. The public health protection powers would allow ministers not only to make regulations in a time of emergency, such as—in the most extreme circumstances—to impose a national lockdown, as we had to do to combat Covid, but to make regulations in what we might call “peacetime”, to prepare for future threats. That was my point to Mr Cole-Hamilton. I am thinking here of standing preparedness measures such as those that have been in place in England and Wales since 2010.

I am grateful to Mr Fraser for giving way. Does he not accept the argument that I have made to the committee that there are deficiencies in the legislation on the statute book in Scotland, and that the way to solve that is to legislate in order to address some of the issues that have been addressed in England and Wales, where the authorities are able to better prepare for pandemics in the future? Surely we need to consider that important issue with open minds in the legislative process.

That number has moved from being one in 11 people at its most acute, which is a significant relaxation. Waste water sampling is showing a decline in the prevalence of the virus.

The number of patients in hospital with Covid is now sitting at about 1,500.

I was going to say 26. We are just about there.

To have 1,500 patients in hospital with Covid is still quite a sizeable number, but a great deal better than when it was in excess of 2,400, which is where we were just a few weeks ago. We are seeing the number steadily coming down, which marks the decline in the prevalence of the omicron variant.

All those costs will be met within the assessment of the health budget that we undertake in Scotland. That number, of course, is constructed significantly by funding decisions that are taken by the United Kingdom Government about health provision in England, for which we receive consequentials. Although the total budget position will be informed and framed by funding decisions in the rest of the United Kingdom, we are, of course, free to take our decisions about how significant that programme is.

The committee will be aware that our decisions will be significantly framed by decisions in the rest of the UK because we have other health issues with which we have to wrestle. Mr Whittle is not here but he persistently presses me—understandably—about the need to ensure that other health conditions and circumstances are addressed. We cannot just ignore those issues as we take our decisions.

I do not have the number for the allocated budget for lateral flow testing in the front of my mind but it will be somewhere in my papers and, if I get to it in the course of the meeting, I will share it with the committee. If not, I shall write to the committee to inform it of the number.