Chamber and committees

That is the subject of a regular process of review, which, ultimately, involves Cabinet decisions and the statements that the First Minister has made to the Parliament on a regular basis. The process involves analytical work that is undertaken within Government to consider a range of perspectives on the state of the pandemic, such as its seriousness and the level of threat to public health. Essentially, that leads to the production of the “Coronavirus (COVID-19): state of the epidemic” report, which is published on a regular basis and is publicly available.

A group at a senior level within the Government considers that report and explores the four harms—which we have described and which committee members will have heard me talk about before—which are the direct Covid health harm, the non-Covid health harm and the social and economic harms that are caused by Covid. That group is populated by the chief advisers to the Government: the chief economist, the chief social policy adviser, the chief medical officer, the chief scientific adviser, the chief educational officer and the chief social worker. All those individuals consider that material and provide advice to the Cabinet, which makes a judgment about whether regulations are proportionate.

That is, ultimately, a judgment to be made. Indeed, the Government made it explicit last Tuesday, in its strategic framework update, that that is, always has been and always will be a judgment. However, ministers recognise—appropriately, given that all our decisions are justiciable—that we must be satisfied that the stance of regulations being proportionate can withstand legal challenge, should that arise. The Government takes such issues very seriously in its deliberations.

It all leads to a set of decisions that are taken by the Cabinet and then reported to the Parliament. Accordingly, any legislative measures that flow from that are brought to the Parliament in the fashion with which the committee will be familiar.

My reading of the Information Commissioner’s communication with the Government indicates that the issues that the Government has to address are about the explanation of the approach that has been taken to information handling, not the information handling itself. The remedial action that the Government has to take is to explain better to members of the public why their information is being handled as it is being handled. The issue is not the means of handling the information.

As to my knowledge of the situation, I became aware of the concerns of the Information Commissioner’s Office on, I think, 28 or 29 September. I would have to verify exactly which day it was, but it was one of those two.

Mr Hoy will be aware of the contents of the Information Commissioner’s letter to us last week. Obviously, the Government will take all necessary steps to ensure that we address those issues, but I stress that they are about the explanation that is given to the public about the basis on which and the way in which information is handled.

During the course of the pandemic, on what I consider was a regular basis, the powers were certainly used in respect of observing the requirements that we expected to be in place in order to maintain public health in the education community. At times, they were used to specify what could and could not happen in schools. At the height of the pandemic, the education continuity directions were used to specify that, for example, children of key workers could be educated or supported in schools, whereas other children could not be. At times, the powers were also used to specify our expectations about educational provision.

The powers certainly have been used over the course of the pandemic. On the question whether they will need to be used in the foreseeable future, I point out that they can be used only when there is a public health imperative that enables them to be used. Their existence and significance relate to the fact that, in my view, we must have a statute book that enables us to address the circumstances as we face them.

In essence, it would be to provide the capacity to deal with outbreak management. That is the most appropriate way to express it. Back in 2020, during the development of the pandemic, we saw certain outbreaks fuelling the spread of the virus. During that early part, we tried to isolate those outbreaks as much as we possibly could. Some of them were in workplaces, some were in venues and some were in localities. We tried to take measures that would insulate the rest of the country from those outbreaks, to avoid the virus spreading through the community. Local authority powers and actions in the work that we do with environmental health officers, for example, are critical to enabling that.

We will come back repeatedly to the point about whether the statute book should be equipped to help us to manage a situation that we might have to manage. If we take the argument that has been put to me, which is that we should act only on the basis of precedent, we will never change the statute book on Covid, because we have never experienced anything of the magnitude of Covid.

I have to make a lot of judgments on the merits of particular stances. Having heard about the issues that were on the minds of the Information Commissioner’s team, and given the necessity of ensuring that we had in place an accessible Covid certification scheme for members of the public—I remind Mr Hoy that that was important for not just domestic but international certification—I judged that the appropriate course of action was to launch the app when we launched it, as we had indicated would be the case.

I completely understand why people want to move on from Covid. I am not sure whether I have made this point to the committee before—I might have done; it is difficult to remember not only what day of the week it is, but where you have said particular things—and I cannot remember the date, but it was on a Tuesday in late November that we generally came to the view that things were quite benign. We thought that we were looking forward to a fairly stable Christmas and that things were on the up.

On the Thursday afternoon, Michael Matheson was requested to join a call with UK Government ministers and colleagues in the other devolved Governments to consider placing restrictions on travel to southern African countries because of omicron, and we then received briefings on its spread and transmissibility. Within 48 hours, we had gone from viewing things as benign and thinking that we would have a stable approach to Christmas to having to contemplate measures necessary to prevent transmissibility of what I would say, in retrospect and looking in the rear-view mirror, was an outbreak of Covid that came the closest to overtopping our national health service. All the stuff up to November had been challenging, but it did not come as close to overtopping the NHS as omicron did, and the reason why it came so close was the degree of transmissibility, the volume of infection, the number of hospitalisations and the impact on staff availability. We had not faced that combination with previous variants.

I say that to the committee simply in the hope that we have six benign months ahead of us in relation to Covid. However, I cannot sit here and say that with certainty, and I am trying to put in place the statutory arrangements to ensure that the Government can act fast.

There will be a public inquiry into the handling of Covid, and one of the first issues that Lady Poole will consider is the preparations for the pandemic. I constantly have to make judgments on how prepared we are as, a Government and as a country, for certain eventualities. That is my ultimate responsibility with regard to resilience. As a result, the legislation that is brought to the committee and to the Parliament on this matter is about ensuring that we have the necessary preparations in place to deal with the situation that we might face. I hope that it will not happen, but the legislation will be there to be implemented.

No, I mean generally—in life. We have plenty of powers that we can use in emergency situations, but, when it came to the handling of a pandemic of this nature, we found out the hard way that the statute book was not equipped to handle such things. I am now trying to remedy that.

The Parliament will have the opportunity to accept or reject the regulations, and, under the legislation that I am introducing, the Parliament will also have the opportunity to consider whether it is proportionate and appropriate to ensure that our statute book contains these provisions. That is not to say that the powers are being exercised every day of the week, because they are not. There has to be particular justification for their use. The Parliament has to consider whether the powers should be there to be used if they are required.

That would not be our intention. The committee will know that the Government has introduced primary legislation that aims to ensure that the statute book is equipped to deal with the uncertainties that we might have to face on an on-going basis. That is a separate issue, which will be the subject of detailed and familiar parliamentary scrutiny.

The whole point of extending the expiry date of the act through the instrument that is before the committee is to enable the Government to respond to the emerging situation that we face. I have previously been clear with the Parliament that we hope that we will not have to face those situations, but the statute book has to be equipped, should they arise.