Chamber and committees

We need them for reasons of public health. In certain circumstances, we might need to take decisions that relate to the prevalence of the virus and its presence in certain scenarios.

The Government and local authorities have a whole range of different emergency powers on the statute book. They were given to us by the Parliament to be exercised only when there is a justification for exercising them. This is no different.

We might face a situation in which we have to act to protect public health. We will continue to rub up against the question of the statute book, and it will affect the longer-term legislation that the Parliament considers. With the benefit of our experience of handling the pandemic, do we consider it necessary to have a range of powers at our disposal that would enable us to deal with scenarios that we might face? That is the question that the Parliament must resolve. As I have said to the Parliament on many occasions, things can happen extraordinarily quickly.

I am offering the justification, convener, to the extent that I will end up repeating myself again and again. I have given the justification that I am going to give.

Fundamentally, those are issues for the Parliament, although I recognise that the Government has a significant contribution to make to that discussion. The Government would therefore engage willingly and positively in that discussion.

I have been a parliamentarian for just short of a quarter of a century, and I have always recognised the importance of effective parliamentary scrutiny of all the business of Government, whether that is in questioning or in respect of regulations or legislation. However, our parliamentary system has been tested by a very serious public health threat that required us to move in this fashion.

In the debate last week, comments were made—I am paraphrasing here—about the fact that the made affirmative procedure had hardly been used at all before 2020 and was then used a bit like number 9 buses: there were something like 130 of those instruments at one time. My simple point about that is that we had not had a pandemic before 2020. The Parliament’s procedures were tested by the need to move quickly and sharply.

Having said that, there are a lot of days between zero and 40 days. To put it rather crudely, if there is a way of getting us closer to zero days that gives the Parliament the opportunity to scrutinise legislation and equally allows the Government to get on with the measures that are necessary to protect public health, the Government would be very happy to engage in a discussion about that.

There is space for that to happen, but the procedure is perhaps difficult to pilot because we all need to know the basis on which we are bringing forward regulations. As things stand, we have the made affirmative procedure, the affirmative procedure and negative instruments. If we are going to consider expedited procedures, I would be very happy to engage in that process.

Thank you, convener, and good morning. I welcome the opportunity to address any points that the committee may have on the two sets of regulations on the agenda.

The Coronavirus Act 2020 (Alteration of Expiry Date) (Scotland) Regulations 2022 will amend the date on which five provisions in the United Kingdom Coronavirus Act 2020 would automatically expire, from 24 March 2022 to 24 September 2022. Changing the expiry date of those powers will ensure that ministers have those powers available if—and only if—their use is needed in relation to coronavirus over the coming months.

Similarly, the Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Amendment Regulations 2022 will amend the date on which the Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020 would automatically expire, from 25 March 2022 to 24 September 2022. Again, changing the expiry date of the regulations will ensure that we keep in place important powers for local authorities to be able to make directions to control local outbreaks of coronavirus.

The Coronavirus Act 2020 (Alteration of Expiry Date) (Scotland) Regulations 2022 were made using the made affirmative procedure. I am aware that that is one of the issues that the committee has raised. I have emphasised previously that the made affirmative procedure is an unusual power granted by the Parliament in situations when action may need to be taken more quickly than the normal affirmative procedure allows for. If that procedure were not available, there would be a risk that necessary measures could not be brought in quickly enough. In this instance, the regulations use the made affirmative procedure because, at the time of laying, our understanding was that that was the only procedure available to us. As the committee is aware, it has since come to our attention that it would, in fact, have been possible to use the affirmative procedure. However, I want to be clear that, even though the made affirmative procedure has been used, we have nevertheless ensured that the Parliament has 40 days for scrutiny of the regulations prior to their coming into force on 24 March 2022, as would have been the case under the affirmative procedure.

The regulations to extend the expiry date of the local authority directions regulations, were laid in draft and follow the affirmative procedure, with an expedited timetable.

Both sets of regulations put back the date on which the key coronavirus provisions would have expired by default. Thus, the regulations protect our ability to put in place any measures that might be considered necessary. We cannot let that ability expire by default, because we might still need such measures.

It is our intention and expectation that we will lift the face-covering requirements and the other remaining baseline measures with effect from 21 March. However, that is dependent on the course of the pandemic between now and then. Even after baseline measures are lifted, Covid will not have gone away and it may have further surprises in store for us. As the strategic framework update states, we cannot rule out the possibility that it might be necessary to impose legal measures once more. Therefore, we must be ready and able to respond effectively, and it is essential that we have the powers to enable us to do so.

In conclusion, both sets of regulations are essential to ensure that the right powers are available to manage Covid in this next phase of the pandemic, should that be required.

I am happy to address any points from the committee.

We are obviously working closely with the long-standing relationships that we have with those countries to play our part responsibly to support the vaccination programmes that are under way there. As a Government, we accept the importance of fulfilling our international obligations to ensure that the whole world is protected from Covid, because only by the whole world being protected from Covid do we have as much assurance and security as it is possible to have. Our co-operation will be to that end.

We have had discussions in this committee and across Parliament on countless occasions, and Mr Rowley has consistently questioned me on the impact on people of non-Covid health harms. Those questions are absolutely legitimate, and I would be the first to acknowledge that waiting lists are larger and longer than they were before the pandemic, but that is a direct result of the pandemic.

No health board in the country wants to put off tackling those waiting lists—they want to get into a position to be able to do so as early as possible. However, we have to be mindful of the presence and prevalence of Covid. Although we have seen a fall in Covid admissions to hospitals in general over the past few weeks, Covid admissions are unfortunately rising again, to our unease, as is the number of people in hospital with Covid.

I assure the committee—this is part of the NHS recovery plan, and it is inherent in the Government’s investment in elective treatment centres—that we are anxious to expand the capacity to enable us to address the very issue that Mr Rowley fairly puts to me, so that members of the public who are suffering with pain and need a hip replacement, for example, can expect to have that treatment within a reasonable timescale.

I contend that that is what the NHS recovery plan does. It focuses entirely on the issue of making up for the treatment that has been lost because of Covid. Each health board is under an obligation, in respect of the plan that it has had to submit to the Cabinet Secretary for Health and Social Care, as to how it is going to go about doing that. We are keen to ensure that we make progress as swiftly and as early as possible on advancing that treatment.

My officials will provide further detail on that, but that is a material issue. An on-going level of testing infrastructure will be involved, and that is the key point that I want to reassure committee members about.

We cannot simply turn off testing, and it would be a mistake to do so. There has to be a mix between measures such as the Office for National Statistics infection survey, which is absolutely critical for intelligence purposes on the prevalence of the virus, and levels of testing that enable us to reliably gather the basic information that enables genomic sequencing to be undertaken so that we can identify any new strains or variants. We will consider that as part of the testing plan.

There has to be a degree of on-going intelligence about the prevalence of the virus in our society to enable judgments to be made about what stage we are at, and more detailed testing will be required to enable us to form a picture of what, if any, new strains are emerging in our society. There are almost two different elements and requirements that are necessary in that process to inform our judgments about the state of the pandemic and for us to be able to contribute to the international effort to identify any new strains or variants, which it is our absolute duty and obligation to participate in. If there had not been good international co-operation with the authorities in South Africa and good testing infrastructure, we would have had less early warning of the omicron variant than we had.

I invite Professor Leitch and Dominic Munro to add anything on the judgments that will be made.