Chamber and committees

The bill allows us to deal with a public health emergency. I have dealt with the issue of whether it is necessary and whether it is within our human rights obligations. With the greatest respect, we are really getting down into the detail of the bill. Mr Mundell and I must continue to disagree on various education policy issues, but we have the opportunity to ensure that, as a Parliament, we all rise to the occasion and pass a bill that will allow us to pass legislation that any of us could be in government to put into practice. There is an obligation on all of us to ensure that the bill is the best that it can be.

Of course, we take very seriously the discussions with stakeholders, what was in the consultation and, importantly, what is said in evidence to the committee. I have listened carefully and paid close attention to what has been said, particularly on the issues that you raise.

I will make a couple of points on human rights, because it is an exceptionally important issue. It is integral that the Government fulfils its obligations on human rights. I believe that some of the arguments that have been made proceed on the premise that the United Kingdom has somehow suspended, or derogated from, some of its obligations under the ECHR. That premise is inaccurate. There has been no derogation from the ECHR in the context of the coronavirus. It is important that I make that clear.

We will ensure, as we always do with bills that go through Parliament, that we are content with the bill. The Presiding Officer has made a statement to say that, in her view, the bill’s provisions would be within the legislative competence of the Scottish Parliament. That, of course, covers the requirements on human rights.

Any regulations that were made under the legislation, once enacted and its provisions commenced, would have to be compatible with the ECHR. The Scottish Government would have to consider the potential impact of any measures that were included in regulations on the range of convention rights. Any interference with a right under the ECHR would have to be justified in accordance with the Scottish ministers’ human rights obligations. We consider those obligations very carefully.

We will, of course, continue to listen to stakeholders that have concerns about such issues. However, from what I have seen at this time, I am not concerned that there is an issue with the bill and its ability to pass successfully through Parliament and become an act.

Clearly, we listen very carefully to the commissioner’s opinion on any issue. As I said to Mr Marra, the implications of aspects relating to children and young people in the justice system are clearly concerning. Although we pay attention to everything that the commissioner says, urgent discussion is required on how we deal with children and young people in the justice system.

—of it taking days to get regulations through Parliament, and by then—

With the bill, we are taking our time, through non-emergency legislation, to have—quite rightly—the level of parliamentary scrutiny that such an important bill, with such wide-ranging powers, should have. The bill allows, within the education setting, the powers to make regulations—

No—there are individuals and organisations that support the way forward that we are taking with the bill, including the fact that we should have a bill of this type and move forward with the measures that we have proposed.

I fully appreciate the individual concerns of various sectors, and I am sure that we will come on to discuss some of those. At that point, I will be happy to go into why—with the greatest respect for the stakeholders, with whom I work closely—I have a different opinion from theirs.

The Government is trying to prepare for worst-case scenarios, and some stakeholders—not all of them, but you have asked me a general question, so I will give you a general answer, with the caveat that this does not apply to every person who gave evidence or responded to the consultation—based their evidence on best-case scenarios. In a best-case scenario, we might find agreement within sectors about how these things could move forward and that sectors are willing to work as quickly as the Government feels that public health guidance would require.

However, I am afraid that we cannot make legislation on the basis that everything will be fine and that we will get it through in time and lives will not be lost. That is the challenge. I cannot work on the presumption that everything will work just as it did during the coronavirus. I need to work to the worst-case scenario, and unfortunately that means that some of the powers that people may feel uncomfortable with the Government having will be necessary at that time.

There is a continuation of some of the powers that were in place for te coronavirus, but there are some important changes. As I said in my opening statement, we do not have that closure power, and we are looking to keep provisions for continuity of education. The other important change that is being made is a change from direction to regulation. The legislation is certainly different, but it is modelled on what we had previously.

I will bring in my colleague Craig Robertson to answer that question. Of the officials here, he is the one who works closely with higher education.

First, though, let me say that, since I came into post, we have had an exceptionally close relationship with universities. It has been absolutely necessary for the Government to consider how the guidance impacts on universities, and we have listened carefully to them about how guidance can be developed in a consensual way with universities, trade unions and students. We have endeavoured to do that all the way through; indeed, it is always the way in which we want to work. Obviously, there have been, as you would expect, differences of opinion at various points in those discussions, but we have had a good working relationship and I would like that to continue.

You are right to point out that much of what is proposed mirrors the powers in the Coronavirus (Scotland) Act 2020. With the convener’s permission, I will bring in Craig Robertson to provide a little more detail.

I agree with Mr Ewing on that point. As I said in my answers to previous questions, we take very seriously our obligations on human rights and on public health. As Mr Ewing rightly points out, we have obligations to take quick action, where necessary, if the public health advice suggests that that is an appropriate and proportionate thing to do.

It is also important to point to the responses to the public consultation. There was support for this move, for example, among local authorities and the public health sector. The idea that there is a consensus against this move is incorrect. Key organisations that supported the proposals to make the provisions permanent include COSLA, Public Health Scotland, the Health and Social Care Alliance Scotland, and the Scottish Childminding Association.

I absolutely appreciate that there are strong views that the bill is not necessary at this point or that we should be doing things in a different way, but there are people who support the measures that we are taking and the way in which we are taking them.

Mr Ewing rightly points out that one of the absolute obligations of Government is to protect the lives of citizens, and that is exactly what we are doing with the bill as we try to take it through Parliament.

You have made a very important point about the right to life. We have had a number of discussions about that with the committee, and I am sure that wider discussions on the bill will cover human rights aspects, too. As Fergus Ewing also pointed out, the right to life was the obligation that sat extremely heavily—and rightly so—on Government at the start of the coronavirus pandemic. Indeed, that will be particularly the case at the start of any public health emergency.

As I said to Willie Rennie earlier, the Government does not want to push the bill through Parliament, because we want to seek consensus on the legislation and ensure that it is fit for purpose for whatever public health emergency arises in future. We appreciate that a very heavy responsibility to get this legislation right sits on Government and Parliament, so we are keen to work with others to see whether changes could be made to alleviate some concerns.

It is certainly important to recognise that there are those who might not like particular parts of the bill. I suppose that I would point to Universities Scotland, which has concerns around some of the granularity of certain aspects of higher education. In its written evidence, it recognises the case for having emergency powers in the event of another severe new public health crisis; there is a recognition that the Government of the day requires powers to deal with that. It is important that I continue to work with stakeholders, including Universities Scotland, to see what can be done to reassure it and others about the powers that we are taking on at this time.