Chamber and committees

That reflects evidence that SCOSS has given to committees, in which it has—I do not know whether “complained” is the right word—raised concerns about the notice periods that it gets from Government and the time that it has to report on regulations. The provisions reflect some of SCOSS’s early work that suggests that a greater lead-in time is needed.

However, we have been careful to include a provision that says that, when any regulation that is made by the Government is considered to be urgent, the responsibility to consult or timescales will be waived. The bill reflects issues with working practice that SCOSS raised but still gives the flexibility to be, as you say, fleet of foot if the Government feels that regulations need to be introduced urgently.

I do not know what the UK Labour manifesto will contain. All that I can say is that, in the devolution to Scotland of that entitlement, I want a much stronger advisory council, with its own research power, to be in place to make that argument.

As you said, changes at a UK level would lead to consequentials. However, the Scottish Fiscal Commission has projected that the budget for that entitlement is due to fall, which creates headroom in the budget that has been transferred. There is capacity to make changes specifically on entitlement. However, to focus purely on the Scottish Government and Scottish Parliament aspects of that, I hope that the new council would have a better relationship to start with and that its greater powers to commission research independently would make a difference.

Absolutely. That is why schedule 3 of the bill links to the Gender Representation on Public Boards (Scotland) Act 2018. That would achieve the gender balance requirements that are crucially important to starting the work on addressing the failures of the current system when it comes to women.

Yes, I saw the comments from Sally Witcher last week. She welcomed the proposal and caveated that with her thinking on whether the timing was right.

For me, there are two aspects to the council. There is the council being there in advance and being able to advise the Government on the creation of the entitlement, and there is the further role that it would have in scrutinising regulations that the Government brings forward and commissioning research into emerging illnesses and injuries.

With regard to employment injury assistance, I think that the membership criteria that I have set out in the proposed bill cover what that would look like.

The cabinet secretary’s commitment to creating an advisory group is a welcome development and a step in the right direction, but that is simply a group that will make recommendations, which we have had in the past. We previously had the disability and carers benefits expert advisory group, which was set up and then disbanded before its recommendations had been implemented. DACBEAG was a working group that was set up to advise on employment injury assistance, among other benefits. It recommended that the council be set up, but that recommendation was never accepted or advanced before the group was disbanded.

I am concerned, therefore, that, although a working group is a step in the right direction, it is not set up in statute. The group can be disbanded just as easily as it was set up, and the membership criteria are not set out in primary legislation, so it is not as defined as Parliament might like it to be. It would potentially not be gender balanced. There is a whole range of questions about what that working group may or may not look like on which we, as a Parliament, do not have clarity. Crucially, it would not be protected—it would not be independent of Government or set up by statute, and it could be disbanded as easily as it was created.

We were really careful about reserved and devolved issues. I absolutely would not want the legislation, if the bill was passed, to go to the Supreme Court—I do not plan on going there in my lifetime. Therefore, I was careful to make sure that the bill did not stray into the territory of the preventative role, which is reserved and is with the Health and Safety Executive.

That said, the work that the council would do would have a preventative role in itself. The research that it would commission would fill the current data gaps in Scotland, and filling data and knowledge gaps and improving awareness and education would have a preventative role. The council would be mandated to have at least one public meeting every year, at which it would publicise its work and improve education on the issues, which would improve prevention.

If the council made recommendations that were accepted by Government and that increased entitlement, given that the budget for employment injury assistance will be demand led, I imagine that, if the Government saw that demand-led budget creeping up, it would look into the issue to see why and would probably take preventative action of its own.

Although the council would not have any direct impact on preventative work, because of the issues around reservation that you mentioned, a lot of its work would, in itself, lead to greater prevention of illness and injury in the workplace.

It would depend on what research the council was carrying out. It could be looking at existing research on, say, cancers in firefighters, on which the Fire Brigades Union has already commissioned a strong body of research. For that particular work, the council could rely on existing research, and the figure would more than cover the costs of interrogating it. I go back to my earlier point that the council would set its own research and work plan independently and would negotiate on that basis with the Government as to what it felt that its costs in a particular year would be.

The member will know from the vote that we had in Parliament in November that there is no disagreement between me and him on devolving employment law, but we are looking specifically at the bill.

There is a specific provision in the bill that gives the council the power to work with other bodies—including the HSE—as it sees fit. Although the HSE has not given oral evidence, it said in its written evidence that it regularly works with the Scottish Government and with other public bodies in Scotland, so it seems that it would be capable of working with the new council and would be willing to do so.

The HSE has observer status on IIAC. It would be open to members to propose an amendment at stage 2 that would mean that HSE would have observer status on SEIAC, too. We could look at that, but the bill already includes a power for the new council to work with others, including the HSE. However, the council would not have a preventative role in and of itself, because of the restrictions to do with reservations.

Anyone could make recommendations, but whether it would be within the council’s power to do so is a different matter. I would argue that I have been very clear about staying within the bounds of the devolution settlement; I do not want the bill’s provisions to end up before the Supreme Court. We have focused mainly on the powers that are within the competence of the Scottish Parliament. That is not to say that we do not agree on the need for further devolution, which could lead to greater enhancements to health and safety at work. However, I am operating within the constraints that the Presiding Officer and the Parliament have set for me on drafting this piece of legislation.

A whole range of occupations have been ignored. The Fire Brigades Union has presented really strong evidence of firefighters suffering from cancers at much earlier ages than the rest of the population because they are being exposed to contaminants. There is clear evidence that shift workers, particularly female shift workers, have a higher incidence of breast cancer and other cancers. There is a strong campaign, which is supported across the parties, on footballers with head injuries. The current system completely ignores a range of workers who have been affected by asbestos, and there is a strange rule that people need to have worked with asbestos itself, which ignores those who worked every day in buildings with asbestos and those who have handled overalls that were covered in asbestos dust.

A whole swathe of workers who have become ill, been injured or died as a result of just going to their work has been completely ignored for the past 50 or 60 years. The devolution of the benefit represents a real opportunity to start to address that, but we will be able to do so only if we get people with lived experience in the room and on the council—which must be independent of Government—from the get-go, so that they can make recommendations on setting up the benefit.