Chamber and committees

I guess that it comes down to who we believe is the right person to take the final decision. These are difficult questions of balance. At times during the pandemic, when it came to decisions about schools, we opted for a national approach, although there was significant local variation. At later points in the pandemic, such variations were taken into account in various regulations and measures.

I just think that when we are talking about something as significant as the closure of education establishments, there is a balance to be struck. The public health aspect is not the only consideration for decision makers, and it would not be the only consideration for the Scottish Government, which I know would want to strike a balance. I think that there is a role for the local authority in deciding when that point has been reached. Placing on the Scottish Government a duty to seek the agreement of authorities—or something similar—would promote partnership working and the type of culture that will help in the response to a future pandemic.

As I have said, I am willing to look at the wording of amendment 120 or consider another amendment that would put that principle into the bill. In a system in which local authorities are responsible for delivering education, I do not see how we can have Government ministers telling authorities—on narrow, public health grounds—that we have reached a point at which their establishments must close.

During the pandemic, we did not have a total closure of schools; we ended up with hubs and other things. We do not know what the exact circumstances would be in the future, but given that we have 32 local authorities with 32 different sets of circumstances, they would have a right to a significant say in any decision to close the educational establishments for which they are responsible.

In the interests of time, I will just say yes and move on to look at the educational advisory council that is covered in amendments 121 and 131.

Although that aspect of the pandemic response was, for me, not perfect, it worked relatively well, and I want to ensure that any future Government using those powers adopts a similar approach. Again, I am not tied to the wording in the amendments; they are my best attempt, alongside the legislation team, to come up with something workable. With the resources at the Government’s disposal, I would be happy to work with the Government if changes were needed.

Amendment 122 proposes to introduce a delay of 48 hours before school closures, and amendment 133 would introduce a grace period before the enforcement of any of the regulations in those sections of the bill. It is important to give people time to plan and to recognise that, although there is often a need to act very quickly, trying to move too quickly creates far greater problems for the system as a whole. Again, I am willing to consider whether those amendments strike the right balance.

On amendment 122, it is important to remember that there are other means of closing schools. I do not believe that we have any local authorities or individual schools in which the relevant individuals or authorities would seek to keep a school open where they believed that there was a significant and serious threat to their young people.

Amendment 123 promotes educational continuity and seeks assurances from the Government that appropriate alternative provision would be put in place before schools were closed.

Amendment 124 seeks to promote best practice on communication between pupils, parents and carers and schools. Amendment 132 places on the Government what it calls a “Duty to seek agreement”, which might fit in with amendment 120. There might be room for reasonableness there.

Amendment 137 seeks the early removal of regulations made under the provisions; in a sense, it is designed to promote reconsideration. I think that amendments 138 and 139, which provide a review mechanism in the event of a change in the minister who is responsible for making the regulations, bring us back to the delicate question of balance. Given the difficult judgment calls that are involved in these matters for those who have to implement any regulations, it is important that they know that the Government minister who is responsible continues to believe that the regulations are absolutely necessary.

Amendment 141, which provides for the exercise of professional judgment, is again designed to make the provisions in the bill more workable. It addresses one of the concerns that has arisen throughout the pandemic, which brings us back to Mr Rowley’s point about who is best placed to make decisions and where responsibility sits. Sometimes those who are responsible for implementing decisions can see that, in individual circumstances and in relation to individual young people, implementing the provisions as intended by ministers might actually create a greater risk or cause greater disadvantage. There has to be some reassurance for those whom we would be asking to do something very difficult that they would be able to exercise their professional judgment and that, where they were acting in good faith and doing what they believed to be right, they would not face severe consequences.

On amendment 142, which is on readiness for remote learning, that was, again, one of the areas in which the SNP Government response was lacking during the pandemic. We were very slow to move on remote learning; we were underprepared; and our schools, which were already struggling and had been pushed to breaking point by reductions in teacher numbers, were not in a place where they felt confident, going into the pandemic, that they were well resourced to move learning online.

In a sense, amendment 142 complements Stephen Kerr’s amendment 119, which I will leave him to speak to. The idea that, in future, we could close schools without having learned the lessons of this pandemic is, in my view, unthinkable. It is important that that is recognised in the bill, because if we are to hand the Government powers to close schools and deny young people their right to in-person education, that will necessitate a balancing provision requiring that we have done everything that we can and have pulled out all the stops to ensure that their needs are met.

Amendment 143 seeks to place on ministers a

“Duty to explore alternatives and mitigations”

and to report back on what was considered and why certain options were not pursued. Again, having that information is important in order to build confidence in any measures that are taken and to provide people with the reassurance that they need, because some of those decisions are decisions of last resort rather than things that are taken forward because they are the easiest solution for Government.

I move amendment 112.

If the Deputy First Minister agrees with me, and he thinks that that is the action that his Government should have taken, or that a future Government should take, surely he would want that protection in the bill to make sure that the debate is had properly at the time, and that the right to education is prioritised above other aspects of society.

There is nothing in amendment 118 that would prevent the Government from acting. It would introduce a duty to seek and have regard to a report. It does not mean that the Government would have to stop if such a report was not forthcoming. The amendment is not designed as a delaying mechanism and I envisage that the report would likely follow action having been taken. It is not worded to be restrictive. I have been clear in drafting the amendment that that was what I sought to achieve. Does the Deputy First Minister accept that the report would be reasonable in principle provided that it did not delay ministers?

I accept the drafting issues. However, on the principle of school-based education being provided by local authorities in line with their statutory duties, what role do you see local authorities having? You said that the amendment would give them a veto, but you are effectively giving yourself the power through the bill to prevent them from carrying out their responsibilities. Do you accept that there must be a balance?

That is not really the point. You are taking away local authorities’ power to choose to keep a school open. You are removing their say in that and therefore preventing them from fulfilling their statutory duty, albeit possibly on good grounds. Is it not right to give them, rather than a veto, a greater say or role in reaching that decision in their locality with the young people and schools that they know best?

Given that you support that principle, do you recognise the value of putting it into the bill, maybe through a more tightly worded amendment, so that the position is a bit clearer and reassures the people who have to do the more difficult bit? I know that it is difficult to make the big decision, but it is more difficult to carry it out on the ground.

I intend to press amendment 112 and move all the amendments in my name. Even when there is an offer to work on matters later, I always think that if those matters are in the bill at the end of stage 2, it is easier to secure concessions at stage 3. The cabinet secretary said several times that some of the things that I am seeking could be done through regulation; we also heard about the Scottish Government’s preferred approach. Time and again, it comes back to the John Mason principle: the current Government might not be here, and it might be better to have things in the bill, to ensure that they are done for certain. If there are drafting issues, there is always a chance to fix them; that is how the process works.

I have no relevant interests to declare.

Section 1—Public health protection measures

In the system that we have in Scotland, local authorities are the providers of education in their areas. Of course, the Government has a role in working with them and directing national policy, but I do not want to have a situation in which we deny children their education and close education establishments without first getting agreement on that. Placing a duty on ministers to seek consent is the right approach.

Perhaps amendment 120, as currently worded, is too strong. I am willing to listen to what the Government says and to try to strike a better balance that secures consensus. As the bill stands, the balance is wrong. The bill puts too much power in ministers’ hands and does not recognise the role that our local authorities play in the delivery of education.