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Chamber and committees

Meeting date: Thursday, June 9, 2022

COVID-19 Recovery Committee 09 June 2022 [Draft]

Agenda: Coronavirus (Recovery and Reform) (Scotland) Bill: Stage 2


Contents

  • Attendance
  • Coronavirus (Recovery and Reform) (Scotland) Bill: Stage 2

Coronavirus (Recovery and Reform) (Scotland) Bill: Stage 2

Good morning and welcome to the 16th meeting in 2022 of the COVID-19 Recovery Committee.

The first and only item on our agenda is consideration of the Coronavirus (Recovery and Reform) (Scotland) Bill at stage 2.

I welcome to the meeting the Deputy First Minister and Cabinet Secretary for Covid Recovery, and his supporting officials. I also welcome Graham Simpson and Oliver Mundell.

I note that the officials who are seated at the table are here to support the Deputy First Minister, but are not able to speak in the debates on amendments, so members should direct their comments or questions for the Scottish Government to the Deputy First Minister.

Members should be aware that some officials who are supporting the Deputy First Minister are seated in the public gallery and will be swapping places, as required, with those who are seated at the table.

Parliament has agreed that stage 2 consideration of the bill will be split between this committee and the Criminal Justice Committee. The detail of how the bill has been split at stage 2 is set out in motion S6M-04477.

To summarise, I note that the Criminal Justice Committee met yesterday to consider the justice-related provisions in parts 3 and 5 and in the schedule to the bill. Today, this committee will consider the remaining provisions of the bill, including those in parts 1 to 4 and 6, as well as the long title.

Once we have made progress on the bill, if there is a good opportunity to take a short comfort break between groupings, I will allow that and briefly suspend the meeting.

I will allow the meeting to run until approximately 11.30 am. If we have not concluded stage 2 by that time, I will suspend the meeting and we will reconvene in this room at 5.30 pm. Decision time is currently scheduled to be at 5 pm, so that should allow time for members to get back to this room.

Before we begin, I will also briefly explain, for everyone who is watching, the procedure that we will follow this morning. The amendments that have been lodged have been grouped. There will be one debate on each group of amendments. I will call the member who has lodged the first amendment in each group to speak to and move that amendment, and to speak to all the other amendments in the group. I will then call other members who have lodged amendments in that group. Members who have not lodged amendments in the group, but who wish to speak, should try to catch my attention.

If he has not already spoken on the group, I will then invite the Deputy First Minister to contribute to the debate. The debate on the group will be concluded by my inviting the member who moved the first amendment in the group to wind up.

Following the debate on each group, I will check whether the member who moved the first amendment in the group wishes to press it to a vote or to seek to withdraw it. If they wish to press ahead, I will put the question on the amendment.

If a member wishes to withdraw their amendment after it has been moved, they must seek the agreement of the other members to do so. If any member who is present objects, the committee will immediately move to a vote on the amendment.

If a member does not want to move their amendment when called to do so, they should say, “Not moved.” Please note that any other member who is present may move the amendment. If no one moves the amendment, I will immediately call the next amendment on the marshalled list.

Only committee members are allowed to vote. Voting in a division is done by show of hands. It is important that members keep their hands clearly raised until the clerk has recorded the vote.

The committee is required to indicate formally that it has considered and agreed to each section of the bill, so I will put a question on each section at the appropriate point.

Now that we have covered the housekeeping matters, we can start the substantive business.

Before we do so, because Oliver Mundell has not joined our committee before, I ask him to declare anything that is recorded on his entry in the register of members’ interests that might be relevant to this committee.

I have no relevant interests to declare.

Section 1—Public health protection measures

The first grouping of amendments is entitled “Public health protection regulations: use of power and safeguards”. Amendment 4, in the name of Brian Whittle, is grouped with amendments 4, 5, 23, 1, 24, 10, 25, 26, 11, 6, 12, 27, 28 and 7 to 9. I remind members that if amendment 10 is agreed to, I cannot call amendments 25 and 26, as they will have been pre-empted.

I ask Brian Whittle to speak to and move amendment 4, and to speak to all the amendments in the group.

Good morning, everyone. I have only a couple of amendments in the group. The first one, amendment 4, is quite simple. I would like to understand who determines what constitutes “significant harm”, under section 1 of the bill. It is important for all MSPs and the general public that we understand that it is a medical decision, so it seems logical to me that the decision about what “presents … significant harm” to public health should be made by the chief medical officer. All I am asking is that that be inserted in the bill and that the chief medical officer have that role.

My other amendment, which is amendment 5, relates to what happened when we introduced the coronavirus emergency legislation. Obviously, we were unable to determine that legislation’s unintended consequences for other health issues. We are starting to understand a little better the other health issues that have happened because of lockdown and our need to focus on the coronavirus. Cancer is often discussed in that regard, and we also discuss the impact on elective surgery.

Through amendment 5, I am looking for a balance to be struck between taking decisions that I hope we never have to take and the impact on long-term health risks, because we now have a baseline that we understand. There is a balance to be struck between long-term health risks and taking action against an immediate health threat. I am asking that the Scottish ministers consider the health impacts in the round, rather than just the health risk at the time when they take their decisions.

I move amendment 4.

There is an extensive amount of material in the group of amendments, so I have quite a lot to say. I will try to minimise what I have to say on later amendments.

The overarching amendment in the group is amendment 23. Alongside amendments 38 and 39 in group 2, it will strengthen parliamentary safeguards in the bill by introducing the gateway vote mechanism that was announced in the stage 1 debate.

I will repeat the key points that I set out in that debate. There is a clear and compelling argument for ministers to have public health protection powers in the bill. Action by ministers must be grounded in evidence, and Parliament must be involved in decision making more effectively than was originally proposed in the bill.

Amendment 23 proposes adding new sections 86AA and 86AB to the Public Health etc (Scotland) Act 2008. That would mean that key aspects of the public health protection power could have effect only after a parliamentary vote on, and approval of, a formal Government declaration. To ensure that Government action is grounded in evidence, such a declaration would be informed by the advice of the chief medical officer or another designated person.

The key aspects of the power could be exercised only while the approved declaration remained in place. Conversely, were ministers to revoke the declaration, those same aspects could not be used without a further declaration. A public health declaration’s coming into force would not require the Scottish ministers to make regulations; it would simply open up the potential for them to do so if the other tests for making regulations in the bill were met.

As I signalled in the stage 1 debate, provision is made for circumstances in which Parliament cannot meet to approve a declaration—for example, when it has been dissolved in a pre-election period. For clarity, I point out that weekends, public holidays and periods of recess would not ordinarily fall into that category. It would usually be practicable in those circumstances to seek a recall of Parliament in sufficient time for the necessary public health response to be put in place.

As I also signalled in the stage 1 debate, amendment 23 excludes standing preparedness measures that would be intended to strengthen the public health resilience framework. They would be subject to parliamentary safeguards and could not objectively be described as “emergency measures”.

By agreeing to amendment 23, the committee would preserve the ability for swift and effective action to be taken to respond to a public health threat, balanced with proper parliamentary scrutiny. Parliament can enact the bill’s public health protection powers with the confidence that, in the event of a future public health threat, lockdown and other emergency response measures could be imposed only if Parliament approves a declaration.

In speaking to amendments 25, 26 and 27, I am mindful of the significant concerns regarding the ability for regulations that are made under the power in proposed new section 86A(1) to amend primary legislation—the so-called Henry VIII power—and of the recommendations that the committee made at stage 1. Amendments 25 to 27 are designed to strengthen parliamentary scrutiny. If the amendments are agreed to, regulations that are made under proposed new section 86A(1) that would modify primary legislation could be made only using the draft affirmative procedure. That means that primary legislation could not be amended by proposed new section 86A regulations that are made using the made affirmative procedure, and that Parliament would always have the fullest opportunity for scrutiny.

I hope that that reassures members that the Government has acted on the concerns about the scope of the power, and that Parliament’s role in scrutinising regulations that would amend primary legislation has been secured.

I acknowledge that some members wish us to go further. Alex Rowley’s amendment 1 would entirely remove the ability to amend enactments. I believe that it is necessary to include the provisions that I have set out in the restricted form that amendments 26 and 27 would deliver. First, I reiterate that it is intended that the power would be used only for existing legislation that, without modification, would cause confusion—for example, where provisions in public health regulations conflicted with other primary legislation or lessened the effectiveness of a public health response.

Secondly, the public health provisions in the bill are rightly informed by our experiences of the pandemic, which demonstrated that measures that will be needed are not always foreseeable and that speed can be vital. As an example, I point out that the 2008 act requires health boards to pay compensation to individuals who are asked to isolate. Earlier this year, expedited primary legislation was required to ensure that boards were not overwhelmed by that duty when where isolation was related to coronavirus. Using primary legislation was practical at that time, but it might not always be. Although I hope that the power will never be used or needed, it is prudent to ensure that it is available if necessary.

Thirdly, as I outlined to the committee in April, the provision in proposed new section 86F(2)(d) of the 2008 act is part of the wider power in proposed new section 86A, which contains important safeguards and thresholds. Those have been extensively documented. In particular, the power could be used only as part of a response to a public health threat that

“presents or could present significant harm to human health”.

Amendments 25 to 27 will also add the safeguard of parliamentary scrutiny before any changes to primary legislation can take effect.

My final point is that the power, although it is significant, is not without precedent.

The lessons of the pandemic have convinced us of the need to be able to amend other legislation, even though equivalent provision is not part of the English and Welsh model. I hope that the committee will acknowledge that our experience of the pandemic has led us to diverge from England and Wales in other areas, and that therefore the case is made on the matter.

In a later group, I will speak to amendment 67, which relates to commencement. However, for the present, I will set out why I do not support amendments 8 and 9. In general, my reason for any delay to public health revisions is that the Covid pandemic clearly highlighted a gap in our legislative framework in respect of responding to significant public health threats. We had to rely on emergency United Kingdom legislation to provide Scottish ministers with powers to control the virus’s spread.

It would be ill-advised to delay closing a gap that we have already identified. Recent experiences of unusual presentations of hepatitis in children and the monkeypox outbreak are irrefutable evidence that public health threats can emerge with very little warning. The Government would be rightly criticised were another threat to emerge and we had once again to resort to emergency legislation. Moreover, the powers will merely align us with England and Wales, which have had the powers for over a decade.

On the specific content of amendment 8, first, there has already been a 12-week consultation on the bill, in addition to the usual evidence gathering by committees. Appropriate impact assessments were also carried out in line with standard parliamentary process. Indeed, that is one of the strengths of having the powers on a permanent basis, rather than relying on emergency legislation for future threats.

Secondly, section 1 provides a general power to make regulations; it does not impose restrictions or requirements. Therefore, consultation would yield very little about the impact of the power that has not been found in the already extensive consultation period.

09:15  

Thirdly, the groups that are set out for consultation mirror the groups that have been significantly affected by Covid restrictions, but those might not be the groups that would be most impacted by future responses. As the Government has stressed from the outset, one public health threat might be very different to another; so, too, might the measures that are needed in order to respond be different.

For those reasons, consultation should be determined by the content of regulations as and when they are laid. Section 122 of the 2008 act already specifies that, where practicable, consultation should be carried out with affected persons. That requirement would apply to any regulations that are made under proposed new section 86A.

With regard to amendment 9, there are lessons to be learned from the Covid response, and the inquiry is an important part of that process. Following its conclusion, there might be recommendations for other legislative changes but, as I have noted, we have already identified a clear gap and should move quickly to address it. Additionally, amendment 9 would go considerably further by delaying commencement of all the public health measures in the bill.

Although I recognise that section 1 has been a source of concern, other matters in part 1, such as monitoring provisions, provisions to ensure that the regime governing potential travelling restrictions is consistent, and provisions to expand the range of individuals who can deliver vaccines, have been well received or are uncontroversial.

With regard to amendment 4, I understand Mr Whittle’s perspective. Before placing restrictions and requirements on people and business, gathering supporting evidence is crucial. However, there are very good reasons for the fact that we have not explicitly in the bill required chief medical officer advice in relation to making regulations under the public health protection powers.

The chief medical officer might not always be the person who is best placed to make a determination as to the threat and might, in exceptional circumstances, be unavailable to make such a determination. For example, in the event of a chemical agent attack, the most appropriate person could be the chief scientific adviser. Amendment 4 does not allow for substitutions.

On more substantive grounds, it is precisely because of the potentially significant impacts of public health regulations that, with advice from relevant authorities, ministers should take the decisions to lay regulations, and nothing should detract from that ultimate responsibility.

The point is that, especially around health, somebody has to gather and assess information and it should not be ministers who do that. You would rely, specifically, on your CMO to gather that information. Ultimately, when assessing a threat from, as you said, a multitude of potential inputs, surely it should be your CMO who advises you on the gathered evidence.

I would expect the CMO to be involved intimately in that process, but as I have just recounted, it will not always be the CMO who is best placed to do that.

Evidence is gathered for ministers from a multitude of sources. Ultimately, ministers make judgments based on the advice that they are given, because ministers are accountable. The CMO is not accountable for decisions. Decisions are, properly, for ministers to take. Independently, ministers must assess the evidence that is put in front of them and come to a judgment.

In listening to what you have said about Mr Whittle’s amendment 4, I wonder whether there is room to work with Mr Whittle to improve the amendment for stage 3. You have commented that you feel that it is too restrictive at the moment, but maybe it could be improved.

I am certainly willing to consider the issues that arise. Colleagues will make a number of points this morning and, perhaps, this evening. I am happy to reflect on those points and to have further discussions. Indeed, on certain amendments, I will offer to do so.

In relation to the current point, there will be times when decisions on whether to impose restrictions or requirements are made locally. For the reasons that have been set out already, those decisions should be made by the people who know communities best, but it would be disproportionate to suggest that, for example, an environmental health officer must always consult the chief medical officer before making a decision.

It is important to highlight how many safeguards are included in the public health protection provisions and that expert advice will be sought under each. By way of example, Scottish ministers are required to carry out a proportionality assessment when making regulations under new section 86A in the 2008 act, and clinical advice would necessarily inform that assessment.

Additionally, regulations can be made only in response to a threat that presents or could present a “significant” risk, and regulations that enable the imposition of a special restriction or requirement can be made only where the threat is “serious and imminent”. Assessment of threat levels could be carried out only with advice from the CMO or other qualified advisers.

Finally in this respect, if the public health declaration amendment is accepted, it would require Scottish ministers to consult the chief medical officer or equivalent before proposing to make a public health declaration. I hope that that provides further assurances that appropriate advice and evidence will inform Government action.

I therefore cannot support amendment 4. I believe that it would impact the speed at which we could respond to a public health threat in an emergency situation, result in a disproportionate demand on the chief medical officer’s time and expertise and, in reality, reduce accountability for decisions that could have profound consequences.

I am grateful for Mr Whittle’s consideration of the matters raised in amendment 5, and I am willing to listen to arguments in favour of it. However, at present, I am not convinced of its value. My chief reason for that is that, as noted, all regulations must meet a proportionality test. In assessing that, the long-term health impacts, where relevant, would of course inform thinking. However, that may just be one of the many factors, and to mention only one in the bill may prejudice deliberations in its favour.

Additionally, the amendment does not distinguish between the regulations to which it would apply, unless it would apply to any that are made under new section 86A(1), regardless of their purpose. Concerns around the long-term impacts on public health as a result of Covid control measures are well documented. However, Covid should not be the template for consideration of all public health threats. Others may take different forms and require wholly different measures. Thus, a blanket requirement to consider long-term health impacts may not be appropriate. It would also be impossible to measure the long-term impacts of preparedness regulations, which would not impose restrictions directly and which might only impose obligations on the Scottish ministers or other bodies. A statement would therefore add nothing meaningful to scrutiny.

For all those reasons, I currently do not support amendment 5 but, as I said, I am open to arguments in its favour and will consider it further.

Amendment 24 is, I hope, uncontroversial. It would exempt regulations that are made on a “general” or “contingent” basis—that is, regulations empowering potential action if a significant public health threat emerged but which do not themselves impose any new restrictions or requirements—from the on-going three-weekly review process that is set out in new section 86G in the 2008 act.

Of course, amendment 24 has no impact on regulations that are made in response to a significant public health threat and which, if the Government’s amendment 23 on a public health declaration is passed, could not be laid without such a declaration. The reason for amendment 24 is that it would be both unduly onerous and an unreasonable use of public resources to subject to review every three weeks regulations that are intended to sit on the statute book on an on-going basis and that do not impose any new restrictions or requirements.

I have considered the issues that were raised during stage 1 by this committee and the Delegated Powers and Law Reform Committee. Amendment 28 provides for an explanation of urgency if the made affirmative procedure needs to be used in urgent circumstances to make public health regulations. The bill already provides for the draft affirmative procedure to be the norm and the made affirmative procedure may be used only for reasons of urgency. Members are aware that the parliamentary authorities are working with Government officials on a protocol for an expedited draft affirmative procedure in appropriate cases.

Amendment 28 also provides for an expiry or sunset provision to be included in public health regulations where the made affirmative procedure is used, unless the regulations amend regulations that already include an expiry provision.

The alternative amendments 6, 10, 11 and 12 that have been lodged by Mr Fraser and Mr Simpson in relation to made affirmative regulations would either mean that the made affirmative procedure was not available or would lead to delay. I consider that the Government’s amendment 28 fully addresses the points that were made by the scrutiny committees at stage 1, and it should be preferred.

Amendment 7 would remove the public health regulation-making power entirely. I have already documented why these public health measures are so important, but the recent pandemic speaks more clearly on that point than I could. Therefore, I will not dwell on arguments against the amendment; I simply say that the amendments that the Government has lodged will add significant safeguards to the rules that were already included in the bill when it was introduced. I hope that that reassures members that their voices have been heard and that the bill will be better as a result.

For the reasons that I have given, I invite the committee to support my amendments in the group, and I ask other members not to press their amendments.

Amendment 1 is the only amendment to the bill that I have lodged. As we have heard from many witnesses at our evidence sessions, the bill is wide ranging, and there is an argument to be made that we should focus better. Umpteen bits of legislation could have been introduced, such as the housing legislation that Scottish Labour very much supports. There is a question about the bill in general, but my amendment seeks specifically to remove the so-called Henry VIII powers.

I have argued, and will continue to make the case, for a significant transfer of powers to this Parliament, but the use of the Henry VIII powers basically removes powers from the Parliament, which is the legislature, and puts them into the hands of ministers, or the executive. That cannot be right, and it is why people are rightly using the term “power grab”. I did not particularly support the use of that term at first but, when I looked at the evidence, it was clear that that usage was legitimate.

I will not go through all the evidence—there is plenty of it—but I highlight the evidence from Dr Tickell and Professor Britton from Glasgow Caledonian University. In their written response, they said:

“While powers of this kind have been used by the UK government to adapt the statute book to the United Kingdom’s departure from the European Union, Henry VIII powers are rightly controversial, as they infringe upon the separation of powers, give legislative functions to the executive, and can be imposed with modest opportunities for parliamentary scrutiny, particularly in circumstances when they are used on an emergency basis.”

I therefore lodged amendment 1 on a point of principle. Despite the fact that my party supports many aspects of the bill—we think that it should have been done differently, but we support quite a lot of it—because of that point of principle, we could not vote for it. We cannot vote to take powers from the legislature and put them in the hands of the executive.

In the stage 1 debate, in my view, the best speaker on the Scottish National Party side of the chamber was John Mason. He made the point that, although he hoped that the Deputy First Minister and First Minister would have a long career in those positions, at some point another Government could be in place. It is the principle that is the point: whoever is in power should not have the powers that are set out in the bill.

I understand all the points that Mr Rowley makes, and the strength of his opinion on that point, and I would not question in any way his commendation of John Mason’s debating skills. Nonetheless, I ask him to reflect on the amendments that I have lodged to the specific powers that Mr Rowley mentions. I have conceded—I did so in the stage 1 debate, and I have brought forward changes this morning—that any exercise of these powers would have to be approved by Parliament. A parliamentary regulation would have to be brought forward.

That cannot be undertaken under the made affirmative process; it has to be done under the draft affirmative process. Parliament would have to actively approve any changes before they were brought into effect, and that could happen only if the gateway mechanism had been gone through, because we were dealing with a public health emergency.

09:30  

Since the bill was published, the Government has proposed two very substantial additional safeguards in its amendments, in response to the concerns that have been expressed by commentators. Some of the commentators that Mr Rowley cited have since reflected publicly on the points that I made in the stage 1 debate, and they welcome the steps that the Government has taken to revise the proposals accordingly in the light of the comments that I made during the stage 1 debate.

I acknowledge that the Deputy First Minister has attempted to address the concerns, but I have to say that—based on the evidence—the attempt does not go far enough. In the interest of democracy, of ensuring that the Parliament is the legislature and has the powers to legislate and of making sure that no executive should take powers away from the Parliament and to itself, the mechanism does not go far enough and concerns remain. Although I acknowledge that the gateway vote mechanism is an attempt to address the concerns, it does not go far enough, and I say that on a point of principle. If we allow this to happen, what happens in future when the next Government makes a decision?

I wondered where the phrase “Henry VIII powers” came from. Basically, in 1539, the then king wanted to make law without reference to the English Parliament, and that is when those powers came about. In 2022, when a Scottish Government—an SNP Government—wants to use similar powers to those that Henry VIII did in 1539, and take powers away from the legislature and this Parliament, that has to be a point of principle.

It is a shame, because having sat through evidence sessions and read the responses that we have had, there is a lot in the bill that can be supported, but we cannot support taking powers from the legislature and giving them to the executive. It is a point of principle.

Would the member accept that, in effect, Parliament has a veto? That means that a conscious decision would have to be made at the time.

I put that back to Mr Mason: would he accept that the best veto would be to not have the Henry VIII powers in the first place? If we ended up in a situation in which we had another pandemic of some sort—that threat is likely; a lot of people say that we had the Spanish flu 100 years ago—our experience is that the Government would not have a problem in coming to Parliament and putting legislation through quickly. Not only have many of us been supportive of the Government, but we have stood shoulder to shoulder with it through the pandemic to support what it did under massively difficult circumstances. However, this is a principle too far.

In a sense, Mr Rowley has made my argument for me. We all accept the threat of another pandemic. Parliament had to legislate, in extremis, with primary legislation that was rushed through Parliament to try to address the situation. I am trying to learn early lessons from the pandemic and equip the statute book with the ability for us to respond, with necessary Parliamentary oversight, and to exercise the appropriate powers. Indeed, Fiona de Londras, whom Mr Rowley quoted, has welcomed the steps that I have taken to strengthen parliamentary oversight.

Mr Rowley is making comments that were relevant prior to and in the stage 1 debate but, in the light of the amendments that the Government proposes, I suggest that he is not adapting to the proposed changes in which parliamentary oversight is being given. As Mr Mason says, a veto is being given to Parliament on any changes that it does not believe to be appropriate. We are putting in place the means by which we can respond speedily in a situation that Parliament has thought about well in advance. That is what the 12-week consultation and the three-stage process of parliamentary scrutiny to make legislative change are all about.

I have welcomed the steps that the Government has taken. It was suggested that the Government has listened, but those steps do not go far enough. That is the point. There is a point of principle, which is that to take powers from the legislature into the executive is fundamentally—

That is not what is happening. It might have been a legitimate accusation in the stage 1 debate, but it is not a legitimate accusation now, because I have lodged an amendment that, in essence, says that Parliament must approve any changes that are exercised under the one line in the bill that Mr Rowley wants to remove.

I respectfully disagree. If the Government looked at the evidence and took it seriously, it would support my amendment, which is the only amendment that I am proposing, based on the principle that the Scottish Parliament is sovereign. It, not the executive, is the legislature.

On that basis, I hope that the Government will reconsider the matter. It is a point of principle and it is wrong for any Government, regardless of its political colours, to take powers from the Scottish Parliament and hoard them for itself. Murdo Fraser used the term “power grab”. Sadly, having considered the evidence, I have concluded that that is a fair term to use.

I know that the Government will not support my amendment, but I urge it to think again and, at stage 3, support removing the Henry VIII powers. The Government does not need them and there is a fundamental point of principle that needs to be recognised.

Before the meeting, Mr Rowley and I made a pact that, if he was brief, I would be brief. I knew that he could not stick to his end of the bargain—but rightly so, because he had some really important points to make, which I agree with.

I sit on the Delegated Powers and Law Reform Committee. I am not representing it here, but, as this committee knows, the DPLR Committee produced a report, which this committee has seen, into the delegated powers in the bill, and we made some recommendations. I will take members through them before I speak briefly about my amendments in the group.

The first recommendation was

“that the Scottish Government”

should bring

“forward amendments on each power which can be exercised subject to the made affirmative provision”.

Our main area of concern was the use of the made affirmative procedure, so we recommended

“that Scottish Ministers provide a written statement prior to the instrument coming into force providing an explanation and evidence as to why the Scottish Ministers consider the regulations need to be made urgently when using the made affirmative procedure”.

We also recommended

“that Scottish Ministers include an assessment of the impact of the instrument on those affected by it”

and

“that statutory instruments made under the powers are subject to a sunset provision.”

I lodged some amendments for yesterday’s Criminal Justice Committee meeting that reflected those recommendations, and I have done the same for this meeting.

If members read amendment 10, which is the first of my three amendments in the group, I am afraid that they will struggle to work out what it does. I have a long and technical explanation, which I will spare you. In essence, amendment 10 removes the ability of ministers to use the made affirmative procedure—it is quite blunt. If you agree with that, that is all well and good and the other amendments fall; if you do not agree with that, we have some alternatives.

The alternatives are amendments 11 and 12. Amendment 11 says that, if ministers think that the regulations should be made “urgently”, they should explain to the Parliament why that is so—with evidence—and there should be a vote on the regulations. As the committee is well aware, using the made affirmative procedure does not allow for a vote—stuff just goes through without scrutiny. The amendment reflects the recommendations of the DPLR Committee.

Amendment 12 says that there should be a statement with evidence, an assessment of the impact of the regulations and a sunset clause period of a maximum of one year. Given that I am a very reflective sort and that I listen to arguments—I listened to those of Mr Swinney’s colleague Keith Brown yesterday and to those of Mr Swinney today—I think that amendment 12 probably goes a bit too far in that it would impose the sunset clause for one year across the board. Having reflected on that point, I think that Mr Swinney’s amendment 28 is probably better than amendment 12, so I will not press it. However, I will move amendments 10 and 11.

I will end there—I promised to be brief.

As this is my first contribution, I should refer members to my entry in the register of members’ interests. I am a member of the Law Society of Scotland and I derive some income from rental properties.

I will speak to four amendments in the group—amendments 6, 7, 8 and 9—and I will comment briefly on the Government’s amendments and those of other members.

My amendment 7 seeks to remove section 1 of the bill in its entirety, which goes to the heart of our objections to the bill and asks whether it is necessary at all to legislate at the present time to make permanent what were emergency and extraordinary powers that were given to the Scottish ministers to deal with the public health crisis.

We explored those issues in detail during the stage 1 debate, so I will not rehearse all those arguments today. However, I believe that we still have to hear a credible justification as to why those public health measures need to be in the bill and why such matters cannot be dealt with in another way. The committee has heard from a range of stakeholders who share that view, and our public engagement showed, among those people who responded, a 90 per cent opposition to those measures being in the bill as proposed.

Does the member accept that, as with anything in life, it is better to be prepared? One can never be prepared completely for what will come up, but we all have car insurance and a variety of things in life to be prepared for events. Is the principle here not that it is better to be better prepared than we were in March 2020?

I thank Mr Mason for that intervention, but, as I set out in the stage 1 debate, there is an alternative approach, which was laid out to the committee by Professor Fiona de Londras, who said that it would be quite possible for all parties to agree draft legislation that could sit on the shelf, ready to be introduced as and when required—

Will the member give way?

09:45  

Let me just finish my sentence if I may, Mr Fairlie.

The Parliament has already demonstrated, as it did two years ago, that it can move very quickly in an emergency to pass legislation. The important point—this touches on the comments that Mr Rowley made a short time ago—is that progressing in that way allows Parliament at that point to amend legislation and Parliament as a whole to lodge amendments. That method of dealing with the law is not possible if we legislate in a way that passes to ministers the power to produce regulations that Parliament cannot amend. Although Parliament has the right to say yes or no to regulations—I welcome the cabinet secretary’s amendments that will strengthen Parliament’s power—it has no power to amend them. Making this a matter of primary legislation would put the power back into the hands of Parliament not just to vote yes or no, but to lodge amendments.

Murdo Fraser mentioned Professor de Londras. As the conversation went on, during stage 1, I said to her:

“The bill simply means that, in a legislative sense, we are preparing ourselves for the future so that, in the event of another emergency, we have the legislative competence to enable us to deal with it in this Parliament. Is that a fair assessment?”

She said:

“Yes, that is exactly right.”—[Official Report, COVID-19 Recovery Committee, 3 March 2022; c 11.]

We keep hearing about Professor de Londras being against the provision. I fully understand the position that Alex Rowley has taken, but the Government has stepped up and listened to what has been said. Surely nobody in the Parliament would suggest that we should not have the legislative competence to deal with any emergency that arises.

We have legislative competence here; it is simply a matter of whether we decide to legislate now, putting the power in the hands of ministers to produce regulations that Parliament can only say yes or no to, or to retain power in the hands of Parliament, whose members can then lodge amendments to what has been proposed. There is simply a fundamental difference of view between me and Mr Fairlie on that particular issue.

Does Mr Fraser agree that the whole point of amending the proposed legislation is to allow for flexibility, as we do not know what is coming down the track and that, if the bill is passed and we cannot amend it, that will constrain our ability to approach whatever is coming down the track?

Mr Whittle has made a very fair point.

That is the purpose of my amendment 7. If amendment 7 does not attract favour—it might not—I have a number of other amendments in the group that all seek to improve the measures in the bill.

My amendment 6 is very similar to amendment 11, in the name of my colleague Graham Simpson, but its reach is narrower. It requires a statement by ministers of reasons why the made affirmative procedure must be used. The committee recommended that at stage 1, following the evidence that we heard from a number of stakeholders. The amendment is very sensible and reasonable, and I commend it to colleagues.

My amendment 8 requires an assessment to be made of the impact of any regulations on impacted persons, including retail groups, industry organisations, trade bodies and any other relevant groups, before ministers introduce them. It requires ministers to consult such groups, “insofar as is practical”, prior to the introduction of such regulations. That addresses a concern that has been raised over the past two years by a variety of stakeholders, particularly in the business community, about the very negative impact that regulations have had on businesses. They were not adequately consulted on those before they were introduced, and no proper assessment of the impact was conducted. A very good example of that is the vaccination passport scheme, which, as we know, was very controversial and was strenuously opposed by business. Businesses felt that they were not adequately consulted on that before it was introduced and that no proper assessment of its impact was done. Amendment 8 would require ministers to consider the impact that regulations would have before bringing them in and to consult—but only “insofar as is practical”, because I understand the points that have been made about the need to act at speed in response to a public health emergency.

Will Mr Fraser set out what he would consider to be practicable in his consultation exercise? I would contend that there was extensive consultation with a myriad of organisations. What was difficult to secure was unanimity, which I think is the point that Mr Fraser is getting at.

I am not expecting unanimity, nor am I proposing in amendment 8 any sort of right of veto for stakeholders against the actions of ministers. It is simply a requirement to consult. The qualification “insofar as is practical” is a recognition that, in a fast-moving public health situation, ministers may require to act very quickly. I do not want to tie the hands of ministers entirely. However, given the experience that we have had over the past two years and the quite serious concern among members of the business community about the negative impact of regulations that were imposed on them without adequate consultation, I think that we should place an obligation on ministers to consult, in so far as it is practical to do so.

Finally, my amendment 9 relates to the Covid inquiry. I think that the cabinet secretary will give a statement to update Parliament on that inquiry this afternoon. The inquiry has just been established, and we have not yet had any opportunity to hear any evidence that has been presented to the inquiry or to listen to the view of the inquiry in terms of recommendations and lessons to be learned. It seems to me rather strange that we are rushing to legislate for future pandemics before we have learned the lessons of this one. Therefore, my amendment 9 seeks to delay implementation of the bill until such time as the Covid inquiry has concluded, so that we can see what lessons might be learned.

I support my colleague Brian Whittle’s amendments 4 and 5, and I think that he has made some fair points. I am very much in support of Alex Rowley’s amendment 1. In fact, if Mr Rowley had not lodged amendment 1, I would have lodged an amendment in similar terms. Mr Rowley made an eloquent case as to why the Henry VIII powers should be removed, and he gave us a helpful history lesson in relation to the powers of monarchs in that respect. I reiterate the point that I made in response to Mr Mason and Mr Fairlie. Although I welcome the Government amendments that restrict, to an extent, the operation of Henry VIII powers by the Government, the amendments do not remove those powers entirely. Again, this is an issue about putting power in the hands of ministers rather than in the hands of Parliament.

Regulations that are introduced by ministers—however qualified they are—can only be voted for or against by Parliament. There is no opportunity for Parliament to amend the regulations. That is why I believe that removing the Henry VIII powers is an essential move, so I will support amendment 1.

Although the Government amendments in the group do not go far enough for me, they are nevertheless an improvement on the bill as drafted, and I will be happy to support them.

I listened to the cabinet secretary with interest, and I appreciate his consideration of the amendments. I think that the person who decides what presents a significant and immediate health risk once evidence is gathered should be somebody with significant medical experience. All that we are trying to do with amendment 4 is ensure that the chief medical officer has a role in determining what presents a significant harm to public health. I cannot see why that would be an unreasonable ask.

With regard to amendment 5, the word “consideration” is important, because we are trying to ensure that there is a balance between the impact that the regulations could have on long-term health matters and the need to deal with a potential threat. One of the lessons that we have learned from Covid is that there are significant long-term health issues, and those should always be taken into account when making a decision. If we do not accept that consideration should given to that aspect, we are saying, in essence, that the Government does not need to consider long-term health risks in addressing these issues. I hear that the cabinet secretary is prepared to explore the matter further, but I think that my amendments are entirely reasonable.

I will support Mr Rowley’s amendment 1, given the extreme importance of the principle—to use his word—with which I concur. As Murdo Fraser said, the Government’s amendments are a step forward and, although they do not go as far as we would like, we will support them. I will also support the amendments from Mr Fraser and from Mr Simpson, who made his points eloquently, although he will not press amendment 12.

Thank you, Mr Whittle. Can you confirm whether you are pressing amendment 4?

I press amendment 4.

The question is, that amendment 4 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order for the committee to reach a decision. I vote against the amendment.

Amendment 4 disagreed to.

Amendment 5 moved—[Brian Whittle].

The question is, that amendment 5 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener so that the committee can reach a decision. I will vote against the amendment.

Amendment 5 disagreed to.

Amendment 23 moved—[John Swinney].

The question is, that amendment 23 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Mason, John (Glasgow Shettleston) (SNP)
Whittle, Brian (South Scotland) (Con)

Against

Rowley, Alex (Mid Scotland and Fife) (Lab)

The result of the division is: For 5, Against 1, Abstentions 0.

Amendment 23 agreed to.

Amendment 1 moved—[Alex Rowley].

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener so that the committee can reach a decision. I will vote against the amendment.

Amendment 1 disagreed to.

10:00  

Amendment 24 moved—[John Swinney].

The question is, that amendment 24 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Mason, John (Glasgow Shettleston) (SNP)
Whittle, Brian (South Scotland) (Con)

Against

Rowley, Alex (Mid Scotland and Fife) (Lab)

The result of the division is: For 5, Against 1, Abstentions 0.

Amendment 24 agreed to.

Amendment 10, in the name of Graham Simpson, has already been debated with amendment 4. I remind members that if amendment 10 is agreed to, I cannot call amendments 25 and 26, as there is a pre-emption.

Amendment 10 moved—[Graham Simpson].

The question is, that amendment 10 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener so that the committee can reach a decision. I will vote against the amendment.

Amendment 10 disagreed to.

Amendment 25 moved—[John Swinney].

The question is, that amendment 25 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Mason, John (Glasgow Shettleston) (SNP)
Whittle, Brian (South Scotland) (Con)

Against

Rowley, Alex (Mid Scotland and Fife) (Lab)

The result of the division is: For 5, Against 1, Abstentions 0.

Amendment 25 agreed to.

Amendment 26 moved—[John Swinney].

The question is, that amendment 26 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Mason, John (Glasgow Shettleston) (SNP)
Whittle, Brian (South Scotland) (Con)

Against

Rowley, Alex (Mid Scotland and Fife) (Lab)

The result of the division is: For 5, Against 1, Abstentions 0.

Amendment 26 agreed to.

Amendment 11 moved—[Graham Simpson].

The question is, that amendment 11 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener so that the committee can reach a decision. I will vote against the amendment.

Amendment 11 disagreed to.

Amendment 6 moved—[Murdo Fraser].

The question is, that amendment 6 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener so that the committee can reach a decision. I will vote against the amendment.

Amendment 6 disagreed to.

Amendment 12 not moved.

Amendment 27 moved—[John Swinney].

The question is, that amendment 27 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Mason, John (Glasgow Shettleston) (SNP)
Whittle, Brian (South Scotland) (Con)

Against

Rowley, Alex (Mid Scotland and Fife) (Lab)

The result of the division is: For 5, Against 1, Abstentions 0.

Amendment 27 agreed to.

Amendment 28 moved—[John Swinney].

The question is, that amendment 28 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Mason, John (Glasgow Shettleston) (SNP)
Whittle, Brian (South Scotland) (Con)

Against

Rowley, Alex (Mid Scotland and Fife) (Lab)

The result of the division is: For 5, Against 1, Abstentions 0.

Amendment 28 agreed to.

Amendment 7 moved—[Murdo Fraser].

The question is, that amendment 7 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener to vote against the amendment.

Amendment 7 disagreed to.

Section 1 is therefore agreed to.

Section 1, as amended, agreed to.

Sections 2 to 4 agreed to.

As we are short of time, I ask members to keep their contributions a bit shorter—

On a point of order, convener. For the sake of clarity, Mr Fraser’s amendment 7, which was disagreed to by the committee, sought to leave out section 1. I assume that, because of the result of that vote, you are not putting section 1 to the committee.

That is correct. The section has been agreed to.

I welcome Stephen Kerr to the committee. As he is attending the committee for the first time, I invite him to declare anything in his entry in the register of members’ interests that is relevant to the committee’s remit.

I do not have any relevant interests to declare.

Thank you and welcome to the committee.

Section 5—Interpretation of Chapter

Group 2 is on education regulations: use of powers and safeguards.

Amendment 112, in the name of Oliver Mundell, is grouped with amendments 115, 117 to 126, 13, 14, 128, 15, 130 to 134, 16 to 18, 36, 37, 136, 38, 39, 137 to 143 and 145.

Amendment 112, with amendments 115, 117, 118, 134, 136, 140 and 145, seeks to remove what Graham Simpson’s amendments have left behind. That is my preference, as I think that those sections and provisions are not required at this time. In the interests of time, I will not rehearse the arguments that Murdo Fraser has made at stage 1 and again here today. More generally, the other amendments seek to raise the bar for using the provisions and introduce additional safeguards and reassurances.

We have already heard from the Deputy First Minister that we should be informed by the experience of the pandemic. A number of my amendments in this group speak to what went well during the pandemic in consultation with stakeholders. Consensus is one of the Deputy First Minister’s watchwords for how he likes to proceed, so I hope that those amendments will be taken in the spirit in which they are lodged and that, should there be drafting errors or things that are not quite to the Government’s taste, he will be willing to work with me to lodge at stage 3 revised amendments on which we can all agree.

There are other amendments in the group that speak to some of the Scottish Government’s mistakes. We must learn from some of the mistakes that were made in education, which was one of the most difficult of the areas caught up in the Covid-19 pandemic. Yesterday, I was back at my old school and speaking with young people. We continue to see the devastating impact that educational disruption has had on them, and as a parent, I continue to worry and wonder whether the Government and Parliament got everything right and found the right balance.

I do not doubt anyone’s sincerity in trying to find that balance, but there were certainly times when the Government overstepped the mark and continued to keep restrictions on young people in place far beyond the point at which they were necessary. We did not always get the right balance of the child’s best interests, the wider interests and the public health risk. With my amendments, which I will talk through briefly, I am keen to ensure that we do not make those mistakes again.

Amendments 118 and 130 seek to provide for a report from the Children and Young People’s Commissioner Scotland that addresses children’s rights. The report would consider whether the proposed use of powers was “proportionate and necessary”. Of course, under the bill, that decision would ultimately be for ministers but, when we have such a significant source of expertise at our disposal, it would be worth hearing from the commissioner’s office, which does an excellent job of speaking up for young people. That would provide some reassurance.

I am interested to know how the commissioner would be involved. If he had to judge whether the use of the powers was “proportionate and necessary”, would he need to consider all the medical, scientific and other advice that the Government gets? Is that what you are arguing for?

Yes. The commissioner would have to consider that advice, consider what ministers were saying and balance that evidence with his expertise in children’s rights, welfare and wellbeing. He would have to balance up some of the difficult questions. I am not saying that the commissioner would have a veto; instead, I am saying that he would offer his views so that parliamentarians, the Government and the wider public would be more informed about where the balance lay.

During the pandemic, and particularly in the area of education, we have sometimes tipped towards a balance that considers public health narrowly without examining the wider health and wellbeing implications for young people. At several points during the pandemic, the Children and Young People’s Commissioner drew our attention to concerns. The commissioner’s involvement would be an additional safeguard that would help young people feel confident that the Government was taking their rights and interests into full consideration.

Amendment 120, which relates to local authority consent for closing schools, is a probing amendment. I am not saying that it is in its final form, but it raises a question for Parliament about the correct balance between ministerial powers and local authorities’ statutory duties to educate our young people. It would promote consensus. It is hard to envisage a situation in which local authorities would oppose public health measures, but it is important to have such a provision in the bill to ensure that the role of local authorities is properly respected.

That brings us back to the John Mason principle, which cuts both ways. There is a fear that the same people could make the same wrong decisions; equally, as hard as it is to imagine, something worse could arise in future. I would not want ministers to push ahead with school closures without being able to satisfy local authorities that it was the right decision.

10:15  

Are you arguing that the local authority, which I accept is democratically elected, should be able to overrule the nationally elected Government?

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.

In the context of the judgment that you are talking about, what role do you envisage for public health advice of the nature that the Government and all public authorities received? You did not address Mr Mason’s point about the interface between the decision making of local authorities, as the bodies that are responsible for running education at local level in Scotland, and public health advice. Public health advice might lead to a conclusion with which a local authority was not comfortable, albeit that there was real danger to the public health of the local population.

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.

I ask this question purely out of curiosity. If ministers are required to get consent from local authorities when there is a national public health emergency, but a particular individual in a local authority says that they do not agree with the decision on the basis of education alone, who takes responsibility for the public health of that area? In other words, who takes final responsibility? We will have a public inquiry into what happened during the coronavirus pandemic, but if you take that decision-making power away from the Government and put it in the hands of local authorities, will we have to have public inquiries for every local authority that might have taken a different decision?

The role of local authorities in the pandemic will certainly be considered, but Mr Fairlie’s argument is, in effect, that we should not legislate at this time, that we should wait for the public inquiry and that we should wait until we know the shape of any future threat before putting very definite things on the statute book.

The problem is that what we are considering is putting wide-ranging and very loose powers in the hands of the Government. These amendments—and amendment 120 in particular—set out balancing provisions. If you want wide-ranging non-specific powers for an unknown future pandemic, you will have to accept that there might be limitations in that respect. That is why the better approach would have been, as has been set out at length, to have draft legislation ready and agreed that could be continually reviewed and considered and then implemented quickly.

Do you agree that, in relation to local government, the clue is in its name—that is, “government”? They are elected bodies, and although in Scotland we have some of the weakest local government in Europe, with more and more of it being centralised, there is a clear role for local government—for elected and accountable politicians—to play and it needs to come together with the Scottish Government to determine what happened and learn the lessons from that. Do you believe that local government and democratically elected officials are being sidelined?

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 in view of 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.

10:30  

There are many amendments in the group, so I would appreciate it if members could be as brief as possible, in the interests of time.

I am grateful to be here to speak to amendment 119, which seeks to ensure that, before making regulations to close schools, the Scottish ministers ensure that every child and young person is provided with a laptop and an internet connection. The committee and the cabinet secretary will not be surprised to hear that, in principle, I oppose the bill but, given that it is likely to become law, it is important that we try to improve it as much as possible. I am particularly passionate about the issue and therefore I seek to improve the bill in a way that will narrow the attainment gap, which we know is growing, and ensure that no child in Scotland, especially from the poorest families, is left behind in any way.

Until a couple of weeks ago, I was the convener of the Education, Children and Young People Committee, which heard evidence on the bill. Remote learning, which my colleague Oliver Mundell has mentioned, was one of the issues that were touched on in that evidence. The committee asked the cabinet secretary for specific assurances in relation to the provision of laptops and internet connection, particularly in circumstances in which the Government is making a decision to close schools.

It is a Scottish National Party election commitment to provide young people with devices and internet connections. The cabinet secretary may be surprised to hear me say this, but I am genuinely trying to be helpful in lodging the amendment, which brings to the fore the fulfilment of that SNP promise. I hope to be able to appeal to the Government, and to the Deputy First Minister in particular, by using his own words. Just over a year ago, John Swinney said:

“We will end the digital divide between those who have access to the rich educational resources of the internet and open that electronic world to every child in Scotland ... we are determined to tear down the barriers to education that too many children face.”

I agree with all that.

I wonder whether the member has gone a little too far in the wording of amendment 119. I agree with much of what he has said: every child should have a laptop or something similar and an internet connection. However, if we took the amendment literally—when something is in law, we have to take it literally—it would mean that one child not having an internet connection would prevent a school, or possibly multiple schools, from closing. Does the member not feel that that is going a little too far?

I am not hung up on a particular set of words; I am hung up on the idea that something has to be done to assure ministers that, when they make such drastic decisions, the provision exists for every child to access education and learning remotely. I know that John Mason shares my passion and commitment to ensuring that that happens.

There is great virtue in underscoring that commitment, which I hope we all share, by including it in the bill. I refer members again to the words of the Deputy First Minister when he talked about

“the barriers to education that too many children face”.

Those barriers became higher and larger—they grew in every dimension—during the pandemic. If the bill is to fulfil its purpose, as ministers have repeatedly stated, I hope that the Government will accept amendment 119. It seeks to ensure that, when schools are to be shut down for good reason, no child is left behind, and no young person’s educational pathway will be disrupted even more than it would be as a result of the closure of a school.

It aims to ensure that children and young people will not be denied access to learning, education or teachers—to some kind of educational experience—nor will they be denied, to quote John Swinney,

“access to the rich educational resources of the internet”.

We should all aspire to that for every child in Scotland, which is why I am passionate in moving amendment 119.

I ask Graham Simpson to speak to amendment 13 and other amendments in the group.

I am sure that alarm bells were ringing in the cabinet secretary’s head when Mr Kerr said, “I am trying to be helpful,” but in this case I think that he actually was trying to be helpful.

I have six amendments in the group: amendments 13 to 18. I will be extremely brief, because I know that the committee is up against the clock—I suspect that you will be sitting long into the night on this one.

Amendments 13 to 15 seek to remove sections 8 to 10. I will come to amendments 16 to 18 in a moment.

Section 8 gives ministers the power to make

“regulations ... relating to the continuing operation of an educational establishment for a specified period.”

Oliver Mundell has spoken extensively about that power, which will give ministers powers to close schools. It is a sweeping power with far-reaching consequences.

In my view, closing schools has, in some cases, been harmful. If we were ever to go down that route again, it should involve proper scrutiny. If we were to do that, we should use primary legislation, which can be taken through at pace but would allow for at least some of the severe implications to be explored. That is the route that we should go down, which is why I seek to remove that specific power from the bill altogether.

However, assuming that the committee will not agree to that, I am very much persuaded by the series of amendments from Oliver Mundell and Stephen Kerr, and I recommend them to the committee.

Section 9, which I also seek to remove, gives ministers the power to

“require a relevant manager of a school boarding establishment to take ... steps to restrict or prohibit access to the establishment for a specified period”.

The same argument applies: that is a sweeping power, and the consequences could potentially be severe.

I said that I would be brief, and I am being brief. I move to section 10, which gives ministers powers over student accommodation that would enable them to “restrict ... access” to such accommodation or close it down. The same arguments apply to all three sections that I have highlighted, and I think that they should be removed from the bill.

Amendments 16 to 18 are very similar to amendments that the committee has already considered and, unfortunately, rejected. Those amendments were extremely reasonable and were based on the DPLR Committee’s recommendations. I suspect that members such as Mr Mason would, in their heart of hearts, agree with those amendments but, given that we have already voted on them—[Interruption.]

I see that Mr Mason is itching to come in. Do you want to intervene?

Well, if you want me to—

I do not particularly want you to, but—

I agree with the DPLR Committee and your argument that the made affirmative procedure was perhaps used a bit too often. I am just wary of ruling it out too much. Do you agree that there is some place for that procedure, albeit that it should not be used every day?

The DPLR Committee said that the default position should be the affirmative procedure. It did not completely rule out the made affirmative procedure, but it recommended that certain things should be put in place if that procedure is to be used. That was the purpose of amendments in my name that you have voted against, Mr Mason, despite saying that you agree with me.

Given that the committee rejected those amendments, I will not move the amendments in my name in this group and force a vote. However, I am keen to work with the cabinet secretary—if he is up for it; it is up to him—to see whether we can improve things in the area. I make that offer.

Thank you, Mr Simpson.

I just point out that we are on page 8 out of 65 and it is already 10.41.

I call the cabinet secretary to speak to amendment 36 and other amendments in the group.

Convener, I am afraid that I will detain the committee a little, because there is a large amount of material here on which committee members would expect me to comment. I must do so out of respect to members of Parliament. I have no plans for this evening. [Laughter.]

This is a large and important group of amendments. I will speak, first, to amendments 36 to 39 in my name. As with group 1, the key overarching amendments in the group are those that introduce the gateway vote mechanism, that is, amendments 38 to 39, which provide for the approach that the committee supported in the context of group 1; the amendments are substantively identical to amendment 23, which has just been agreed to, and the same rationale applies. They substantially address a number of concerns that members have about parliamentary scrutiny.

As I said in the debate on group 1, I have considered issues that the Delegated Powers and Law Reform Committee and this committee identified at stage 1, as we signalled in the Government response to the committees. Amendment 36 makes equivalent provision in part 2 of the bill, including by providing for an explanation of urgency if the made affirmative procedure needs to be used in urgent circumstances.

Amendments 16 to 18, which Mr Simpson lodged, would either mean that the made affirmative procedure was not available for regulations under that part of the bill or lead to delay. There are significant safeguards in the bill, and the Government amendments that we consider today will add to those safeguards, to ensure that regulations are made urgently only when that is necessary to meet the public health emergency that is faced, and to ensure that such regulations are in force for as short a time as possible. The amendments in Mr Simpson’s name would significantly undermine the provision that the bill puts in place with the intention of protecting people in the face of a future public health emergency.

I heard what Mr Simpson said, and I hope that he can, in good spirit, acknowledge that the Government has accepted a number of the arguments that the DPLR Committee advanced. I hope that he also accepts that I have said on the record that we should use the made affirmative procedure only where it is absolutely required.

I welcome the dialogue that is under way with that committee about a form of expedited draft affirmative procedure that would enable parliamentary scrutiny before the effect of regulations is in place. Fundamentally, as members will understand, much comes down to the definition of “expedited”.

I do not want to avoid parliamentary scrutiny at any stage, but I want Government to be able to take action that is necessary to protect public health. It is the reconciliation of that balance that is critical on this question. I will be happy to have further dialogue—I see that Mr Simpson wants to intervene.

In saying that you are happy to have further dialogue, you have probably answered the question that I was going to ask. We can probably reach an accommodation between your desire to be able to act quickly and my desire to have more parliamentary scrutiny—we can meet somewhere in that regard. I am happy to take you up on your offer.

10:45  

I think that we all understand and that, regardless of our reflections on the pandemic and on regulations and restrictions, no member of Parliament suggests that there was no need for any restrictions whatsoever; all members of Parliament accept that point, and that is welcome.

There are varying degrees to which the extent of the regulations was judged to be appropriate, or whether all of them or as many of them had to be introduced with quite the pace with which they were introduced. I accept that there is no black and white position in all that. We need to approach this with some principles, which are that we have to move fast, but we also have to maximise parliamentary scrutiny. If we try to address a position between those two principles, I suspect that we will get somewhere. That is what I was trying to do with my interaction with the Delegated Powers and Law Reform Committee to signal that.

Amendment 37 provides that urgent regulations under sections 8 to 10 that only revoke any part of existing regulations would be made by a laid no-procedure SSI. That would enable the swift removal of education regulations that are no longer necessary and proportionate. The option would be available only when the new urgency test in section 12, that is proposed in amendment 36, is met.

Amendment 137 in Mr Mundell’s name is connected to those provisions in that it would provide that education regulations could be in place only when public health protection regulations are in place. It might not necessarily have that effect, as some regulations that are made under the public health provision might be permanent preparedness regulations, in which case amendment 137 would not achieve what it is trying to achieve. It is an unhelpful addition to the carefully crafted layers of safeguards that are in the bill to ensure that regulations are in place for no longer than necessary, as I have covered in amendments 38 and 39. Further, the amendment does not reflect that the nature of a public health emergency might lead to different considerations for health and education.

I would be happy to bring back alternative wording at stage 3, but I hope to establish the principle that, if some regulations or individual parts of regulations are removed, those for education would be reconsidered. In the prioritisation that we used when we opened society back up, the order in which things were considered did not necessarily favour young people. They are difficult balances, but I do not think that regulations should be in place that close schools and place restrictions on young people while we are removing restrictions that were made for the same reasons. Those should have to be tested again. Do you agree?

I agree with Mr Mundell but, in my experience of handling the pandemic, that was not always what I heard from Mr Mundell’s colleagues. I have had endless exchanges with members of the committee about the importance of reopening clubs, pubs and airports before schools. Philosophically, I agree with Mr Mundell’s point. I was the education secretary who took the decision to cancel exams and close schools. That was a difficult day in my life; I was walking up and down the floor wondering at what moment we would have to act and whether we had to act so abruptly and so early. I totally agree with Mr Mundell, but what he said is not what I heard at all times.

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.

Yes, and I think that the bill makes that provision, but Mr Mundell and his colleagues need to reflect on the lines of argument that were being advanced during the pandemic. I say that in the respectful position that we are in in this exchange.

As colleagues will have deduced, I cannot support amendment 137. However, I am happy to explore other questions that we might come on to in this group.

On the remainder of the group, amendments 112, 115, 117, 13 to 15, 134, 136, 140 and 145 leave out sections 5 to 13 of the bill. The powers in those sections are necessary and proportionate and had majority support in committee and the chamber, so I cannot support those amendments.

Amendment 118 and its more general alternative, amendment 130, propose a new role for the Children and Young People’s Commissioner to consider and report on any proposed use of the education regulation-making powers. No timescale is provided for the commissioner’s report and no exception is offered for urgent cases. Therefore, those amendments would seriously delay the Government in responding swiftly to a public health emergency.

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?

Amendment 118 does not provide for what Mr Mundell just outlined to me, so I cannot support it.

I am interested to learn how the wording of the amendment would prevent ministers from taking action. The only duty that it places on them is to seek a report.

However, it then says that we must have regard to it.

Yes, but if there is no report to have regard to, then you would have to have regard to it after the time.

The purpose of the discussion that we are having is to put in place precise wording for the law that we are making. Members of the Parliament will be very conscious of that. If amendment 118 is agreed to, ministers must “seek” and “have regard to” a report. I am afraid that, with that amendment, Mr Mundell is encouraging me to pass legislation that is far from clear. Therefore, on the basis of what is before us, it cannot be supported.

Ministers are committed to preparing and publishing a children’s rights and wellbeing impact assessment for regulations that are made under section 8. I expect similar mechanisms to the four harms assessment process and Covid education recovery group arrangements to be used to ensure that the impact on children and young people is fully understood and taken into account.

Amendment 119 fails to take into account how the provision of digital infrastructure and devices is organised, or would be organised in the future, in the education system, as well as the role and functions of operators rather than the Scottish Government.

The wording of the amendment is flawed. Are laptops to be “provided” irrespective of whether an establishment is to close or whether a young person already has a device? The amendment also does not take into account the point that the most appropriate device might not always be a laptop and it is prescriptive in the use of that term. As Mr Mason said in his intervention on Mr Kerr, it would present an unreasonable barrier to acting swiftly to address a public health emergency.

The Government is committed to ensuring that every child has access to a device by the end of this parliamentary session. Indeed, during the pandemic, significant investment from central Government ensured that more than 72,000 devices and 14,000 connections were provided to our most disadvantaged children and young people. We must and will continue to enhance young people’s access to technology, but introducing an open-ended requirement that must be fulfilled before ministers can take action that is necessary and proportionate to protect public health is not workable and could put children at a significant risk in future.

I understand what you are saying about the use of the word “laptop”, but I am not sure that I follow the logic of what you say about amendment 119 not taking into account the means by which the devices are distributed to children in the first place. You have made a commitment to the pupils of Scotland that they will have devices, Deputy First Minister. Irrespective of the route of distribution for the devices or the internet connections, that is a Scottish Government commitment. I have spoken in the chamber before about it and asked the First Minister questions about it. Will you explain the logic behind your objection?

I have made a number of points in that regard. Mr Kerr encourages me to ignore the routes by which such things must happen. We have to work with local authorities and schools on the delivery of that proposition. Mr Mundell has just rehearsed the fact that we have 32 local authorities that do things in different ways. Not all local authorities deliver electronic access to education in exactly the same way; they have different means and methods of doing so and utilise different technologies. The point that I am making is that the amendment does not take that into account.

Will the Deputy First Minister take an intervention?

I will, but I am anxious to make more progress.

I am slightly concerned about your argument. God forbid that we have to go through the same thing again, but we must ensure that we do not leave any child behind in their education. We have been through the pandemic, so we understand the pitfalls and the issues. Surely agreeing to Stephen Kerr’s amendment would encourage the Government to work with local authorities to ensure that there are routes by which such devices get into the hands of those who require them.

The Government does not need any legislative encouragement to do that—we are getting on with doing it, and we have already accomplished a significant amount, as I have indicated.

I have slightly more sympathy for the proposal in amendment 142 regarding reporting on readiness for remote learning. However, it assumes that responsibility for implementing remote learning lies with the Scottish ministers. Education authorities have the relevant statutory functions in relation to provision of education, including on contingency planning. I am also concerned that an annual information-gathering exercise would create an additional bureaucratic burden on the education system, distracting operators from their core responsibilities.

As part of the continued recovery from the Covid pandemic, I would be happy to consider an approach that would review the education system’s readiness for future remote learning should that be required. If members are willing to reject amendment 142 today, I will look into that further and return with more detail ahead of stage 3. I would be happy to engage with Mr Mundell on that point.

Amendment 120 would effectively give local authorities a veto over closure of the wide range of educational establishments that are located in their area, including universities, colleges and independent schools. Whether that is the intended effect, the proposal is undesirable in terms of managing a future public health emergency that may require a co-ordinated, national response to protect those in educational establishments or the wider public.

I accept the drafting issues. However, on the principle of school-based education being provided by local authorities in line with our 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?

A balance is struck through existing legislation, which gives a local authority the ability to close a school when there is an immediate local public health issue. [Interruption.] If Mr Mundell will let me complete my answers, that might help us make some progress.

A director of public health can provide a report to a local authority about a public health situation that requires to be addressed. That is the existing law; nobody is challenging that. The purpose of the bill is to ensure that we as a country are equipped to handle wider threats. We have just gone through a pandemic, which is a much wider threat than, for example, a localised norovirus outbreak.

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?

There may well be an argument for further dialogue. However, one of the points that Mr Whittle made to me earlier is the importance of knowing where clear decision making can be undertaken so that we all know where we stand. My view—this is also my experience of the past couple of years—is that that is critical, particularly in a public health emergency.

11:00  

Amendment 121 and its more general alternative amendment 131 require ministers to establish an educational advisory council after making regulations and to seek its views. I have sympathy with the intent behind the amendments to secure in statute a consultative mechanism for education stakeholders for the duration of a public health emergency.

I respect the role and responsibilities of local government in these matters, which it has highlighted to the committee in its support for amendment 121. As the committee knows, the Government worked very closely throughout the pandemic with the Covid-19 education recovery group and would expect to use similar arrangements in future. I do not think that the composition of the amendments is appropriate today, but I would be willing to explore the issue further with a view to lodging an amendment at stage 3 that delivers a consultative mechanism in a more practicable way.

Amendments 122 and 133 would prevent regulations from swiftly addressing a public health emergency, and would result in a 48-hour delay between regulations requiring school closures being made and coming into force, or a seven-day delay before compliance with regulations could be enforced.

Amendment 123 requires that all regulations are accompanied by a statement on ministers’ policy for continuity of educational provision. That is unnecessary, because any regulations would be expected to include provision relating to ensuring continuity of educational provision and to be accompanied by guidance that would explain their purpose and how they support the continuity of education.

Amendment 124 places a requirement on ministers to direct that weekly contact between children and young people and the educational establishment that they normally attend be facilitated during a period of closure. It is not clear who ministers would direct and what the consequences of non-compliance with such a direction would be. The amendment also does not differentiate between the stages of education that children or young people are in, and is not limited to term time. It would be better to make clear in guidance or in regulations that such contact should be facilitated and give operators appropriate flexibility for different stages of education or needs and to cover all users—for example, students.

Amendments 125 and 126—[Interruption.] I am sorry; I will make progress, convener.

Amendments 125 and 126 would provide discretion despite regulations closing an educational establishment for an operator to conclude that a young person would be best supported by opening the establishment or for a parent to request that their child attend the establishment in person. Apart from the lack of clarity on which age groups of child or young person each provision would apply to, and whether they would apply to all types of educational establishments, the amendments would appear to undermine a national approach to restrictions on establishments where those were necessary and proportionate, according to the tests in the bill.

In practice, it is likely that limited continued in-person provision might continue during a general restriction—for example, to support vulnerable children or the children of key workers, or for students and boarding school pupils who are unable to return home for good reason. An operator’s legal duties towards their learners, pupils and students would continue alongside any requirements that are made in regulations. It is not helpful to provide further discretion to deviate from restrictions that have been put in place following all the tests established in the bill, and would undermine tackling the public health emergency. I therefore encourage the committee not to support amendments 125 and 126.

Amendment 128 is, in my view, unworkable. It is for the Scottish ministers to make regulations in relation to student accommodation that they consider necessary and proportionate in view of CMO advice. That cannot be wholly contingent on the actions or views of relevant managers of student accommodation who will be required to comply with such regulations. However, the regulations themselves can make provision to ensure that students are to be provided with necessary support.

Throughout the Covid pandemic, we worked in partnership with stakeholders including colleges, universities and student representatives to provide guidance for the safe operation of student accommodation and support of students staying in student accommodation. That would be our preferred approach in any future public health emergency. The Government will also work with stakeholders to explore what possible guidance would look like in advance of any future public health emergency.

Amendment 132 would put in statute a requirement on ministers to seek voluntary arrangements with education providers before making any regulations under sections 8, 9 or 10, and would be unworkable. It would significantly delay bringing forward any regulations, and would be undeliverable if even a small number of operators were unwilling to observe a voluntary arrangement.

Where appropriate, ministers would expect to use voluntary arrangements. During the Covid pandemic, it was on that basis that advice and guidance, rather than directions, were given to all operators other than education authorities. However, a requirement to agree that with all operators before using the powers would not be workable. In some circumstances, statutory arrangements will remain the only and most appropriate option to provide legal certainty.

Amendments 138 and 139 would add an additional requirement to review any regulations within seven days of a new member of the Scottish Government or junior minister assuming responsibility for the regulations. Such an approach does not properly reflect the principle of collective responsibility that is enshrined in the Scotland Act 1998 and reflected in the Scottish ministerial code, so I cannot support those amendments.

The proposed approach also seems unnecessary, given that regulations under part 2 will be made for a specific period and ministers will be required to review them every 21 days. An earlier review and, if appropriate, urgent revocation of regulations, as is provided for in amendment 37, will be possible at any time.

Amendment 141, on relevant authorities using their professional judgment, is drafted in unclear terms that would, unhelpfully, add doubt about duties under the bill. It could be read as giving relevant authorities significant scope to make different decisions from their establishments, despite national advice, guidance or regulations. There is already scope for deviation from guidance and advice where necessary. For example, a relevant authority will continue to have other legal responsibilities and will be expected to balance its different duties.

I accept the spirit behind amendment 141, which is that central Government should respect the professional judgment and knowledge of the people who are responsible for education establishments. Nothing in this bill is intended to undermine that. Government’s actions must be reasonable at all times. However, amendment 141 would not add clarity for operators on the action that they needed to take and would hinder the bill’s purpose of providing the basis for swift and decisive national action to tackle a public health emergency.

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.

The principle that I would put in place is that any approach in relation to dialogue cannot undermine the clarity of decision making that we require in a pandemic. I am happy to explore the matter, but that is the principle that I would bring to the conversation.

Amendment 143 would place another unacceptable delay on ministers’ ability effectively to respond to an emergency with regulations by placing on ministers a duty to explore alternatives and mitigations and then to report on their consideration through a statement to the Parliament that would accompany the regulations.

Therefore, I cannot support amendments 141 and 143.

I invite the committee to support amendments 36 to 39. I invite Oliver Mundell not to press amendment 112 and I invite him and other members not to press the other amendments in the group.

Mr Mundell, there has been plenty of opportunity for interventions, so I ask you to wind up as succinctly as possible.

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.

The question is, that amendment 112 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Murdo Fraser (Mid Scotland and Fife) (Con)
Alex Rowley (Mid Scotland and Fife) (Lab)
Brian Whittle (South Scotland) (Con)

Against

Siobhian Brown (Ayr) (SNP)
Jim Fairlie (Perthshire South and Kinross-shire) (SNP)
John Mason (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Amendments 0.

As the outcome of the division is tied, I will use my casting vote as convener so that the committee reaches a decision. I vote against amendment 112.

Amendment 112 disagreed to.

Section 5 agreed to.

Section 6—Duty to have regard to public health advice

Group 3 is on “Education regulations: advice from Chief Medical Officer”. Amendment 113, in the name of Oliver Mundell, is grouped with amendments 114, 116 and 30 to 35.

I will speak briefly because this comes back to the point about balance, which we have already covered at length. I am interested to hear the Government’s response to my amendment. I do not think that there is a great deal more for me to say.

I move amendment 113.

With regard to the Government amendments in the group, amendments 30 to 35 replace the cross-references in sections 8 to 10 to section 6, which relate to the duty on relevant authorities to have regard to any advice of the chief medical officer, with the term “about protecting public health”. The effect of the amendments is to make clearer the subject matter of the advice from the CMO that ministers must have regard to before they make any regulations under sections 8 to 10.

The current approach may have implied that the only advice to which ministers must have regard before making regulations under sections 8 to 10 was advice given under section 6. The more specific reference to advice “about protecting public health” will mean that a wider range of advice from the CMO may be considered before any regulations are made, including advice that relates specifically to the measures to be used in such regulations.

The amendments will ensure that there is clarity about the nature of the advice that the CMO will provide to ministers to inform their decision to use the regulation-making powers. The amendments will further strengthen those important provisions and help to ensure that the powers are fully and appropriately informed by advice from the CMO. As was debated under groups 1 and 2, CMO advice is also built into the gateway vote mechanism that will apply before any educational continuity regulations are made.

I turn to the other amendments in the group. Amendment 113 seeks to add to the requirements in section 6. Under section 6(1), a relevant authority must properly consider the advice of the CMO with an open mind and take it into account when carrying out their functions. CMO advice will be an important consideration alongside the rights and interests of the people whom a relevant authority serves, such as pupils or students; other advice, including legal advice; advice on health and safety matters; and advice on pedagogical issues and other matters.

The potential effect of amendment 113 would be to set out in law the specific actions that relevant authorities must take when exercising their existing functions in relation to the duty to have regard to CMO advice. The same argument applies in relation to amendment 116 and the changes that it proposes in relation to statutory guidance that is issued by ministers under section 7.

Those measures would place a significant additional burden on relevant authorities and, via the ability to delay implementation for up to 28 days, would negatively affect how swiftly mitigating actions that are advised by the CMO can be introduced. They could also lead to significant divergence in the actions that are taken by relevant authorities, allowing some, but not others, to act swiftly in accordance with the advice of the CMO and guidance from ministers.

The measures would also place an additional burden on operators of educational establishments ranging from local authorities to childminders and universities by requiring them to conduct consultation exercises in the midst of a public health crisis. I urge the committee not to support those amendments.

For the reasons that I have given, I invite the committee to support my amendments in the group, and I ask Oliver Mundell not to press amendment 113 or move his other amendments.

I ask Oliver Mundell to wind up.

I do not have a great deal to add. This comes down to balance and who knows young people best. Even in a national response to a pandemic, there must be recognition that those on the ground who make the day-to-day decisions are often best placed to make those difficult balancing judgments. There is no one else to make them; there is no one else who can consider the individual circumstances of a young person to that level. The idea that the Government is best placed to take all those decisions on its own is one of the fundamental problems with the bill as drafted. In fact, that was not the experience during the pandemic. The provisions that I propose, or something similar, need to be in the bill.

I press amendment 113.

11:15  

The question is, that amendment 113 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the outcome of the division is tied, to enable the committee to reach a decision, I use my casting vote as convener to vote against amendment 113.

Amendment 113 disagreed to.

Amendment 114 not moved.

Amendment 115 moved—[Oliver Mundell].

The question is, that amendment 115 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the outcome of the division is tied, to enable the committee to reach a decision, I use my casting vote as convener to vote against amendment 115.

Amendment 115 disagreed to.

Section 6 agreed to.

Section 7—Guidance on public health measures

Amendment 116 not moved.

Amendment 117 moved—[Oliver Mundell].

The question is, that amendment 117 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the outcome of the division is tied, to enable the committee to reach a decision, I use my casting vote as convener to vote against amendment 117.

Amendment 117 disagreed to.

Section 7 agreed to.

That brings us to the end of group 3. Given the break in the groupings, I will suspend consideration of the bill to allow members to attend general question time in the chamber.

We are currently seeking approval from the Parliamentary Bureau to meet at the same time as the Parliament this evening, because members’ business will go on until 6 o’clock. The bureau will make a decision on that at 2.30. I hope that it will agree to that approach. If so, we will reconvene in committee room 6 at 5.30, after decision time. Please return to the committee room at 5.30 so that we can conclude our consideration of the bill without delay.

11:18 Meeting suspended.  

17:30 On resuming—  

Good evening. We reconvene at the start of group 4.

I remind members that we have 14 groupings of amendments in total. We intend to conclude stage 2 proceedings this evening, and I am keen that we achieve that aim. I am mindful that there are on-going travel disruptions and that members who have lodged amendments in groups that appear towards the end of the list of groupings should be given a fair hearing. I therefore ask members to keep their interventions and responses concise. If I feel that an intervention is going on for too long, I will interrupt to ensure that we continue to make progress on the bill.

If a member has the first amendment in a group, they should bear in mind that they will be given the opportunity to respond to points that are made by other members when I invite them to wind up.

Section 8—Regulations on continuing operation of educational establishments

Group 4 is on education regulations: exemptions for non-educational functions of further education and higher education institutions. Amendment 29, in the name of the cabinet secretary, is the only amendment in the group.

Amendment 29 exempts the non-educational functions of further and higher education institutions from the regulation-making powers in section 8. The effect of the amendment is that the power of ministers, under section 8, to make regulations in relation to the continuing operation of an educational establishment will continue to apply in relation to further education and higher education institutions but with the express limitation that any regulations that are made under section 8

“may not make provision relating to”

an institution’s

“non-educational functions”.

That will prevent any regulations having an effect on functions of further and higher education institutions that are not connected to the continuing operation of education.

In my response to the committee at stage 1, I committed to

“considering the scope of the regulation making powers”

for further and higher education institutions and to continuing our dialogue with stakeholders. I am grateful to Universities Scotland and Colleges Scotland for their engagement with ministers and officials on the bill, which has allowed us to make progress in that regard.

Throughout the Covid pandemic, we worked in partnership with the sectors and with student accommodation providers, trade unions and student representatives to ensure that appropriate guidance was in place to enable the safe operation of colleges, universities and student accommodation. I can confirm to the committee that, in the event of a future public health emergency, the Government’s preferred approach will be to continue that partnership approach, working with the college and university sectors and other stakeholders, as appropriate, to ensure that effective guidance is in place. We expect that the regulation-making powers in part 2, in so far as they relate to further and higher education institutions and student accommodation providers, would be used only should that partnership approach identify a need for regulatory certainty.

I hope that the amendment reassures members, and the college and university sectors, of our commitment to working in partnership with both sectors in the event of a future public health emergency. On that basis, I encourage the committee to support it.

I move amendment 29.

Amendment 29 agreed to.

Amendments 30 and 31 moved—[John Swinney]—and agreed to.

Amendment 118 moved—[Oliver Mundell].

The question is, that amendment 118 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order for the committee to reach a decision. I vote against the amendment.

Amendment 118 disagreed to.

Amendment 119 moved—[Oliver Mundell].

The question is, that amendment 119 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 119 disagreed to.

Amendment 120 moved—[Oliver Mundell].

The question is, that amendment 120 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 120 disagreed to.

Amendment 121 moved—[Oliver Mundell].

The question is, that amendment 121 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 121 disagreed to.

Amendment 122 moved—[Oliver Mundell].

The question is, that amendment 122 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 122 disagreed to.

Amendment 123 moved—[Oliver Mundell].

The question is, that amendment 123 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 123 disagreed to.

Amendment 124 moved—[Oliver Mundell].

The question is, that amendment 124 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 124 disagreed to.

Amendment 125 moved—[Oliver Mundell].

The question is, that amendment 125 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 125 disagreed to.

Amendment 126 moved—[Oliver Mundell].

The question is, that amendment 126 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

The result of the division is: For 2, Against 4, Abstentions 0.

Amendment 126 disagreed to.

Amendment 13 moved—[Brian Whittle].

The question is, that amendment 13 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 13 disagreed to.

Section 8, as amended, agreed to.

After section 8

Group 5 is on education regulations: issues consequential to making regulations. Amendment 127, in the name of Oliver Mundell, is grouped with amendments 129, 135 and 144.

These are further amendments that seek to put in place additional protections and address some of the shortcomings that we saw in the Government response during the pandemic. The principles behind them are fairly straightforward, but I accept that there may be questions relating to the way in which they are drafted or worded. Again, I am happy to work with the Government and/or anyone else to find a form of words that takes the principles forward, particularly around educational assessment and examinations, because I think that our young people want to see that lessons have been learned. There is a great deal of anger and concern in that regard, and I feel that some recognition that things must be fair in the future is important if these powers are to rest with ministers. In addition, there are often significant financial impacts on students as a result of the use of these powers, and, again, I think that young people would want to know that their interests would be protected.

Amendment 135 would create a right

“to repeat a school year”.

Many young people feel that they have missed out to the point that they have been significantly disadvantaged.

Amendment 144 would introduce a right to seek “an education catch-up plan”, which, again, would give young people the chance to catch up on lost learning.

That is probably enough of an explanation for now regarding the idea behind the amendments. I am interested to hear what the Government has to say.

I move amendment 127.

17:45  

I will address each of the amendments in the group in turn.

The measures that are set out in amendment 127 are not, in the Government’s view, workable, as the Scottish Qualifications Authority has, since 2000, in line with its statutory obligations, been responsible for delivering the national diet of examinations in Scotland. During the Covid pandemic, the SQA has worked closely with partners through the national qualifications 2021 group to ensure that young people are able to achieve fair and credible grades in spite of experiencing the most challenging of school years. That has included informing decisions on the timing of the return to an examination diet, with appropriate notice of such decisions, taking into account public health advice at the time.

The SQA and partners have made it clear that the awarding of qualifications must be based on demonstrated attainment. A range of measures, including adapted appeals processes that give learners a free and direct right of appeal, have been put in place to ensure that all our young people have the best chance to demonstrate their potential in order to receive the grades that they deserve.

Amendment 127 would introduce detailed statutory regulation of some aspects of examination and assessment—which are otherwise within the scope of broad functions that are, in general, exercised independently of the Scottish Government—in a way that is at odds with the existing legal framework. By taking a collaborative approach rather than the statutory approach that is proposed in the amendment, we can ensure that any assessment approach to the awarding of qualifications is appropriate to the circumstances at the time and does not pre-empt future legislation for the SQA’s successor or any outcomes of Professor Louise Hayward’s review of the future qualifications system for Scotland.

Amendment 129 would require ministers to set out plans for providing additional financial support to students if any regulations that are made in relation to the continued operation of educational establishments or student accommodation

“will, or are likely to, have a detrimental financial impact on students”.

During the Covid pandemic, we have provided substantial support to students, including more than £96 million through hardship funding, digital access support, mental health support and funding for student associations. We have also worked with the sectors and with student accommodation providers and student representatives to ensure the continued welfare and safety of students. That has included our on-going commitment to providing more than 80 additional counsellors in colleges and universities, which we have achieved.

In the event of a future public health emergency, we would set out any additional support for students, financial or otherwise, that we considered to be necessary, just as we would set out additional support for any other groups that we believed required support. We would do so in the context of the situation at the time and through consultation with stakeholders, including student representatives. By taking that broader, non-legislative approach, we can ensure that any additional support for students is appropriate to the circumstances at the time and that it includes non-financial support where appropriate. The Government cannot, therefore, support amendment 129.

With regard to amendment 135, there is already flexibility for individual applications to be made to an education authority for a pupil to repeat a year, and those applications are assessed on their individual merits. With regard to pupils who have additional support needs, the need for an extra year sometimes arises as the result of a deferral at an earlier point in their learning. A better approach would be for the young person to be considered under the Education (Additional Support for Learning) (Scotland) Act 2004 as having an additional support need, which may arise for whatever reason, and for appropriate catch-up support to be provided. During the years in which pupils take their formal exams, there is significant flexibility for young people to take qualifications when they reach a certain level, rather than in a single year. Finally, I note that amendment 135 is ambiguous in the terms that it uses and in relation to which types of educational institution it would apply to. As it is currently drafted, it would not deliver legal certainty.

Amendment 144 does not specify who may make a request or to whom a request for an education catch-up plan should be made, or whether there is any obligation on the institution to which the request is made to agree to it. In addition, the amendment gives no definition of content with regard to what such a plan should include. Again, that would not offer legal certainty.

I cannot support any of the amendments in the group, and I invite Mr Mundell not to press amendment 127 and not to move the other amendments.

I have to say that I am unsurprised that the Deputy First Minister is unable to support any of the amendments in the group, because they all speak to errors or a failure to provide support relating to his input to education during the pandemic. To be frank, with regard to the SQA, to hear that ministers were somehow not involved in some of those mistakes is a bit—

Will the member give way?

Certainly.

Does the member accept that there were different opinions on some of those things and that it is a question not of an error or a mistake, but of one choice being made against another choice?

I say politely to the member that I think that the use of historical data at a school level in a way that impacts the grades of other young people is wrong. In addition, when grades were changed on the basis of an algorithm, and when ministers were aware of the information and chose not to act, those were mistakes—that is why changes were made later. Young people deserve a guarantee that such things will not happen again.

I go back to Mr Mason’s point in relation to some of the other amendments, which relate to areas such as the financial impact. Again, we hear that the Government would not, in a future pandemic, do this or that, but we do not know who the Government or the ministerial office holders are going to be at that point. Putting some of these things in the text of the bill, rather than relying on guidance or regulation, therefore offers much stronger protection to those who may be impacted.

I could go on for some time, but I know that members have travel plans.

Do you intend to press amendment 127?

Yes.

The question is, that amendment 127 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 127 disagreed to.

Section 9—Regulations on school boarding accommodation

Amendments 32 and 33 moved—[John Swinney]—and agreed to.

Amendment 14 moved—[Brian Whittle].

The question is, that amendment 14 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

The result of the division is: For 2, Against 4, Abstentions 0.

Amendment 14 disagreed to.

Section 9, as amended, agreed to.

Section 10—Regulations on student accommodation

Amendments 34 and 35 moved—[John Swinney]—and agreed to.

Amendment 128 moved—[Oliver Mundell].

The question is, that amendment 128 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 128 disagreed to.

Amendment 15 moved—[Brian Whittle].

The question is, that amendment 15 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 15 disagreed to.

Section 10, as amended, agreed to.

After section 10

Amendment 129 moved—[Oliver Mundell].

The question is, that amendment 129 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 129 disagreed to.

Amendments 130 and 131 not moved.

Amendment 132 moved—[Oliver Mundell].

The question is, that amendment 132 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 132 disagreed to.

Section 11—Compliance and enforcement

Amendment 133 moved—[Oliver Mundell].

The question is, that amendment 133 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fraser, Murdo (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Brown, Siobhian (Ayr) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The result of the division is: For 3, Against 3, Abstentions 0.

As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment.

Amendment 133 disagreed to.

Amendment 134 moved—[Oliver Mundell].

The question is, that amendment 134 be agreed to. Are we agreed to?

Members: No.