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Chamber and committees

Meeting date: Tuesday, August 31, 2021

Delegated Powers and Law Reform Committee 31 August 2021

Agenda: Decision on Taking Business in Private, Instruments subject to Made Affirmative Procedure, Instruments subject to Affirmative Procedure, Instruments subject to Negative Procedure, Instruments not subject to Parliamentary Procedure


Instruments subject to Made Affirmative Procedure

Health Protection (Coronavirus) (Requirements) (Scotland) Regulations 2021 (SSI 2021/277)

We come to agenda item 2. An issue has been raised concerning SSI 2021/277, which revokes the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 (SSI 2020/344) but retains some requirements that are still considered necessary by the Scottish Government and provides that those are applied uniformly across Scotland.

The instrument requires that, subject to some exemptions, face coverings should still be worn in most indoor spaces. The guidance accompanying the instrument states that face coverings are not required to be worn while dancing in a nightclub or dance hall. However, a specific exemption for dancing is not listed in the instrument. In correspondence, the Scottish Government said:

“It is considered that dancing is a form of exercise which reasonably requires that the person is not wearing a face covering”,

which is an exemption provided for by regulation 5(1)(r).

Does the committee wish to bring the instrument to the attention of the Parliament on reporting ground (h), which is that its meaning or form could be clearer?

Members indicated agreement.

Also, although the instrument revokes SSI 2020/344, it fails to revoke all the instruments that amended SSI 2020/344. The Scottish Government was grateful that that oversight was brought to its attention and confirmed by correspondence that the relevant amending instruments

“will be revoked at the earliest convenient opportunity.”

Does the committee wish to bring the instrument to the attention of the Parliament on the general reporting ground, and at the same time welcome the Scottish Government’s commitment to revoke the relevant amending instruments at the next legislative opportunity?

Members indicated agreement.

Does anyone have any questions on the instrument?

I agree with everything that the convener has said, but the instrument highlights a problem concerning the need to be clear in law about what is meant. If it was the Scottish Government’s intention that people in nightclubs who are dancing are not required to wear face masks, why did it not just say that? The word “dancing” appears nowhere. That is probably because it is very difficult, if not impossible, to define dancing in law.

We saw an example of someone dancing in a nightclub in Aberdeen over the weekend. Some people may call that dancing, but some will not. One man’s backward walk is another man’s dancing. It is very difficult to say what we mean. The Scottish Government said that dancing can be

“taking part in exercise of a type that reasonably requires that the person is not wearing a face covering.”

However, while dancing can be exercise, it does not have to be. It is a recreational activity that is not necessarily strenuous. That makes it difficult, if we want to be clear in law, which we do.

It is worth highlighting to the lead committee that there are issues with the instrument. My guess is that the reality in nightclubs—not that I have been to one for many years—is that people take off their face masks as soon as they get inside, whether or not they are dancing. The lead committee should look at the matter, accepting that as a reality. The instrument falls down in terms of clarity of the law and we should highlight that.

Following up on Graham Simpson’s point on the definition of dancing, I wonder about the use of regulation 5(1)(r), as it raises a question about the context. The provision governs nightclubs but, hypothetically, if I were to dance my way round a supermarket—or go very fast round the supermarket, as in the TV programme “Supermarket Sweep”—would that be a form of exercise that would allow me not to wear a mask?

Mr Simpson raised questions in relation to the definition of dancing, but I also wonder whether the way in which the provision is framed opens up an issue to which we should be alerting the lead committee regarding the context and the premises in which the activity takes place.

There may be opportunities to investigate how the regulations interact with licensing law and the definitions there. Perhaps the committee could express that point to the Government. We could also note the extent to which the explanatory notes cover practical scenarios where the consideration could arise. Perhaps there could be a better definition in the explanatory notes, too.

I have nothing in particular to say, except that we need to refer the regulations to the lead committee to ensure that we are not dealing with people dancing on the head of a pin. We have to put down what dancing is, and that is the end of it.

The suggestion is to write to the lead committee, and I think we should do that in relation to the points raised by Graham Simpson and Craig Hoy. I think it would also be worth writing to the lead committee on the points raised by Paul Sweeney regarding licensing, so that the lead committee can take that up. There could be policy matters that are important for licensing legislation. Are you content with that, Paul?


No points have been raised on the remaining instruments under this agenda item.

Health Protection (Coronavirus) (International Travel etc) (Miscellaneous Amendments) (Scotland) (No 7) Regulations 2021 (SSI 2021/278)

In relation to SSI 2021/275, the committee may wish to welcome the fact that, shortly after the regulations came into force during the parliamentary recess, the Scottish Government corrected a referencing error in regulation 3 by amendment in SSI 2021/278.

Is the committee content with the instruments?

Members indicated agreement.