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Chamber and committees

Meeting date: Thursday, March 31, 2022

COVID-19 Recovery Committee 31 March 2022 [Draft]

Agenda: Coronavirus (Recovery and Reform) (Scotland) Bill: Stage 1, Ministerial Statement


Contents


Coronavirus (Recovery and Reform) (Scotland) Bill: Stage 1

Good morning and welcome to the 11th meeting in 2022 of the COVID-19 Recovery Committee. This morning, we will take evidence on the Coronavirus (Recovery and Reform) (Scotland) Bill at stage 1.

I welcome to the meeting John Swinney, Deputy First Minister and Cabinet Secretary for Covid Recovery, and from the Scottish Government: Professor Jason Leitch, national clinical director; Greig Walker, bill team leader; Nicola Guild, solicitor; Laura McGlynn, head of health protection and screening; and Simon Stockwell, head of the family law unit. Thank you all for attending this morning.

Deputy First Minister, would you like to make any remarks before we move to questions?

Convener, thank you for the opportunity to give evidence on the Coronavirus (Recovery and Reform) (Scotland) Bill. First of all, I would like to thank the many individuals and organisations that have submitted views at the committee scrutiny stage in response to the call for evidence.

Last week, the Parliament voted to extend key provisions of the Scottish and United Kingdom coronavirus acts to September 2022. The bill that we are considering is about what should happen thereafter and proposes to carry forward around 30 important temporary measures. In line with the Government’s commitment to expire or suspend temporary provisions that are no longer necessary, and the need to report on them every two months, I can confirm that more than 45 temporary measures that were previously enacted have now expired.

The measures in the bill fall into three broad categories: powers to counter future public health threats; the embedding of practical public service reforms that have demonstrated their value, irrespective of the public health position; and extended temporary measures to manage the impact of Covid, specifically on the Scottish justice system.

Provisions in the first two categories fall within the committee’s scrutiny remit, and I have followed the stakeholder evidence with interest. It has, of course, been put to ministers that it would have been better to have split the bill, but there is a good reason for the Government being minded to progress with a single piece of legislation. For the most part, measures in the bill across all categories exist in temporary legislation that is now confirmed to expire in September. They all update and equip the statute book in sensible ways, as part of learning lessons from the pandemic. They were all consulted on as a coherent package in a full 12-week public consultation that took place between August and November last year, and the measures in the bill collectively support the Government’s Covid recovery strategy and the recently updated Covid strategic framework.

In the particular case of public health protection proposals, it has been put to the Government that those future powers are not needed, now that Scotland is transitioning from baseline Covid requirements in law to guidance. I disagree. The move brings into sharper focus the important distinction between having appropriate powers to hand to respond to future public health threats, which I consider to be in the public interest, and using those powers.

The Delegated Powers and Law Reform Committee, which has taken a close interest in the bill, published its stage 1 report on Tuesday. I will consider the detail of its recommendations closely, but I am happy to signal, as I did when I appeared before that committee to give evidence, that I will look to work constructively with the committee on issues such as the made affirmative procedure. I am happy to consider where constructive improvements can be made to the Government’s proposals and I look forward to the committee’s questions.

Thank you, Deputy First Minister.

Can you outline which provisions have been included in the bill that were not contained in the temporary emergency legislation and explain why they have been included?

The Government has looked carefully at all the temporary measures that were put in place, some of which had a particular time limit and have expired. The Government has operated on the principle that we do not want to keep in place temporary measures for any longer than is required.

A range of temporary provisions were put in place for the pandemic that we judge are no longer necessary and do not need to be included in the permanent legislation that we are proposing. We have identified in the proposed legislation a number of provisions that have arisen out of our experience of the pandemic, particularly with regard to the administration of public services, and which we judge to be of practical benefit to the public and, therefore, in the public interest. We have advanced proposals of that nature.

The bill proposes to take steps to ensure that we are in a position to manage for a longer period the disruption caused to the justice system by the pandemic. As a consequence, it includes a range of temporary justice provisions that purely and simply ensure that we can support the recovery of the justice system after the huge amount of disruption that the pandemic caused.

The Government has looked carefully at all the temporary measures that were put in place, some of which had a particular time limit and have expired. The Government has operated on the principle that we do not want to keep in place temporary measures for any longer than is required.

A range of temporary provisions were put in place for the pandemic that we judge are no longer necessary and do not need to be included in the permanent legislation that we are proposing. We have identified in the proposed legislation a number of provisions that have arisen out of our experience of the pandemic, particularly with regard to the administration of public services, and which we judge to be of practical benefit to the public and, therefore, in the public interest. We have advanced proposals of that nature.

The bill proposes to take steps to ensure that we are in a position to manage for a longer period the disruption caused to the justice system by the pandemic. As a consequence, it includes a range of temporary justice provisions that purely and simply ensure that we can support the recovery of the justice system after the huge amount of disruption that the pandemic caused.

The committee received a submission from Dr Andrew Tickell and Professor Alison Britton, both from Glasgow Caledonian University, who concluded:

“the main provisions of Part 1 of this Bill are generally in keeping with the law already applying in England and Wales”.

However, there was one concern regarding the power to modify or amend the enactment, which I think is known as a Henry VIII power. How do the public health powers in the bill compare with the equivalent powers in England and Wales? Why was it thought necessary to include the Henry VIII provision?

The provisions are broadly comparable to those in England and Wales. If my memory serves me right, those provisions have been in place for the best part of a decade or more. That gets to the nub of the bill, which is the necessity of ensuring that the legislative framework that we have in place is appropriate to deal with the emergence of a major national public health issue such as a pandemic.

The legislation that the Parliament considered in this respect in the past—the two coronavirus acts—was taken through Parliament at great speed. There was significant parliamentary co-operation to enable that but, of course, the level of scrutiny that was available for the provisions was limited. Therefore, with the bill, we are taking a calm period to consider with full parliamentary scrutiny the types of measures that could be put in place should we face a further pandemic and to ensure that we have the necessary statutory force to provide for that as well as sufficient parliamentary scrutiny if the Government takes any steps within the framework of the bill.

On the point made by the legal academics that you have just highlighted to me, convener, it is important not only that we have a structure of legislation in place to enable us to handle a future pandemic but that we consider that in slow time to ensure that we have the right arrangements in place. As I have indicated, the provisions are broadly comparable to the ones in England and Wales.

There is a Henry VIII provision in section 94 of the Public Health etc (Scotland) Act 2008, which relates to international travel restrictions. Has that ever been used?

Either I will have to defer to my officials to give me further guidance on whether it has been used or we can write to you, convener, to clarify that. Unless my officials can add detail now, I propose to write to you.

I am not sure whether anybody would like to come in. If they do, perhaps they could raise their hand, because I cannot see the other screen. [Interruption.] That is okay—it would be great if you could write to me, Deputy First Minister.

Why are the current procedural rules that allow for emergency bills to be progressed through the Parliament thought to be inadequate in such circumstances?

Again, that issue is at the heart of the discussion on the bill. The question is whether we think it appropriate to put legislative change in place at a very fast pace when a pandemic arises, as the Parliament had to do on two occasions in the spring of 2020. The legislation was handled on a very swift timescale; indeed, complex legislation was put forward in a matter of days.

It is a well-expressed view of the World Health Organization that countries should have appropriate measures and mechanisms in place to enable them to respond swiftly and appropriately to a pandemic. The Government has reflected on that as a lesson from the pandemic, and I think that that point has also been made to the committee by legal academics. Therefore, there is an opportunity for us to consider in a slower timeframe what that range of powers could look like and what powers could be enacted, should we face that situation.

Essentially, from my perspective, the nub of the matter with regard to the bill’s principles—especially in its early parts—is ensuring that we have a legislative framework in place that enables us to think in advance about the types of legislative changes that we might need to make and how we can make them. That is essentially what the bill proposes to do.

On the issue of proportionate measures, can the cabinet secretary explain the meaning of the phrase “proportionate response”? Who makes those decisions, and what are the challenges of doing so?

That theme has been the subject of extensive discussion with the committee during the pandemic, and it has been very much at the heart of the Government’s decision making about the handling of the pandemic. Indeed, it has been central to the decision making around the four harms framework and the strategic framework.

The question of proportionality is fundamental, because it is a legal test of whether or not any measures that the Government puts in place are appropriate in a certain set of circumstances. Ministers will make those decisions and must be satisfied that, on the basis of the evidence that is available to them, there is a proportionate case for applying restrictions.

We have wrestled with that question on countless occasions over the course of the past two years. We have come to conclusions about when we judge measures to be proportionate and have withdrawn measures, because we did not believe that they were proportionate at that particular time. Ultimately, those decisions are made by ministers and, as with all decisions that are taken by ministers, they are justiciable. There have been two legal challenges to the provisions that we have had in place, and at the heart of those questions, which the courts have wrestled with, was the question of proportionality. Proportionality is not a tabulated concept but one that is based on the availability of evidence to enable ministers to take rational decisions that can be defended in the courts, if necessary.

Finally, do you believe that a wider review should be undertaken to ensure that the Public Health etc (Scotland) Act 2008 remains fit for purpose?

09:30  

I would contend that that is precisely what we have done. The 2008 act provides for dealing with public health incidents of a local nature and character.

I do not think that that act could be described as providing for the arrangements that need to be put in place for a national pandemic. Indeed, that distinction has been made in the evidence, or comments, to the committee by the Convention of Scottish Local Authorities, which generally welcomes the provisions in the bill. It recognises that although the provisions of the Public Health etc (Scotland) Act 2008 might deal with a localised issue or outbreak, they are not sufficient for the type of national pandemic that we have faced, as they do not have sufficient scope and reach of powers to enable that to be the case.

The steps that the Government is taking at this stage are designed to address exactly the point that the convener raised with me. However, we remain open to considering whether any further changes need to be made, and we will consider that point as the bill progresses through its further stages of parliamentary scrutiny and before its final enactment.

I would contend that that is precisely what we have done. The 2008 act provides for dealing with public health incidents of a local nature and character.

I do not think that that act could be described as providing for the arrangements that need to be put in place for a national pandemic. Indeed, that distinction has been made in the evidence, or comments, to the committee by the Convention of Scottish Local Authorities, which generally welcomes the provisions in the bill. It recognises that although the provisions of the Public Health etc (Scotland) Act 2008 might deal with a localised issue or outbreak, they are not sufficient for the type of national pandemic that we have faced, as they do not have sufficient scope and reach of powers to enable that to be the case.

The steps that the Government is taking at this stage are designed to address exactly the point that the convener raised with me. However, we remain open to considering whether any further changes need to be made, and we will consider that point as the bill progresses through its further stages of parliamentary scrutiny and before its final enactment.

Good morning, Deputy First Minister. I hope that you are feeling a bit better.

I will ask some questions about the exercise of ministerial powers. However, before I do that, as you referred to public consultation earlier in your comments, I will ask about that first.

It is fair to say that, when it ran its own consultation, the Government found a wide degree of public concern about and opposition to what is being proposed. The committee ran its own survey with the public with a call for views. We received just short of 4,000 responses from the public, of which 90 per cent were in opposition to the bill, with people expressing concerns about the impact on personal liberty and the lack of parliamentary scrutiny over what is proposed. In two decades, I cannot remember a piece of legislation in this Parliament attracting that level of public concern. Can you?

I suspect that other pieces of legislation have attracted public concern. I also suspect that the degree of public concern might have had something to do with the way in which some members of the Parliament characterised the legislation. I am sure that Mr Fraser understands the point that I am making with that remark.

It is important that members of Parliament concentrate their deliberations on the substance of the issue. For me, that substance is whether we have in place the right legislative framework to deal with the possibility of a pandemic. Clearly, in March 2020, we did not, because we had to rush through two pieces of legislation in a matter of days to provide the legislative force to handle the pandemic. Our statute book was not sufficient or appropriate to deal with the circumstances that we faced in March 2020.

The Government is now learning a lesson from that experience and putting in place legislation that we consider to be proportionate and appropriate for those circumstances. The public health provisions of that legislation are to be used only in those circumstances, and there is to be appropriate and effective parliamentary scrutiny of the Government’s exercise of those functions. That is the justification for the bill, and that wider appreciation of it would be clearly understood by members of the public.

Thank you for that response.

The level of parliamentary scrutiny and ministerial accountability go to the heart of our scrutiny of the bill. I will first follow up on the convener’s line of questioning about the use of the Henry VIII powers that are contained in the bill.

In their written evidence to the committee, Professor Britton and Dr Tickell said that this is a

“highly problematic element which has not been adequately explained or justified by the Scottish Government.”

They also said that the lack of comment on that in the policy memorandum is “remarkable”, and that

“this aspect of the proposals requires clear justification and anxious scrutiny.”

Why do you think that it is appropriate for ministers to have those sweeping Henry VIII powers when we have a clear alternative route, which is the use of emergency legislation? As you have already accepted, that route was used two years ago to put through the Coronavirus (Scotland) Act 2020 very quickly when that was required.

It depends on how you look at the questions. Do we look at the experience of the pandemic and think that there are no lessons to be learned and that we should be quite happy to put through significant primary legislation in a matter of days? On other occasions, members of Parliament would rail against making significant changes to primary legislation in that timescale. Generally, in my experience in Parliament, that is not viewed as a desirable approach.

Nobody saw the pandemic coming. We were aware that there was a likelihood of us experiencing some kind of pandemic, but that did not prompt us to review our statute book. Now we have had the pandemic—actually, we are still going through it; believe you me, some of us certainly are—and we are trying to adapt the statute book to learn the lessons from it so that we can put in place proportionate powers that can be scrutinised by Parliament through the normal legislative process, which is what we are going through just now, and Parliament can decide whether it wants to change the statute book to enable the provisions.

That is the type of thinking that has gone into the legislation to ensure that we do not have to rush significant primary legislation through Parliament in a matter of days. We take stock, learn the lessons from the pandemic and put in place powers—with sufficient parliamentary scrutiny—that enable us to act accordingly when a situation arises.

We are conducting parliamentary scrutiny now. Professor Britton and Dr Tickell said that there was “no explanation or justification” of the provision for Henry VIII powers in the policy memorandum. In the absence of such an explanation in the policy memorandum, can you tell us why the Henry VIII powers are required?

The powers are being included to address potential situations in which regulations are needed to respond to a public health threat that might conflict with existing legislation. That is the justification. As with all regulations that are made under the legislation that was put in place, the powers could be used only where it was necessary to respond to a significant risk to public health as a result of the pandemic. There are significant regulatory constraints and limits around what the Government would be able to do but, fundamentally, there would have to be a significant risk to public health to justify the use of any of those powers.

That is the rationale behind those powers being in place. The threat to public health is the trigger, and there is the possibility that there might be a conflict with existing legislation that needs to be resolved.

I will move on, as I would like to ask about the made affirmative procedure. You will know that the Delegated Powers and Law Reform Committee has commented on that and that, in evidence, Professor de Londras said that the made affirmative procedure

“is inherently problematic and should only be employed in exceptional circumstances.”

Professor de Londras also said that, if regulations were made under part 1 using the made affirmative procedure, a ministerial statement of the reasons for using that procedure, explaining the alleged urgency, should be provided. Would you accept that as a proposal for a way forward?

There is a lot in this area that we need to look at further. I welcome the report from the DPLR Committee. I had a thoughtful discussion with that committee when I appeared before it a few weeks ago. It was quite pragmatic in understanding the challenge for the Government, which is that the made affirmative procedure generally takes about 40 days. That procedure can be utilised with greater urgency, subject to parliamentary consent at a later stage. The DPLR Committee was exploring whether there was some other approach that we could take, which might be a halfway house or a partway house within all that. I am happy to explore that. I think that the point that Mr Fraser made—I did not quite catch the academic’s name—

It is de Londras.

Thank you. Professor de Londras’s suggestion is also pragmatic. Mr Fraser will probably know that, in parliamentary questions last week, Dr Gulhane made a suggestion to me in relation to this area. There is scope for us to explore how to satisfy legitimate parliamentary concern on being persuaded of the merits of a particular action by the production of, for example, a statement of urgency to justify actions, as Professor de Londras suggests. I am open to discussing how we can properly address that point.

I want the statute book to be equipped with powers that enable us to act swiftly but, in acting swiftly, we also have to act appropriately. If there are other ways to strengthen the provisions of the bill to address those issues, I am open to using them.

It has been suggested that effective parliamentary scrutiny of the bill could be strengthened by, for example, a duty on Scottish ministers to appear before a relevant parliamentary committee regularly, provision for creating a bespoke parliamentary committee in charge of scrutinising the emergency response, or a duty on ministers to provide to the Parliament a draft instrument in advance of the Government laying a Scottish statutory instrument.

Those are, in effect, practices that the Government has already followed, but would you be open to them being put into legislation?

I am open to considering those points. The Government’s policy intention here is, I hope, crystal clear. It is to enable us to take the necessary actions swiftly and with urgency should we face a pandemic threat of the type that we have faced over the past two years.

Although we had a great deal of parliamentary co-operation in the formulation of the legislation in spring 2020, for which I am grateful to members of all parties, we made a lot of changes to primary legislation in a short space of time. Generally, Parliament does not think that that is a good thing to be doing. Generally, Parliament wants to take time and care—as we are doing now—to consider what the contents of primary legislation should be. Some of Mr Fraser’s suggestions are entirely practical and pragmatic, and they could strengthen the approach in the bill.

The Government has no desire to be able to exercise powers in any unwarranted or unnecessary fashion, but we want to be able to act when we have to act because of a threat to public health. I am certainly happy to explore some of these questions further. I think that they take the form of points made in the stage 1 committee report, and I will of course reflect on them.

Thank you.

Good morning, and best wishes, cabinet secretary.

How do the public health powers in the Coronavirus (Recovery and Reform) (Scotland) Bill compare with the equivalent powers in England and Wales?

09:45  

As I said in my answer to the convener, they are broadly comparable. The provisions in England and Wales have been in place for in excess of 10 years, as I think I said earlier. Situations of this type were envisaged in the legislation that was considered by the United Kingdom Parliament, and the United Kingdom Government has been able to operate under many of its provisions, supplementing them under the emergency legislation that it has introduced.

On the basis of the evidence that we have taken so far, I would say that there is general support for many of the measures and proposals in the bill. To oppose many of them would be to do so for the sake of it, because they make sense—I get that. One area that is clearly causing problems, however, is the Henry VIII clause, as it is called. As I understand it, it is basically

“a statutory power given by the legislature to the executive to alter or repeal primary legislation, without reference to the ordinary parliamentary processes of scrutiny and amendment required for Bills. 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.”

You can see that there is genuine and sincere concern. Along with your partners, the Greens, you have a majority in the Parliament, so there is no doubt that you could ram the legislation through regardless. Given that there are genuine and serious concerns, particularly about that part of the bill, among those of us who believe that most of the bill makes sense, are you willing to sit down with other parties, have a discussion and reconsider the genuine concerns that are being expressed?

As Mr Rowley will have heard from my responses to Mr Fraser’s points, I am willing to discuss with members of the Parliament of all shades of opinion how we can address any issues that are causing concern. I rehearsed with Mr Fraser the issues around what might be put on the record in relation to the justification for the use of any of the powers in advance. I hope that that is interpreted as a welcome and positive step in that respect.

On the wider point that Mr Rowley raises with me about particular powers, I would make the point that they can only be exercised in relation to a specific and significant risk to public health. It cannot happen any day of the week; it can only happen where there is a significant risk to public health. That is trigger point number 1: there must be a justifiable case.

Secondly, if ministers were to utilise those powers, they would have to come to Parliament to exercise them, either through the affirmative process, whereby Parliament itself would be able to judge whether they were required or not, or through the made affirmative process, whereby Parliament gives its consent once the Government has taken its actions, although that is conditional on the Government taking those steps and Parliament giving its consent. Therefore, there are a number of safeguards on the exercise of any of those responsibilities.

I hope that that provides some reassurance to Mr Rowley. However, I reiterate what I said to him at the start of my answer: that I am happy to engage with other parties. As I have said, I will consider and engage with the recommendations that the Delegated Powers and Law Reform Committee made. I do not want to pre-empt what the COVID-19 Recovery Committee as the lead committee will say but I will be very happy to engage with it on its stage 1 report and any recommendations that it makes.

I look forward to having a further discussion with the Deputy First Minister specifically on the Henry VIII powers.

In the evidence that we received, the point was made that the Coronavirus Act 2020, which part of the bill builds on, levels up public health powers in Scotland to make them comparable with those in the Public Health (Control of Disease) Act 1984. The same submission also points out that wide-ranging English and Welsh regulations could be made under that act as amended by the Health and Social Care Act 2008.

Should a wider review of the Public Health etc (Scotland) Act 2008 be undertaken? Does it remain fit for purpose?

It is a matter for Parliament to consider, but the Government has worked to address that question in the bill. A number of the provisions in the early part of the bill amend the 2008 act. That is about using the foundation of the 2008 act as a basis for trying to address the wider issues that arise out of the pandemic.

As I said in response to the convener, that point was made well by the representative of the Convention of Scottish Local Authorities who submitted material to the committee and gave evidence. COSLA recognised that the 2008 act works when there is an outbreak of an infectious disease in a locality and you have to take particular measures—Mr Rowley will be familiar with those arrangements from his leadership of Fife Council. The director of public health has statutory roles and responsibilities to act. However, COSLA indicated that it was generally supportive of the bill because, when it comes to a national pandemic, the 2008 act just does not get there.

If the 2008 act had been fine, we would probably not have had to make as many changes as we did in 2020. I contend that the Government is amending the 2008 act to make it appropriate for the challenges that we face now but, if members of the Parliament believe that we have to make further changes, I am open to that.

I will move on to some of the other specifics in the bill. As you said, Deputy First Minister, a lot of the amendments that the bill makes are to the 2008 act. A couple of those are proposed new sections 86B and 86C of that act. The first talks about

“directly imposing restrictions or requirements”

and the second about

“indirectly imposing restrictions or requirements”.

I am toiling a bit to understand the difference. Will you explain why there is a difference between those two sections?

I suspect that I will rely heavily on the words “direct” and “indirect” in my answer but, essentially, we are trying to cover all bases so that we have the ability to intervene when there is a direct and explicit necessity to do so. The indirect provision is where we are trying to find every other possible avenue that needs to be closed off to ensure that we have a system that is appropriate for the challenges that we face. I would best describe the provisions in the new sections 86B and 86C of the 2008 act, which the bill introduces, as trying to get to that level of completeness.

Could you maybe give me an example of regulations that would indirectly impose restrictions?

Let us do it this way. An example of a direct restriction would be for us to apply a particular constraint on people leaving their houses. I would say that that is a direct consequence of the measures that we are taking. An indirect provision might be that we have to ask people to observe a particular form of behaviour that is less specific than a direct provision, as in the example that I have just cited. We are trying to find ways that we can address the limitations that would be necessary to be applied that may not be ostensibly obvious as part of the original justification.

I do not know about other members, but I am still struggling, I am afraid. I wondered whether the indirect provision could be geographical. Although there was a national restriction for everyone to stay at home, we found during the pandemic that different parts of the country were affected differently. To an extent, individual health boards or local authority education departments could then have a bit of freedom on restrictions. Would that be covered by an indirect provision?

It may be that the direct and indirect comparison could relate to different levels of intensity of restrictions, for example. However, the best way to look at that is to take the view that we are trying to cover all bases as part of the exercise, rather than to look at specific measures within each category.

I will leave it at that just now.

Another of the new sections is section 86G, which is about the review of regulations. We have had some evidence that that section is a bit vague. It says that

“Scottish Ministers must review the regulations”,

and then goes into more detail about a period of 21 days, and so on. However, it does not say what the review would entail. Do we need to be more specific? For example, do we need something about the review being published or whether a committee should look at it? How do you see the review working?

Essentially, I do not view that as being particularly different from the review process that ministers regularly undertake of the restrictions that we have found it necessary to put in place. Ministers have reviewed the measures that we have had in place every 21 days. We have had to consider whether the restrictions remain proportionate and we have had to report to Parliament about those provisions. My predecessors and I have appeared in front of the committee on a regular basis to consider those points.

What we have done until now in relation to scrutiny has generally been agreed with the parliamentary authorities. If members wish to advance specific amendments to the provisions as to what the review might look like or entail, we could consider that as part of the bill process. Fundamentally, the willingness to be open and accountable in relation to the explanation of any of the provisions lies at the heart of what the Government intends to do.

10:00  

Essentially, I do not view that as being particularly different from the review process that ministers regularly undertake of the restrictions that we have found it necessary to put in place. Ministers have reviewed the measures that we have had in place every 21 days. We have had to consider whether the restrictions remain proportionate and we have had to report to Parliament about those provisions. My predecessors and I have appeared in front of the committee on a regular basis to consider those points.

What we have done until now in relation to scrutiny has generally been agreed with the parliamentary authorities. If members wish to advance specific amendments to the provisions as to what the review might look like or entail, we could consider that as part of the bill process. Fundamentally, the willingness to be open and accountable in relation to the explanation of any of the provisions lies at the heart of what the Government intends to do.

10:00  

Moving on to the subject of bankruptcy, we had a fair bit of discussion on the threshold for when someone becomes bankrupt. There was quite a lot of support for the level of £5,000. However, if inflation is 10 per cent, that £5,000 is effectively worth £4,500 after a year, and it is worth £4,000 after another year. I do not know whether the cost of living challenges make any difference to the Government’s thinking. Do you think that £5,000 is the best level?

We think that £5,000 is a reasonable threshold, but Mr Mason makes the entirely fair point that we must be careful to set the threshold at an appropriate level. On cost of living challenges, we have had pretty low inflation for the past 30 years, and we are now dealing with a very different situation. That is the best judgment that the Government can come to, but I am happy to listen to representations from stakeholders and members of the Parliament on that question.

Sticking with bankruptcy, there is a question around electronic communications. We have all moved on in that respect during the pandemic. The point was made, however, by the Institute of Chartered Accountants of Scotland—of which I am a member—that creditors are perhaps more ready, able and willing to operate in the electronic environment, whereas debtors might not be so much. The suggestion is that we should perhaps consider creditors and debtors differently from that point of view. Even debtors who had been able to communicate electronically might not be able to do so as their financial situation gets worse.

We have to be careful here. Mr Mason will recognise the benefits of digital interaction, which we can see in all walks of life. We are trying, through the provisions in the bill, to make a set of pragmatic moves that will enable us to reform our public services in the light of the experience of the pandemic, where the technology allows us to do so.

We must always be mindful of whether everyone can participate using such platforms. If not, there is a need to have alternative arrangements in place to ensure that all parties can participate effectively in the administrative process that is involved. Although the digital approach suits many people, we must ensure that all individuals can access services accordingly.

That leads me on to the final area that I would like to consider, which is remote registration of births and deaths. We did not have remote registration of births in the temporary legislation, but that is now being brought in, and you could perhaps say something about that.

We had some evidence that, for registrars and local authority folk, seeing people face to face can make a real difference. For instance, a mother registering the birth of a baby might be unsure whether to have the father’s name there. With vulnerable people who need help and guidance, that might be done better face to face. How will the balance be struck between continuing in-person services and encouraging or allowing remote registration?

It is not an either/or. We must ensure that we have arrangements in place to meet everybody’s needs. For some people, registering remotely will be much more convenient and straightforward and they will be happy to do so. Others might feel reticent and anxious about it and an in-person appointment might suit them better. The best way to approach that is by providing the options that enable us to better meet all individuals’ needs in recognition that those might differ from individual to individual.

Are there enough safeguards in the bill to ensure that, if a local authority began to withdraw an in-person service, it would still have to provide it to some extent?

Yes, that is the case. However, members might wish to come back to the point to provide a degree of further legislative constraint if the bill is not felt to be sufficiently strong on that.

Good morning, cabinet secretary and panel. I hope that you are on the mend, Mr Swinney.

You probably recognise that we do not agree on some of the provisions. I go back to the word “proportionality”, which is what exercises me on the bill. As you said, ministers will decide what proportionality is. I assume that you recognise that there is a level of subjectivity to that.

On safeguards and balances, parliamentary scrutiny is the main safeguard in such decisions. Do you acknowledge that, by introducing the bill, you basically bypass that?

We certainly do not bypass Parliament—not in any shape or form. The bill will come into effect only if Parliament approves it. That is the first layer of parliamentary scrutiny. Parliament has to agree to put in place whatever proposals emerge out of the bill.

The second layer of scrutiny is that Parliament makes provision for the exercise of the affirmative and made affirmative procedures. For some time, it has directed that regulations of that nature may be introduced. Those procedures are two other levels of parliamentary scrutiny. The affirmative procedure requires an order to be placed before Parliament, for it to be discussed and considered and for Parliament to vote on it before it can be brought into effect. The made affirmative procedure allows ministers to bring an order into effect, but it can remain in effect only if Parliament consents to it.

Primary legislation and the regulation-making power fully satisfy parliamentary scrutiny. As I signalled in my answers to Mr Fraser, I am open to considering whether any additional safeguards could address the concerns that Mr Whittle puts to me. There must be agreement that we need to have a statute book that is fit for purpose, because Mr Whittle and his colleagues supported the two coronavirus acts in 2020. They obviously saw the need for there to be legislation in that respect, so there is no disputing the fact that that is necessary. The point of dispute is the mechanism for going about it. If we can make progress in that respect, I am happy to engage on that point.

Thank you, Mr Swinney—that is helpful. Contrary to what my colleague Mr Rowley said, the driving force is to make sure that we are prepared should this ever happen again. I want to focus on preparedness.

As you have said, you did not feel that the appropriate legislation was in place in March 2020 when it came before the Parliament for the first time. However, in my view, the Scottish Government should be focusing on preparedness for future health emergencies. For example, we should remember the Silver Swan initiative, which was run to test preparedness for eventualities such as Covid. We have discovered that the recommendations of that had been allowed to lapse. Having had that experience, would it not be more relevant to ensure that those recommendations and any further updated recommendations that are made following the pandemic are adhered to? Is that not the direction that we should take? It was the lack of preparedness that caused the main issues at the start of the pandemic.

We have to do both. We could do nothing to update the statute book but, if we have another pandemic, we will find ourselves having to rush through parliamentary legislation and, heaven forfend, but Mr Whittle might be one of the people who say that it is ridiculous to rush it all through in a few days. I do not rule out that possibility.

Then there are the logistical preparations for pandemics. Those are all elements that Lady Poole will look at during the public inquiry, and the Government is reviewing the preparations that we have in place for a whole range of emergencies. We regularly review the potential threats that we face and consider the degree to which we are equipped to deal with those threats. We will continue to do that for the foreseeable future.

I will push you on that. Again, I am looking back to see what an appropriate response would have been. I put it to you that we saw the pandemic coming—we watched it coming out of China and moving across the world. The fact is that we did not prepare properly or respond quickly enough. Surely that experience would change the way in which we are prepared and the measures that we put in place for the future. It would not be emergency legislation that would make the big change to outcomes.

The Covid virus emerged from China in the latter days of 2019 and it started to take effect in Scotland in late February to early March. There was therefore a limited window for us to put in place the arrangements that Mr Whittle envisages.

Looking back, one of the most critical elements that should be the foundation of our response is the testing infrastructure. It is absolutely critical to all that we are doing. I subscribe to the argument that we should have in place effective testing arrangements to enable us to ratchet that up to a much greater level than was the case back in the early part of 2020.

Yes, there are practical preparations that we can and should be making, but we were able to handle the pandemic only because we were able to exercise legislative control through the measures that we put in place. That was the Government recognising the scale of the threat and putting measures in place as quickly as possible.

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My argument is that it took us too long. That is not a criticism of your Government or any Government in particular. I think that it took us too long to respond. As you know, we are now reviewing that response. There will be a report on that, and I suggest that that might be the time to consider how and whether we change the statute book.

There will be a lot of consideration of the pandemic. Lady Poole’s inquiry will play a significant part in that but, obviously, we will have to wait some time before we get the conclusions of that inquiry.

I recognise that there are differences of opinion in this respect but, from my perspective, the Government could be pressed to learn the lessons of the pandemic and make sure that we have our house in order, and that is essentially what the Government has done. We have looked at our legislation and at the fact that there are gaps, and we have introduced a bill that aims to address those gaps in relation to the public health measures. At some stage, further legislative change could be made, but that will be for the Parliament to consider in due course.

I wish you well in your recovery, Mr Swinney—it has clearly been a tough morning for you.

I have a couple of quick questions. Why were the public health powers not included in the Public Health etc (Scotland) Bill when the legislation for England and Wales was updated to include them in 2008?

I am not quite following Mr Fairlie’s question.

I am sorry—I have gone right back to the convener’s opening questions. Why were the public health powers not included in the Public Health etc (Scotland) Act 2008 when England and Wales already had those powers?

I cannot honestly say what was in the minds of ministers at that particular time. I would have to go and look at past papers to consider whether those issues had been looked at and what the purpose of that public health legislation was. I suspect that the 2008 act was reviewed to update specific issues relating to localised incidents and that it did not have the scope to look at the population-wide challenge of the nature that we have faced. That would be my first response, but I will consider the matter further and, if there is any more information that I can share with the committee, I will write to the convener accordingly.

That would emphasise the point that we need to update our statute book.

It certainly would, because there is no doubt in my mind that the fact that we had to make such significant legislative change—in extremis, twice, in the spring of 2020—indicates to us that our statute book is not up to date.

Should provisions on the process for applying special restrictions and any subsequent appeals be included the bill? You said that you would be happy to look at the issues that Mr Fraser raised with you. Should the process for applying such restrictions be included in the bill?

I contend that there are adequate measures in the legislation that set out how that can be undertaken. I think that the question that the Parliament needs to consider is whether those powers are appropriate and whether they can be exercised in a proportionate and appropriate fashion. All those factors need to be considered, and I think that all of that is achieved by the terms of the bill, but if the committee or members make particular suggestions, I will, of course, engage on those questions.

We also took evidence on mental health in relation to the named person. We are short of time, so I will quickly go through the points that have been raised.

How should people be informed about the role and responsibilities of being a named person? Is additional guidance needed on the role and responsibilities of being a named person? Should a nominee be required to declare that they understand the role, and the rights and responsibilities, of being a named person?

It is important that those are fully and properly understood. There is a statutory code of practice to help people to understand the role of a named person. The code states that it would be best for the mental health officer or any other practitioner to discuss the matter with the nominee to ensure that they are provided with information about the role of a named person

“in a form which is helpful to them”,

that it would be best practice to provide information to the nominee about their rights and the patient’s rights, and that the process of checking understanding is separate from the requirement for the nominated person’s consent to be witnessed. Therefore, a number of protections are in place to ensure that the concept of the role can be properly explained to, and understood by, individuals.

I will very quickly ask about the moratorium on diligence. At the moment, the bill does not contain provision on a moratorium, but the Scottish Government has stated that amendments on that subject might be lodged at stage 2. Does the Government intend to lodge amendments on the moratorium on diligence at stage 2? If so, has the Government reached a view on how long the moratorium should last?

We are likely to lodge an amendment on the moratorium at stage 2. There are differing views on the appropriate moratorium period and on whether it should be permanent, so we are taking time to consider what the timescale should be. During the pandemic, a temporary moratorium of six months was put in place. In England and Wales, the period is 60 days. There are a range of views, and we are in the process of weighing up the different views and setting out the provision, which is likely to take the form of a stage 2 amendment.

We also took evidence on digital and remote service delivery. We heard from local authority witnesses that online delivery of services had to happen at speed at the beginning of the pandemic. Mairi Millar from Glasgow City Council accepted that a lot could be done to reconfigure those services to make them more accessible. Significant work needs to be done to ensure that remote services that were developed at speed during the pandemic meet the needs of users. Will the Scottish Government be able to make funding available to support that work?

There are two aspects to that question. One is about the adaptability of public services so that they can be used in the digital environment. Great improvements have been made, but there is a way to go. Ministers have been clear that we are too far behind the private sector on developments in that regard. The private sector is significantly ahead of the public sector in relation to the availability of such provision. That is one priority.

The second aspect is about ensuring that we overcome the digital divide so that people are able to use technology to gain access to public services. The connected communities initiative is making significant progress in that respect, and I welcome the steps that have been made.

Through those two channels, Scottish Government funding is available to address those questions.

The provisions in part 3 of the bill mainly enable public service providers to offer remote services, rather than requiring them to provide them. Local authority witnesses highlighted the success of remote service delivery during the pandemic and the potential for resource savings. Will the Scottish Government consider amending the bill to include a requirement to continue to offer in-person services?

I will certainly consider that point. It has been interesting dealing with my constituency case load on the recent census, which, for the first time, has been predominantly undertaken digitally. Some of my constituents were concerned about not being able to do that and asked about getting paper copies. That tells me that we must be constantly mindful of the importance of ensuring that both options are available to individuals. If the bill does not have adequate safeguards in that regard, we should be prepared to consider that.

There was also specific concern about what the option to provide remote services might mean for licence applicants. Where a meeting was to be held remotely, the emergency legislation gave applicants and objectors the right to decide how they wanted to participate. However, the bill will give licensing bodies complete discretion as to the format of hearings. Should the bill be amended to give those who are entitled to participate in hearings more of a say? I must say that, if you are in dispute, it is much harder to get your point across in remote meetings.

I am certainly happy to consider that. The thrust of the legislation is to ensure that we have an appropriate way of making the process more efficient and minimising disruption. In doing my constituency work over the pandemic, I have been struck by how the use of technology has significantly enhanced my ability to conveniently engage with constituents. Instead of people having to drive from Rannoch station to Blairgowrie, because that is where I happen to be that day, a Zoom call can save them a round trip of about four hours to see their member of the Scottish Parliament. To my shame, that had never dawned on me until the pandemic.

There is a desire in that part of the bill to secure the opportunities for greater efficiency and effectiveness that arise from our experience of the pandemic. I think that we should be open to doing that, but not in a way that would make the process disadvantageous to individuals. Mr Fairlie’s point is that that approach might be disadvantageous to a licensing applicant.

That is my point. I absolutely get that we can make things far more streamlined and all the rest of it, but there will be times when people want to have a sit-down conversation in a face-to-face environment. That is something that we should consider.

An important point to add is that it is the responsibility of licensing boards and authorities to ensure that virtual meetings and hearings are conducted in a manner that meets the accessibility and engagement requirements of attendees. Therefore, the onus is on the body to make sure that its approach can meet the needs of the licence applicant. However, if there is a need for us to make that more explicit, I am happy to consider that.

I have a few more questions that I need to ask, Deputy First Minister. Many of the powers in the Public Health etc (Scotland) Act 2008 require an application to be made to the sheriff court in order to be applied. However, the bill does not appear to stipulate a specific process that must be followed when special restrictions and requirements, such as the requirement for a person to submit to medical examination, are applied.

In the absence of a requirement to obtain a sheriff’s order, what will the process be when someone seeks to apply the special restrictions and requirements, and how will the human rights of the individual be adequately safeguarded?

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The first point is that there can be no debate or questioning about the protection of applicants’ human rights, so that must underpin the process that is put in place. We then have to satisfy ourselves that we have in place arrangements that enable individuals to achieve proper engagement with public authorities and that assure their rights in the process.

The bill is designed to give appropriate specification on that point. If there are issues about whether sufficient specification has been given, I will be happy to consider those as part of the bill process.

Lastly, I move on to the issue of monitoring public health risks. Section 1 inserts new section 86H into the Public Health etc (Scotland) Act 2008, which will allow the Scottish ministers to confer on bodies and persons functions in relation to the monitoring of public health risks. Will the cabinet secretary explain how he expects those powers to be used? Will the provisions support on-going preparedness for future public health threats? If so, what types of health threats could be detected by those measures?

There is a difference, convener. The measures to which you refer are ones to be used during the course of a pandemic. The power would enable ministers, through regulations, to put particular monitoring responsibilities on public authorities.

On the obligations for preparedness, public authorities will take forward work, as part of their routine work under existing statutory arrangements, to ensure that we are prepared for all resilience challenges that we face. We revisit those issues regularly through the Scottish resilience partnership, and we take them forward as part of the wider work that we undertake with public authorities to ensure their preparedness for such eventualities.

That concludes our consideration of this agenda item. I thank the Deputy First Minister and his officials for their evidence.