Seòmar agus comataidhean

For the reasons that I have read out—because I believe that some evidence that was given was based on a misunderstanding that there had been a derogation from aspects of the ECHR. We will of course continue to discuss that with the children’s commissioner.

As I said in a previous answer, we very much believe that the issue has been looked at seriously. The bill has safeguards around how the powers can be used. It has safeguards to ensure that we have regard to public health advice from the chief medical officer, and that any measures are necessary, proportionate and time specific.

I am confident that we have this right, but we will continue to work with stakeholders who have concerns to see what can be done to alleviate those concerns as the bill passes through Parliament. I absolutely appreciate that the committee is concerned about what the commissioner’s office said. I give the reassurance that we are very confident in where we are at, but we will continue the conversations with stakeholders.

I say with the greatest respect that we are taking our time. How long the bill takes to go through Parliament is up to Parliament—

No. We would get into that area only because of public health measures regulations. We are absolutely clear and confident that the bill does not affect the charitable status of universities.

I agree with Mr Ewing that days are critical. Earlier, I mentioned the requirement to be able to make decisions at speed. Days really count when we are talking about the impact of a virus on public health—we have seen that serious impact very clearly during the coronavirus pandemic.

I appreciate that Universities Scotland has concerns about the granularity of the powers. I will not comment on the example that Mr Sim decided to give to the committee. I attempt to work in partnership with universities and, if they have concerns about those aspects, the Government is happy discuss them with Universities Scotland. I appreciate that there are concerns about that, but Universities Scotland needs to see where the Government is coming from in relation to why we feel that we need the powers. On that basis, I hope that we can reach a better understanding with Universities Scotland than we have at the moment.

If we have learned anything during Covid, it is that we, as a Parliament, work better on public health measures when we are united, if we can be.

As the pandemic has gone on, the Government has continued to learn lessons about whether the powers that we have had have been effective and whether there are any limitations to or difficulties with those powers in dealing with the coronavirus pandemic. Had we gone through two years of the coronavirus and not felt that the proposals that we were bringing forward would deal with the coronavirus, we would not be putting them forward. Indeed, over the past two years, stakeholders would have made it very clear if they felt that the powers that we had were not helping us to deal with the coronavirus.

However, we must try to ensure that this bill is able to deal with not just another wave of the coronavirus, but other public health emergencies as they might arise. In this bill, we are trying to make sure not only that we are ready for the coronavirus, but that the powers would work for other public health measures. In drafting the education parts of the bill, we have looked very carefully at how the powers have worked in practice and, importantly, how stakeholders have felt that the powers have worked in practice, as we have used or not used them during the past two years.

You are quite right to point out the importance of this being about regulations rather than direction and the process that must be gone through to ensure that regulations are brought in through the parliamentary system. As well as ministers having to have regard to the advice of the CMO on protecting public health, we must be satisfied that any regulations that we bring in are necessary and proportionate for the continued provision of education. Parliamentary approval is required before any regulations are made or, where necessary—when regulations are made for reasons of urgency—within 28 days of the date on which they are made. In addition, any regulations will apply only for a specified period and will be subject to review every 21 days.

I hope that that signals to the committee the fact that safeguards are in place. Although the Government will be able to work quickly in a public health emergency, we will certainly not make change for change’s sake, given the safeguarding mechanisms that the bill rightly contains to prevent us from making unnecessary changes.

That is an important point, which points to a lesson that was learned in relation to how the bill would be framed, compared with the way in which the emergency legislation—which was considered at great speed, necessarily, and to the best of Parliament’s ability—was framed. As the pandemic moved on, Parliament became concerned about the fact that safeguards were not in place, simply because of the speed with which the Coronavirus (Scotland) Bill went through Parliament and became an act. We have given serious consideration to that, which is why the safeguards are in place in the bill.

As you pointed out, it is right that we look at the whole package, which includes not only individual aspects that could be included in the regulations, but the steps that would have to be taken before we got to the point of having regulations with those specifics in them. It is important to bear in mind the overall package.

We are keen to hear more about the concerns of colleagues from the Educational Institute of Scotland. My door is always open to them to have those discussions.

Education authorities have wide-ranging powers in relation to schools, and it is the education authority that makes any decision to close one of its schools for public health reasons or for any other reason. For example, education authorities closed their schools on 20 March 2020, which is before the Coronavirus (Scotland) Act 2020 came into force. They relied on their own powers to do that in response to public health advice. Ministers did not give a direction under the UK act until mid-May 2020.

Clearly, if a union, local authority or COSLA is concerned and wants further work to be done on clarification, I am more than happy to hear from them. I listened very carefully to what happened yesterday, and we will continue to work with EIS. The fact that the authorities could close the schools so early on in the pandemic shows that they could take a decision if it was required.

Of course, when local authorities take that advice, they are working exceptionally closely with public health authorities. I understand that the committee heard from Diane Stockton of Public Health Scotland, who talked about the local outbreak management process, how it was handled, and the integral relationship between local authorities and local public health officials during that process. I hope that that has given you a bit of a picture of what happened at the start of the pandemic and how decisions were taken.

My answers are based on the fact that we will very much seek consensus, given the importance of public health measures. We will take our time to get this through Parliament. We are determined that the bill will be fit for purpose—it needs to be fit for circumstances that we cannot foresee.

We can look at discussions that have been had. Professor Aileen McHarg has talked about the

“difference between having access to emergency powers and using those powers ... There is a better opportunity now to design an effective control framework than there would be if powers”

were

“to be acquired urgently ... in the context of another health emergency.”

We could discuss a draft bill at this point, but, if we were in the grip of a public health emergency, we could still be rushing a bill through Parliament. If we have learned anything from the early days of the pandemic, it is that we need to be as prepared as possible for when we will need such legislation. The suggestion is that we should have a draft bill that we could then present to Parliament, but that would not allow the Government to take the swift action that was necessary. The next stage, following the enactment of such a bill, would be the making of regulations. By then, we could be quite far into a public health emergency.

I ask colleagues who were here in the previous parliamentary session to remember how difficult it was to get emergency legislation through on that timetable and then to move on to the regulations that followed from it. Doing that necessarily takes time, and time is something that you do not have in a public health emergency.