Hansard

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 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 opposing any delay to public health provisions 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 from 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.