Hansard

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 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.