COVID-19 Recovery Committee

Meeting date: Thursday, September 30, 2021

Official Report 651KB pdf

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Ministerial Statement

Item 3 is evidence on the latest ministerial statement on Covid-19. I welcome John Swinney, Deputy First Minister and Cabinet Secretary for Covid Recovery; Dr Gregor Smith, chief medical officer; and Elizabeth Sadler, deputy director, Covid ready society, Scottish Government. Thank you for your attendance this morning.

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

Yes, I would, thank you, convener.

I am grateful to the committee for the opportunity to appear before you once again. On Tuesday, the First Minister set out a number of Covid-related updates on the rules on international travel, and on promoting better ventilation, including the immediate step to make up to £25 million of additional funding available to support business to enhance ventilation.

The focus of the First Minister’s comments on Tuesday was the Covid certification scheme. The Scottish Government takes the position that the implementation of a mandatory domestic certification scheme is proportionate and appropriate at this point in the pandemic.

Recent data has been a stark reminder of the challenges that we continue to face as a nation. Getting vaccinated remains the single most important thing that any of us can do to help cases to remain under control.

We have seen considerable efforts from businesses and individuals to step up compliance with the mitigation measures that remain in place. That remains crucial to how we emerge from the pandemic.

In line with our strategic intent

“to suppress the virus to a level consistent with alleviating its harms while we recover and rebuild for a better future”,

the Covid-19 vaccination certification scheme will allow us to meet the following aims: to reduce the risks of transmission; to reduce the risks of serious illness and death, and, in doing so, alleviate pressure on the healthcare system; to allow high-risk settings to continue to operate as an alternative to closure or more restrictive measures; and to increase vaccine uptake.

Last week, we set out details on how a domestic certification scheme would operate, and, on Tuesday, we published detailed guidance on how we expect that to be implemented in the small range of sectors that are within the scheme’s scope.

We have listened to a range of stakeholders and very much appreciate the challenges that the implementation of the scheme presents. That is why we are ensuring that the enforcement measures will not take effect until 18 October.

To be absolutely clear, the expectation is that businesses adopt the scheme from 1 October, so we will be monitoring that closely to ensure that the requirements are being met.

The interim period will allow businesses to familiarise themselves with the guidance, to develop measures for enforcing Covid certification and to test those in collaboration with local authority representatives and, indeed, with Government ministers.

The Government’s view is that certification can play a useful role in helping to keep case numbers low as we move into winter. We have come a long way in recent months, our economy is open and we are seeing a relative return to normality. Partnership has been key to that, and I ask that businesses and individuals continue with that endeavour in the coming weeks, to ensure that we are all doing all that we can to recover collectively from the ill effects of the pandemic.

This afternoon, the Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No 2) Regulations 2021 (SSI 2021/349) will be laid and will come into force from 5 o’clock tomorrow morning. I understand that, in line with the usual agreed procedure for made affirmative Covid Scottish statutory instruments, my officials shared draft regulations with committee clerks yesterday.

The regulations that are amended by the instrument require Scottish ministers to review the requirements at least once every 21 days and revoke any requirement as soon as it is no longer necessary.

I look forward to responding to your questions.

10:15  

Thank you, Deputy First Minister. I will ask the first question.

Could you comment on the indicators that the Scottish Government intends to use to monitor the implementation of the vaccination certification scheme?

We intend to monitor the pattern of the pandemic, as we have done on a consistent basis up until now. The key indicators that we examine relate to the daily cases, the age breakdown within those, the levels of hospitalisation and the demand on intensive care units, and we apply that information to the wider modelling of the pandemic to determine the effect that all the measures are having within the handling of the pandemic and the scale of the challenge that we face.

That enables the Government to formulate a view about what measures remain proportionate, as that is the key test that the Government must continue to fulfil to ensure that there is legal foundation to the approach and, fundamentally, to enable us to make a judgment about the course of the pandemic and the measures that are required for us to take the necessary intervention.

What key indicators will you be looking at to determine whether the scheme is working as intended? How will businesses, organisations and the public be able to provide feedback on the implementation of the scheme? Will you publish that information as part of the three-week review process?

I am happy to consider what material we can helpfully publish to demonstrate the response and the reaction to the measures. We publish a huge amount of data on a regular basis but, if the committee wishes to specify and stipulate areas where it believes that the publication of data would be of assistance, I will be happy to consider what could be published in that context.

Thank you.

The committee has received correspondence from a member of the public who was a volunteer participant in the stage 3 Novavax trial in Aberdeen that took place in December last year. He claims that NHS England has registered all 13,000 volunteers but that no participants have been registered in Scotland. First, do you recognise those figures? Secondly, what contact has the Scottish Government had with the vaccine trial participants to hear and address their concerns?

I will invite Dr Smith, the chief medical officer, to comment on that. First, I would be happy to consider the letter that has come from the member of the public and to try and address the issues that have been raised. It is important that individual cases are looked at properly.

Secondly, we have written to those who have been involved in vaccine trials to provide them with assurance that they will be exempt from the Covid certification arrangements. If a particular issue has arisen as part of that process that we have not taken account of, I would be very happy to do that.

Perhaps Dr Smith can give more detail.

First, I give a big thank you to everyone who has participated in the trials. They have been enormously important in giving us the knowledge and the confidence to move forward with the incredibly successful vaccine programme. We are eternally grateful to everyone who has participated.

There are some specific trials that are still on-going. Within those trials, there are trial protocols that mean that people are blinded, so they perhaps do not know whether they have had a particular type of vaccine or a placebo.

What we have committed to—and what we have done to this stage—is that, for those people who are participating in trials in Scotland, the principal investigators for those trials have written to each of the participants with a letter that they can use in the same circumstances as those in which certification is currently employed. That is like a letter of comfort showing that those people have been involved in trials and should be treated as though they are vaccinated.

When it comes to how those certification letters are recognised internationally and received by other countries, it becomes a bit more challenging, and there are international discussions in that regard. The issue is not unique to the UK—every country is currently working through some of the challenges, and we continue to liaise with our colleagues in the UK Government as to how we might achieve a solution.

Good morning. I have a large number of questions that I would like to ask, but time constraints will allow me to ask only a fraction of them. However, we will see how we get on. My questions relate to the draft regulations and evidence paper that we got yesterday afternoon.

On the issue of allowing negative polymerase chain reaction tests as an alternative to proof of double vaccination, at paragraph 5.1 of your evidence paper, you say:

“Scotland will be the only European country that will adopt a vaccine only certification scheme with no option to provide a negative PCR or antigen test result or proof of recovery from a previous COVID-19 infection within a predetermined time period.”

In evidence this morning, we heard from experts, including Professor Drury, who talked about the backfire effects of requiring vaccination certification, and how it might depress vaccine take-up among those who are already vaccine hesitant. On that basis, and given that every other European country allows testing as an alternative, why was that not considered by the Scottish Government?

It has been considered by the Scottish Government, and we came to the judgment that the core purpose of the scheme was to encourage improvements in the take-up of the vaccine. I accept that with almost all the questions that we wrestle with in relation to Covid there is a balance to be struck, because there is never a crystal-clear position to be adopted. Therefore, we felt that, on balance, the benefits of concentrating the scheme on the purpose of increasing vaccine take-up rates would be potentially undermined by having an alternative route of demonstrating evidence of testing. That was the judgment that we arrived at on that question.

We have said that we will continue to consider whether a testing approach can be added to the arrangements that we are putting in place. We have not ruled it out for all time, but we have taken a view that, as we introduce the scheme with the express purpose of boosting vaccination rates, we should not adopt the approach that Mr Fraser has put to me.

Thank you for that.

In evidence this morning, we heard from Professor Dye and others that the backfire effects might be minimised if the vaccination certification provisions were time limited. If people could see an end point, that could remove the potential distrust among vaccine-hesitant groups. Is that something that the Scottish Government has considered?

There are two aspects to that issue. I accept the point that time-limited restrictions and constraints are beneficial, because everybody wants to feel as though we will not be in the current situation for ever, and that there will be an end point. I completely accept that point. That is why we have end points for a number of the statutory arrangements for Covid restrictions, when regulations will naturally fall.

The second point is that there is a three-weekly review of whether the measure should carry on. That three-weekly review will have to be tested against the judgment of whether the intervention remains proportionate. Every three weeks, the Government will have to demonstrate why the measure remains a proportionate one to be in place. I hope that that perhaps addresses some of the legitimate points that the committee has heard this morning. I think that the public need to hear a message that the measure has been introduced only for a certain set of circumstances and for a certain purpose, and that it will not last for ever. I hope that that addresses some of those points.

Do I have time for one more question, convener?

You can have one more.

Thank you.

Yesterday, in the Court of Session, James Mure appeared for the Scottish Government. According to reporting by the BBC’s Philip Sim, who is an excellent court reporter, Mr Mure told the court:

“there is ample time for the government’s evidence paper ... to be considered by all parties before the vaccine passport scheme is actually ‘enforced’, on 18 October, rather than when the regulations come into force on Friday”,

which is tomorrow. I do not understand what that comment is supposed to mean, because the regulations have been made and come into force tomorrow. Did he intend to mean that the Scottish Government might review the matter before 18 October or withdraw the regulations? What did he mean?

I think that Mr Mure means what he says, which is my experience of Mr Mure on all occasions. He means that the regulations come into force tomorrow morning at 5 o’clock, but they will not be enforced until 18 October. I think that Mr Mure was simply trying to make a helpful point to the court, which was that the evidence paper is available and can be considered by any interested party.

There has been quite a lot of discussion on the publication of an evidence paper. It is important to remember that the Government regularly publishes a report on the state of the pandemic. No studious observer of those reports could come to any conclusion other than that we face a very challenging and acute on-going situation in relation to the handling of the pandemic. My contention is that the evidence is marshalled on a regular basis—I think that the state of the pandemic report is issued weekly.

It is.

Therefore, on a weekly basis, we publicly express what we think to be the scale of the challenge and provide the evidence base for why we need to take action. We are taking other actions. We maintain a position that face coverings have to be worn in indoor settings in public places, such as on public transport, in shops and all the rest of it. We encourage physical distancing. We are taking a variety of interventions based on the evidence that we have marshalled and communicated publicly.

I have a lot more questions that I would like to ask, but I am afraid that we do not have time.

I have a quick question on vaccination passports before we move on. The evidence that we received earlier from the expert witnesses was, by and large, that the paper that was published yesterday is fairly good. However, they said that setting a date for when the measures could perhaps end might backfire. They suggested setting an end criterion. Would the Government be interested in considering that?

I contend that that is exactly what the Government has done by recognising that, as I confirmed again to the committee this morning, the Government can sustain the regulations only if there is a proportionate justification for doing so. That is, in essence, the answer to the question that the witnesses expressed to the committee and the point that Mr Rowley fairly puts to me in his question. I cannot sit here and say that the regulations will be in place until a given date, because the state of the pandemic could improve to an extent to which I do not have the justification for that. I cannot say to Mr Rowley that the regulations will be here until X date, because that would in essence be to prejudge the three-weekly review that we have to undertake.

We expect cases to be high and hospitalisation to remain high, and that will put great pressure on the system. That is why we need to take steps to suppress the prevalence of the virus, and the best way to do that is to increase vaccination uptake.

I hope that that helps to address Mr Rowley’s question.

10:30  

I think so. I took from what was said that there would be criteria in which you would set out that hospital admissions because of Covid were down to zero or whatever. You would therefore have criteria to work towards rather than a specific date. It probably makes more sense to take that approach.

I do not want to sound as if I am disagreeing with Mr Rowley in any way, because that is the approach that we are taking, but we express it slightly differently in the legal test of proportionality. If we find ourselves in a situation in which there is not a sustainable legal case to be made for the proportionality of the regulations, the Government will have to deal with that.

I want to move on to a much more pressing issue for the public. The more I speak to people who work in our national health service and our health and community services, the more concerned I become about our ability to cope this winter. The pressure on staff and services is immense.

Last Tuesday, I raised with the First Minister the issue of home care and community care services. From what I can see, waiting times are growing for people who live in the community who need home care support and for people who have been assessed as needing care. Their numbers are going up. That will have a very clear impact on accident and emergency departments, because many of those people find A and E to be the only route forward. More widely, care services that support older people in the community are under pressure.

I want to ask you the question that I asked the First Minister. Last week, I met NHS Fife, which was keen to stress to me that the problem is not just a Fife problem but one that exists throughout the country. However, it is not clear to me where the solutions lie. Do we need a task force that can look at the extent of the problems that exist in community care and consider what we can do to address them in the here and now, given that, if we do not address them, they will become significantly greater as we get into the winter, and there will be massive pressure on our hospitals?

There was a lot in that question; Mr Rowley has acutely summarised the dangers and challenges.

As of yesterday, there were 1,581 delayed discharge patients in our hospitals. I know that it is a very controversial issue, but sustained efforts were made to ensure that patients who did not require to be in hospital in spring 2020 were discharged to other settings. If my memory serves me right—Dr Smith might help me out—that number went down to about 700, at its lowest.

I would need to check, Deputy First Minister.

Forgive me: I do not have the number in front of me, but my recollection is that delayed discharges came down to about 700, compared with 1,581 yesterday. That created space in our hospitals to deal with the upsurge in Covid patients.

I accept that our hospitals are congested just now; there are 1,581 delayed discharge patients within that congestion. A proportion of them could go to home settings, if the appropriate care packages were available to them. I am of the view—I am pretty satisfied that this is the case—that the problem in availability of care home packages is not availability of money to provide for the packages but availability of personnel to deliver them. That is to do with the shortage of people in our country who can be employed in care. We have lost from the workforce people who, because of Brexit, returned to their countries. As a consequence, we have fewer people available. I also point out that unemployment is sitting at 4 per cent. Furlough ends today; we will see the effect of that on unemployment, but we do not expect its impact to be significant.

What that means is that we have to do one or both of the following. First, we should maximise the number of people who can be activated to enter the labour market and deliver the care services that Mr Rowley highlighted. Secondly, we could take a different position on free movement of individuals; abolition of free movement has, as was predicted, been a disaster for Scotland’s labour market.

Those are not new issues. When he was First Minister in the early part of this century, Lord McConnell highlighted—rightly, in my view—the dangers of Scotland’s population falling below 5 million and the population profile being weighted more towards the older population and economically inactive people. In 2004, those issues in the labour market in Scotland were addressed by free movement; now that has been taken away, which is creating real difficulty. The matters that Mr Rowley has highlighted represent a significant threat to our ability to manage our way through the winter. Because there are not enough people, the care packages that could get people out of hospital and into their homes cannot be supported.

Forgive me for giving such a long answer, but Mr Rowley raised some big questions. He also asked whether a task force is necessary. We are probably straying into the portfolios of my colleagues Mr Yousaf and Ms Robison, but I can say that we are focusing on the issues every day in our dialogue with local government and health boards. I assure Mr Rowley that the issues are being addressed. I can make no criticism of the level of engagement of public bodies in the process, but if we need to think about using some other means, channel, mechanism or device such as a task force, I am very open to considering that.

For me, the issue is not just bed blocking and people being able to get home care packages in order to get out of hospital. It is also about the number of older people who are living in the community and have been assessed as needing support to do so, but have been put on waiting lists that are growing and growing.

Yesterday, I visited Kinross-shire day centre, which, supported by Perth and Kinross Council, does a brilliant job of supporting older people in the community by bringing them in for lunch, getting lunch to them and so on. If that level of support is not available in the community, older people will end up at the doors of accident and emergency departments. That is my key point. The issue goes much wider than bed blocking; what we need to focus on is the fact that the whole social and community care system is falling apart at the seams.

The points that I have just made are designed to address exactly the situation that Mr Rowley outlined. This is not just about some compartmentalised A and E problem, if I can express it that way; it is a whole-system challenge. Mr Rowley has legitimately highlighted that people would be much better supported if they were able to get to a day centre and had a wee bit of care in their homes. Their entire quality of life would be better than it would be in a setting that was not appropriate or suitable. Such provision is not being delivered because the availability of people to deliver such services has been severely constrained. I assure members that the Government is preoccupied with trying to address that situation.

The initial concerns that I had about the passport scheme when it was first announced have, by and large, been allayed. I am comfortable with where we are, and even more so after this morning because all the witnesses today have given a good account of the evidence paper that was released yesterday.

However, what still concerns me—it has come up this morning—is messaging to deal with vaccination hesitancy among certain demographics and how we get to those people. I am comfortable with us having the vaccination passport, but I am concerned that some of our communities are not engaging with the process. By not doing so, they are putting themselves and wider society at risk.

What is the Government doing in respect of messaging to get to the communities in which people are genuinely concerned about vaccination? I accept that we cannot treat people as “other” because they have a problem with getting a vaccine. How are we getting to those people to make them trust the system in the first place?

It is important to look at the matter in two ways. There is the Covid vaccination certification scheme; one of its purposes is to increase take-up of the vaccine. It is, however, not the only tool in the box. Among the other tools in the box we must have very tailored communication and dialogue with the particular sectors of our society in which there is a challenge in relation to vaccine take-up. That is about, for example, trying to ensure that respected figures or voices in a particular community make the case for vaccination. Many people in specific communities have been encouraged to do that and are doing it.

It is also about vaccine availability and making sure that getting the vaccine is practical and conceivable for communities. It is unlikely that somebody who is living in poverty and for whom the vaccine is an expensive public transport journey away will get it, so we have to take the vaccine to those individuals. A lot of work is being done on vaccine buses and other approaches to enable the vaccination programme to be taken right into communities.

I do not want the committee to take the view that the Government views the vaccination certification scheme as the only means of encouraging take-up. There are a variety of other interventions to enable that to do with messaging, practical measures and wider targeting of communications.

One of the experts in today’s previous panel said that, at one point, we thought that a 70 per cent vaccination rate would be enough to give herd immunity to our whole society. We have now realised that that figure was too low. Are there are target figures, both for the whole population and for the minorities who, as Mr Fairlie said, have not got the vaccine yet?

I invite the chief medical officer to respond to that question.

The concept of population immunity means that you and I being vaccinated protects other people as well, because the likelihood of our being able to pass on infection diminishes as a consequence. Some early calculations that were based on the early virus type suggested that 70 per cent to 75 per cent might have been enough to begin to develop population immunity, if we added in natural exposure in the country.

The unfortunate truth is that that was blown out of the water with the arrival of the delta variant. The original wild-type virus that came from Wuhan probably had a reproduction number of about 2.5 to 4, whereas delta is estimated to have a raw R number that is probably closer to 6. Achievement of population immunity in that context is much more difficult, because delta is so much more transmissible. The virus is also showing some signs of escape properties that allow it go beyond vaccination protection, although that is marginal.

At the moment, achieving population level immunity is very difficult even to estimate, because we do not have the full estimate of the unadulterated raw R numbers for the delta variant. However, we can say with confidence that they are likely to be much higher than those for the original virus, or alpha variant, so it is likely that the vaccination rate would have to be 85 per cent or 90 per cent or more, for immunity on a whole-population basis to be achievable.

10:45  

Thank you; that was helpful. If we did not have vaccination certificates, what would we need to do? For example, if we were not to have certificates, would we just close all nightclubs at midnight? If the attendance limit for events was 10,000, would we put a limit of 10,000 on all crowds?

Obviously, over the course of the past 18 months, we have had to demonstrate, reluctantly, the types of restrictions that can be put in place on the liberties and activities of our fellow citizens, so members of the public clearly understand the range of interventions that are available. It comes down to restrictions on sectors and opening hours and all the other measures with which colleagues are familiar. We are trying to take an approach that enables sectors to remain open, but case numbers and hospitalisation levels are a very serious threat.

I have rehearsed with Mr Rowley this morning the challenges that our healthcare system faces because of levels of hospitalisation. Yesterday, more than 1,000 people were still in hospital with Covid. We cannot just wish that away, because that hard reality is causing the challenges in the healthcare system. Although, thankfully, they are lower today than they were a couple of weeks ago, the number of cases is much higher than it has been at other stages during the pandemic, when communities were locked down.

Mr Mason represents Glasgow; we locked down Glasgow when it had a rate of 300 cases per 100,000 people, but its case rate per 100,000 will be in excess of that today. Obviously, the vaccine now provides us with a certain amount of protection, but it cannot provide us with total protection, which is why we need tempering measures to moderate the effects of the virus. One of the motivations for the Covid vaccination certification scheme is that we want to keep open sectors that would likely, in any other circumstances, have to close because of prevalence of the virus.

I will leave it at that, just now.

This morning, we have heard that one of the key successes of vaccination passports will be community engagement, but we heard from the Deputy First Minister three weeks ago that there was no public or business consultation prior to declaring the intention to implement the vaccination passport, because you did not want it to become public knowledge that you were considering it. How did the Scottish Government gather the evidence on the potential effectiveness of the vaccination passport?

We gathered that evidence by looking at international experience. We have seen examples in other jurisdictions in which application of a Covid vaccination certification scheme has significantly increased vaccination take-up. Evidence for that has been demonstrated in other jurisdictions. One of the very strong examples is France, but there are other places where that has been the case.

We also looked at the experience that emerged from the studies that Public Health England undertook when the United Kingdom Government was exploring questions around access to events earlier this year. A lot of that research material is charted in the evidence paper that was published yesterday.

This morning, we heard that France, for example, does not just use vaccination passports; evidence of previous infection is also taken. It was suggested that, when making comparisons with schemes in other countries, we have to be careful how we utilise the data because it will be specific to the country. Even the Government’s evidence paper says that the impact in Israel is unclear.

The committee has heard evidence, which was alluded to by Jim Fairlie, that one of the main barriers to increasing vaccine uptake, which is what vaccination passports are being introduced to do, relates to ethnic minorities, especially our Polish and African communities, and areas of deprivation. Where is the evidence that suggests that the introduction of vaccination passports will have a positive impact on those communities, which are the hardest to reach?

I covered a lot of that in my response to Mr Fairlie. I see Covid certification as one part of a two-part strategy. I cannot give Mr Whittle a tangible number of members of the Polish and black and minority ethnic communities who will get vaccinated as a consequence of Covid certification. However, I am confident that, if we have that scheme plus measures to reach those communities in a direct, focused and targeted way, with messaging from within the community and access to vaccination services, we can increase vaccination levels in those communities and in others. In particular, we want to ensure that take-up is maximised among younger people and those who use higher-risk settings.

The point that I am trying to make is that the Government uses the percentage of the population that is vaccinated. However, when we drill down into the figures, we find that there are high levels of vaccination among the indigenous population of Scotland—perhaps higher than we would have expected at the start—but that there are pockets in our communities in which vaccination levels are not high. My problem is that I am not convinced that you have the evidence to suggest that using vaccination passports for nightclubs or football matches will impact the people who require our attention the most. I agree that community engagement is really important, but vaccination passports will not impact those communities to the extent that you want.

I fear that we are not going to have a meeting of minds on that issue. Let me make a sweeping generalisation and say that people below the age of 39 are more likely to be in nightclubs than people of my vintage—I am sorry to break the solemn news to Mr Whittle that he will not bump into me in a nightclub. Vaccination levels for people below the age of 39 are lower than they are for people above that age. Part of the approach to Covid certification is to further incentivise those people to get vaccinated so that they can participate in those activities.

Obviously, a large number of people of different ages go to some of the other settings; I accept that there is a much broader age demographic at football matches, for example. However, I encourage colleagues to think of Covid certification as one part of a two-part strategy.

I do not dispute Mr Whittle’s point about making sure that we have targeted and focused interventions for people living in deprivation, the black and minority ethnic community and other social groups that have low take-up. We accept that we need to concentrate our efforts on that. I pay tribute to the vaccinators for their efforts in that regard. In that way, we will reach the point, as Mr Mason said, of having such high vaccination levels that they provide the population with as much protection as possible.

To be fair, cabinet secretary, you probably will not find over-70s from the African community in nightclubs, either, but their vaccination rate is 20 per cent lower than the average. We are not going to have a meeting of minds. I do not believe that you had the evidence that you suggested you had three weeks ago. You are backfilling that evidence now to establish the need for vaccination passports. That is the point that I am making.

If Mr Whittle were to look back at the weekly state-of-the-pandemic evidence papers from the past six, 10, 12 or 20 weeks, he would see the same evidence base emerging of the challenges that we face. The question that flows from that evidence is what we do, in a changing pandemic, to address those circumstances and, ideally, avoid the scenarios that Mr Mason put to me, in which wider restrictions might have to be applied to the operation of particular sectors.

I would love to take this to appeal but, unfortunately, we do not have time, so I will step back.

What level of vaccination do we need to get to in order for the Government to drop the scheme?

That is a difficult question for me to answer, because we have to weigh up a range of factors in the discussion of the scheme’s proportionality. Mr Simpson will be familiar with the fact that we have tended not to have one particular indicator for performance at any given time. We have to look at the basket of information. I have cited the fact that we have to look principally at case numbers, levels of hospitalisation and levels of vaccination. Those three factors provide us with a reasonable assessment of where we are and how we are performing. Within the condition of those three indicators, we have to make a judgment, principally about the proportionality of any intervention that we make.

It is not just about vaccination certification. I will give another example. When the schools returned in August, we said that, regrettably, we required pupils in the secondary sector to continue to wear face coverings for an initial period of six weeks. Given the prevalence of cases, particularly among the younger school-age population, we had to say that, regrettably, that period was going to be extended. However, we judged that to be a proportionate act based on information on the segmentation of case numbers.

You will not say—or you cannot say—what level of vaccination you wish to get to. Will you be in a position at any point to give the public your thinking on the number of cases and on vaccination and hospitalisation rates—the whole suite of measures that you just mentioned—so that we know what we are aiming for?

The best thing that I can say to that is that we know what we are aiming for, which is to suppress the virus to a position whereby we can get on with normal life. If we get good levels of compliance with the baseline measures that we have in place—my sense is that, in recent weeks, there has been a significant upsurge of compliance with baseline measures, which is helping to suppress levels, and I thank members of the public for that—we can come to a judgment about proportionality.

Mr Simpson asks me when we can do that. Every week, the First Minister updates Parliament, Cabinet looks at the issues and we take stock of whether there is an on-going justification for the measures. On Tuesday, the Cabinet took the view that there was an on-going justification but that there was no justification for going beyond the Covid certification scheme. We look at that every week, and the results of the formal three-weekly reviews are reported to Parliament.

11:00  

I am not asking you to respond to this, but the problem with that is that the rest of us have nothing to judge you against because you will not say what you are aiming for.

Privacy is an issue that really concerns me. If my daughter goes to a nightclub tomorrow—I would be astonished if that ever happens—and has to show a QR code, her name and date of birth will pop up. Anyone could then find out where she lives and other stuff about her. That is an awful breach of privacy that has the potential to put people at risk.

It might help if I were to provide Mr Simpson and the committee with the opportunity to have a more detailed briefing from the officials and teams who have developed the app. I would be happy to arrange that, if that would help to reassure members about the issues and practicalities.

I am not a member of the committee. My point is that information will be given to a complete stranger at a nightclub or a football match. At the moment, a person’s name and date of birth are given; later, it will be just their name. Why should a complete stranger know someone’s name, see their face and be able to look them up?

In some circumstances, that happens in other environments. If I show my passport at an airport, I am showing it to a complete stranger who will know my name, date of birth and passport number.

People have to show identification such as a driving licence when they go to nightclubs. Stewards would usually see that.

I am delighted that the convener’s knowledge of nightclubs has come to my assistance. Mr Simpson raises a serious point, and I will reflect on whether there is a way in which members of Parliament can be briefed about the approach in order to provide some reassurance about those issues. I totally understand the sensitivity of the question.

It is a data protection issue. That is the question.

I do not for one moment trivialise the significance of the issues raised.

I hope that I have time for one more quick question. I have read through the draft regulations. Correct me if I have misread them, but it seems to me that cinemas are exempt.

They are.

Theatres are not exempt.

Theatres offer live entertainment, which technically brings them within the scope of the scheme. However, capacity limits are also taken into account. The regulations would affect only theatres with more than 10,000 people so, in practice, theatres do not fall within the scope.

It would have to be a big theatre. A small theatre would be exempt.

It would not be within the scope. The regulations affect indoor settings of 500 or more people who are mainly standing and live events in indoor settings with more than 10,000 people. I think that that takes out every theatre in Scotland.

Right, so all theatres in Scotland are exempt.

Unless there is a theatre that has a capacity of more than 10,000.

Okay. That is useful.

Deputy First Minister, Murdo Fraser brought to our attention what I think is the most striking admission in the Government’s evidence paper, which was published last night—that Scotland, when it introduces vaccination certification, will be the only country in Europe to bring in such a scheme in isolation, without a requirement for testing. Murdo Fraser asked you about that, and I wrote down part of your answer. You said that the Government did not want to undermine vaccination uptake.

Do you have empirical evidence from other European countries that have brought in certification in tandem with testing requirements that suggests that vaccination uptake has been inhibited by that combination of measures?

I do not have any information on that point, but I make two points to Mr Cole-Hamilton. First, other jurisdictions are bringing in a vaccination-only Covid certification scheme. Secondly, the Government has made a choice about the focus of the scheme, which is primarily to drive an increase in vaccination rates.

That seems slightly at odds with the messaging in the Government’s evidence paper, which was published last night.

In section 5.1, which is about the basis for the introduction of vaccination certification, the very first bullet point is about reducing transmission. Increasing vaccine uptake is ancillary to that—it is the fourth bullet point. I recognise that—

On that point, if we increase uptake of vaccination, we increase the degree of protection in the population, which has the effect of suppressing the circulation of the virus. I suspect that we are about to get into whether the chicken follows the egg or the other way around.

I am more than happy to concede on that.

Mr Cole-Hamilton and I know what we are debating here.

Of course. I am happy to concede that point. My anxiety is that, as we have heard from eminent academics this morning, vaccination certification could drive down uptake in hesitant—or, rather, vaccine-sceptical—groups. If they feel browbeaten, they might not take up vaccination.

I want to reflect on that point, in the light of the evidence that the committee has heard this morning. The witnesses added another important element, which was to do with the question whether vaccination certification is being introduced in an environment of trust in society. I think that the evidence generally suggests that there is a high level of trust in Scotland on the way in which Covid-related issues have been handled. It is important that we acknowledge that that backdrop enables such a scheme to be applied in the fashion that I have suggested to the committee.

Thank you for that. My final area of questioning is about proportionality.

Last week, we heard from the Scottish Human Rights Commission that there is anxiety that the scheme will roll back our application of human rights, including statutory ones. Judith Robertson, the chair, made it clear that it is acceptable for states to do that in times of pressing need—obviously, coronavirus is a pressing need—but only if the scheme that is being introduced and the rollback of rights that goes with it can demonstrably impact on pushing down against that need. She also talked about proportionality, as did you.

My question is on the evidence of proportionality. Meeting the test that was set to us by the Scottish Human Rights Commission requires the Government to evidence that it has considered alternatives to the scheme. Are you satisfied that you have considered the use of testing as an alternative to vaccination certification to an extent that would satisfy the Scottish Human Rights Commission?

Obviously, I cannot speak for the Scottish Human Rights Commission, but I absolutely accept the tests that it would place upon us. Such tests matter to the Government.

Mr Cole-Hamilton will be familiar with the Government’s position on the significance of human rights in all our activities. He knows about the legislation that the Government has taken through Parliament—for example, on the incorporation of the United Nations Convention on the Rights of the Child. That is an illustration of the Government’s commitment to a human rights-based approach. The Covid recovery strategy that the Government is working on focuses on a human rights-based approach, and it will be material to the public inquiry that takes place on Covid issues. I do not in any way dispute the importance and significance of human rights questions.

I agree with Judith Robertson that those questions fundamentally hinge on the question of proportionality. The Government must be able to satisfy itself on the question of proportionality in relation to any measures that it takes forward. As Mr Cole-Hamilton will well know, we also have to satisfy ourselves that we could withstand legal challenge on any of those questions. The Government considers that issue very carefully on all occasions.

In answer to the question about alternatives, the Government considers a range of possible approaches that we might take. Mr Mason invited me to speculate on some of those as alternative measures on the restriction side. There are other arguments in relation to testing approaches, which, I would contend, the Government is using to the best of our ability in order to ensure that those devices are being used. We judge that a Covid certification scheme is a proportionate measure, in addition to the range of other interventions that we are taking to suppress the virus, increase vaccination uptake and protect the public.

Murdo Fraser has a brief question.

I will try to be brief. I have some specific questions about the terms of the regulations. I will ask one and see how we get on.

There is a new power of entry contained in regulation 16A of the draft instrument that we saw yesterday afternoon, which gives power to enter a property without warrant where permission to enter is refused, to ensure that an offence is not committed under the regulations. That power can be exercised by a police officer or a local authority officer. How does the Scottish Government foresee those regulations being enforced? For example, do you see there being a role for the police in that regard?

No, I do not. I am happy to put on the parliamentary record that we will take the habitual approach that is taken in all such settings. I had a helpful discussion with local authorities on the issue the other day. Our approach will involve engaging, explaining and encouraging before we get to enforcing. The four Es approach, with which many institutions will be familiar in relation to the work of local authority regulators, will be the one that is taken.

We want to work with businesses to make sure that they understand the obligations on them, and to support them in putting in place the practical measures that they can take. That will be the cultural approach that is taken. Local authorities are keen to make sure that that approach, which is commonplace in local authorities in Scotland, is maintained.

Do I have time for one more quick question, convener?

You have one minute.

I have one more question about the draft regulations. There is a provision in new regulation 7E that sets out the list of exempt events. Subparagraph (c) of regulation 7E exempts

“an event designated by the Scottish Ministers as a flagship event according to criteria, and in a list, published by the Scottish Ministers”.

That gives a very wide power to the Scottish ministers. We have no definition of what “a flagship event” is. Will you explain what is envisaged there? What would fall under that list?

The provision seeks to provide the appropriate opportunity for us to designate individual events that might be of a particularly noteworthy nature. For example, Her Majesty the Queen is coming to the Parliament on Saturday and I would describe that as a flagship event. There is no necessity for us to consider the issues in question, because the numbers of people involved will not be appropriate, but I can envisage flagship events to which we might all wish to give appropriate recognition. I invite Ms Sadler to come in.

11:15  

The committee may recall that, during the summer, a number of events were allowed to progress that were outwith the scope of the regulations that were in place at the time. Those included events such as the Edinburgh international festival and some of the larger golf events; on the basis of public health advice, those events were considered to be so significant in terms of their impact on Scotland as an internationally recognised place where people want to do business that they were allowed to progress. There are no events in that programme extant at the moment, but the purpose of the provision in regulation 7E is to enable such events to be exempted from certification, if required. We do not have any such events planned at the moment.

There is much more that I could ask, but I think that we are out of time.

I go back to Graham Simpson’s point and ask the Deputy First Minister, with the agreement of the committee, whether it would be possible for all members, not just those on the committee, to receive a briefing on the new app.

There is a fair point to be addressed there, so I will take the issue away and put that into motion.

Thank you.

That concludes our consideration of that agenda item. I thank the Deputy First Minister and his officials for their evidence. The committee’s next meeting will be on 7 October, when we will take evidence from the Cabinet Secretary for Health and Social Care on the vaccination programme and pandemic preparedness.

That concludes the public part of the meeting.

11:17 Meeting continued in private until 11:30.