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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.

I think that, with the experience of coronavirus, the right way to do things has been demonstrated. Regulations should not stay in place for one day longer than they should do, and guidance should not be stricter for one day longer than is needed, but, obviously, we do not want things to change for the sake of it. I cannot for the life of me see why, in the middle of a public health pandemic, a Government would make changes if those changes were not based on advice from the chief medical officer.

We should look to the safeguards in the bill, which states clearly that there needs to be advice from the CMO to allow Government to make regulations that are proportionate to what is happening. The safeguards are in the bill when it comes to why we would make regulations; it is all about the seriousness of a public health emergency.

Changes involving the removal of regulations would, of course, be made to ensure that we could get back to as normal a situation as everybody would want us to be in. The bill sets out that changes would be made to speed things up or make things tighter; it also explains why regulations would be taken away.

One of the key areas that the bill covers is the importance of continuity of education rather than a blanket closure approach. That points to the impact that the pandemic had on children, young people and students across the country. They will all have experienced it differently, depending on their individual circumstances, but, in many cases, their experiences have been exceptionally difficult. We have spoken about that when I have been before the committee previously.

The Government needs to rise to the important challenge of ensuring that we have the powers to enable us to deal with public health emergencies and ensure continuity of education. That has a real primacy in our thinking, because we must do everything that we can to protect students as far as we possibly can.

I would caveat that by saying that students’ experience might be variable because of different requirements in different parts of the country. Indeed, that is what we saw with the coronavirus. Different parts of the education system might require different types of regulation, so we are not taking a blanket approach in which the same thing happens from early years all the way up to the universities. Within that, we are endeavouring to protect students as much as possible and to put that absolutely front and centre in our work.

I appreciate that the Conservative members of the committee might agree with the approach taken to the coronavirus by the UK Government, but, if a senior management team of an institution took more of a Boris Johnson approach to dealing with coronavirus rather than listening to public health guidance, such as we have up here, we would need the powers to deal with that. Otherwise, large institutions with thousands of staff and thousands of students, that are integral part of our communities, will be able to take a very different approach to dealing with coronavirus than the Government does, and I do not think that that would be particularly welcome in our university towns and cities across the country.

We absolutely need to take account of the different scenarios that will arise. Boarding schools and school residences are unique environments. Throughout the pandemic, we worked closely with the Scottish Council of Independent Schools and individual schools to reflect their special circumstances in the measures, particularly for boarding schools.

It is important that we are cognisant of the fact that we are dealing with young people who are away from home and that, in essence, those places are their homes during term time. It is about providing the foundation for the correct support and ensuring that we do not make any unnecessary calls on that sector. We want to ensure that young people can still have their education and be supported, but that that happens in a safe way that recognises that, for example, many pupils might come from different parts of the United Kingdom or from across the world.

Obviously, there is a specific requirement to ensure that what is put in place for boarding schools and school residences takes that type of environment into account. However, I suppose that it comes down to the same types of issues about provision of support and the protection of the wider public. The guidance on how we might do that will be very different for university halls compared to boarding schools. However, the continuity that runs through the measures in the bill is to do with support and the protection of public health.

Good morning, convener. It is a pleasure to be here to discuss part 2 of the Coronavirus (Recovery and Reform) (Scotland) Bill.

We are tentatively in the recovery phase and thankful that the impact of Covid on our education system is diminishing and that the strategic framework provides a basis for many restrictions or limits to be removed. However, for the past two years, Covid has affected almost every aspect of our education system and significantly affected the experience of every pupil and student. We have been committed to protecting their interests, to protecting their health and that of the people around them and to ensuring that their learning continued and was supported as effectively as possible.

The powers that we are discussing today will provide an effective basis to ensure the continuity of education in the future. Whether we face a continued threat from coronavirus or a future public health emergency, our purpose is to ensure that we have the appropriate legal framework and powers in place to be able to react swiftly and decisively to protect children and young people.

Introducing the proposals now will ensure that they have the extensive and important parliamentary scrutiny that emergency legislation simply cannot receive. The bill can be deployed only if the strict test in it is met: that, in view of advice from the chief medical officer, the proposed action is necessary and proportionate to protect public health, and that all regulations made under it must be reviewed at least every 21 days. The bill carefully balances the powers to act quickly, if needed in the event of a future public health threat, with those important safeguards.

We have built on our experience of the powers in the United Kingdom Coronavirus Act 2020 during the pandemic and listened to the feedback from the consultation and from stakeholders. The proposals are broadly modelled on the existing powers under the UK act, but with some important differences.

First, the powers would be exercised through regulations, as opposed to ministerial direction. That introduces parliamentary scrutiny and oversight for the first time. Secondly, the main provisions focus on educational continuity. In spite of a public health emergency, continued education provision in whatever form is possible would be our priority and we do not propose a stand-alone closure power as there was in the UK act. Thirdly, we are adding a statutory guidance-making power. That will add to the set of available levers and allow us to provide advice to the system on a statutory basis without the need to use regulations.

The important safeguards that were in place under the UK act remain. That is to say, the powers can be exercised only when ministers are satisfied that they are necessary and proportionate and after regard has been given to the advice of the chief medical officer. Also, the powers can apply only for a specified period and would be subject to regular review.

I turn to the second set of measures in the bill. The Schools (Consultation) (Scotland) Act 2010 prescribes how changes to the school estate must be consulted on, including through a public meeting. The amendments in the bill establish a process so that, during a future public health emergency, local authorities would be able to apply for a direction from ministers to hold a 2010 act public meeting wholly by virtual means and to be relieved of the requirement to make hard copies of consultation documents in council offices.

That is a new proposal on which we consulted last year. It is not derived from temporary coronavirus legislation. The proposal will allow school consultations to proceed during, for example, a public health emergency, thereby avoiding delays to major school infrastructure projects without the risk of contributing to the spread of infection. However, it is important that those steps be taken only when necessary. Again, the test is that a direction may be given only when ministers are satisfied that it is necessary and proportionate to protect public health.

I welcome the opportunity to discuss that and the other proposals in the bill.