Seòmar agus comataidhean

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.

I do not think that there is any misconception about the fact that Universities Scotland thinks that there should be emergency powers—I quoted its written evidence earlier. It is about the how, and the importance of that.

I appreciate that Universities Scotland is coming from a different starting point, and that it would prefer a framework approach that would leave matters to the universities. However, I stated earlier the reasons why I do not feel that that would be appropriate. Government needs the ability to react if we are at a point where an institution is taking a very different approach from what the public health advice to Government suggests that we should do.

In saying all that, I note that we have worked closely, as I mentioned earlier—

We need the ability to say that, for example, one campus in an institution might have to close with the exceptions that can be made for—again I give the most obvious example—animal welfare, but there are other possible areas. We might come to a different point in the pandemic at which we need to say that an institution should remain on online learning, except if someone has to go in for practical assessment, and we would discuss with the universities when people are required to be on campus.

We would always take the partnership approach that we have always taken to those things, but we still need that full stop that allows the Government to take decisions if an institution is taking a different approach on aspects of public health.

In saying that, and as I have said on numerous occasions, if aspects of the granular detail are causing concerns, I am more than happy to work with Universities Scotland on them.

On the points about additional support needs, one of the important aspects of the bill is ensuring educational continuity, rather than having blanket closures. One of the reasons for that is our recognition that young people will be impacted differently, although they are all impacted. The caveat around those with additional support needs is a prime example of the importance of recognising that.

Involving young people in decision making in an integral way is key. We are keen to do that within educational policy as a whole. We are also cognisant that we must do that correctly. I pay tribute to the individuals who have taken part in the coronavirus education recovery group and the national qualifications 2021-22 group. It is very challenging for one young person to come into a committee surrounded by education professionals—that is a challenging environment. We need to bear in mind that, although young people should be at the table in such discussions, that needs to be supported and facilitated in a way that makes a genuine difference.

In those formal structures, we must ensure that, as we begin to develop policy, young people are in there right from the start of the process. We are working with young people on that to ensure that they feel that we are doing that in the most effective way, rather than the Government coming up with the way to do that.

I have already talked about the lawfulness of the bill, the Presiding Officer’s statement and the discussions that we have had to date about our human rights obligations. I am really sorry if Mr Mundell thinks that we are wasting Parliament’s time by talking about how to deal with a further public health emergency. However, that is for him, not me, to reflect on. One of the biggest obligations that the Government and the Parliament have is to protect our people, and that is what the Government is attempting to do with the bill. If Mr Mundell does not think that Parliament should do that, he is more than welcome to speak about that in Parliament. However, if that is the Scottish Conservatives’ point, that is deeply disappointing. We all have an obligation to work out how we, as a country, can best deal with a public health emergency. If Mr Mundell thinks that that is a waste of parliamentary time, that is up to him.

I fully appreciate the point that came up on that subject, as well as the point about the wait for the public inquiry. In response to that, again, we want to learn lessons from the coronavirus, and one of the criticisms of the Scottish and UK Governments was that we were not ready for the public health emergency when it came.

With the greatest respect for those who think that we should wait for the inquiry, I do not know when the next public health emergency will arise or whether we will have another wave of coronavirus that will impact deeply on education. It would be remiss of, and inappropriate for, any Government to wait and hope that nothing happened until the public inquiry finished. I completely understand the view that we should take more time and wait for the public inquiry, but we do not know the timeframe for that, and we will still have to go through the work after it concludes. I would summarise the situation by saying that we do not have the luxury of that gap. We cannot just cross our fingers and hope that nothing happens in the meantime that requires us to have the powers that are in this bill or—if Parliament feels that the bill is not right—whatever bill we have at the end of the process.

That is an important point, and it is why we have the safeguards in place to ensure that they are not directional powers but regulations—regulations that will be reviewed and that will receive parliamentary scrutiny. It is important to have safeguards within those measures, but I think that it is right that the Government and the Parliament are able to pass those measures to allow us to get ready for the worst-case scenarios that may happen.

Absolutely. If the bill is passed, any regulations that we made would apply for a specified period. Regardless of that, they would also be subject to review every 21 days for as long as they were in force. Again, that is one of the important safeguarding measures in the bill. I do not think that any Government wants to keep anything on the statute book longer than is necessary. I appreciate that there are differences of opinion about the speed at which things were considered during the coronavirus, and the ability of Parliament to have a say on the matter during a review period is an important safeguard in that respect.

That provision is in the bill to show that we have learned lessons from the start of the pandemic. I will ask Craig Robertson to comment, because he was in post at that time—I was in another portfolio.

At that time, there was a requirement to assist students in a way that universities, the sector in general and, indeed, we were not quite ready for, and we must ensure that we are much more able to provide that assistance. Of course, there might be times when we require to prevent people from accessing student accommodation, but we take very seriously the fact that we are talking about people’s homes, that they might not have alternative accommodation, and so on. None of the regulations and changes would be made without ensuring that safeguards for students were absolutely integral to our thinking on the matter. We therefore need to think about how we protect students. Some of that will focus on what happens in halls, while some of it might involve ensuring that halls are used in the correct way at the correct time.

However, I will bring in Craig Robertson, who, as I have said, has experience of what happened at the start of the pandemic. It is important that we learn lessons about how the powers in question might be used.

I absolutely value the great partnership working that we had with the college and university sector during the pandemic. We did not find it necessary, during the pandemic—even at its height—to use the existing emergency powers to require universities, for example, to take action, and I think that that reflected our successful partnership. I very much hope that we would repeat that set of circumstances in the next pandemic or public health emergency.

However, I pose one question to the committee. If one institution decided that it felt differently from the public health advice that was coming out and that it would take a different tack from what its own sector wanted—the institutions are all independent—and we did not have any powers to ensure that we could make regulations in that regard, what would the Government do at that point?

Partnership working is great. I will always work with every sector and every institution to ensure that we work in partnership, and we will do that with the bill. However, if we got to a point at which an institution took a different tack from the public health advice that was coming out, how would we react? Institutions may be independent, but they are not independent of their communities, and they are staffed by people we need to protect. With the greatest respect for those who have appeared before the committee and said that they did not see the point in the legislation, that is the worst-case scenario for which I need to plan.

We did not get anywhere near that during this pandemic, but, if the committee can say, hand on heart, looking way into the future, that there will be no instance in which that will happen—fine; we do not need these measures. However, I do not have the benefit of looking into the future and knowing that that will never happen. Therefore, I think that the Government must have the ability to take action if we need to.