 Welcome to the eighth meeting of the Education, Children and Young People Committee in 2022. I welcome Graham Day, who is attending the committee for the first time as a committee substitute, and I invite Graham Day to declare any interests relevant to the remit of the committee. Thank you for that, and we have received apologies for this meeting from Ross Greer. Thank you for that, Mr Day. The second item on our agenda today is to take evidence from the Minister for Children and Young People, Claire Hawke, MSP and her officials on the provision of early learning and childcare, specified children's Scotland amendment order 2022. I would like to welcome the minister to the committee this morning along with her officials. The minister is accompanied by Scottish Government officials Eleanor Passmore, deputy director for early learning and childcare, and Carline O'Malley, solicitor of the Scottish Government legal directorate. Good morning to you all. Ms Hawke, can I invite you to speak to the draft instrument? This amending order will increase the income thresholds for families with a two-year-old who is eligible for a funded early learning and childcare, or ELC, because they get a joint working tax credit and child tax credit, or universal credit award. The relevant order currently specifies that a two-year-old is eligible for funded ELC. If their parent is in receipt of child tax credit and working tax credits with an annual income that does not exceed £7,500, or their parent is in receipt of universal credit with a monthly income that does not exceed £625 per month, the amending order will increase the income threshold to £7,920 per year for households in receipt of both child tax credit and working tax credits. The universal credit income threshold will increase to £660 per month, the equivalent of £7,920 per year. We are making this change to reflect changes at a UK level. The UK Government has increased the national living wage from £8.91 to £9.50 per hour, meaning household income would exceed the current thresholds if they remained the same. The purpose of the order is to protect eligibility for two-year-olds who would expect to be eligible for funded ELC as a result of their parents or carers being in receipt of those affected qualifying benefits. If we choose not to make any changes to the income thresholds, we estimate that around 1,000 eligible two-year-olds would no longer be eligible despite there being no significant difference in the household circumstances of those families. However, it is important to be clear that no two-year-old who is currently receiving funded ELC will be affected by those changes. Once a child has met the eligibility criteria, they remain eligible despite any subsequent change in circumstances. As the purpose of the amendment is to maintain eligibility, we do not anticipate a significant increase in the number of two-year-olds becoming newly eligible for the provision. We do not expect a significant impact on local authorities' ability to fund the provision within the current financial settlement. As such, there is no evidence that additional funding is required to support implementation of the amendment. The impact on uptake will, however, be closely monitored by the Scottish Government and COSLA through the appropriate mechanism, which is the ELC finance working group. Appropriate arrangements will be made if uptake is significantly above the level that is expected and local authorities' costs increase as a result. As mentioned on my previous visit to the committee to amend those thresholds, we will continue to monitor future increases to the national living wage and we will upgrade thresholds when required in order to keep pace with those changes. COSLA agrees with the approach that it is necessary to maintain a similar profile of eligible children. I am happy to respond to any specific questions that the committee may have. Thank you minister. Can I ask if any members have any questions or comments on the draft instrument? This is a change driven solely by the increase in the national living wage. Is that right minister? Yes, and to the changes in working tax and child tax credit rates. I think that Willie Rennie wants to come in. That is an issue that we have explored before about the take-up. I have no issue with the technical changes to the amounts today, but the take-up for a two-year-old still seems to be lagging way behind where it should be. It was 11 per cent in 2019, 9 per cent in 2020 and 13 per cent in 2021. Although there has been an increase, which is good, it is still not anywhere near the 40 per cent that was estimated before of two-year-olds that would be entitled to this. I know that there were issues about identifying the right young people and how we get them into the system. Do you have any update on progress on that issue at all that you can tell us about? Yes, Mr Rennie. I know that this is an issue that we have looked at before. As you rightly stated, the last figures in September 2021 showed a 13 per cent uptake. That is the total population of two-year-olds. In order to increase the accuracy of the data and of the children who are eligible to access the two-year-old offer, we have been working closely with UK Government colleagues in improving data sharing and developing a legal data gateway and agreed data flow between the DWP, HMRC and local authorities. UK Government issued a consultation on the secondary legislation that would be required for that gateway and data sharing. That closed last week, I think, on Friday, and so we will certainly be working along with UK Government officials and colleagues to look at the outcome of that consultation and to request that they work quickly with us so that we can actually get that data sharing mechanism in place. Do you think that we will be able to get it up and running by September, when those figures are measured again? It is dependent on the UK Government and when it is able to or wish to proceed with legislation, but we will certainly work closely with it, and there has been a huge amount of co-operation between both the Scottish Government and the UK Government officials on that. Are there any barriers in principle, or is it just working through the technicalities? Why is it taking so long? We have been working closely with them, and they are aware of the issues that we have with the data sharing, and we are keen to be able to access that data so that we can promote the eligibility to some families who may not be aware of their eligibility for the ELC offer for two-year-olds. There is no barrier other than the technical aspects. In addition to awaiting that data, we have been working closely to ensure that parents and carers are aware of eligibility and the advantages of accessing quality ELC for eligible two-year-olds. We have been working closely with our local government colleagues, our health colleagues on the health visiting pathway, our family nurse practitioners and our eligible two-year-old ELC funding. However, you cannot underestimate the value of that data in order to be able to accomplish your objective. Are you satisfied with the working relationships that you have with ministers and officials at the DWP? Certainly. We have been working very cooperatively with them, and we hope that, once they have that consultation feedback, they will work that way. I have no problem with the instrument as it stands, but your comments, Minister, regarding the relationship between uptake and funding pressures around local government. I wonder whether, going through the process, do you undertake any kind of monitoring or assessment of the financial health of the sector in terms of how sustainable the businesses that are running in this area are, and how they are sustaining to make sure that access is there? Access for eligible two specifically? More generally, if the nursery is not there, then the two-year-olds are not going to be able to access it on the line with Willie Rennie's questions, but just so that the health of the sector undertakes any exercise in understanding that. A financial health check was carried out by the Scottish Government last August, and the Eleanor's may be able to give you a bit more detail on what was asked of the sector. That is correct. We undertook a survey effectively with the sector to look specifically around issues such as financial sustainability, which was published last year. We have undertaken to carry that out annually. Obviously, we are very alive to some of the issues that the sector is facing, and that is why, earlier this week, we launched the Omicron Sector Impact Fund, particularly to deal with those specific impacts that have been very live over this particular period in the pandemic. I have had a couple of closures of fairly large nurseries in my constituency, and that has created a lot of problems for people. I recognise that a lot. Some of that is to do with behaviour changes in terms of families, but it makes the business models perhaps less sustainable than they were previously. It seems like it is a moment of fairly major change in the way that people are accessing childcare and nursery education, so that has been taken on board in the work that has been done. Yes. The Care Inspectorate also published data routinely that looks at closures, and I need to check the exact figures. I can come back to you on that, but what we are seeing is consistent with previous trends, around 1.5 per cent. I do not think that we have seen a significant increase in the course of the pandemic, although the data that they published is from late 2020. That is the most recent that we have, unfortunately. As I said, we are carrying out the health check annually in the interim to keep a very close eye on sustainability and the number of factors that are driving that. Okay. If I could have that data, that would be useful. Since we are brought out a little bit, I will try not to take up too much time, but we had meetings with representatives of the private sector, and they are deeply alarmed about almost exodus levels of staff going from private nurseries to council nurseries, and it is threatening their viability. That health check is really important, but I am not quite sure that the Government really understands how severe it is for those businesses. The reason why it is important to us is not just because of the capacity that it provides, but it is also the flexibility that it provides that sometimes council nurseries cannot provide. It would be useful if you were able to write to us to set out what steps you are taking to address that particular issue about the exodus of staff, which is related to the funding that the private sector receives, but I am aware that we are probably straying from the essential purpose of the SSI. I am certainly aware of concerns that the PVI sector has about staffing and staff moving between different settings. It has been an issue that has been raised with me in my meetings with him and has certainly been raised with officials, and we are alive to that issue. We have put steps in place in trying to support them, but I am more than happy to write to the committee convener to outline those steps in more detail. I am sure that we have further occasion when we can come, have you back, and we can talk about the widening range of areas of interest. Our next agenda item 3 is to invite the minister to move motion S6M-02961, that the Education, Children and Young People Committee recommends that the provision of early learning and childcare-specified children's Scotland amendment order 2022 be approved. Do members have any comments in which case the question is that S6M-02961, in the name of Clare Haught, be approved? Are we all agreed? We are all agreed. The committee must now produce its support on this draft instrument. Is the committee content to delegate responsibilities to the deputy convener, I, to agree the support on behalf of the committee? We are agreed. I would like to thank the minister and her officials for their attendance today. I have a short suspension to allow the minister and officials to leave the meeting. Our next item of business is consideration of the subordinate legislation, the Police Act 1997 and the Protection of Vulnerable Group Scotland Act 2007, fees coronavirus amendment regulations 2022. Do members have any comments on the instrument? Fergus Ewing. Yes. Thank you, convener. I just wanted to seek some clarification from the minister about a point that was raised with us from the SPNA, an association representing, I believe, private nurseries and nurseries that are operating in the voluntary and third sector, i.e., a run by charities. I just wanted to seek clarification from the minister that the benefits of this provision, namely the waiver of disclosure fees and the waiver of liability to pay for certain disclosure fees, applies to this group of nurseries, i.e., those that are in private ownership or in third sector ownership, as well as local authority nurseries. Obviously, if the principle is that disclosure fees should not be payable, then I would assume that that would be something that would apply across the board. We have just received the letter from the SPNA in the last day or so, otherwise we would have raised this with the minister before, but it would be helpful if clarification could be provided on this point, please. Thank you, Fergus Ewing. The Scottish Private Nursery Association did indeed get in touch with this, and the questions that Fergus Ewing raises are the questions that they had in mind that we should seek answers to. We do not have a minister with us—it is a negative instrument, we do not have a minister with us—and we have not had time to be able to get a satisfactory answer to the questions that are being raised, which are entirely legitimate concerns on the part of the sector. Therefore, what I would propose with the committee's agreement is that we write to the minister and seek clarification on those matters, and then, having consideration of the letter, we decide before the appropriate deadline to how to proceed in relation to the instrument. Are we content with that approach? We are content with that approach. Thank you very much. We will now have a short suspension to allow the cabinet secretary and officials to join us at the table. Welcome back. Our next item of business today is consideration of the evidence taken on the coronavirus recovery and reform, the Scotland bill, and today and at our meeting last week. I would be grateful if members could concisely share their—oh, sorry, I am at the wrong section of my convener's script. There you go. First time for everything. Our next item is, indeed, to take evidence of the scrutiny of the coronavirus recovery and reform, the Scotland bill at stage 1. I would like to welcome Shirley-Anne Somerville, Cabinet Secretary for Education and Skills, and our officials. We have quite a gathering of officials today, so I will read through how they all are and welcome you to our committee. Sam Anson, who is deputy director, Covid education strategy and recovery, who is with us in the committee room. Good morning to you, Sam. Craig Robertson, who is also in the committee room, is the deputy director interim advanced learning and science director at Covid response. On line joining us, we have Andy Drout, deputy director, workforce and infrastructure, learning director at Clare Morley, unit head, school funding, infrastructure and organisation, Jerry O'Connell, team leader, school organisation team, Greg Walker, coronavirus recovery and reform, bill team leader, Scottish Government, and Nico Mackenzie Dewitton. I hope that I have said that correctly. Lawyer, Scottish Government, legal directorate. Apologies if I have mispronounced your name, Nico. Welcome to all of you. Thank you for your time today. First of all, I would like to invite the cabinet secretary to make a short opening statement for up to five minutes and then we will move straight to questions. 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 at present. I am 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. For the past two years, Covid has affected almost every aspect of our education system and has significantly affected every pupil and student's experience. We have been committed to protecting their interests, to protecting their health and that of those around them and to ensuring that the learning continues and was supported as effectively as possible. The powers that we are discussing today will provide an effective basis to ensure education continuity 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. Taking forward those proposals at this time will ensure that they have the extensive and important parliamentary scrutiny that emergency legislation simply cannot receive. The legislation can only be deployed if the strict test in it is met. That, in the view of advice from the chief medical officer, the proposed action is necessary and proportionate to protect public health and all regulations made under it must be reviewed at least every 21 days. The legislation carefully balances the powers to act quickly if needed in the event of a future public health threat with these important safeguards. We have built on our experience of those powers in the UK Coronavirus Act 2020 during this pandemic and listened to the feedback from the consultation and from stakeholders. Those proposals are broadly modelled on the existing UK Coronavirus Act powers but with some important differences. Firstly, the powers are exercised through regulations, as opposed to ministerial direction, introducing for the first time parliamentary scrutiny and oversight. 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 standalone closure power as there was in the UK act. Thirdly, we are adding a statutory guidance making power and this will add to the set of levers available 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 that the powers can only be exercised when ministers are satisfied that they are necessary and proportionate and after regard has been given to the advice of the chief medical officer can only apply for a specified period and are subject to regular review. Turning to the second set of measures in the bill, the school's consultation Scotland Act 2010 prescribes how changes to the school estate must be consulted on which includes a public meeting. Those amendments establish a process so that, during a future public health emergency, local authorities can 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 provide hard copies of consultation documents in council offices. That is a new proposal consulted on last year but not derived from temporary coronavirus legislation. Proposals will allow school consultations to proceed during a public health emergency, for example, avoiding delays to major school infrastructure projects without risking contributing to the spread of infection. However, it is important that those steps are only taken when necessary. Again, the test is that a direction will only be given where ministers are satisfied that it is necessary and proportionate to protect public health. I welcome the opportunity to discuss this and the other proposals in the bill. Thank you very much, cabinet secretary. Last week, we had a whole morning of very compelling evidence from a variety of different witnesses, including most compellingly of all I felt from the Children and Young People's Commissioner Scotland. In their written evidence to us and affirmed by Megan Farre, who appeared in person before the committee last week, they expressed concerns about the proposals in this legislation that they do not conform to article 15 of the European Convention on Human Rights in article 4 of the International Covenant on Civil and Political Rights, the ICCPR. Specific in relation to human rights in terms of emergency, it was recognised that states could use powers but they were limited, not unlimited. Any emergency powers must be lawful, necessary, proportionate and time limited and this must be limited by the extent strictly required by the situation. That is not the case with this legislation and it was alluded to last week that this bill could in fact, if it became law, would in fact, could be taken to court and found to be unlawful. My question is very simple, cabinet secretary. Is the Scottish Government listening to any of this evidence? Will you take on board any of the evidence that is being presented to us, including this from the Children and Young People's Commissioner for Scotland? Would that take very seriously the discussions that have been had with stakeholders, what was in the consultation and, of course, very importantly, what was said in evidence to committee. I listened very carefully to what has been said and played a close attention, particularly on those issues. I think that, convener, I can go through a couple of points, particularly on human rights, because it is an exceptionally important one. It is absolutely integral that we ensure that we fulfil our obligations as a Government on human rights. I believe that some of the arguments that have been put forward on this will really proceed on the premise that the UK has somehow suspended or delegated some of its obligations under ECHR, and that premise is inaccurate. Obviously, there has been no delegation from the ECHR in the context of coronavirus, and I think that that is important that I make that clear. Of course, we will ensure, as we always do, with the bills that go through Parliament, that we are content. Of course, the Presiding Officer has made a statement that, in her view, the provisions of the bill would be within the legislative competence of the Scottish Parliament and, of course, within that requires our obligations on human rights. What I would also say is that, of course, any regulations that are made under the bill once enacted and commenced would obviously have to be compatible with ECHR rights. The Scottish Government will have to consider the potential impact of any measures to be included in any regulation on the range of convention rights, and any interference with an ECHR right would have to be justified in accordance with the Scottish Minister's human rights obligations. We take our obligations on human rights very carefully. We will, of course, ensure that we continue to listen to stakeholders who have concerns on those issues, but I certainly do not have a concern at this time with what I have seen, that we have an issue with the bill and its ability to pass through Parliament successfully to become an act on this point. Of course, you have a majority in Parliament, so I can understand why you would be confident that you might be able to pass it. Let me bring in Willie Rennie. This is the Children's Commissioner, so it is appointed by Parliament, a serious institution that considers these matters incredibly serious. They would not have said last week what they said if they did not have any justification for doing so. The Scottish Government, to be frank, has got this wrong before, very recently, with the incorporation of the UNCRC. What confidence do you really have that you have this right? Surely we cannot afford for this to be bogged down in the courts in the same way as the UNCRC incorporation has been. What can you tell us that convinces us that you are right and the Children's Commissioner is wrong? Of course, I am very, very happy and would encourage all of those who have concerns with this aspect and with any other aspect of the bill to continue to have discussions with ministers and officials as we go through to see if we can alleviate some of the concerns. I think that we can hopefully do that with some of the points that have been raised by the Commissioner. I absolutely take very much on board the seriousness of the concerns that the Commissioner's Office has had and, indeed, the importance of the Commissioner's views on those aspects. I would point out, as I said in my answer, that it is not simply the view of the Scottish Government that this is compatible but also the statement that was provided by the Presiding Officer. The Presiding Officer has got it wrong before as well. That is the whole point. The system got it wrong. How do we know that you have got it right this time? For the reasons that I have read out, I believe that some of the evidence that was given was based on a misunderstanding that there had been a derogation from aspects around ECHR. We will, of course, continue those discussions with the Children's Commissioner. Again, I would point out to the fact, as I said in my answer previously, that we do very much believe that the work has looked at this very seriously. Of course, there are safeguards within the bill around how those powers can be used, the way that they can be used, the safeguards to ensure, for example, that we have to have regard to advice from the chief medical officer around public health, that those have to be necessary and proportionate. Obviously, there are time-specific measures as well. I am confident that we have that right, but, of course, we will continue to work with stakeholders. We have concerns to see what can be done to ensure that we alleviate those concerns as the bill passes through, because I absolutely appreciate that the committee is concerned about what the commissioner said. I would give the reassurance that we are very confident in where we are at at the moment, but we will continue the conversations with stakeholders on that matter. The commissioner set out much more pragmatic ways. It is not just that the commissioner was opposed to preparing for future pandemics, but he set out a model in which he could prepare the draft legislation for emergency purposes now—do the work—and then implement it when there is an emergency. That means that we would not have to shortcut the parliamentary processes. Why have not you considered that route? It seems a very sensible way to proceed. When we look carefully at how the bill is progressing through, I think that this is the optimal way to do legislation in a non-emergency setting. If you look at the non-emergency timetable for the bill, we have obviously had a 12-week public consultation. We have had the evidence that is now going through Parliament at the moment. At the current timetable, we would expect that to commence, for example. I am sorry, that is not what they are arguing. What they are arguing is that we should use this time, at a reasonable pace, to work up emergency powers for implementation at the emergency rather than now, on a permanent basis, when there is not an emergency. That is what they are arguing. We should take our time now to get this right, because, as we will come on later on, there are serious questions about the model that you are adopting, the very prescriptive model. Why are we not taking our time for implementation later? I am not arguing about—I know that there is more time now to consider this legislation than there would be in an emergency, but that is not what they are arguing. They are saying that we should do the preparation now, prepare the draft emergency legislation and implement it when there is an emergency rather than when there is not. With the greatest respect, we are taking our time. Of course, it is up to Parliament how long this bill takes to get through Parliament. Mr Rennie, if we have learned anything during Covid, it is that we work better as a Parliament united on public health measures when we at all can. I think that the answers that I am giving are based on the fact that we will very much endeavour to seek consensus on this issue given the importance of public health measures. We will take our time to get this through Parliament. We are absolutely determined to make sure that this is fit for purpose and needs to be fit for purpose for circumstances that we cannot foresee at this point in time. I think that when we look at some of the discussions that have been had, for example, by Professor Eileen McCarg, who has talked about the difference between having access to emergency powers and using those powers, there is obviously a better opportunity now to design an effective control framework than it would be if the powers were to be acquired urgently in the context of another health emergency. While we could discuss a draft bill at this point, we would still then, in the grip of a public health emergency, be rushing a bill through Parliament at that stage. Because when we are in that point of needing this legislation, if we have learned anything from those early days of the pandemic, it is that we need to be as prepared as possible. The suggestion that we have a draft bill that we then present to Parliament, I do not think that we would allow the Government to take the swift action necessary, because, obviously, the bill's enactment would come regulations that would have to come after that, which would then be the next stage. By then, we are quite far on, potentially, into a public health emergency. I would ask colleagues that were here in the last Parliament to remember how difficult that was about getting emergency legislation through within that timetable and then having to move on to the regulations that follow from that. That necessarily takes time, and time is sometimes what you do not have in a public health emergency. One final question. I commend the Government for the fairness and the reasonable listener of the approach through the pandemic. There is no doubt. There was consensus. You brought us in. We engaged. There is absolutely no guarantee that that will continue. What you are asking this Parliament now is to give you permanent powers for an emergency on the basis that you are nice and reasonable people, and that is not necessarily something that this Parliament now can guarantee forevermore. It is a big step that you are asking the Parliament to take to give us these powers forevermore on the basis that you are fair and reasonable people. You are just now. That might not be the case in the future. That is why I think that there is a real danger here that you are asking us to do more than we should be doing. What the bill does is allow the power to make regulations, which of course would go through Parliament again. We are ensuring that the way that the bill is framed at this point is rather, as I say, than taking directional powers. It is the powers to make regulations that would go through Parliament that would ensure that we have the ability to have a far greater scrutiny over ministerial decisions than we have been able to under the directional powers that we have had previously in the coronavirus legislation. The important aspect that we have all learned as we have gone through this process is the importance of quick decision making, but absolutely parliamentary scrutiny in that process. That is why the safeguards that are in the bill around parliamentary approval being required for regulations are very important as well. Did you grab the point that Willie Rennie was making? This is admirable that we should be talking about this kind of stuff right now, but it is not necessary for this to be in the legislation. It can all be ready on a shelf. We can pull it down off the shelf. We are not talking about the situation that occurred in March 2020. We are talking about a different situation. We are talking about using the benefit of the experiences that we have all lived through to be able to make law appropriate at the moment of the crisis. However, what you are doing is putting those measures that currently exist into permanency, and that surely is not sensible in the criteria of the human rights discussion that we are having. What we are doing with this bill is taking our time through non-emergency legislation to have quite rightly the level of parliamentary scrutiny that such an important bill, which does have wide-ranging powers, should have. The bill allows, within the education setting, the powers to make regulations. Why can't we have this discussion and have something on a shelf that we pull off the shelf and then allow Parliament at that moment to pass? Parliament worked well. Those of us who were not here saw Parliament working well. Collegially, on the basis of collaboration, it worked. However, if we now have the advantage of something on the shelf that we pull off, why would the Government object to that? It seems so sensible and in line with the Children and Young People's Commissioner's recommendations. I am glad from the outside that Parliament worked well. I am perhaps looking at the Graham Day, who was the Minister for Parliamentary Business, at the time who can allude, I am sure, to committee at some point about the genuine difficulties of working through a public health emergency when we could not all sit in one room and we could not ensure that we were able to pass legislation. The legislation, when we are in an emergency, unfortunately is a very short period of time, which does not allow for proper parliamentary scrutiny. However, we are in the face of a public health emergency every single day counts, every single day. It takes days for it to go through Parliament, and we then go through the process of then taking the days to get regulations through Parliament. To follow-up, you mentioned that you will endeavour to seek consensus and that you will take our time, or the things that you said. Our witnesses last week found it quite difficult to understand why you would not take on board the conclusions of a public inquiry, which has been established, in order to determine what powers should be. When we are talking about this kind of sequence, the sequence of legislating, then thinking about the situation, could you maybe answer that question for them? I fully appreciate the point that came up on that and the wait for the public inquiry. I think that what I would say back to that is, again, if we have to learn lessons from coronavirus, one of the criticisms of government at a Scottish level, at a UK level, was that you were not ready for the public health emergency when it came. Now, with the greater respect to those that may think that we should wait, I do not know when the next public health emergency is going to arise. I do not know whether we are going to have another part of the coronavirus impacts that will deeply impact on education. What I think would be remiss of any Government is for us to sit and say, okay, we'll wait and we'll just hope nothing happens until the public inquiry finishes. I think that that would be an inappropriate way for government to carry on. I can completely understand the view that we should take more time, that we should wait for the public inquiry, but we are at the stage of not knowing what that timeframe will be and then having to go through. We do not have the luxury of having a gap. I suppose that I would summarise it and saying that we will just cross our fingers and hope that nothing happens in the meantime that requires us to have the types of powers that are in the bill or, indeed, if Parliament feels that this bill is not right, whatever this bill looks like by the end of that process, but I do not think that we have the luxury of time to wait. Would you accept that this legislation is modelled on the powers that were put in place for the pandemic, who we are still currently in? There is a continuation of some of the powers that were in place for coronavirus. There are some important changes. As I think I said in my original opening statement, what we do not have is that power to close, but we are looking to keep the powers of a continuity of education. We are making changes. The important other change that is getting made is around a change from direction to regulation. It is certainly different, but it is modelled on what we have had previously. In essence, power to do the same things in a slightly different form. One of the principal criticisms, and one of the reasons that the UK, England, Wales, Northern Ireland and Scotland has one of the worst records globally in response to the pandemic, is that we were basing our plans and our response on plans to the previous pandemics. That is always a problem in other countries that have made similar mistakes, but ours would have been particularly acute. We were thinking at the start of the pandemic that we were in a flu situation, and we weren't in a different form virus. We put in place and used the plans and the ideas that we had on waiting, and we were wrong in that regard. You understand the critique and the concern. I understand that there is a balance to be struck here about preparation and putting in place enabling legislation or powers or something on the shelf, as the convener has suggested, but that point in terms of not really learning the lessons and also not really analysing the situation that we are in, is this not the worst of all worlds? What I would say to that is that, of course, as a Government, we have continued to learn lessons as this pandemic has gone on about whether the powers that we have had have been affected in the limitations to those, difficulties with those and being able to deal with the coronavirus pandemic. Had we got to the stage of having went through two years and had the experience of those two years under coronavirus that we did not feel that what we were bringing forward would deal with coronavirus, we would not be putting them forward. Indeed, stakeholders would have made very clear over the past two years if they felt that the powers that we had were not helping us to deal with coronavirus. What I would also say, however, is that, of course, we have to try and have this bill not just to be able to deal with something like coronavirus or another wave of coronavirus, but obviously other public health emergencies as they may arise. So what we are trying to do in this bill is to make sure, yes, that we are ready for coronavirus, but that those powers would work in other public health measures as well. Certainly, within the drafting of the education parts of this bill, we have looked very carefully as we have gone on about how the powers have worked in practice and, importantly, how stakeholders have felt that those powers have worked in practice as we have used or not used them during the past two years. The weight of the evidence—last week, we had the Government analysis, the response, the consultation—asked us to disregard 96 per cent of the responses because they were opposed, but that was the analysis that you presented. The 4 per cent were represented at the committee, and nobody thought that that was a good idea. When you are talking about building consensus, it seems to me that you have managed to build the consensus of opposition to what is in place. The work in terms of working with—and those are all people who are providing Government services—the 4 per cent. They have caveated unreasonable objections and reason, but there is no support for that. Nobody thinks that it is the right thing to do. If you are endeavouring to seek consensus, you have achieved it, but it is in opposition. Is this—we have not got this wrong in terms of the way that you are doing it? No, I think that there are individuals and organisations who support the way forward that we are taking on this bill, the fact that we should have a bill of this type, and also that we should move forward with the types of measures that we have. I fully appreciate it, and I am sure that we will come on to some of the individual concerns that the sectors have around that. At that point, I would be more than happy to go into why, with the greatest respect to the stakeholders whom I work closely with, I would have a different opinion to them. For some of them—and not for all—you have asked me a general question, so I will give you a general answer with the caveat that this does not apply to every person that gave evidence or everyone who came to the consultation responses. I think that what the Government is trying to do is to prepare for worst-case scenarios. Some of the evidence was based on best-case scenarios of the times when everyone could find agreement within sectors about how those things could move forward, that sectors were willing to work as quickly as the Government felt that the public health guidance would want. I am afraid that we cannot base legislation on the basis that everything will be fine and that we will get it through in time and that life will not be lost. That is the challenge. I cannot work on everything that will work just as it did in coronavirus. I need to work on the worst-case scenario. Unfortunately, that means that some of the powers that people may be uncomfortable about having are necessary at that time. If I can convene, I will close with one very short one. I asked specifically Paula Tillnals or Sim from the colleges and universities last week what problem they felt the Government was actually trying to solve with this legislation, and neither of them could answer. One of them said that they were at a loss to understand what the purpose of what was being proposed in the legislation was. That is from members of your education recovery group, so people who are intimately involved in that work. Do you not have a job to do in partnership working to convince key stakeholders that the legislation is necessary and that it will help people rather than harm them? I absolutely value the great partnership working that we have with the colleges and universities sector during the pandemic. During the pandemic, no, we did not find it necessary to use the existing emergency powers to require universities, for example, to take action even at the height of the pandemic. That was a reflection of the successful partnership. I would very much hope for that set of circumstances to be the set of circumstances that we would have in the next pandemic, the next public health emergency. I would pose the question to the committee, though. If one institution decided that they felt differently to the public health advice that was coming up and decided that they would take a different tact to what even their own sector wanted, because they are all independent institutions, of course. If one institution chose to do that, we did not have any powers to ensure that we could make regulations in that. What would we do at that point? What would the Government do? Partnership working is great, and I will always work with every sector, with every institution, to ensure that we work in partnership. We will do that through this bill as well. However, if we get to a point where an institution takes a different tact to the public health advice that is coming out at that point, how do we react? Institutions might be independent institutions, but they are not independent of the community that they live in, and they are staffed by people that we need to protect. That is the point, with the greater suspect to those who were here before and who did not see the point in the legislation. That is the worst-case scenario that I need to plan for. We did not get anywhere near that during the pandemic. However, if the committee can say, hand on heart, way into the future that there will be no instance where that will happen, then fine, we do not need those measures. I do not have that benefit of looking into the future and knowing that that will never happen. Therefore, I think that the Government needs the ability to take action if we need to. Can you put your hand on your heart and tell us that we will never have a Government that will misuse the legislation? That is very important why we have the safeguards in place to ensure that they are not directional powers but regulations that will be reviewed and regulations that will be going up for parliamentary scrutiny. Absolutely, it is important that we have safeguards within those measures, but I think that that is right that that sits with Government and Parliament to pass that through to allow us to be able to get ready for the worst-case scenarios that may happen. That is what Megan Farre said last week. Political situations in countries can change. It is a risk to have sitting on the books legislation that interferes with human rights to such an extent, and that could be inappropriately used at a future date by a future Government. You cannot tell me that that is not going to happen in the same way that you are saying that we cannot answer your question. I have not planned to come in, but I feel that it is important to come in because the view has been expressed by colleagues. I respect the view that there is a consensus against providing powers that the bill would confer. I strongly dispute that, and I thought that I should just probe the cabinet secretary because I do think that we need to redress this view. Is it not the case, cabinet secretary, that if you failed to seek the powers that the emergency powers do in the bill, if there is a further pandemic, we may find that we do not possess the powers that are required to be taken in order to protect public health and conceivably save lives? That would be the biggest failure of all. I put that point in all seriousness and the cognizant of the fact, convener, that this pandemic has thrown up huge challenges, but there is no guarantee at all that further pandemics throw up the same challenges. Therefore, ministers and Governments must create the widest possible range of powers in order to be sure that, in a future pandemic, we have the necessary powers to act to save human life. Is that not a reasonable point and one that, cabinet secretary, underlies the whole rationale for this bill? I agree with Mr Ewing on that point. Of course, we absolutely take very seriously, as I said in my answers to previous questions, on our obligations on the human rights and on our obligations on our public health. As Mr Ewing rightly points out, we also have obligations to take quick action where necessary if the public health advice suggests that that is appropriate and a proportionate thing to do. It is also very important to point to the responses in the public consultation where there was support for this, for example among local authorities and the public health sector. I think that the idea that there is a consensus against the moves in this bill is incorrect. I would point to key organisations who supported the proposals to make the provisions permanent, including COSLA, Public Health Scotland, Health and Social Care Alliance and the Scottish Child Minding Association. I absolutely appreciate that there are strong views that think that this bill is not necessary at this point or that we should be doing things in a different way. However, there are people who support the measures that we are taking and in the way that we are taking. Mr Ewing rightly points out that one of the absolute obligations of Government is to protect the life of the citizens. That is exactly what we are doing with the bill as we try to take it through Parliament. Similarly to Fergus, I want to raise the point about saving lives. That is something that we need to put front and centre. It was not mentioned much at last week's committee area. Certainly the first priority for any Government should be protecting its citizens. As far as human rights go, the very first human right that we have is the right to life, and we need to be alive to exercise all those rights that come underneath that. In the same way that the Scottish Government of the future cannot be predicted, we are not exactly in the same situation as partners go, so the types of organisations that we were speaking to last week, we cannot guarantee that they will act very responsibly in a set of future circumstances too. It was good to see that the Children and Young People's Commissioner did say that they believed that all actions during coronavirus so far had been necessary, proportionate, lawful, time limited, that we had met all those things there. Mr Rennie and others have mentioned about the Government being in a majority and pushing this bill through. Is it not true that we have all got an equal interest here? We do not know what future Scottish Government is going to be in charge at the time, so all of us here from every party actually have an equal interest in making sure that we have those safeguards in place and that we have that balanced right to offer adequate projections in the future. Secondly, a wee question as well. I am wondering about whether the possibility of a sunset clause was discussed, so perhaps a refrasion or a review in this legislation at the start of or say towards the start of each Parliament, whether that is something that was considered? Well, you raised a very important point obviously about the right to life and we've had a number of discussions at the committee today and I'm sure the wider discussions on the bill will also be looking around aspects around human rights. However, as Farragus Ewing pointed out, the right to life is the obligation that sat extremely heavily, quite rightly, on the Government, particularly at the start of any public health emergency and it did during the start of the coronavirus pandemic. I think that we all have an obligation, as I was saying to Willie Rennie in my earlier answer, to him. The Government doesn't want to push this bill through Parliament because we want to be able to seek consensus on this to make sure that it is fit for purpose for whatever public health emergency arises in the future. We appreciate that that's a very heavy responsibility that sits on Government and I think on Parliament to make sure that we're getting this right, so we are keen to work with others if there are changes that could be made to alleviate some concerns. However, it is important to recognise that even those who may not like particular parts of the bill, as I suppose I would point to Universities Scotland, who have concerns about some of the granularity of the aspects around higher education, have said that they recognise that there is a case to have emergency powers in the event of another severe new public health crisis. There is a recognition that the Government of the day requires powers to be able to deal with that. It is important that I continue to work with stakeholders, including Universities Scotland, to see what can be done to provide reassurances to them and to others about the powers that we are taking on at this time. Thank you very much. I have a really interesting question. There is a debate about whether those powers should be permanent, but only used in extremist when there is major public health emergencies. I was asking Universities Scotland and Collegy Scotland last week about what the issues were with the current suite of powers for the coronavirus pandemic. Alison Smith from Universities Scotland said that the bill before was, in many respects, mirrored the 2020 powers. I asked Mr Smith what criticisms he had made at the time of those 2020 powers, which I accept never had to be used because of the great partnership working. He did not say anything in relation to that, but he did say that, if the Government had reached for those emergency powers, it might have found them quite problematic to use. My question, cabinet secretary, is whether you are aware of any concerns from Universities Scotland at the time and, other than the current statement from Alison Smith from Universities Scotland's position, whether you are aware of any issues that they have raised since then about the current suite of powers? I will perhaps bring in my colleague Craig Robertson on this as well, who is my official hearer that works particularly closely with higher education. What I would say from my time of coming into post is that we have had an exceptionally close working relationship with universities through this. There has been an absolute necessity for us to, as a Government, look at guidance as we have went through about how it impacts on the new universities and we have listened very carefully to universities as we have gone through that about how the guidance can be done in a way where we have got consensus from the institutions, from say, unions and from students. We have endeavoured to do that all the way through. That would always be our way that we would want to work. Obviously, as part of those discussions, there have been differences of opinions at various points, as committee would expect. However, we have had a good working relationship. That is what I would like to continue, but you are quite right to point out that much of that mirrors some of the powers that we are in, the bill or the act, as it is now for coronavirus. However, I will perhaps bring in Craig to give a little bit more detail with your permission. As far as I am aware, the University of Scotland did not raise any concerns in the passage of the coronavirus bill, which became the Coronavirus Act 2020. As Capsack has already said, we have not had to use any of those powers in the two years of the pandemic. What we have done, as Capsack has said, is that we have continued to have a really good relationship with University of Scotland, with individual universities, also with colleges Scotland and individual colleges, and with the community learning and development sector to ensure that we are adapting the guidance that we are drawing up on the basis of the expert input that we get from experts on the Covid-19 advisory subgroup on universities and colleges, but also to reflect the reality on the ground. Again, there is nothing to suggest that we would not want to work in a similar way in any future situation, but we cannot necessarily guarantee that we would have the time to be able to do that at the pace that we would like it to be at. Obviously, having the powers as a backstop would be considered to be particularly helpful in that situation. Thank you very much, Mr Robinson and Cabinet Secretary. For Mr Sims, where I should say that he did point out that he only had four sitting days to respond to the specifics of the emergency powers that was more about issues raised since the passage of that bill. If I can move on to Mr Little, I asked from College of Scotland, did I ask Mr Little about any concerns that he had? He did not raise anything specific, but he had spoken about the throughput of officials who had to produce the legislation. That was perhaps the suggestion about the workload on officials. He went on to say that he thought that there was a real danger of getting a weekly or even daily dictate. I was surprised by that comment and did not think that that would be reasonable. That is not my position to take. I suppose that that is a reflection, but it is for myself to put that to our Cabinet Secretary to reply to that comment. Paul Little from College of Scotland suggested that he thought that the powers that were taken by Government might turn out to be a real danger of getting a weekly or even daily dictate. What reassurances can you offer that that is not the intention within that legislation? What I would say to that point, and it has been demonstrated during the experience of coronavirus as the right way to do things, is that regulations should not stay in place for one day longer than they possibly should. Guidance should not be stricter for one day longer than it needs to be. Obviously, we do not want to see things changing for the sake of it. I cannot see for the life of me why a Government in the middle of a public health pandemic would make changes if it was not just based on the advice that was coming out from the CMO. Again, when we look to the safeguards that are happening within the bill, it states very clearly that there needs to be the advice that comes from the chief medical officer that would then allow Government to make regulations that are proportionate to what is happening at that time. The safeguards are in there about why we would make regulations, and it is all about the seriousness of a public health emergency. Of course, the changes to that about taking them off would be to ensure that we could get us back to normal as everybody would want us to be. Those are the reasons that changes would be made to speed things up or to make things tighter, and the reasons why we would take them away. Can you say a little bit more, cabinet secretary, because you would draw a distinction between the power of direction and making regulations? I am guessing that the regulations that we have made from time to time, based on the CMO's advice and the public health emergency, whereas directions could, in theory, be done on a daily or weekly basis, but it is the power to make regulations. Can you say a little bit more about how, if those powers ever had to be used, that they would be used proportionately and that it would not be changing the goalpost, if you like, for the colleges and universities sector on a day-to-day basis, which might have put their underlying concerns? You are quite right to point out, Mr Doris, the importance of this being about regulations, rather than direction and clearly the process that has to be gone through to ensure that regulations are through the parliamentary system, as well as ministers having to have regard to the advice of the CMO on protecting public health. We clearly also have to be satisfied that the regulations are necessary and proportionate for the continued provision of education. Clearly, parliamentary approval is required before any regulations are made, or we are necessary, by reason of urgency, within 28 days of that date in which they are made. Of course, any of the regulations will only apply for a specified period and will be subject to review every 21 days. I hope again that that signals to committee the safeguards that are in place and that, while it allows Government to work quickly under a public health emergency, we would certainly not be on the basis of change for changes' sake, given the safeguarding mechanisms that are quite rightly in there to prevent us from making unnecessary changes. That is very helpful, cabinet secretary. Thank you, convener, and thank you, cabinet secretary, for reminding me of a previous life. You are right, and we should reflect upon those days. Those were dark and difficult days, but the Parliament was seen at its best, as Willie Rennie will remember. However, as we moved through that, it was the case that the Parliament became frustrated about its level of oversight and we established a Covid committee by way of response. Is not the point about the approach that you are taking here that it has to be seen as a package, that, right at the outset, the protections are being built and Parliament knows exactly its role, and it will have every opportunity to have the input and scrutiny that was perhaps lacking during the early stages of the pandemic? Is not it about looking at the package here, whatever the concerns that are being expressed by individuals, but over the piece, that provides for the kind of input that Parliament began to cry out for during the height of the pandemic? That is a very important point and points to one of the lessons that has been learned about the importance of how the bill would be framed compared to the emergency legislation that was passed at great speed, necessarily, and to the best of Parliament's ability. However, as that pandemic moved on, particularly Parliament became concerned about the safeguards that perhaps were not in place at that point, just because simply of the speed that the bill was going through and became an act through. We have looked at that very seriously, and that is why the safeguards are in place. It is important to look at it as the package, as you quite rightly point out, about the individual aspects that could be included in the regulations, but also the steps that would have to be taken before we get to the point of having regulations with those specifics in them. It is an important point to bear in mind the package that is part of it. On the basis of the lessons that we have learned and how we could do this better with the experience of the past two years, the committee took evidence last week around the powers of local authorities to cause schools on public health grounds that they do not have that power, the committee was told. I wonder whether the Government has considered or would consider including in the bill a local decision making power of that nature, whether you have thought about amending or repealing the schools general Scotland regulations 1975, to clarify duties around the closure or keeping an open of schools and perhaps touch on the extent to which you have engaged. You talked about engagement with stakeholders with local authorities on that, because it seems a little bit anomalous if what we were told last week is correct. Is it that the local authority cannot close schools on public health grounds, they can close them if they cannot physically staff a school, but in the midst of an emergency they do not have that power? Is that something that you would be prepared to look at? We are keen to hear further from colleagues from the EIS about their concerns over this, and, of course, my door is always open to them to have those discussions. What I would point out at this point, obviously, is that education authorities do 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 as well as for any other reason as well. I would point to the example that education authorities closed their schools on 20 March 2020, that is obviously before the coronavirus act 2020 came into force. That was obviously very, very important. We will have done that with the reliance on their own powers in response to public health advice. Ministers did not give a direction under the UK act until mid-May 2020. Clearly, if there are concerns whether it is from a union or from local authorities, from COSLA themselves, about whether there is further work to be done on clarification, I am more than happy to hear that. We will listen carefully to what happened yesterday, and we will continue to work with the EIS. The fact is that we as the Government but we collectively had the ability to close schools so early on, and the pandemic shows that they could take a decision if that was required to be done. Of course, when local authorities are taken that advice, they are working exceptionally closely with public health authorities. I understand that you had a further witness, Diane Stockton, from Public Health Scotland, who talked about the process around local outbreak management and how that is handled as well, and the absolutely integral relationship that is there between a local authority and local public health officials during that point. I hope that that has given a bit of a picture about what happened right at the start of the pandemic and how decisions were able to be taken at that time. I will pick up on that point. It is, of course, right that the local authority would engage with the local public health authority on those issues. It sounds to me a little bit like there is a clarity needed around the roles and responsibilities, because the committee was specifically told that when there were efforts to be made to close schools before Christmas 2020 to protect staff and pupils, and rightly so, local authorities were telling the EIS that they could not close schools early before Christmas because of the way in which the powers are set out. It sounds to me like there is perhaps a little bit of confusion here that needs to be clarified. I think that that is one of the reasons why I am very keen that, at this stage, the Government can listen to the concerns that were made by the EIS and listen to the experiences that local authorities want to relay to us about whether it is that specific point before Christmas of that year or, indeed, at any other time, whether they felt that their powers were lacking at any stage in that, because that clearly would be a concern. Of course, as I said during this, we want to get this right. We want to make sure that there is no dubiety about where the power lies for this. Obviously, as we go through this, the important role for education lies with local authorities. The bill gives Government particular powers only in a public health emergency and, without those powers being in place in a public health emergency, actually happening. The powers for education still remain with local authorities. Thank you very much. Following on from the general issue of the extent and nature of the emergency powers and the rationale for them, I just wanted to raise with the cabinet secretary matters that are covered in, I believe, sections 55, paragraphs 55 to 65 of the explanatory notes and the section 86B and 86C of the 2008 act as inserted by section 1 of the bill. That basically is that, as I understand it, there needs to be and there will be placed on the Scottish Government in relation to the use of emergency powers. A new higher test, a higher barrier convener, is called the proportionality test. That proportionality test must be considered before any restrictions can be imposed by regulations. That goes beyond the barrier of a significant risk to public health, which is the condition that has been met by health boards. In all words, that is a protective barrier convener that is introduced in the bills specifically to address some of the concerns that yourself and Opposition members expressed. Before the powers in the bill could be exercised, there would need to be a whole range of things that are taken into account and where the Government would need to demonstrate that they would be taken into account. Namely, the severity of the disease, the transmissibility of infection, the size of the exposed population, the susceptibility of the exposed population to infection, the availability of diagnostic tests, treatments and vaccinations and the impact on critical services. I ask the cabinet secretary if she would wish to expand on that. Am I right in postulating that this is an additional safeguard on designing to provide citizens in Scotland with the assurance that the Government will only act if it is not only necessary but proportionate in those circumstances? Convener, you will probably be glad to know that I do not feel that I need to expand much on what Mr Ewing has said, because he is quite right to point out the specific details on this aspect. The aspect around proportionality is key to how the Government would move forward on this and could move forward on any aspect of a regulation on that. It makes sense for that to be in here, because I point out that one of the lessons that we have learned around this is about the importance of education continuity, about ensuring that wherever possible we can keep our schools, universities and colleges open or as close to normal environments as possible. That check and balance absolutely in there about the proportionality is key to successfully moving forward in a public health emergency, where we are, of course—we will go back to some of the earlier questions on the right to life and protecting people's health. We are also thinking about the other harms that can be done if any Government takes measures that are disproportionate to the level of public health concerns that we have out there. I think that Mr Ewing is quite right to point out that that is a key part of the bill. I have a couple of issues that I just wanted to pick up from what has come up so far, and then my bit, which will be regarding student accommodation, will come on to that. I just wanted to say that we heard from students as well, and their experience over the last couple of years was variable across the country from local authority as well. How far do you think that those powers will help to ensure a consistency if there was another pandemic and the powers had to be invoked? One of the key areas that the bill looks at, as I just mentioned, to Mr Ewing, is around the importance of educational continuity within a rather blanket closure approach to that. That points to the impact that the pandemic undoubtedly has on children and young people and students across the country. They will have all experienced that differently depending on their individual circumstances, and their experiences in many cases have been exceptionally difficult. We have spoken about that as a committee previously, when I have been before you. The important challenge that Government needs to rise to is to ensure that we have the powers available to us to be able to deal with the public health emergency, to ensure that there is continuity of education and that that has a real primacy in our thinking around this, to try and do everything that we can to protect students as far as we possibly can on that. The one caveat that I would give is that students may have a variable experience because we may have different requirements in different parts of the country. As we saw in different parts of coronavirus, as we have went through this, there may be aspects around different parts of the education system requiring different types of regulations. Again, those regulations are not a blanket approach to the same thing that will be happening from early years all the way up to universities. However, the point about endeavouring to protect students as much as possible and for that to be absolutely front and centre of our work on this is a very important point. I just wanted to ask about the scrutiny period. Obviously, I was not here in the last term, so forgive me if my questions seem obvious. We are in the scrutiny period just now of this bill. Whatever form ultimately gets presented and says if it is passed, what assurances could you give me that, if the powers were to be used, there would still be the opportunity for Parliament to have continued scrutiny? Are they revised every 21 days? I would just be concerned on behalf of the public or anybody else if we did go into an emergency situation that Parliament would still be able to talk about it and follow that journey, I suppose. If the act was passed and any regulations were made, they would be applicable for a specified period of time, but, regardless of that, they would also be subject to review every 21 days as long as the regulations are in force. That is one of the important safeguarding measures that are in the bill. I do not think that any Government would want to keep things on the statute books longer than necessary, although I appreciate that there have been differences of opinion on the speed of that during coronavirus. The ability for Parliament to have it say on that within our review period is an important safeguard. Just moving on to the bit that I was interested in. Again, speaking to students within my constituency in Kelvin, I have eight institutions there and many student accommodation premises. Again, the experience of students was very variable during that time. Some of their experiences were quite difficult to hear of lockdown and how they experienced that. It says that to take reasonable steps to restrict or prohibit access to the premises for a specified period. I want to explain a little bit about the intention of the power to make it a duty for a manager to restrict access to accommodation. What is behind that? One of the reasons that is in there is to ensure that we have learned lessons from the start of the pandemic. Again, I will perhaps bring in Craig, because he was in post at the start of the pandemic when I was in another portfolio. What we have learned and what we have all seen is that there was a requirement to assist students in ways that perhaps universities, the sector, were not quite ready for. We as a society were not quite ready for. It is important that we need to ensure that we are much more able to assist students at particular times. In all that, there may be times when there may be a requirement to prevent access to student accommodation for people. We take very seriously that that is a person's home and that they may not have alternative accommodation. None of the regulations and changes would be taken without ensuring that the safeguards for students are absolutely integral in our thinking and what would happen in that. We need to think about how we can protect students. Some of that will be what happens within halls, and some of that may be ensuring that halls are used in the correct way at the correct time. Craig, I bring you in with your experience at the start, because I think that it is important that we learn some of the lessons from what happened during coronavirus as an example of how those powers might be used. In terms of the justification for the powers that are contained in the bill, we are looking at a scenario or a similar scenario to a situation where all of residence has an outbreak that has been designated in that area. You want to prevent students who do not have the virus going into that setting and therefore not putting themselves at risk, so you may want to have that power to restrict access on that basis. We saw that at various points in the past two years, primarily at the start of the previous academic year, where we had significant outbreaks in some student accommodation settings. That again is learning the lesson from that and how we deal with that in the future. The other important point to flag in the bill is that there is also now the power to ensure that support is provided in that setting. I think that that is right that there was some patchiness in terms of the support that was provided to students who found themselves locked down in university accommodation or provided by the private sector. That is about trying to get that equality or equivalence of treatment for those students who find themselves in that situation so that they know what they are likely to get if they find themselves in that position. That is reassuring to hear, because some of the stories that I heard from the students were regarding those support, some often away from home for the first time, in lockdown with strangers, not having those connections and support mechanisms, and food as well was an issue. It was quite patchy the availability and the quality of that and the dietary requirements of certain religious affiliations of students as well. Last week, we also heard some evidence regarding boarding schools and the fact that they are coming under those regulations as well. Was there any consideration—well, there will have been consideration—can you shine some light on the consideration that was given to putting both of those different types of accommodation together? Obviously, there are slightly different scenarios. What we need to absolutely take account of are the different scenarios that will arise. For example, boarding schools and school residencies are very unique environments. Again, we work very closely with the Scottish Council of Independent Schools and Schools throughout the pandemic to try and reflect the special circumstances of the measures that were required particularly for boarding schools. It is very important that, again, we are very cognisant of the fact that those are young people away from home and that it is in essence their home during term time. Our ability to ensure again that we are providing the foundation for the correct support and not making any unnecessary calls on that sector that are not required to ensure that the young people can still have their education and still be supported. However, to be doing that in a safe way, that, for example, recognises that many of the pupils may be coming from either different parts of the UK or, indeed, from across the world. There is obviously a very specific requirement to ensure that what is being put in place for aspects around boarding schools and school residencies take that type of environment in. However, in essence, as it comes down to the same types of things, the provision of support and the protection of the wider public of this as well will just be very different in how we might do that in the guidance when we will look at university halls compared to boarding schools. That support and the protection of public health is the continuity that runs through that. That is good. I am reassured that it will take account of the different scenarios and be able to respond accordingly having learned the lessons from previously. The colleges and universities are not against preparations and measures, and I think that there has been a misunderstanding about that. They are just arguing about how it is done. Last week, they said that they favoured a framework approach rather than a prescriptive approach. Let me ask a couple of questions that I think makes the point. Dundee and Angus College run animal care and zoology courses. Does the Government understand how to run those courses? Of course it doesn't. In the city of Glasgow College had 245 students at sea during the pandemic. Does the Government understand how to run nautical courses? Of course it doesn't. However, the powers that you are proposing are quite wide-ranging when 8.5a enables ministers to confer additional functions. 8.5i enables ministers to require universities and colleges to take actions in general terms or particular actions that ministers consider appropriate. Those are very wide-ranging. Why are you leaving open the possibility that you will be taking direct functions to run those institutions when, to be frank, you do not have a clue how to run those institutions? I do not think that there is any misconception about the fact that University of Scotland thinks that there should be emergency powers. I think that I quoted University Scotland's evidence earlier on, so it is about the how and the importance of that. I appreciate that University of Scotland is coming from a different starting point. It would prefer a framework approach that leaves things again to the universities. I stated earlier the reasons why I do not feel that that is appropriate, because I think that the Government needs that ability to be able to react if we are at a point where an institution is taking a very different approach to what the public health advice to the Government is suggesting that we might have. In saying all that, we have worked very closely again that mentioned this earlier. Can I just look at that? Why does a framework not get to the same point in a different way? Nobody has been able to explain that to me. Why a general framework is not the most appropriate way? You can take action against an institution that is not compliant with the framework. Why do you have to be so prescriptive in areas that you do not know anything about? I think that the type of framework approach will still lead to gaps in our ability to make decisions. In the area around some of the aspects where we really get into the granularity of it, I am more than happy to carry on the conversations with University of Scotland to see if we can come to more of an agreement on this that we have at the moment, which clearly we do not have an agreement on. It is very important that we have the ability to be able to take quick decisions and to allow that to be enforceable. As we do that, we would of course be working with institutions to ensure that nothing is being done that would be inappropriate. Of course, I give one example of animal welfare measures that would obviously have to be taken into account as we move forward with regulations, etc. However, I think that it would be difficult to get into a position of, as I give an example, if at a public health level that we are receiving advice as a Government that would perhaps suggest a later start to a term, to a semester, and we have an institution that just says, no, actually, we think that everyone should come back and we think that we should have in-person learning. If we do not have the ability to say, well, actually, no, I am sorry, the public health advice is actually inappropriate, and a framework does not get us through that, so we can have the framework where we talk about it when we try to work in partnership. However, when Puthers comes to shove, if we have an institution that says, no, we think, for example, in-person learning is the way forward and we are going to move forward with that at a far greater pace than Government would be at all comfortable with the public health advice. With the greater respect to what University of Scotland is proposing at this point, I do not think that it allows any Government to be able to deal with that, but, as I have said, I am very clear that I am more than happy to carry on discussions with University of Scotland about some of the granularity that they are concerned about to see if we can alleviate some of the concerns that they do have, but they also must recognise where I am coming from, because I do not think that we have got an answer from them at the moment, from the sector, about what we would do if an institution just said, no. 8.5.B. gives you the powers to close colleges and universities when they never close through the pandemic, because it would be dangerous to close them when animals would be at risk and probably laboratories would blow up. So they are never closed, but you have still taken on the possibility that you would have the power to close it when that would be incredibly dangerous. Does that not just prove the point that this micromanagement approach to it of Government dictating what the institutions are doing proves the point that we need to have a framework approach rather than a prescriptive approach? I think that what we do need to have is our ability to say, for example, for at one campus in an institution, we may have to close, but, obviously, with the exceptions that can be made for, again, I give the example of animal welfare as the most obvious one, but other areas, we may come to a point, a different point in the pandemic, where we are saying that an institution should remain on online learning except if you have to go in for practical assessments and then a discussion would be had with universities around where people are required to be on campus, to be able to allow them to move forward. So we would always do all of these things very much with the partnership approach that we have had, but we still need to have that full stop that allows Government to be able to take decisions if we have an institution that is veering very, very differently on aspects around public health. In saying that, as I have said on numerous occasions now, if there are aspects around the granularity that are causing particular concerns, I am more than happy to work with University of Scotland on those. How do those proposed powers impact on the Charities and Trusty Investment Scotland Act 2005? Well, we do not believe that it does have any impact on that. So you do not believe that it would be contrary to the act to issue instructions to the trustees and directions? The only reasons we are getting into aspects around this are around public health measures regulations. We are absolutely clear that the bill does not affect the terrible status of universities and we are confident that that is indeed the case. One final question then. The fact that you never used those powers through the pandemic, they were never required to be used. Does that not just prove the point that the colleges and universities are making? The powers that the original emergency bill and act were too prescriptive and they would never have been possible to use them for that very reason. If they were never used before in that format, why in earth are we replicating what we never used before because they were too prescriptive? Why not have the framework approach that is far more sensible and, in fact, the way that you worked last time? I would point out that I appreciate that Conservative members on the committee agree with the approach taken to coronavirus by the UK Government. However, if we had an institution, a senior management team that has perhaps the more Boris Johnson approach to how we deal with coronavirus than listening to public health guidance such as we have up here, we would need the powers to be able to deal with that. Otherwise, we would have large institutions with thousands of staff, thousands of students who are integral parts of our community having a very different approach to dealing with coronavirus than the Government does. I do not think that that would be particularly welcome in the communities that are, of course, university towns and cities across the country. That is a very interesting example to call on, Boris Johnson. I think that that is a highly contentious thing to say, frankly. Do you mind if I ask a few questions about prisons that were raised at the last evidence session? The Children's Commissioner was giving us numbers about the number of children in prison and the fact that the proportion of children on remand increased through the pandemic from around 40 per cent to around 80 per cent and that no children were released early using the coronavirus powers at the time. Have you looked into this issue as the minister obviously has a major interest in this area and what action is going to be taken to try to address that? It will clearly be very cognisant of the evidence that has been given, more than happy to be able to provide further details to committee on this. Clearly, it will have to be something that is looked into given what the commissioner has said and the concerns that have been raised. I am not at a point to be able to respond to that now, but clearly given the concerns that have been raised, it is something that the Government would be keen to look at. A quick supplementary question. I hope that it is not about Boris Johnson. No, it is on that last point that the committee was moved significantly by that. In a real urgency, we heard the case of, I believe, one individual who was in prison as a result of not appearing as a witness and given the lengths of those delays. Every day that individual spends in prison affects their life chances in the future. I would want some assurances that there is a real sense of urgency from Government ministers that they are acting to do something about it rather than just reviewing the situation. Can you give us those assurances in terms of real urgency? I totally appreciate where you are coming from on that. The evidence that has been given and particularly the work that has already been done to see the real impacts that have been had in the wider sphere of justice, particularly how it involved children and young people, is absolutely crucial. I absolutely would give a commitment and reassurance that the concerns around how children and young people are dealt with in a justice system is important at any point, but during a pandemic more so than ever. After all, Cabinet Secretary, the Children and Young People's Commission of Scotland says that your Government is responsible for conditions for children in prison that are not only in breach of the UNCRC but also the prohibition on torture inhumane in degrading treatment or punishment in terms of article 3 of the European Convention on Human Rights. That is quite a call to action out of thought from the commissioner. Do you agree? Clearly, we listen very carefully to the opinions of the commissioners on any issues, but as you have said, convener, when it comes to aspects around children and young people within the justice system, as I have said to Mr Marra, the implications of that are clearly concerning. While we pay attention to everything, of course, the commissioner says that the aspects around how we deal with children and young people within the justice system are clearly one of those that require urgent discussion. I think that all of those words are a yes, but there is a call to action. Thank you, convener, on very serious matters and compared to those, this may seem quite trivial, but I would like some clarity on an aspect of the legislation. Throughout this session, cabinet secretary, you have referred to the how ministers would be dependent on public health advice that would drive the actions that were being taken. Within the legislation, there is a reference to ministers that we need to have regard to advice from the chief medical officer or from another person designated for the purposes of section 6 by Scottish ministers about protecting public health. Is that simply a cover-all in the case that the CMO is not available? Is it the deputy CMO or the job title change? What is it? Because it faces value, it does seem a bit odd. It is absolutely to ensure that we are attempting to future-proof a piece of legislation, which is always quite difficult with those things. From the officials that are on screen, maybe Nico is the best person to reassure you about some of the niceties on this, if he is not, he will direct me to someone else. It is about the future-proofing of this, but I do not know if Nico wants to see any more on that. Yes, thank you, cabinet secretary. Future-proofing is one aspect of it, and the other aspect of it would be the scenarios that Graham Day mentioned. If it was not the CMO that would be available to give advice for some reason, could a deputy CMO be designated, or could it be another appropriate senior clinical adviser to be in place to give the appropriate advice at that point? A quick supplementary from Fergus Ewing, and then we will go to Oliver Mundell. Thank you, convener. Last week, I questioned Alasdair Sim and Paul Little, cabinet secretary, on the objections that they had made that the Government's powers under section 8, 5, B through to K were too granular. The light of questioning that I pursued was to put to them that if there is a future pandemic, the Government needs to be able to act very swiftly, and indeed delays, even if a day or so, would be critical to stem the flowing spread of a future virus. Therefore, there may not be time for consultation and for universities and colleges to go through their decision-making processes. Does the cabinet secretary have any comment on that? Does she feel that the colleges and universities have given any clear examples of exactly what they are concerned about? I do not wish to misrepresent them, but the only example that was given specifically in the course of the responses that was shared by Mr Sim was to podiatrists. I was a bit perplexed as to why podiatrists had made an unexpected debut in the issues relating to education. I agree with Mr Ewing that days are absolutely critical on that. It goes to the requirement for speed-off decision-making that I mentioned earlier that a matter of days really do count when we are talking about the impact that it can have on public health. We have seen that clearly and seriously during the coronavirus pandemic. I appreciate that the University of Scotland has concerns about some of the graniars. I am not going to comment on the example that Mr Sim decided to give to the committee. My attempt to work in partnership with universities, as if we have concerns around those aspects, is that the Government is happy to discuss those issues with the University of Scotland. I appreciate that there are concerns around that, but we also need to see where the Government is coming from and why we feel that we need those powers. On that basis, I hope that we can reach a better understanding than we have at the moment between the University of Scotland and the Government. I welcome that. I could ask one further supplementary of a brief nature that, in column 25 of the official report, the evidence of Mr Sim last week in relation to how universities and colleges would proceed with their decision-making powers if they had a say over how emergency powers were to be constructed. Students and staff representatives would be an important part of the structure that would be in place to address a future emergency. If that is the case, would it not be pretty obvious that, for that consultation, which Mr Sim said would take place in relation to decisions that universities and colleges would like to make about the content of our emergency powers, it is pretty obvious that all that would take time, because consultation takes time. To consult students and staff representatives, as Mr Sim said, would be essential, a sine qua non of their exercise of their role. All that would mean is that it would take several weeks or much longer, during which time, of course, the virus could spread and people's lives could be put at risk. Haven't the evidence from last week, haven't the distinguished academics last week hoist themselves on their own patard? I think that they are quite right to point out about the importance of consultation. Clearly, Government would want to carry out as much consultation as possible before we made regulations. I completely appreciate that universities would want to consult if powers lay with them directly. However, the point of speed of decision making is key. We live in an imperfect world during a pandemic and we must endeavour to ensure that we have a speed of decision making that allows us to be able to deal with the pandemic. Our work with universities, particularly as we move out of this stage of the pandemic around our ability for universities to work at a more local level, to work with staff representatives, to work with students about how to deal with the current phase that we are in and future phases is to be commended. We are not in a perfect world at a point of decision making, particularly in the early days of a pandemic. I personally think that most people in education and watching at home will think that this is a total waste of time. Cabinet Secretary, they will look at this and think that you are totally out of touch. Most people involved in education, whether that is a parent, a teacher or working in the sector day-to-day, realise that the problems during the pandemic had nothing to do with what was on the statute book. They were all caused by ministerial incompetence or bad decisions that have been made prior to the pandemic. What makes the legislation solve those problems? What would it do to address what we are seeing now? A third year of failure at the SQA with them screwing over young people again. What would it have done to prevent ministers cutting 3,500 teachers and leaving schools in a really difficult position? What is it going to do to make sure that young people get the devices that they have been promised so that they could work remotely? The answer is nothing, is that right? It's good to see Mr Mundell rising to the occasion. Once again, convener, on this issue, I think that we have an opportunity—I'm not going to rise to the political points that Mr Mundell is making on this—because we have the opportunity to come together as your services committee and then as a Parliament to pass a very serious piece of legislation that allows us to deal with future public health emergencies. That's the position that we're in at the moment. I completely appreciate, on all the aspects that Mr Mundell has raised, that he will be critical of the Government, that he doesn't think that the Government has gone far enough or that on many other occasions that we've gone too far. What we have in front of us today is a piece of legislation that will allow us to deal with a public health emergency. I've dealt with the parts around whether the bill is necessary earlier. I've dealt with the parts around whether it is within the human rights obligations earlier. With the greatest respect with the questions that are getting down into the detail of it, Mr Mundell and I will have to continue to disagree on various issues of education policy. However, I think that we have the opportunity to be able to, as a Parliament, ensure that we all rise to the occasion and pass a bill that will allow us to pass a piece of legislation that any of us could be in government to huff to put into practice. So there is an obligation on all of us to ensure that this is as best as it possibly can be. I would say politely in response to that that the obligation on us as parliamentarians is not to put legislation on the statute book that is potentially unlawful that enables ministerial overreach and that takes up a huge amount of parliamentary time and resource when there are many issues in education that could be solved today, rather than prepare for future emergencies when we do not know what they might be. However, I would ask why, as a parliamentarian, should I be putting more power into the hands of ministers when they have been so incompetent, not just in the pandemic but over the course of the last 10 years, is that not a job better done by Parliament as we proved we could do in the height of the pandemic? As I have already mentioned, there are parts around the lawfulness of the bill, the statement of the Presiding Officer and, of course, the discussions that we have had today around our human rights obligations. I am really sorry if Mr Mundell thinks that we are wasting Parliament's time talking about how to deal with a further public health emergency, but that is for him to reflect on, not for me. I think that this is one of the biggest obligations that Government, that Parliament has, is to protect its people. That is what this Government is attempting to do during the bill. If Mr Mundell does not think that Parliament should do that, he is more than happy to speak to that within Parliament. For that to be the point of the Scottish Conservatives is deeply disappointing, because we all have an obligation to work at how we can best deal as a country with a public health emergency. If Mr Mundell thinks that that is a waste of parliamentary time, then that is up to him. I will leave that there, because sadly this is a Scottish Government that is more interested in hoarding powers than using them to help young people. We see that again with this bill. I would just say to the cabinet secretary that she was the one that launched into Boris Johnson a few minutes ago, so rising to the occasion, perhaps we all need to rise to the occasion. It is a comment that can be… Just trying to bring it to life a little bit, convener, with an example of how we can have differences. Well, it is a very bad example, and I am afraid very poor judgment on your part to say so. I am going to turn to Stephanie Callaghan. Well, I am not aware that I am not permitted as the convener to express my own views, and if someone objects to that, they can talk to me later. I will turn to Stephanie Callaghan for the final question. How does the Scottish Government propose a poach compared to what is happening elsewhere in the UK and in other countries as well? Clearly, as has been demonstrated during the coronavirus pandemic, there have been different ways that the different parliaments have reacted to this. I completely appreciate that the English and Welsh decisions around this will be different to where Scotland is going on those types of approaches. There is a difference of opinion on that. That has been something that we have had in different parts of the pandemic, and part of the lessons learned is that sometimes we will learn different lessons from the pandemic. That is great. Just to ask a wee question as well, something else that came up with the young people's commissioner and also an MSYP representative too was the idea of involving young people. Not just having one individual young person sitting at that table who gets to put his voice across a couple of times, but involving young people and having them really influence the decisions that are made. How does that play into that? Is it about representation for young people with additional support needs as well? Maybe it is not as easy for them to express their views. Clearly, there was a huge impact when we looked at, for example, the childcare hubs that were set up that were not about education but were about looking after key workers' children but that later incorporated some young people with additional support needs as well. How do we make sure that we are looking out for them and protecting them and prioritising their needs? To answer some of the later points that are about additional support needs, one of the important aspects is the fact that it is about educational continuity rather than blanket closures. One of the reasons for that is the recognition that I mentioned in a previous answer around the fact that young people will be impacted differently to that, although they are all impacted, and the caveat around those with additional support needs is one of the prime examples of that and why that is particularly important in those areas. The aspects around how we involve young people in a very integral way into decision making is key. Clearly, it is something that we are keen to do with an education policy as a whole, obviously, but it is very cognisant that we do that correctly. I would pay tribute to the individuals who have taken part in, for example, Serg and the NQ2122 group. It is a very challenging environment often for one person to be coming into a committee appearance surrounded by educational professionals and so on. We need to bear in mind that, although young people should be at those tables, they need to be facilitated and supported in a way where that makes a genuine difference. However, we need to be outwith those more formal structures to ensure that, as we begin our policy development, young people are absolutely in their right from the start of that process. That is something that we are working with young people on at this time to make sure that how we do that is the way that they feel is the most effective rather than Government coming up with the way to do that. We have now come to the end of our public part of today's meeting, and I would like to thank the Cabinet Secretary and her officials for their time today. I will now suspend the meeting and ask members who can be on Microsoft Teams in five minutes, which will allow us to consider our final items in private. Thank you very much. Good morning to those who are watching.