Scottish Parliament, 22 December 2020

380 contributions from 60 members. The official report.

Time for Reflection

Lewis Macdonald (Labour, North East Scotland)

I remind members of the social distancing procedures that are in place in the chamber and across the campus and ask you to take care to observe those measures over the course of this afternoon’s business, including when entering and exiting the chamber.

Our time for reflection leader is the Very Rev Dr Susan M Brown, chaplain to Her Majesty the Queen in Scotland and minister of Dornoch cathedral, Church of Scotland.

The Very Rev Dr Susan M Brown (Chaplain to Her Majesty the Queen in Scotland and Minister of Dornoch Cathedral, Church of Scotland)

Thank you. The top Christmas cracker jokes for 2020 have been revealed. I will avoid the political ones, but how about:

“Why are Santa’s reindeer allowed to travel on Christmas eve? They have herd immunity.”

Presumably, after elf-isolation.

“Why could Mary and Joseph not make their work conference call? There was no zoom at the inn.”

“Why did Mary and Joseph fail to make it to Bethlehem in the first place? All virgin flights were cancelled.”

“Which Christmas film was 30 years ahead of its time? ‘Home Alone’”.

None of those jokes would have made any sense a year ago. How times change.

Until 1958, Christmas day in Scotland was a day just like any other. It is only in the past 60 years that it has grown into something bigger. That timeframe, strangely enough, coincides with the decline in church attendance. I just throw that out there.

This year, there will be no office parties or end-of-term dances. There will be no physical carol services or large family gatherings, and too many will be home, feeling very alone. Does that mean that Christmas has been cancelled?

I do not need to tell you that 2020 has been a tough year, but it has also been a year that has offered us the chance to reassess who and what we are about as individuals, as communities, as a nation and as a world, and where and how we want things to go from here.

A pared-back Christmas offers the same opportunity to stop and think about who and what matters, especially when the real Christmas story is allowed to take centre stage. That story has no groaning tables or stacks of presents. Instead, it revolves around a young couple, not yet old enough to vote, being invited by the Almighty to play a hugely significant role in events designed to turn the whole world upside down.

Through decisions made by those in power, the couple are forced to leave their home and family to be registered in another place. As refugees, they find themselves displaced and homeless, and having to welcome a newborn child into the world in the direst of circumstances. So young. So poor. So swept aside by society. And yet this couple are also so sure that this is not how things need to be.

We need to catch their visionary virus and find the courage to trust, as Mary and Joseph did, that the changes that the world needs to see will come about when the youngest and poorest are placed front and centre.

Following God’s example is a challenge for us all.

Peace be with you, this Christmas and always.

Business Motion

Lewis Macdonald (Labour, North East Scotland)

The next item of business is consideration of business motion S5M-23776, in the name of Graeme Dey, on behalf of the Parliamentary Bureau, setting out changes to this week’s business.

Motion moved,

That the Parliament agrees to the following revisions to the programme of business on—

(a) Tuesday 22 December 2020—

after

followed by

Ministerial Statement: COVID-19

insert

followed by

Appointment of Junior Scottish Minister

after

followed by

Stage 3 Proceedings: UK Withdrawal from the European Union (Continuity) (Scotland) Bill

insert

followed by

Financial Resolution: Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill

delete

5.00 pm Decision Time

and insert

7.30 pm Decision Time

(b) Wednesday 23 December 2020—

delete

2.00 pm Parliamentary Bureau Motions

2.00 pm Portfolio Questions: Education and Skills;

Health and Sport;

Communities and Local Government

and insert

followed by

Portfolio Questions: Education and Skills;

Health and Sport;

Communities and Local Government

after

followed by

Stage 3 Proceedings: Scottish General Election (Coronavirus) Bill

insert

followed by

Appointments to Environmental Standards Scotland

delete

6.05 pm Decision Time

and insert

4.20 pm Decision Time—[

Graeme Dey

]

Motion agreed to.

Covid-19

Lewis Macdonald (Labour, North East Scotland)

The next item of business is a statement by the First Minister, Nicola Sturgeon, on Covid-19. The First Minister will take questions after her statement, so there should be no interventions or interruptions.

Nicola Sturgeon (Scottish National Party, Glasgow Southside)

Today’s statement is a bit different from those that I have made in recent weeks, mainly because the most important decisions for the period ahead were set out on Saturday. I will, of course, reiterate those decisions and the reasons for them in the course of this statement. I will also share with the chamber the latest information that we have on the new strain of Covid that is causing us such concern, and I will reflect on the on-going impact of the closure of the United Kingdom-France border to accompanied freight.

However, I will start, as usual, with a brief summary of the latest Covid statistics. The total number of positive cases reported yesterday was 1,316. That represents 7.5 per cent of all tests carried out, and the total number of cases now stands at 114,366. There are currently 1,045 people in hospital, which is a decrease of 33 from yesterday, and 60 people are in intensive care, which is one more than yesterday.

I also regret to report that, in the past 24 hours, a further 43 deaths have been registered of patients who first tested positive over the previous 28 days. The total number of deaths under that measurement is now 4,326. Those figures continue to be a sharp reminder of the grief, heartbreak and overall toll that the virus is causing. Once again, my deepest thoughts and condolences go to all those who have lost a loved one.

Today’s statistics, like those that we have been reporting over recent weeks, underline a couple of points. First, Covid is still circulating in Scotland at a higher level than we would wish. However, and I appreciate that this may be less obvious, the case data from recent weeks also shows that the levels system has until now been effective. In late October, Scotland was recording more than 160 new cases of Covid per 100,000 people on average every week. Two weeks ago, that had fallen to around 100 and it is now around 116 per 100,000. That level of incidence is significantly lower than the level in other parts of the UK; for example, it is around half that of England and around a fifth of the current case incidence in Wales.

However, after a sustained period of decline, our case numbers are now more volatile again and have risen by around 15 per cent in the past couple of weeks. The number of people with Covid who are in hospital and the number in intensive care have also risen slightly again, after a period of quite marked decline.

In any circumstances those trends would be a cause for concern and merit close analysis, but they would probably not on their own justify the actions that I announced on Saturday. What has changed our thinking and approach significantly is the information that we have received over the past eight days or so about the presence and impact of a new variant of Covid. It is important to stress again that there is no evidence at this stage that the new variant causes more severe illness than previously circulating strains, nor is there any evidence so far that it will undermine the effectiveness of vaccines or treatments.

However, the new variant seems to be much more transmissible—perhaps up to 70 per cent more transmissible—which means that it can spread far more quickly and easily. As a result, there is now a significant degree of confidence among experts that it increases the R number and that the scale of increase could be 0.4. Given that the R number in Scotland is already hovering around 1, that is obviously a very real concern. Analysis was published yesterday by the Office for National Statistics of the results of the weekly ONS Covid infection survey, which uses polymerase chain reaction testing on a random sample of people in Scotland, looking for a proxy marker known as the S-gene dropout.

There is continuing technical work under way on the use of the S-gene dropout as a marker for the new strain and it is not absolutely definitive that every case with that marker will be the new variant. However, the analysis suggests that, in the week beginning 9 December, around 14 per cent of positive cases in Scotland already had the S-gene dropout, which compares to just 5 per cent at the end of November. It is not unreasonable to assume that the proportion may be higher by now; Public Health Scotland is carrying out further analysis.

Fourteen per cent is, of course, still a significantly lower level than the level in England, where it is thought that the new variant already accounts for 36 per cent of cases, and that may be even higher in London and the south-east. The very rapid spread in London and the south-east serves as a warning of what we could face here if we do not take firm action to suppress the virus.

We have a real concern that, without significant counter-measures, we could be facing another period of exponential growth as we enter the new year. That would mean many more people catching Covid and, even without the new strain causing more severe illness, that would result in many more people needing hospital and intensive care treatment, which would put an enormous strain on the national health service and lead to much more loss of life. To be blunt, that is what we have to act now to stop. In an ideal world, it would be good to wait a few weeks until preliminary analysis becomes more concrete and confidence intervals narrow. However, if the concerns that we have now prove to be well founded, by then it would be too late—we have learned that we must act firmly in the face of the virus. That is why we announced significant additional measures on Saturday. I know how tough those are, but we believe that they are essential to avoid an extremely serious deterioration in the situation as we move into the new year.

Let me recap now on what those measures are. First, Orkney, Shetland, the Western Isles and the other relatively remote islands that have had restrictions relaxed in recent weeks will move to level 3 from 1 minute past midnight on boxing day. At that point, the rest of Scotland will move to level 4 for a period of 3 weeks. There will be a review after 2 weeks. That means, for example, that hospitality will require to close, with the exception of takeaway services, and so too will non-essential retail.

There are three further points that it is important for me to make today about level 4 restrictions. First, given the severity of the situation that we face and the need to limit interactions as much as possible, we intend to define essential retail more narrowly than we have done recently. In short, that means that homeware stores and garden centres will be classed as non-essential and will therefore require to close, with the exception of click and collect. Secondly, in level 3 and level 4, the law currently prohibits non-essential travel outside your local authority area. However, for those who are living in level 4 areas—which from Saturday will be the vast majority of us—our strong advice is to stay as local as possible and at home as much as possible. We will be considering in the days ahead whether we need to place that advice in law.

Thirdly and more generally, as more evidence of the impact of the new strain becomes available, we will consider whether there is a need to strengthen level 4 restrictions any further. Again, I need to be blunt with the Parliament and the public: the current level 4 restrictions are not as stringent as the March lockdown and until now that has been a good thing. However, it seems that we may be facing a virus that spreads much faster now than it did in March, so we need to consider whether the current level 4 restrictions will be sufficient to suppress it in the weeks ahead.

That will be analysis that the Government undertakes urgently as our understanding of the new strain of the virus develops, and I will keep the Parliament updated as necessary, including over the recess period if that is necessary. The second decision that we took on Saturday was to maintain the current ban on travel to and from Scotland and the rest of the UK. Again, that was a decision that we did not take lightly. However, as we seek to suppress the new strain in Scotland, we must also guard against importing more of it from areas where it is already circulating more widely. The travel ban will remain in place throughout the festive period, including, unfortunately, on Christmas day, and as the chief constable has set out, the police will be enhancing their enforcement of it.

Regrettably, we also tightened other restrictions for the Christmas period. It is now possible to meet in a bubble of up to eight people from three households on Christmas day only and in Scotland only, rather than over a five-day period across the UK. However, our strong advice remains not to meet indoors at all if possible. When it comes to indoor celebrations this year, by far the safest option is to stay in your own house with your own household. If you plan to see people from other households on Christmas day, please try to stay outdoors if you can, but if you are indoors, please keep the numbers as low and the duration as short as possible, keep a safe distance as far as possible, wash your hands and surfaces regularly and keep windows open.

I cannot tell you how sorry I am to be standing here saying these things, and there is no part of me that is oblivious to the impact of it. I do not just understand that impact; I feel it, as everyone else does. However, it is necessary to keep ourselves and our loved ones safe at this extremely difficult and challenging time. I want to thank everyone from the very bottom of my heart for making these sacrifices.

The final, but extremely significant, decision that I announced on Saturday relates to schools. Keeping schools open has been a priority for the Scottish Government since August and it remains a priority, as far as is possible. However, the recent developments—and all aspects of them—mean that we need to take a precautionary approach and give ourselves some time to assess the situation. As a result, we have taken the difficult decision to delay the start of the new school term. It was a difficult decision for us, but even more so for the young people and parents affected.

Schools had been due to reopen from 5 January onwards. Now, they will reopen from 5 January for children of key workers and for particularly vulnerable children only. Local authorities identified key workers at an earlier stage in the pandemic and updated guidance was published last night. For all other pupils, the school term will start on 11 January. However, the first week of term, at least, will take place online. At this stage, our intention is that schools will get back to normal from 18 January. Of course, we will require to keep that under review.

I know that all the measures are harsh and are very difficult for people and businesses. For so many businesses, the announcements represent a horrible end to a terrible year. Financial support will remain available for businesses affected and the Cabinet Secretary for Finance is urgently assessing what more the Scottish Government can do, in particular for the sectors that are most acutely affected.

I also know that the developments of the past few days, while worrying for everyone, will cause particular anxiety for those who were shielding. The chief medical officer has written to everyone on the shielding list who will enter level 4 on Saturday, setting out the advice that applies to them. That advice has also been sent by SMS text message and is available on the Government website. The level 4 advice is restrictive, but it still encourages those who were shielding to find a balance that is right for them. Among other things, the letter will advise people on the shielding list that, if they cannot work from home, they should speak to their employer, who must put precautions in place to keep them safe. However, the letter also serves as a fit note, which can be used to obtain statutory sick pay if someone cannot safely go to work. The letter also provides details of how to get help, for example if someone has difficulties accessing food or groceries in this period. I say to those on the shielding list: please do not hesitate to ask for support if you need it.

I know that many people may question whether the measures are strictly necessary, especially given Scotland’s relatively low level of prevalence of the virus compared to other parts of the UK. My firm judgment is that they are absolutely necessary. They are not simply a response to our current situation but are necessary precautionary measures to avoid a significant deterioration in our situation over the next few weeks, caused by the new strain of the virus. In short, the measures are essential to protect our national health service and save lives. I do not expect a single person to be happy about them, but I ask everyone to try to understand that those decisions would not have been taken if we did not consider them to be essential.

Before I close today, I want to address the impact of the decisions made by many other countries to close their borders to the UK in response to the new strain of the virus. By far the most serious impact derives from the closure of the UK-French border to accompanied freight. I took part in a COBRA meeting on that issue yesterday and also chaired a meeting of our own resilience committee. I was hoping that there would be another COBRA meeting later today, but that had not yet been confirmed when I came to the chamber to speak—I still hope that that meeting will take place.

The situation is serious, urgent and, for our food exporters, rapidly deteriorating. The UK Government needs to reach agreement with France, without delay, to get freight moving again. There is no time to lose.

I want to stress at the outset that we have no concerns about medicine supplies at this stage. That issue was covered in detail in the COBRA meeting and at the Scottish Government resilience committee meeting yesterday. We also have no immediate concerns about food supplies. Supermarkets are well stocked, so there is no need for anyone to buy more than planned in the run-up to Christmas. Of course, if the situation is not resolved in the next day or so, we may start to see pressure on some fresh produce after Christmas. However, that is not a concern right now and I hope that it is an issue that will not arise at all.

However, what is of real and immediate concern is the impact on our food exporters, especially those in the Scottish seafood sector. This is the peak time of year for seafood exports, and the Christmas export trade is now almost certainly lost. That is devastating for our world-class seafood businesses, which need—and will get—our support. We are liaising with the sector on the need for immediate financial support, and I raised the issue of compensation at the COBRA meeting yesterday.

What the sector needs most of all is for the UK Government and France to agree a protocol to get freight moving again without delay. If that does not happen almost immediately, the sector stands to lose its new year export trade, too. I very much hope that a protocol will be agreed between the UK and France today—indeed, I hope that we might even get movement during this statement—but that is not yet certain. What is even less certain is how long it will take to put any agreement into operation.

The Scottish Government is pressing, and will continue to press, the UK Government to give the matter the utmost priority, and we stand ready to help in any way we can. Given that any solution is likely to include mass testing of freight drivers, that willingness to help includes a willingness, if the terms of the agreement allow, to provide testing facilities for our sector here in Scotland. I assure the sector, Parliament and the public generally that my ministers and I will remain fully and actively engaged on those matters until they are resolved.

Let me conclude. We are now, of course, just three days away from Christmas, and I am acutely aware that today’s update has not had a festive feel to it at all. We have known that our path out of the pandemic would not always be smooth and straightforward, and that it would bring dark days and challenging periods. I know that Saturday felt like a very dark and difficult day for all of us, and I know that it is not possible for me to take away the heavy burden that we all feel just with some hopeful words.

Nevertheless, I want to end on a hopeful note, because—hard though it is to feel it just now—there is hope on the horizon, and we must try not to lose sight of it. First, it is possible that we have found out about the new variant of Covid at an early enough stage to take effective preventative action. By moving quickly, we might be able to minimise its worst effects. All of us have a role to play in that. I know that it sometimes seems as though we are powerless in the face of the virus, but we are absolutely not. None of us can guarantee that we will not get or transmit the virus, but we can all make choices that will make that less likely.

That remains true of the new variant. It seems to transmit more easily, but it can still be stopped in its tracks by the FACTS advice that we have emphasised so many times before: wear face coverings; avoid crowded places; clean your hands and surfaces; keep a 2m distance from people from other households; and self-isolate and get tested immediately if you have symptoms. All those things still work in reducing the transmission of the new strain of the virus. The new variant has made them more important than ever; they are how we keep one another safe. I ask everyone, wherever they are, to assume that the virus—especially the new strain of it—is with them, and to act in a way that will minimise the chances of spread.

That is especially important because—this is the real reason for hope—tens of thousands of people in Scotland have already been vaccinated against Covid. The updated figures will be published tomorrow. Of course, those who have been vaccinated include many of the people who were most at risk of dying from the virus.

As we do the difficult things in the weeks ahead to suppress the virus all over again, this time we are buying time for the vaccination programme to pick up pace. Though it might feel in the next few weeks that things are getting worse—I know that, in terms of health, jobs and living standards, that will be a reality for many—the fact is that things will also be getting better. The vaccines will be making sure of that, and they promise a route back to greater normality for all of us.

In the past nine months or so, we have come through a lot together, and I know that the realisation that we have tough times still to come is hard to bear. It is hard emotionally, it is hard practically and, for so many, it is very hard financially. The Scottish Government will continue to do all that we can to offer help and support.

However, brighter days will come. Yesterday, in fact, was the shortest and darkest day of the year. From now on, the days will get longer and lighter. Spring is on its way. Let us try to hold on to that.

For the moment, let us remember that the best gift that we can give this Christmas to those we love is to keep them safe, so please follow the rules, remember FACTS and look out for one another. At Christmas, just as we have done throughout the year, let us treat one another with kindness, compassion and love. I fully appreciate that this might not be the happiest of Christmases for everyone, but I take this opportunity to wish everyone a peaceful and healthy Christmas.

The Deputy Presiding Officer

The First Minister will now take questions on the issues raised in her statement. I intend to allow around 45 minutes for questions, after which we will move on to the next item of business. It would be helpful if members who wish to ask a question could press their request-to-speak buttons now.

Ruth Davidson (Conservative, Edinburgh Central)

This week’s news has undeniably been a setback when we thought that a corner had been turned in the fight against this virus. The promise of a vaccine and the chance to see loved ones again over Christmas—even for only a brief time—gave people real hope of respite.

It seems doubly cruel to have plans snatched away from people, even if they understand why. Most people do understand. They understand the need to make sacrifices to suppress this new strain, but in return they are demanding as much clarity from this Government as is conceivably possible.

The national tier 4 lockdown, scheduled for boxing day, will have come as an even greater shock to the people in tiers 1 and 2 who had no idea that they would face the most severe restrictions seen since March. They are asking whether the tier system has now been abandoned for good or whether we can expect a return to more localised restrictions and, if so, when?

Parents everywhere who are now scrambling to cancel Christmas plans and find ways to balance work and childcare well into the new year need clarity on exactly what is expected of them now that the return to schools and nurseries has been suspended until 18 January. Not only does that impact on their family life; it affects their ability to work and pay the bills.

People accept that there is much about this new strain of the virus that we do not yet know. However, they are growing weary of seeing supposedly time-limited firebreaks stretch into months. They will be rightly concerned to have heard the First Minister say that the 18 January return date is under review. Can the First Minister give parents at home an idea of how likely it is that children will return to classrooms from 18 January? Do they need to start preparing now for a long haul of blended learning at home?

The First Minister

I will do what I have tried to do every day during the past 10 months, and that is give people as much clarity as I possibly can. I will do that every day over the Christmas and new year period if that is what is necessary and if there are updates that I can reasonably give people.

I have also tried to be frank. We are dealing with a virus that we have always known to be unpredictable, but only in the past few days have we discovered how unpredictable it can be. We do not yet understand everything about this new strain.

Literally as we speak, we have scientists trying to understand to what extent it is more transmissible than other strains and who it might be more likely to transmit to, and to understand—and hopefully be able to confirm beyond any doubt—that it does not cause more severe illness or undermine vaccines or treatments. During the days to come—literally days—we will learn more about that. We also have to give ourselves assurance during the next period that the restrictions and measures that we have in place are sufficient to suppress it.

It took a really strict lockdown earlier in the year to get the R number back below 1—it got to about 0.6. We now face a situation where it is at around 1 again, although it is lower in Scotland than in some other parts of the UK, and a virus strain is transmitting more quickly that might add 0.4 to the R number. That shows the scale of the challenge that we have. We have to give ourselves time to know that we are taking the right actions to suppress it. We will learn more and I will share as much as we know with the public as openly as possible.

In response to the other two specific points, I know how devastating it would have been last Saturday for everybody to hear that we were going to level 4 across most of the country this Saturday. That would have been particularly devastating for those areas that are currently in the lower levels. However, it is important for me to be clear that the action that we are taking is not in response to current rates of prevalence: this is preventative action because we see a train coming rapidly down the track at us and we are trying to get out of its way. That is why the whole of mainland Scotland has to go to level 4; it is to prevent what we think will be a rapidly deteriorating situation.

If it is at all possible, we will get schools back open again on 18 January. That has been and continues to be a priority for all the reasons that we understand and that I think we all agree on. If that means the rest of us living under more severe restrictions, we will not shy away from saying so. However, we have to give ourselves the time to understand this virus a little bit more.

Scientists are now exploring whether that strain of the virus is transmitting more easily to young people. There is no consensus or definitive conclusion on that yet, but it is one thing that the scientific community is currently exploring.

We will do everything we can to get the whole country back to normal as quickly as possible, but it is important that, in this next period, we all do all the things that can help to bring that about.

I will keep the country updated, as far as possible, throughout the Christmas period.

Richard Leonard (Labour, Central Scotland)

It is clear that the Government’s strategic framework, launched less than two months ago, was abandoned at the weekend. The decision to move every part of mainland Scotland to level 4 from boxing day and for an indefinite period means the closure of all hospitality, pubs and restaurants, non-essential retail, public buildings, gyms, indoor tourism attractions, museums and galleries. That is a drastic move. Three weeks does not sound like three weeks this time; it sounds considerably longer.

The First Minister has told us that this is a proportionate public health response, given the virulence of the new strain of the virus. Will she also make a proportionate response in other ways? Will she step up Government support for businesses, workers and families across Scotland that have been directly affected by that Government decision? Will the Government step up levels of support for mental health and wellbeing services?

If the new strain of the virus is 70 per cent more transmissible than the original one, will the Government urgently increase the number of tests carried out in Scotland by 70 per cent daily? Will it improve the capacity, utilisation and performance of test and protect by 70 per cent? Will the First Minister commit, as soon as is practically possible, to a 70 per cent acceleration in the roll-out of the vaccination programme?

The First Minister

I am, like many people, overtired at the moment, but words almost fail me in responding to that.

I am sorry: I should have given part of this answer to Ruth Davidson. We have not abandoned the strategic framework. We will try to get back to applying different levels to different parts of the country—depending on the prevalence of the virus—as quickly as we can.

We have not abandoned our strategic approach, but we have not stood there, clinging to that approach, when a train is coming down the track to run us over. We have decided to respond to the evidence that we have a new strain of the virus that none of us saw coming or predicted. This is happening in all other parts of the UK and in other countries. Ireland has just decided on stringent new measures even though it does not yet have any identified cases of this strain.

We have decided to respond in a preventative and precautionary way in order to make sure that, by the end of January, we do not have an overwhelmed health service and that we have not run out of hospital and intensive care unit beds, but that we have managed instead to ward this off and to suppress the virus again.

I am so sorry that we have to do this, but I would be even sorrier, and people would have every right to be angry with me, if I did not take this action or if I let the country deal with the impact of what is coming down the track at us. I will continue to take difficult but necessary decisions to keep us as safe as I can.

We will continue to look at how we can step up support. I said in my statement that the finance secretary is already looking urgently at business support to see what more we can do. That will be true across a range of responsibilities.

It is when I reach Richard Leonard’s final two points that words begin to fail me. We have plenty of testing capacity and we are building it up. These are not simple equations in which the fact that a virus is 70 per cent more transmissible means that we need 70 per cent more test capacity. The reason why I can give some of the detail that I give every day is because we are testing so many people. We will continue to make sure that we have the capacity to do so. We are also rolling out lateral flow testing, although we must assure ourselves that lateral flow testing is sensitive enough to the new strain.

We will roll out the vaccine just as quickly as supplies allow us to do so. Nobody would love it more than I would to be able to magic vaccine supplies out of nowhere. I cannot do that, unfortunately. We are working hard to make sure that we act as soon as supplies come. We have the Pfizer vaccine supplies that we expected this year, and tens of thousands of people have already had their first dose. We are hoping that other vaccines will get approval in the UK shortly, and as soon as those supplies become available, we will get those vaccines to people and get those doses of vaccines into as many arms as we can. We are dependent on the vaccine developers, the companies and all the supply chain allowing us to do that. I really would hope that Richard Leonard would understand that.

Patrick Harvie (Green, Glasgow)

Of course, I share the dismay that we all feel at the increasingly dangerous situation. It seems clear that, if the new strain is established and growing in Scotland, much of the country must be prepared to deal with a heightened threat over the months ahead, not just the weeks ahead.

As the First Minister said, it remains an open question whether the new strain could be more infectious in children and young people. The Greens have consistently backed measures to improve safety in schools, and we welcome the announcement of the delay to the new term. We all want to keep schools open, but not at all costs.

Does the First Minister recognise that many teachers and school staff already feel that their safety has not been prioritised during the pandemic and that, at the very least, their call for widespread routine testing should be accepted? How does the First Minister respond to the recent comments by the Educational Institute of Scotland that moving back to level 4 should result in the Government considering

“moves toward blended or remote learning”

and that

“Schools cannot stay open at any cost; the safety of pupils and staff has to be the priority”?

Can the First Minister update the Parliament on the action that is being taken to protect vulnerable teachers when schools finally return?

The First Minister

Those are all important issues. First, I accept that many teachers feel that their safety is not being prioritised. I do not accept that that is true from the Government’s perspective, but, if teachers feel that, I recognise and accept that we continue to have work to do to assure and reassure them, and we will continue to do that.

For the past few weeks, we have been developing plans for more mass testing in schools in the new year. We are trying to do that sensibly and on a sustainable basis. Some of the plans that have been set out in other parts of the UK, as we have seen from the reactions of teachers in recent days, perhaps do not give that sense of deliverability and sustainability, but that is very clearly a part of our thinking.

As I said in my response to Richard Leonard—and it is worth repeating—at the moment, one question that we are seeking to have answered is whether lateral flow testing devices are effective against the new strain of the virus. I hope that that will be clarified in a positive way very soon.

The safety of pupils and everybody who works in our schools is a priority, and we have taken public health advice at every step of the way. Although I recognise the concerns, I think the fact that we have managed to keep schools open while keeping the prevalence of the virus at a lower level than in many other areas is a success. However, the new development means that we have to be precautionary until we learn more about the virus—not least its transmissibility among young people. We will be precautionary and we will take great care over the decisions that we make.

On blended learning, I think that it is in the interests of young people to be back in school full time as quickly as possible. However, you will have heard everything that I just said about precaution and safety. The fact of the matter is that blended learning has always been an option on a school-by-school basis if it is required, and that will continue to be the case. We will not compromise or gamble with the safety of teachers and young people, but I think that everybody recognises that it is in the interest of young people to be in school full time if that is at all possible. That is what we want to get back to as quickly as the virus allows.

Willie Rennie (Liberal Democrat, North East Fife)

We appreciate the reasons for the decisions at the weekend. When the science speaks so starkly, plans need to change. Will the First Minister be reviewing the range of indicators as we learn more about the new strain of the virus?

At least 135,000 operations were cancelled during lockdown earlier this year, and we know that, for safety reasons, hospitals have limited the number of elective surgeries since then. However, I am concerned about reports that ever greater numbers of operations have been cancelled, that some hospitals have cancelled all non-urgent procedures and that more NHS boards are considering following suit. What more can the First Minister tell me about that? Does she expect that more NHS boards will cancel all non-urgent operations in the near future?

The First Minister

We were already reviewing the indicators—I think that I set that out in my statement last week—and we will continue that process over the Christmas period. Obviously, we will come back to Parliament with the outcome of that. We were taking the opportunity to review not just the indicators but also the content of each level. As I have said today, the new development makes it all the more urgent that we look at the content of level 4 restrictions and whether the current restrictions are sufficient.

On health board capacity and decisions on elective treatment, we want as much elective treatment to continue and to get as much of that back to normal as possible. That is a priority, and we discussed the issue at the Cabinet meeting earlier today. However, that depends on our ability to suppress the virus. To put it bluntly, the more patients require hospital and intensive care treatment for Covid, the more staff will be required to support that. Of course, the greater the levels of infection, the more hospital and NHS staff generally are likely to be off sick—like the rest of the population, they are more likely to be taking time off sick—and the less able the NHS will be to do normal business.

We are supporting the NHS to get the balance right as far as possible. I cannot guarantee that no NHS board or hospital will postpone elective treatment, but we are trying to support the NHS through this as much as possible, to reduce this year’s backlog and to prevent its rising any further.

I make a plea to everyone. All of us can help the NHS right now. During the early part of the pandemic, we all acted in a way that protected the NHS. The NHS needs us to do that again. It needs us all, in our personal behaviour, to do everything that we can to suppress the virus. That is what we can all do to keep our NHS safe.

The Deputy Presiding Officer

I a

m keen to get in every member who wants to ask a question if I possibly can, and I would appreciate the assistance of all concerned to achieve that.

Bruce Crawford (Scottish National Party, Stirling)

At this crucial time, when we are dealing with a deadly and unseen killer virus, with what importance does the Scottish Government view the relationship between the European Centre for Disease Prevention and Control and the expert medical and scientific community in the United Kingdom? Is it not foolhardy in the extreme to sever that important relationship because of Brexit at this crucial time, when, as a country, we are dealing with a deeply serious public health emergency? For that reason alone, an extension to the Brexit transition period would make common sense.

The First Minister

In my view, it is vital that the UK maintains

its current access to the European Centre for Disease Prevention and Control, which is an important network of cross-border health expertise. It is also a source of valuable data—there is probably not a day goes by when I do not look at the data on its website, because it is extremely important. However, the centre is important for many more reasons than that.

It is a fact that a no-deal Brexit will jeopardise that access, which is highly concerning as we continue to fight the Covid pandemic. The Scottish Government is working with the UK Government to maintain access and to ensure that practical arrangements are in place as a stopgap in the event of no deal.

The consequences of ending the Brexit transition period during a pandemic were predictable and predicted. Those concurrent risks, which add up to a perfect storm, are starting to become real before our very eyes. That was evident in yesterday’s COBRA meeting as we were dealing with all the implications of the closure of the border that are happening now, with Brexit and stockpiling plans being activated, which is a situation that we may face again in just a few days’ time.

I really hope that, although the UK Government yesterday rejected the call for an extension, it will think again and act responsibly. Businesses and citizens need, preferably, a deal now—everybody does. More important, they need a period in which we will not have any self-inflicted disruption, given that we have so much inevitable and unavoidable disruption to deal with.

Jamie Greene (Conservative, West Scotland)

I have read many of the letters about access to learning hubs that are today being sent to parents. It is clear from those that the definition of a key worker is vague and varies from one council area to another, which will undoubtedly result in a postcode lottery in childcare, come January.

The letters also state that both parents must be key workers if their children are to qualify for access to the hubs, which would put many of our front-line workers in an impossible situation. Why is there no clear country-wide guidance over access to hubs? What is the First Minister’s message to families who face the unenviable choice of being either out of pocket or out of a job?

The First Minister

The guidance is as it is because local authorities requested flexibility to put in place their own local arrangements. I appeal to them to continue to liaise closely with parents to ensure that their arrangements are as they need to be. This is an incredibly difficult time for everybody, but particularly for parents who are, again, trying to juggle the demands of work and childcare. Even in level 4, if there are no other options, there is access to childminding and informal childcare arrangements. However, we encourage local authorities to ensure that they are as expansive as possible in their definition of a key worker.

The most important aim for us all—led, of course, by the actions that the Government is taking—is to get the virus, and especially the new strain, under control and suppressed as much and as far as we can so that the next period, which will involve the most stringent restrictions, which will impact particularly on schools and childcare, will be as short as is feasible.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

People in my Cowdenbeath constituency, across Fife and across Scotland will want as much clarity as possible about the weeks that lie ahead. Will the First Minister therefore confirm the date on which a review will take place of the three-week level 4 regime that will apply to the whole of mainland Scotland from boxing day? Will she confirm the criteria based on which the review will be conducted, and when the upshot of the review will be communicated to the public?

The First Minister

We will carry out a review two weeks after commencement of the restrictions on boxing day, and I will set out its outcome in the Parliament on that day. Forgive me if I get the date wrong; I think that that will be on 12 January. We will be as clear as we can be about the reasons for the decisions that we take in the review, and we will try to keep the level 4 restrictions to as short a period as possible.

I want to give people as much clarity as possible. However, although I understand the desire for clarity—it is a normal human desire, which I share and on which I want to deliver—I do not think that people want me just to say things that they want to hear right now but which might have to be reversed later. We have to try to set out the situation as clearly as possible, and to explain the implications and the difficulties as we go along. That is what I will try to do, especially over the coming period, when people will be worried about the situation that will pertain at the start of the year.

Alex Rowley (Labour, Mid Scotland and Fife)

The First Minister has said that scientists are investigating claims that the new variant of the virus spreads more easily among children. They have said that it could account for a significant proportion of the increase in transmission in the south of England. Given that, what steps will the Scottish Government take to examine such evidence?

What action will the Government take to ensure that there is effective teaching and learning through blended methods if further delays to the return to school are necessary? What steps will the Government take to provide greater support for those who are in most need and at greatest risk while our schools are closed?

The First Minister

Rightly, the operative word in the early part of Alex Rowley’s question was “could”. Among experts, there is not yet definitive consensus

on whether the new strain of the virus is more likely to infect children, but that is under active exploration. The chief medical officer updated the Cabinet on that subject today, and he made it very clear that we cannot be definitive about it right now. Just this morning, I have read scientific opinion—some is pretty certain that that is the case and some that it is not. We therefore need to wait and see what consensus will emerge. We have contingency arrangements in place for blended learning.

One of the reasons why we have taken a precautionary approach to the start of the new term is the uncertainty about the new strain. We will have arrangements for blended learning for as long as it is necessary—although we hope that that will be as short a time as possible. We have already taken steps to help people in more deprived communities with online access, and in other ways. We will continue to do that, particularly if we are facing a lengthier period—although I hope that we will not—when children are not in school full time.

Christine Grahame (Scottish National Party, Midlothian South, Tweeddale and Lauderdale)

The First Minister stated that the incidence of Covid in Scotland is half what it is England, and that the cross-border travel ban will be in place on Christmas day. Given that the chief constable has ruled out road blocks and check points—I appreciate that those are operational decisions for him to make—is the First Minister satisfied that the law can be enforced, and has she been advised on what policing is taking place on the English side of the border?

The First Minister

I will just be clear on one point, because I am aware that how I express this might give rise to a misleading impression. It is not the case that the travel ban between Scotland and the rest of the UK is in place only on Christmas day; it is in place for the foreseeable future, including on Christmas day. The travel restrictions are being lifted on Christmas day in Scotland—although we are encouraging people not to travel to meet indoors, if at all possible—but that does not apply to travel between Scotland and the rest of the UK.

It is, of course, an operational matter for the chief constable to decide how and to what extent to enforce the law. Obviously, I have discussed that with the chief constable, who joined me yesterday for the daily update. He has decided to double patrols and has set out clearly the approach that the police will take. I have confidence in the ability of the police to enforce the law where necessary, just as they have with regulations throughout the pandemic. It is not for me to comment on policing on the English side of the border, but I am sure that the police there are also cognisant of the arrangements.

My last point—it is a point that I made yesterday and will continue to make—is that people should abide by the restrictions not because they are likely to get stopped by the police if they do not, but because the restrictions are there to keep us all safe. I think that when we put on a seat belt when we get in a car these days, not many of us do so only in case we are caught not wearing a seat belt. We do it because we know that it could save our lives. People should see the travel restrictions in the same way. They are a tough aspect of what we are being asked to do right now, but they are necessary in order to stop, as far as we can, any more of the new strain of the virus coming into Scotland, just as all the difficult things to suppress it are necessary.

Donald Cameron (Conservative, Highlands and Islands)

The First Minister might be aware of reports that the University hospital Wishaw has closed a number of wards to new admissions following a spike in Covid-19 admissions. Can the First Minister provide the Parliament with an update on the general capacity in our hospitals, given that standard admissions being suspended puts more pressure on the NHS because of the already significant backlog in operations and appointments?

The First Minister

I will ask the Cabinet Secretary for Health and Sport to write to the member with an update on hospital capacity and what pressures there are on that capacity before we get into the Christmas period, and to copy that update to all members.

It is, of course, for individual health boards to manage capacity pressures. We know that NHS Lanarkshire, like NHS Greater Glasgow and Clyde and, more recently, NHS Grampian, is experiencing significant pressure from Covid generally. That has been the case for NHS Borders in recent days, as well. Overall, if we look at the numbers that I have given today for people in hospital and in intensive care, they are significantly below overall capacity. They are also below the peak levels that we saw earlier in the year. There are some parts of the UK where both those things—certainly in relation to hospital capacity and, in some cases, ICU capacity—have already exceeded that peak.

We are not in a position to be complacent; we are working with the NHS to manage the situation. However, I come back to the central point that the more we do to stop the new strain of the virus taking hold, the better able we will be to ensure not only that our NHS can cope with Covid patients but that, as it is doing that, it can continue to treat people with non-Covid conditions.

Willie Coffey (Scottish National Party, Kilmarnock and Irvine Valley)

Can the First Minister elaborate on the discussions that her Government has had with the UK Government regarding temporary closure of our major ports and transport links? Will the First Minister call on the UK Government to take some responsibility and work to reach agreement with France on the protocol that she mentioned earlier, which will get freight moving again, in order to protect Scotland’s valuable seafood sector? The situation is becoming critical.

The First Minister

I took part in a COBRA meeting yesterday at which those issues were discussed. I was concerned yesterday, and remain concerned today, that the timescale for the agreement of a protocol with France and, perhaps more especially, implementation of that agreement might be longer than our seafood sector has, to be frank.

We will continue to press the UK Government to take all necessary steps, but more important is that we will ensure that we are offering help and support. There might, since we have been in the chamber, have been developments that I am not aware of. If the solution involves mass testing of drivers—as it almost certainly will—we do not know whether it will be polymerase chain reaction testing or lateral flow testing. Once we know that, we can consider what arrangements we can put in place to test drivers in Scotland before they start their journeys. We will do everything that we can to help, and we will continue to liaise with the seafood sector. It is in everybody’s interests that the issue be resolved as quickly as possible.

Jackie Baillie (Labour, Dumbarton)

Hospitality and tourism businesses in my constituency and across Scotland face huge bills in January, including for payment for self-assessment, deferred VAT or national insurance and pension contributions for staff who are currently on furlough. Further, those businesses will have no income over the next three weeks, which is normally their busiest period. They are saying that they need greater support from the Scottish and UK Governments, and that they need it now. Will the First Minister adopt a targeted approach and increase the help that is being provided?

The First Minister

As I said in my statement and as I think I have said since then in response to questions, the Cabinet Secretary for Finance is urgently looking at what more we can do. Significant financial support is already available; I encourage all affected businesses to apply for it. The details are available on local government websites and, I believe, on the Scottish Government’s website. We recognise that businesses will need more help, given the implications of what we are now dealing with, and are likely to be dealing with into the new year. The finance secretary will report back on that once she has completed the assessment.

Joan McAlpine (Scottish National Party, South Scotland)

The First Minister knows that Gretna is the wedding capital of Scotland. It is also in a lower-prevalence area. I have been contacted by a number of constituents in Gretna and east Annandale who are concerned that wedding guests are travelling from higher-prevalence parts of the UK, such as the south of England, despite the cross-border travel ban, because weddings and small receptions are permitted in Dumfries and Galloway, which is in level 1. Can the First Minister explain how moving to level 4 across Scotland will protect my constituents in the Gretna area? Given that many local jobs are involved in the wedding industry, how will it and its supply chain be supported under level 4 restrictions?

The First Minister

This is a really tough time for the wedding industry across the country, and that is undoubtedly particularly true in Gretna. We have recently allocated funding for the sector and its supply chain, and we will seek to ensure that those who have had little or—as in some cases—no support since March are targeted for that support.

I deeply regret the impact on cross-border trade and on particular sectors and businesses, but it is unavoidable, because stopping travel within Scotland and from Scotland to other parts of the UK is a key part of trying not to spread the new strain any further. We know that it already exists in Scotland, and we have to suppress it here, but we think that it is still at lower levels; therefore, it is important to stop importing any more of it. That is true for the entirety of Scotland, but, obviously, it has particular resonance in the border parts of Scotland and England. We do not want the restrictions to be in place for any longer than necessary, but they are necessary right now, which is why I encourage everybody to strictly abide by them.

Jamie Halcro Johnston (Conservative, Highlands and Islands)

The increased restrictions that the First Minister announced on Saturday are causing a great deal of concern for Scotland’s tourism businesses, many of which were already worried, even with the latest support for the sector that the finance secretary announced a couple of weeks ago. When will the first payments from that support be in the hands of those businesses? Will the impact of the increased restrictions be reflected in the package and in any future additional packages of support for our beleaguered tourism industry?

The First Minister

The restrictions that, regrettably, we announced, reflect restrictions that, unfortunately, are in place in all parts of the UK and, indeed, in many other parts of the world. We must be clear about the fact that, although the impact on business is understood and is severe and heartbreaking, we would make that impact worse if we did not act appropriately to suppress the virus. Obviously, that places responsibilities on us to ensure that businesses are appropriately supported. I have already said that the Cabinet Secretary for Finance is looking again at additional support for business. She has recently announced additional funding for tourism, in particular, and the processes are under way to get that money flowing to businesses as quickly as possible.

The support that will be required for the tourism sector is likely not only to be greater than for any other sector in our economy but for the longer term. The sector has been deeply affected, which is why the tourism task force looked at not just immediate measures but medium and long-term support. The tourism minister and the Cabinet are fully engaged in ensuring that we respond appropriately.

Kenneth Gibson (Scottish National Party, Cunninghame North)

Given that no ferries will run on Christmas day, will islanders and their loved ones on the mainland be allowed to visit one another from Christmas eve to boxing day

? Only a very small minority of people will travel, so the risk must be tiny. It is surely unfair that that minority of islanders and their families will be denied the same opportunity as everyone else is getting to spend Christmas day together. A number of my island constituents, as well as a number of my mainland constituents, have expressed their dismay in the event that they are unable to do so.

The First Minister

I know that it is unfair; the virus is unfair to everybody. That is the point—it is not fair. We are having to take decisions that are extremely difficult for people. We cannot make exemptions to the rules, because any small exemptions that we made—other than really necessary ones for people who need to care for people—would all add up to greater risk of the virus spreading.

As I said yesterday, on Saturday night, when I got home after making these horrible announcements, I spent quite a lot of time reading emails that people had sent me. Most of them were from people who understood the necessity of the measures, but they set out—often in heartbreaking terms—the impact on them and their families. I cannot take away that impact for everybody, though I dearly wish that I could. However, I want people to know that I understand it and that we will do everything that we can—within the bounds of what we need to do to keep the virus suppressed—to mitigate the impact of it. None of this is fair on anybody right now.

Pauline McNeill (Labour, Glasgow)

Can the First Minister share the modelling for the vaccine roll-out? I am aware from questions and answers yesterday that the clinical director, Jason Leitch, has said that we plan to vaccinate more than 4 million Scots, but can the First Minister share any information on where we might expect to be in January, February and March? Is the Government aiming for a date in June, for example?

I fully appreciate that I am asking for modelling when we are talking simply about plans. Could the First Minister at any point share with us information on where we might expect to be?

The First Minister

I am not sure that that is a question about modelling; it is about how we match the supply of the vaccine to those groups that we need to vaccinate. I believe that information that set out those timelines was circulated to members last week or the week before. The Cabinet Secretary for Health and Sport will make a statement tomorrow in which she will provide up-to-date information.

In broad terms, our objective—assuming that we get the supplies that we are expecting in the timescale in which we expect to get them—is that, in line with the priority list that has been published by the Joint Committee on Vaccination and Immunisation, everybody aged 50 and above will have been vaccinated by the spring of next year, although that is obviously still subject to uncertainty because of the inherent uncertainties around supply.

We hope that, after that, as we move into the summer, we will be in a position to move on to the rest of the population, because the vaccination programme is intended to reach everybody in the adult population. However, we are dependent on the supplies coming through. We will keep Parliament updated as we get greater certainty and clarity around that and as the information becomes more concrete.

Clare Adamson (Scottish National Party, Motherwell and Wishaw)

What discussions has the Scottish Government had with the United Kingdom Government on the security of medicine supplies in the event of a no-deal Brexit? Many families will be concerned by the scenes in Kent at the moment. Does the First Minister agree that the most pragmatic approach—and the safest approach for everyone—would be for the UK Government to seek a Brexit transition extension so that we could avoid some of the problems that we are seeing?

The First Minister

We discussed the issue of medicines supply at length both in COBRA yesterday and at the Scottish Government resilience committee, and I think that the health secretary is indicating to me that she will have further four-nations discussions on the issue later this week.

As I said in my statement, we have no immediate concerns about medicines or medical supplies, and we have no immediate concerns about supplies of the Covid vaccines.

Obviously, we require to keep all of that under very close review. The discussions that we had yesterday were, to some extent, inevitable. The new strain of the virus has led other countries to respond, and the issues around the border are part of dealing with that particular crisis. I think that we all understand the necessity of that. What is, I think, less easy for us to understand—and certainly for us to accept—is that we are having to discuss these things in the context of something that is completely self-inflicted.

Therefore, I hope that we see measures—whatever they require to be—being taken to avoid any disruption caused by Brexit over the next two-week period. Frankly, the country has got enough on its plate to deal with right now. We are dealing with Covid and with a new strain, and we are trying to get a vaccination programme rolled out. We are going into winter, and over the next few weeks we may be dealing with severe weather as well. We do not need the disruption that Brexit will bring, and I really hope that the UK Government will do whatever it takes to avoid that.

Annie Wells (Conservative, Glasgow)

The Equality and Human Rights Commission said recently that it had found clear evidence that, during the pandemic, the rights of Scotland’s care home residents and staff have been ignored by Scottish Government ministers. It said that the need to uphold residents’ rights to be treated equally, with dignity and with respect has not been taken into account. Meanwhile, care home staff, despite their best efforts, have been ill-equipped to provide vital support and care to residents, many of whom have been nearing the end of life. The Scottish Conservatives agree with the Equality and Human Rights Commission that there must be a public inquiry into the matter. What progress has been made on establishing such an inquiry?

The First Minister

We have already committed to a public inquiry, and the health secretary is progressing the plans for that. No public inquiry on any issue can simply be set up overnight. There are matters that take time to get right, including the appointment of the judge who will oversee it, the remit and all the other preparatory actions.

As, I think, the chief executive of Scottish Care said not that long ago, those are all really important matters, but nothing matters more right now than dealing with the daily reality of the pandemic. That matters for vulnerable people in our care homes, it matters for the relatives and it matters to the whole country, and that is what I am going to keep my focus and my Government’s focus on, 100 per cent of the time, right now.

Bob Doris (Scottish National Party, Glasgow Maryhill and Springburn)

I previously asked for a review of the level 4 restrictions in the hope of seeing greater flexibility for gyms and health and fitness facilities, given their positive mental health impacts. As the First Minister has suggested that a further toughening of the level 4 restrictions may be required—and I absolutely understand why—that flexibility is clearly unlikely to be introduced over the next few weeks. However, as we emerge from the latest challenge—and we will do so—will she consider future flexibilities at level 4, even though that is understandably not the current direction of travel?

The First Minister

Yes, of course we will. I absolutely understand the importance of physical exercise and activity not only to people’s physical health but to their mental health. Although the focus in tackling the pandemic is on protecting people’s physical health, we may well live with the mental health impacts for longer. Nobody is in any way oblivious to the real importance of having gyms open and encouraging and supporting people to take care of their physical health so that they can support their mental health.

Unfortunately, I suspect that, over the immediate period, we may have to look at tightening the level 4 restrictions rather than easing them. However, hopefully, as we go further into next year, the opposite can be true, and making sure that people have access to physical activity will be at or very near the top of the list of priorities.

The Deputy Presiding Officer

The final question will be from John Scott. I ask him to be brief.

John Scott (Conservative, Ayr)

Given the concerns about bed capacity, particularly in intensive care, in Ayrshire and across Scotland and about the lack of available staff for the Louisa Jordan units in the worst-case scenarios, what reassurance can the First Minister give that ICU beds will be available to the people of Ayrshire and Scotland? Can she provide details of how the Louisa Jordan hospital will be staffed if it is needed?

The First Minister

We will continue to give details of that. We have in place very robust plans for escalation in intensive care. Right now, there is, of course, pressure on intensive care, but we are not near running out of intensive care beds. We still have plans that would allow us to increase ICU capacity.

That is true across Scotland as a whole for ICU capacity and hospital beds. Individual health boards will face pressures at given times. In recent weeks, Lanarkshire has faced probably the most acute pressure in that sense. Of course, mutual aid arrangements between health boards will kick in as well.

Thus far, we have not required to use the Louisa Jordan hospital for Covid-related matters. At this stage, we still do not consider that we will require to use it, but we will keep that under review. Should the position change, we will set out the operational plans for that. The Louisa Jordan hospital has, of course, been seeing patients—thousands of patients, actually—to help to reduce the backlog.

If I or the health secretary stood here and said that we do not have concerns about hospital capacity, that would not be true. Part of what is driving the very tough action that we are taking is the need to protect our hospital capacity for Covid patients and non-Covid patients. Right now, the health service is operating within that capacity, and we will continue to support it to do so.

The Deputy Presiding Officer

That concludes questions on the statement. We will move on to the next item of business in a moment.

I remind members that social distancing measures are in place in the chamber and across the Holyrood campus, and I ask members to please observe them during the course of this afternoon’s business, including when entering and exiting the chamber.

Junior Minister

Lewis Macdonald (Labour, North East Scotland)

The next item of business is a debate on motion S5M-23762, in the name of Nicola Sturgeon, on the appointment of a junior Scottish minister. Members should note that the question on the motion will be put immediately after the debate.

Nicola Sturgeon (Scottish National Party, Glasgow Southside)

I seek the Parliament’s approval for the appointment of Angela Constance as a Scottish junior minister. I begin by reiterating the point that I made last week at First Minister’s question time: that the drug deaths figures that were published last week are completely unacceptable. Behind each and every one of those statistics lies a real human story: one of tragedy, lost opportunity and grieving families.

The appointment of a dedicated minister for drug policy, who will report directly to me, signals the Government’s renewed determination to take on the challenge and tackle the level of drug-related deaths in our society. Angela’s task is to ensure that we not only prevent people from dying from drugs but help those with drug addiction to live better and healthier lives. She is well aware that taking on the role is an enormous responsibility, but she brings to it significant personal and professional experience. In a previous life as a prison social worker and more recently, of course, as cabinet secretary responsible for tackling poverty, inequality and homelessness, Angela has dealt first hand with many of the issues that are often closely linked to problem drug use.

Angela Constance also has a track record of taking on tough issues. In a previous ministerial role, she took on the very specific—and, at that time, urgent—task of tackling rising youth unemployment in the face of a severe recession. After she listened to the broad range of views on how to solve the crisis, the measures that she put in place helped to drive youth unemployment in Scotland to one of the lowest levels in the European Union. That was a significant achievement and one of the reasons why I believe that she is, at this point, the right person for the job.

The challenges that Angela faces in the role are different from those ones, but I know that she has not wasted a moment before getting down to business. She is already engaging with members of the drug deaths task force; she and I had a lengthy discussion yesterday about the challenges and priorities; and I understand that she is arranging to speak to Opposition spokespeople as soon as possible.

Alongside Angela Constance’s appointment, I am making other changes to the Scottish Government’s ministerial team. I have appointed Mairi Gougeon as Minister for Public Health and Sport to replace Joe FitzPatrick.

I take this opportunity to thank Joe FitzPatrick for his service. He himself recognised that it was time for fresh leadership on the drugs challenge. Joe brought a decency and determination to the Government that I am grateful for.

As part of her responsibilities, Mairi Gougeon will take the lead on the delivery of Covid-19 testing across Scotland, with Jeane Freeman leading on the roll-out of the vaccine across the country. Given that she will have responsibility for improving the country’s health, it of course helps that Mairi is herself very physically active and regularly puts us all to shame with her dedication to keeping fit. I would like to say that my 10km time is faster than hers, but I am keeping mine confidential.

Ben Macpherson will take on the role of Minister for Rural Affairs and the Natural Environment at a critical time in the fight against climate change and as we take new steps to protect our diverse and wonderful natural environment.

Jenny Gilruth will take on responsibility for migration in addition to her role as Minister for Europe and International Development, and Ivan McKee will work with the Cabinet Secretary for Finance to support business through the pandemic and take forward work to ensure that our procurement policies are backing Scottish business. That follows up his recent work on building the personal protective equipment supply chain. He will also support the Cabinet Secretary for Finance in finalising the budget, which is due to be published in January.

As we come towards the end of what has been a tough year for the whole country and as we look towards what will be an unusual Christmas, it is clear that the country is being buffeted by a number of different headwinds. Neither I nor my ministerial team will be taking much of a break over the next couple of weeks; we will be working closely together to prepare Scotland for what will be a busy and challenging 2021. Today’s appointments ensure that the Government remains fit and ready for the challenges ahead.

I move,

That the Parliament agrees that Angela Constance be appointed as a junior Scottish Minister.

Motion agreed to.

The Deputy Presiding Officer

I briefly suspend the meeting until we move on to the next item of business.

15:16 Meeting suspended.

15:20 On resuming—

Business Motion

Kenneth Macintosh (Labour, West Scotland)

The next item of business is consideration of business motion S5M-23774, in the name of Graeme Dey, on behalf of the Parliamentary Bureau, setting out a stage 3 timetable.

Motion moved,

That the Parliament agrees that, during stage 3 of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill, debate on groups of amendments shall, subject to Rule 9.8.4A, be brought to a conclusion by the time limits indicated, those time limits being calculated from when the stage begins and excluding any periods when other business is under consideration or when a meeting of the Parliament is suspended (other than a suspension following the first division in the stage being called) or otherwise not in progress:

Groups 1 to 4: 1 hour 15 minutes

Groups 5 to 6: 2 hours 10 minutes

Groups 7 to 10: 3 hours 10 minutes.—[

Graeme Dey

]

Motion agreed to.

UK Withdrawal from the European Union (Continuity) (Scotland) Bill: Stage 3

Kenneth Macintosh (Labour, West Scotland)

We turn to stage 3 proceedings on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, the marshalled list and the groupings of amendments. I remind members that, as usual, for the first division of the afternoon the division bell will sound and proceedings will be suspended for five minutes. The period of voting for each division after that will be one minute. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group.

The Presiding Officer

Group 1 is on the power to make provision corresponding to European Union law. Amendment 4, in the name of Michelle Ballantyne, is grouped with amendments 5, 6 and 8.

Michelle Ballantyne (Independent, South Scotland)

I want to set out the reasoning for lodging my amendments. I will try to keep my remarks on each group short and to the point, because I am conscious that this will be a long day.

My amendments throughout stage 3 speak to the fact that, fundamentally, it is for the Parliament to legislate. I welcome the changes that have been made at stage 2, particularly with regard to limiting the duration, which the keeping pace power should continue, but I remain concerned that the process of leaving the EU should not open the door to bypassing parliamentary procedure.

When the Parliament decides to delegate powers, there should be clear, good reasons for doing so, and it is important that the limits of that delegation are clearly defined. In doing so, we reinforce the principle that delegated powers should never be used as a substitute for policy development. The question that we have to ask is whether the powers in section 1 of the bill are appropriate or whether they should be limited by being available only to ensure that existing standards in retained EU law keep pace with evolving standards.

While it might be reasonable to accept that keeping pace with EU law might not always be practical through the creation of primary legislation, there is no doubt that there is a difference between refining retained EU law to keep pace and keeping pace with new policy developments in future EU law where there is currently no equivalent in retained EU law. Amendment 4 therefore seeks to ensure that the principle that delegated powers should never be used as a substitute for policy development is followed.

The Cabinet Secretary for the Constitution, Europe and External Affairs’s recommendation, in his response to the Delegated Powers and Law Reform Committee—I believe that it went to the Finance and Constitution Committee as well—that the wording in section 1(2)(f)(ii) be altered, suggests that the amendment is unnecessary and unhelpful, because the Government wishes to have greater flexibility to deal with unforeseen circumstances. However, the current wording, “appropriate to retain”, confers wider powers, as the definition of appropriate does not limit policy making by delegation. I will listen with interest to the cabinet secretary’s position on why it is appropriate—no pun intended—to deal with unforeseen circumstances that lead to new policy by enabling it to be dealt with by delegation rather than in the bill.

Amendments 5 and 6 relate to sub-delegated powers. The current wording in section 1, which would enable the Scottish Government to delegate powers to a public authority or the authority’s nominee to make regulations or provide funding, does not meet the test of the principle of delegated powers, as it neither limits the delegated authority nor defines it; rather, it opens the back door to creating new policy, enabling the incorporation of future EU laws into our domestic laws through delegated powers. The lack of clarity on the necessity to enable sub-delegation is a significant issue.

In relation to amendment 8, I am of the view that those powers are not an appropriate vehicle to make new regulations.

I move amendment 4.

Dean Lockhart (Conservative, Mid Scotland and Fife)

We will support Michelle Ballantyne’s amendments in the group. As we have just heard, amendments 4, 5 and 6 are based on recommendations of the Delegated Powers and Law Reform Committee. Amendment 8 would preclude the keeping pace powers being used to

“make provision implementing significant new policy developments in EU law.”

The amendment overlaps with my amendments 47 to 51, but is not inconsistent with them; they address the same underlying concerns about the inappropriate use of secondary legislation to implement significant new policy developments. To that end, we will support amendment 8.

Michael Russell (Scottish National Party, Argyll and Bute)

I thank all those who have worked with the Government to try to improve the bill since its introduction. The bill today is significantly better than when it was introduced. I do not find it difficult to say that—that is the purpose of parliamentary scrutiny. I am glad, for example, that we have been able to look at the issue of purpose, which we will come to later on, and issues of delegation, which Alex Rowley raised in the early part of stage 2, and we have considered issues that have been raised on reporting and consultation, which Liam McArthur raised.

By dint of discussion, looking at drafts and working together, we have amendments on which we can agree. Regrettably, Michelle Ballantyne has never raised with me the issues that she mentioned in her contribution, so I am slightly surprised that she has a new-found and certainly intense interest in the functioning of delegated powers. I will not accept her amendments and I will give my reasons for that in a moment.

I pay tribute to Dean Lockhart, who discussed some possible amendments with me, although other amendments then appeared, which is entirely his right. Some of his amendments are carry-overs from stage 2. There could be a debate about that because those amendments were significantly rejected at stage 2, and we have to ask ourselves why that was. Perhaps that would save us time.

Amendment 4 seeks to remove the current wording in section 1(2)(f)(ii) and replace it with wording similar to that in section 1(2)(a). I acknowledge that the functions or restrictions that may be conferred or imposed under section 1(2)(f) would have to make sense in the Scottish context, but there is an awkwardness in the wording of amendment 4 and the implications of the amendment are unclear from the perspective of a positive power to confer functions or impose restrictions, whereas the wording in section 1(2)(a) makes sense where it is, as it is being applied to something omitted from regulations. The cut-and-paste job has not worked. It is less clear that it makes sense when applied to a positive power. I am concerned that the proposed drafting of amendment 4 could cause considerable difficulties by adding awkward and unnecessary complications.

The wording “appropriate to retain” that is currently in section 1(2)(f)(ii) offers flexibility to deal with unforeseen circumstances, and given the continued unforeseen circumstances that we find ourselves in as a result of Brexit, which is supported by Michelle Ballantyne, maintaining that flexibility is important and sensible.

It is completely unclear whether amendments 5 and 6 are intended to work together or as alternatives. I am therefore unclear on exactly what Michelle Ballantyne hopes to achieve by lodging them. Whether taken together or separately, the effects of amendments 5 and 6 would, as is the case with amendment 4, be to remove the flexibility needed to deal with uncertainty. The uncertain nature of Brexit and what might yet come leads to section 1(3) in its current form being necessary and expedient as it will allow the Government, with the support of members—many of the changes that we will agree to in the bill require the support of other parties—to ensure that where the power is used, it is workable at an operational level. That is the essence of sub-delegation—making sure that whatever happens the legislation that arises is workable at an operational level.

In the absence of such a provision, the Government would become involved in complex workarounds and arrangements, or it would even have to resort to primary legislation, but that would be wholly disproportionate. That would not otherwise have been the case if section 1(3) was available to us in the form currently provided.

Let me give a hypothetical example. It might be more appropriate for that power to be exercised independently of political control when a body or regulator would be required to make a substantial number of technical corrections to standards. However, without section 1(3) in its current form, the section 1(1) power simply could not be used.

In another example, in agreeing to either or both of those amendments, the Parliament is deciding that the power to give a Scottish public authority the power to provide funding to others where that might be appropriate without passing primary legislation cannot be used.

I do not believe that stage 3 is the time to introduce that type of uncertainty over the scope of the power or of workable legislation. To be clear, the Government will support the amendments in Liam McArthur’s name that are to be taken in group 5. I am aware that members of the Delegated Powers and Law Reform Committee did not have the benefit of considering the changes that those amendments will bring about when writing its report. However, if they are agreed to, when they are considered alongside the bill’s existing provisions, members of the Delegated Powers and Law Reform Committee should be assured that any regulations that are made under that power will be subject to thorough scrutiny. Scrutiny was at the heart of the discussions that I had with other members. Therefore, I must urge members not to support amendments 4, 5 or 6, as they undermine the flexibility that is inherent in the essential purpose of the bill.

Amendment 8 in Michelle Ballantyne’s name seeks to restrict the scope of the power under section 1(1), so it

The Presiding Officer

I call Michelle Ballantyne to wind up on group 1 and to press or withdraw amendment 4.

Michelle Ballantyne (Independent, South Scotland)

Mike Russell is correct that I did not have any meetings with him about those amendments, but they were all back and forth from the Delegated Powers and Law Reform Committee’s report and he has responded to those, so they are not new. He has seen that committee’s thoughts on those amendments. We had not had time to hear the Government’s position on them, and I felt that it was important to lodge them as amendments at stage 3.

The cabinet secretary’s response was about new policy, not about retained EU policy. It is completely wrong to commit the Parliament’s hands to taking on policies without it being able to properly scrutinise and control them. The cabinet secretary is saying that there will be scrutiny but, ultimately, the Scottish Government, whichever party might be elected to it, will have the power to implement new EU policy in Scottish policy. I do not believe that that is the correct way to go.

I will press amendments 4, 5, 6 and 8. Members in the chamber should think carefully about the consequences that might come down the line in terms of being able to take on board policy that the Parliament has not devised and does not control.

The Presiding Officer

The question is, that amendment 4 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

We will suspend for five minutes so that I can summon members to the chamber and allow members who are joining us remotely to access the voting app.

15:34 Meeting suspended.

15:43 On resuming—

We move to the vote on amendment 4, in the name of Michelle Ballantyne. This will be a one-minute division.

The vote is now closed. If any member believes that they were not able to vote, please let me know by making a point of order.

The Presiding Officer

The result of the division is: For 26, Against 89, Abstentions 0.

Amendment 4 disagreed to.

Amendment 5 moved—[Michelle Ballantyne].

The question is, that amendment 5 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a one-minute division.

The vote is now closed. If any member had difficulty voting please let me know.

The Presiding Officer

The result of the division is: For 26, Against 90, Abstentions 0.

Amendment 5 disagreed to.

Amendment 6 moved—[Michelle Ballantyne].

The question is, that amendment 6 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a one-minute division.

The vote is now closed.

The Presiding Officer

The result of the division is: For 25, Against 90, Abstentions 0.

Amendment 6 disagreed to.

We move to group 2, on the section 1(1) power and the purpose of maintaining and advancing standards. Amendment 7, in the name of Angela Constance, is grouped with amendments 22, 23 and 30.

Tom Arthur will move the amendments in place of Angela Constance.

Tom Arthur (Scottish National Party, Renfrewshire South)

I am grateful for the opportunity to speak to amendments 7, 22, 23 and 30 in the name of Angela Constance. I take the opportunity to congratulate her on her appointment to Government and to wish her the best in her new role.

The amendments follow on from stage 2 amendments 6 and 10, also in the name of Angela Constance, which were debated but not moved. Those earlier amendments were intended to provide greater clarity in the bill about what the section 1(1) power is for, when it would be used and how it had been used. Ms Constance expressed the view that those amendments would provide ministers with a direction as to the use of the power, and that they would improve transparency and accountability.

However, Ms Constance also made clear that sufficient flexibility must be maintained to deal with future uncertainties. It is clear from the deliberations at stage 2 that there is a strong view that putting a purpose in the bill would provide more certainty, predictability and clarity for businesses, public agencies and others.

That is what amendment 7 now does. It gives ministers the direction and steer that was felt to be missing from the bill as introduced. If agreed, amendment 7 will require ministers to, among other things, have due regard to how the use of the section 1(1) power would

“contribute towards maintaining and advancing standards in relation to environmental protection, animal health and welfare, plant health, equality, non-discrimination and human rights and social protection.”

Amendment 7 also retains a necessary element of flexibility. It does not impinge on the generality of the power, which was known to be a concern for the Government at stage 2, and it ensures that ministers are not prevented from using the section 1(1) power in other ways.

Amendments 22 and 23 will ensure that, when they report on the use of the power, ministers must set out how it has contributed, is contributing and will contribute to maintaining and advancing standards in those areas. That was the intention of amendment 10 at stage 2. Amendments 22 and 23 will now ensure that reporting covers both the previous uses of the power and any expected future uses.

Amendment 30 is a technical amendment to ensure that a report on future uses of the power is not required once the power itself has expired.

I thank Angela Constance and members from across the chamber who came together to ensure that amendments 7, 22, 23 and 30 are flexible enough to be workable while still improving the bill and providing for greater clarity and transparency. I urge members to support all these amendments.

I move amendment 7.

Liam McArthur (Liberal Democrat, Orkney Islands)

I join Tom Arthur in congratulating Angela Constance on her reappointment as a minister and wishing her well in that important role. I also thank her for the work that she has done in collaboration with me, Patrick Harvie, Alex Rowley and others to lodge the amendments. She lodged similar amendments at stage 2, recognising that, although the bill had been improved by that stage to expand the underlying principles, there was still a gap regarding the overall purpose.

As Tom Arthur said, providing that degree of clarity and certainty reflects what the Parliament has heard from a variety of stakeholders. The amendments lodged by Angela Constance address those concerns very effectively. I thank her for her work on that and I thank the Government for working collaboratively with members across parties to make this important improvement to the bill. Scottish Liberal Democrats will be happy to support these amendments.

Patrick Harvie (Green, Glasgow)

I will briefly make some comments similar to Liam McArthur’s. At stage 2, a great many members, including Angela Constance—who I also congratulate on her reappointment to Government—had similar concerns. However, I think that we came forward with a wee bit of a scattergun approach to the different changes that we wanted to see, with

Angela Constance’s amendments on purpose, Liam McArthur’s on scrutiny and accountability, and some of my amendments.

In the absence of agreement on those wider issues of purpose and scrutiny, I would still say that the amendments that I proposed at stage 2 were necessary, as they provided for shorter reporting periods and a few other changes. As it was not clear at stage 2 that we would get any consensus on those wider issues, I am pleased that we agreed to those amendments in my name. However, I am happy to have them reversed now at stage 3—in a later group—given that we have achieved consensus. I thank Liam McArthur, Alex Rowley, the minister and Angela Constance, who lodged the amendments in this group.

Having that consensus develop throughout the bill has been an important process. I am pleased that we have managed to shape the bill into a better one than it was when it was introduced. That being the case, I will not oppose the Government’s amendments that reverse my stage 2 amendments when we reach them. I will happily support the amendments in group 2, as well as the later ones on scrutiny.

Dean Lockhart (Conservative, Mid Scotland and Fife)

I also congratulate Angela Constance on her very recent appointment.

Amendment 7 refers to a number of important areas in which keeping pace powers may be used. In his supporting remarks, Tom Arthur referred to the policy intention of maintaining the highest standards in Scotland. We totally agree with that. In fact, Scotland and the rest of the UK already have some of the highest standards in the world in these areas, and we agree that that should continue to be the case.

However, the standards have to be appropriate for Scotland. Simply copying and pasting future EU laws is not the best way of doing that. That was made clear by NFU Scotland, when it said in its briefing paper that that would reduce the capacity of Scottish ministers to introduce policies that are genuinely fitting to Scotland’s unique environmental and agricultural context.

The Law Society of Scotland’s briefing also made it clear that these are future EU laws, in relation to which we have no influence or input, and they would be adopted without any scrutiny from the Parliament or consultation with key stakeholders.

That is the point: clarity of purpose is not the same as parliamentary scrutiny. The Finance and Constitution Committee heard substantial evidence that those powers would turn the Scottish Parliament into a passive rule-taker.

For those reasons, we will not be able to support amendment 7. However, if it passes, we will support the consequential amendments 22, 23 and 30, which introduce additional reporting requirements in these areas.

The Presiding Officer

Alex Rowley wishes to contribute before the minister comes in.

Alex Rowley (Labour, Mid Scotland and Fife)

Thank you. I concur with what has been said, although I do not agree with Dean Lockhart. By working together, we have achieved a better bill. The cabinet secretary has been willing to ensure that there is proper scrutiny for the Parliament with amendment 7 and the other amendments. Through cross-party working with the Government, we will have secured a better bill at the end of the day.

Michael Russell (Scottish National Party, Argyll and Bute)

I would not want Mr Lockhart’s remarks to imply that the bill does not have wide support among stakeholders. It does. Any bill will have criticisms of small parts of it; those are things that a Government should listen to, and many of those have been addressed in the process that has been referred to and that we have gone through. However, the bill has very widespread support, and indeed the only support that it does not have is from the Conservative Party and one independent member, who is sitting in the gallery. The bill has the support of the Parliament, as I hope we will prove later today.

It has support because it relates to the issue of the high European standards that we have and how we manage to continue to observe those. I would be very happy if we were in there making rules, and in the ideal situation, we will be in there making rules. However, when we are being dragged out of Europe against our will, which the chamber has—[

Interruption

.]—A member says “Yawn, yawn.” The reality of the situation is that we are being dragged out against our will. There are no ifs or buts. If anybody today thinks that that is a good idea, they should go and look at the queues of lorries in Kent.

I would have thought that even the most hardened Conservative might blush a little at the chaos that is already taking place.

The bill, proportionately and carefully, with the agreement of the Parliament—[

Interruption

.] All the Conservatives can do is scream and shout, because they certainly cannot deliver a functioning country. We clearly do not have that at the moment. [

Interruption

.] No, I will not give way—we hear too much from Brexiteers. They have created chaos and I am not prepared to listen to them for a moment longer.

Let us now focus on what the amendments in group 2 do. Extraordinarily, the Tories are even going to vote against those amendments. That is astonishing. They are going to vote against amendment 7, which was agreed among the parties to improve the bill in the light of concerns about scrutiny.

Amendment 7 allows ministers to take account of new circumstances and to propose what is in the best interests of the people of Scotland, but it gives the Parliament, quite clearly, a whip hand in making sure that that is done properly and proportionately.

Amendment 7 provides a clear steer on the use of the power—ministers “must have due regard” to the purpose stated in the amendment. It will be open to ministers to use the power in other ways to benefit Scotland, just as it will be open to ministers to use powers other than in section 1(1) to contribute to the purpose.

Mark Ruskell (Green, Mid Scotland and Fife)

Will the cabinet secretary give way?

Michael Russell (Scottish National Party, Argyll and Bute)

Of course.

Members

Oh!

Michael Russell (Scottish National Party, Argyll and Bute)

Well, you know.

Mark Ruskell (Green, Mid Scotland and Fife)

I was enjoying the flow of the cabinet secretary’s speech, so I thank him for giving way. Will environmental standards Scotland have a role in advising on the use of the section 1 power for environmental purposes?

Michael Russell (Scottish National Party, Argyll and Bute)

There will be no constraints on organisations of any sort in that regard. Indeed, when the Cabinet Secretary for Environment, Climate Change and Land Reform addresses the role of ESS later in the process, I am sure that she will provide information and reassurance to the member. However, I would never dare to trespass on her area of responsibility. I am not going to start doing that now, so, I will allow her to respond to that point.

To return to my area of responsibility, amendment 7 covers matters that members feel strongly about; members do not feel so strongly about other matters. The amendment does not preclude anyone or any organisation from having a say.

Amendments 22 and 23, which provide that we must also report on how we are meeting the purpose in section 1(1), will strengthen the bill.

I am sorry but, having tried to please Mr Ruskell, I now going to have to disappoint him. If the Parliament supports these amendments, amendment 19, in the name of Mark Ruskell, which we will come to later when we debate group 5, will not be necessary, given that the aim of that amendment will have been met.

I am obliged to Angela Constance for the time that she has afforded to getting this right over the past few weeks. I am very pleased that she is returning to Government. I have some experience of working with her and I know how talented she is. I am quite certain that the work that she has done on the bill will also be lasting testimony to the work that she has done when not in Government.

I ask the Parliament to support amendments 7, 22, 23 and 30. I ask the Conservatives to think of the will of the people of Scotland, not of their own selfish party interests.

The Presiding Officer

I call Tom Arthur to wind up, and to press or withdraw amendment 7.

Tom Arthur (Scottish National Party, Renfrewshire South)

I want to briefly thank Angela Constance again, as well as Liam McArthur, Alex Rowley, Patrick Harvie and the cabinet secretary for their constructive approach to the amendments.

It is disappointing but not surprising that the Conservatives are unable to support amendment 7, but I welcome the caveated commitment to supporting the consequential amendments, should amendment 7 be agreed to.

I will therefore press amendment 7.

The Presiding Officer

The question is, that amendment 7 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 90, Against 26, Abstentions 0.

Amendment 7 agreed to.

Section 2—Limitations on the section 1(1) power

Amendment 8 moved—[Michelle Ballantyne].

The Presiding Officer

The question is, that amendment 8 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

I

f any member has an issue with the voting system they should please let me know through a point of order. I advise Aileen Campbell that her vote was registered.

The Presiding Officer

The result of the division is: For 26, Against 87, Abstentions 0.

Amendment 8 disagreed to.

We turn to group 3, which is on the duration and commencement of the section 1(1) power. Amendment 45, in the name of Dean Lockhart, is grouped with amendments 46 and 42.

Dean Lockhart (Conservative, Mid Scotland and Fife)

Amendments 45 and 46, in my name, seek to restrict the duration of the section 1 keeping pace powers and are similar to amendments that were agreed to during the debate on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill a couple of years ago.

As currently drafted, the bill allows the keeping pace powers to be extended for a period of 10 years, that is, potentially not only beyond the next parliamentary session but beyond the next two, depending on when those powers were first exercised. Requiring such powers to last for a decade is yet another example of executive overreach in the bill.

In the future—certainly less than a decade from now—the Scottish Parliament should be able to reassess the legislation and consider whether it is still required and appropriate. It should be able to decide whether a more appropriate piece of successor legislation should be introduced. That is why Scottish Conservatives have suggested a maximum period of six years for the duration of the powers, to be divided into an initial period of three years, with a maximum extension of an additional three years.

I understand the rationale behind Michelle Ballantyne’s amendment 42, but imposing an arbitrary date for the use of the powers would not work in practice. Scottish Conservatives will therefore not support amendment 42.

I move amendment 45.

The Presiding Officer

Thank you, Mr Lockhart. Michelle Ballantyne will speak to amendment 42 and the other amendments in the group.

Michelle Ballantyne (Independent, South Scotland)

My intention was to limit the powers that the bill provides to the next two parliamentary terms. However, I do not intend to move amendment 42.

The Presiding Officer

Thank you, Ms Ballantyne. I call the cabinet secretary, Michael Russell.

Michael Russell (Scottish National Party, Argyll and Bute)

Amendments 45 and 46, in Dean Lockhart’s name, seek to alter the duration of the section 1(1) power, reducing the period during which the power to align would be available. Similar amendments were rejected at stage 2. The attempt to lower the initial duration of the power from six years to three and the overall potential duration from 10 years to six disregards agreements reached at stage 2. I feel that there was a broad consensus that, having listened to concerns about the bill’s initial sunset period, a sensible compromise was reached, through amendments lodged in my name. Section 3, as amended, will afford the incoming 2026 Parliament the opportunity, in its first year, to decide whether the power to align remains necessary. It will also ensure that the power is available throughout the 2021 session of Parliament. It will therefore provide a measure of stability, which is what is sought by introducing the power. I was pleased to see that in the stage 2 report, the Delegated Powers and Law Reform Committee welcomed those changes. The Government therefore cannot and will not support Dean Lockhart’s amendments 45 and 46 and I urge members to vote against them.

I am glad that Michelle Ballantyne will not move amendment 42, which is neither necessary nor practicable. It would remove flexibility and it takes no account of parliamentary dissolution, the pre-election period or the on-going disruption caused by the pandemic. If it is not moved, it need not bother us.

The Presiding Officer

I call Dean Lockhart to wind up and to press or withdraw amendment 45.

Dean Lockhart (Conservative, Mid Scotland and Fife)

During stage 2, at the Finance and Constitution Committee, the cabinet secretary made the point that these are exceptional powers, required in exceptional circumstances. In that context, it is not appropriate for these powers to last for a decade, so I will press amendment 45.

The Presiding Officer

The question is, that amendment 45 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a one-minute division. Members may alert me if they believe that there are any issues.

I can tell Aileen Campbell, Jackie Baillie and Kate Forbes

that their votes were registered, but Fulton MacGregor may wish to make a point of order.

Fulton MacGregor (Scottish National Party, Coatbridge and Chryston)

On a point of order, Presiding Officer. I had a problem accessing the vote. I would have voted no.

The Presiding Officer

Thank you, Mr MacGregor. I will make sure that your vote is added to the voting register.

Shirley-Anne Somerville (Scottish National Party, Dunfermline)

On a point of order, Presiding Officer. I am having technical difficulties today. On amendment 45, I would have voted no.

The Presiding Officer

Thank you, Ms Somerville. I will make sure that that is registered on the voting register.

Donald Cameron (Conservative, Highlands and Islands)

On a point of order, Presiding Officer. I had problems with connections. I would have voted yes.

The Presiding Officer

Thank you, Mr Cameron. Your vote will be added as a yes on the voting register.

I confirm to Clare Adamson that her vote was registered.

The Presiding Officer

The result of the division is: For 26, Against 89, Abstentions 0.

Amendment 45 disagreed to.

Amendment 46 moved—[Dean Lockhart].

The question is, that amendment 46 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a one-minute division.

The vote is now closed. I ask members to let me know through a point of order if they have any voting issues.

Neil Findlay (Labour, Lothian)

On a point of order, Presiding Officer. I had connection problems. I would have voted no.

The Presiding Officer

Thank you, Mr Findlay. I will make sure that that is added to the voting register.

The Presiding Officer

The result of the division is: For 26, Against 89, Abstentions 0.

Amendment 46 disagreed to.

Group 4 is on the scrutiny of regulations under section 1(1). Amendment 47, in the name of Dean Lockhart, is grouped with amendments 48, 9, 49 to 51 and 10.

Dean Lockhart (Conservative, Mid Scotland and Fife)

My amendments in the group seek to address the central and fundamental concern about the bill, which is that it seeks to transfer to the Scottish ministers unprecedented powers to legislate by way of secondary legislation. The Finance and Constitution Committee referred to those powers as substantial Henry VIII powers, and it heard evidence that the breadth of the provisions in the bill is not justified.

When it comes to parliamentary and stakeholder scrutiny of the powers, the Law Society of Scotland rightly pointed out that the bill

“only offers a choice between affirmative and negative resolution procedures”,

neither of which is appropriate for the implementation of significant new policies or significant changes in Scots law, with the negative procedure being the default position.

My amendments 47 to 51 seek to introduce additional parliamentary and stakeholder scrutiny of the keeping pace powers in very limited circumstances, when a relevant committee of the Parliament considers that appropriate. Amendment 47 seeks to introduce a sifting mechanism that would apply only when the Scottish ministers proposed an instrument that

“reflects a significant change in EU law or policy ... would constitute a significant change to Scots law, or ... would constitute a significant change in the policy of the Scottish Ministers”.

In those very limited circumstances, the relevant committee of the Parliament would have the right to propose that a higher level of scrutiny be applied to the proposed changes, including the use of the affirmative or super-affirmative procedure, or to decide that such significant changes should not be made by regulation.

Amendment 48 sets out the additional scrutiny that would be required in the event that the committee decided that the super-affirmative procedure should apply, and it includes requirements whereby the Scottish ministers would have to publish impact assessments and undertake stakeholder consultation, all of which the Parliament could and should reasonably expect when a significant change of policy or a significant change in Scots law is being proposed.

Amendments 49, 50 and 51 are complementary in nature and reflect concerns that the Law Society of Scotland has raised since the bill’s introduction. In its submission, the Law Society said that

“the normal rule must be that”

the exercise of the keeping pace power

“is subject to affirmative procedure ... except in minor cases”.

That is not the case in the bill as it is currently drafted. We have reflected the Law Society’s concerns by seeking to apply the affirmative procedure not in all cases but in very limited circumstances in which instruments are proposed by the Scottish ministers that would require a significant change in EU law or policy, a significant change to Scots law or a significant change in the policy of the Scottish ministers.

The Parliament recently held a very important debate on the scrutiny of the powers that it will have in a post-Brexit environment. The overwhelming feedback from parliamentary committees was that more scrutiny powers will be required. If the amendments in my name are not accepted, it will be possible for significant changes of policy and significant changes to Scots law to be introduced by the Scottish ministers without any meaningful parliamentary or stakeholder scrutiny.

We will support Michelle Ballantyne’s amendments 9 and 10 in this group. Although they overlap with my amendments, they cover similar concerns about a lack of scrutiny.

I move amendment 47.

Michelle Ballantyne (Independent, South Scotland)

Mr Lockhart has covered very well the issues that my amendments try to cover. It is wrong to think that everybody out there who is doing business and living their lives is watching every move that is made in this Parliament. Scottish statutory instruments are passed on a daily basis when the Parliament sits, and sometimes even members do not really know what they are voting for. If we are to pass a bill that retains EU law, it is absolutely imperative that we have safeguards that enable people to understand what is being passed by the Parliament. Changes should not slip through without businesses and people who will be affected by them being aware that they are happening.

Therefore, my amendment 10 seeks to require the Government to lay before Parliament an explanation of what is to happen. It also provides for consultation rights, so that people who would be affected by the laws in question would have a chance to feed in and say how they would be affected, as well as what we as a Parliament should be concerned about and should be thinking about. I think that that is only reasonable, and it is an appropriate level of scrutiny.

In my amendment 9, I have not been too officious in relation to the number of days. I have allowed some flexibility with the 40 days. Where it fits in—it is tied to amendment 10—is that it would require the super-affirmative procedure to be used when a new policy was being introduced and there was no current equivalent in EU retained law. I think that that is really important from a scrutiny point of view. We will not be doing right by the people of Scotland or businesses in Scotland if we do not ensure that that happens.

Patrick Harvie (Green, Glasgow)

Some of the amendments in the group relate to concerns that were widely shared and that I reflected on at stages 1 and 2, particularly in relation to a possible sifting mechanism. However, it was in the context of a bill that was fundamentally weaker than the one that we are going to pass that I made those arguments. We now have agreement on how to reflect the purpose of the bill and the powers in it, as well as a much stronger framework for the publication and approval by the Parliament of a policy statement and stronger reporting requirements. That context having changed, I no longer see the need for the amendments in the group, so I will not support them.

Elizabeth Smith (Conservative, Mid Scotland and Fife)

On amendment 47, which was lodged by my colleague Dean Lockhart, I think that it is important to emphasise the exchanges at the Finance and Constitution Committee on 26 August, when Professor Aileen McHarg of the University of Dundee and Professor Michael Keating of the University of Aberdeen both expressed their concerns that, between the original bill and the current bill, the default position changed from use of the affirmative procedure to use of the negative procedure.

I raised that issue with Graeme Dey during parliamentary questions on 16 September, and, although he acknowledged the concerns, he said that he felt that the Scottish Government had

“an appropriate, proportionate, workable and effective solution.”—[

Official Report

, 16 September 2020; c 14.]

However, he could not substantiate that opinion when it came to explaining why the default position had changed from use of the affirmative procedure to use of the negative procedure. In relation to ensuring that there is effective parliamentary scrutiny in situations of EU policy changes or legal changes, that matter continues to concern me, and I think that it should concern all members as we consider the current group of amendments.

Michael Russell (Scottish National Party, Argyll and Bute)

I will address that point from Liz Smith head-on at the start of my remarks on the group. The Finance and Constitution Committee made those remarks in the light of its stage 1 consideration of the bill. At stage 2, there were further discussions about what the appropriate powers would be. As a result of that, there were extensive negotiations with the parties that were concerned about the matter and had lodged stage 2 amendments, in order that we should get the right solution. That is what the parties that were involved believe that we have, as Patrick Harvie made clear.

To quote a stage 1 criticism of a bill that has changed at stages 2 and 3 does not appear to me to be entirely relevant. What is relevant here—I want to call a spade a spade—is that the Tories do not wish to have the bill. We know that from the passing of the first continuity bill, when they changed the law at Westminster to prevent the will of this Parliament being fulfilled. Now they do not want the second bill, but they are being a little bit more subtle in going against it. There have been partial quotes from past discussions on the bill and partial quotes from people who have given evidence, and all of that comes together to present the Tories as the champions of scrutiny in this Parliament.

Unfortunately, I have to make it plain that that is not the case. The reality of the situation is that, when there were problems with the bill—as there were—the Government accepted them and discussions took place to try to deal with them.

Dean Lockhart (Conservative, Mid Scotland and Fife)

I highlight again the direct quote from the Law Society of Scotland, which said that

“the normal rule must be that”

the exercise of the power

“is subject to affirmative procedure ... except in minor cases”.

The legislation that the cabinet secretary is bringing forward does exactly the opposite. Does he not recognise the concern that the Law Society of Scotland expressed?

Michael Russell (Scottish National Party, Argyll and Bute)

The member is misrepresenting the case. The power is not going to be used in a vast number of hugely significant cases, and, when there are significant cases, the bill now addresses those very clearly. Indeed, the arch critic of the approach in the chamber was Mike Rumbles, and I am pleased to say that we have lodged an amendment that he regards as acceptable, which will guard against the problems that the member has raised.

Everybody is content with the bill except the Conservatives. Why would that be? It would be either because the Conservatives are and always have been stalwart champions of Scottish democracy or because they have become, to a man and woman—even to a man and a departed woman such as Michelle Ballantyne, who is up in the gallery—staunch Brexiteers. Staunch Brexiteers do not like the reality of trying to remain close to Europe.

I notice that Ruth Davidson is scowling at me about that. Ruth Davidson is a person who wished to be in the single market and the customs union—

The Presiding Officer

Mr Russell, I think that we will stick to the bill and the amendments rather than anything else.

Michael Russell (Scottish National Party, Argyll and Bute)

Of course, Presiding Officer. Let me attend to the bill, as long as members are not scowling at me any longer.

Each amendment in the group is unnecessary, unwieldy and unhelpful. Dean Lockhart’s amendments provide for a sifting mechanism and a super-affirmative procedure that are no less cumbersome and onerous than those that were proposed in the similar stage 2 amendments.

Although amendment 47 contains some technical deficiencies, it is because of the unacceptable burden on the use of the power that members should object to it. There appear to be no exceptions to the arduous procedure that is provided for, which is a mechanism that the DPLRC considers it would be “disproportionate to apply”. There is the reality of a recommendation.

The super-affirmative process that is to be provided for by amendment 48 takes no heed of the debate at stage 2. Given the significant amendments in Liam McArthur’s name in the next group, which the Government intends to support, the weighty burden represented by amendments 47 and 48 simply cannot be supported.

Michelle Ballantyne’s amendments 9 and 10 open the door not only to uncertainty but to speculative legal challenge, as do Dean Lockhart’s amendments 49 to 51. It is surprising that, at stage 3, we are still having to debate the unsatisfactory use of terms such as “significant” in these types of amendments, which will quite clearly mean different things to different people, as is acknowledged—[

Interruption.

] No. That is acknowledged by the DPLRC in its stage 2 report, which was published on 11 December.

As I said, a group of members from across the chamber came together to work constructively and collaboratively on amendments that encompass the purpose, consultation, policy statement and reporting. They have done the hard work on the bill, and they have changed it, following the objections that were made at stage 1, into a bill that they wish to support.

I ask members to reject the burdensome, technically deficient and, frankly, wrecking amendments in the group and instead support the later amendments in the names of Angela Constance and Liam McArthur, as well as the amendments in my name, which provide for some necessary tidying up as a result.

Dean Lockhart (Conservative, Mid Scotland and Fife)

The cabinet secretary’s main line of argument against the amendments in this group is that the additional reporting requirement and the requirements to set out a policy statement will be sufficient to allow Parliament and stakeholders to scrutinise the use of the powers. I fundamentally disagree, as do the Law Society of Scotland, NFU Scotland and other stakeholders.

Reporting requirements do not give Parliament or stakeholders any real powers of scrutiny when significant changes such as the ones that I described are being introduced. Reporting requirements mean only that the Parliament has a passive role in receiving updates from the Scottish ministers instead of being able to demand proper levels of scrutiny, impact assessments and stakeholder feedback. As a result of the legislation, stakeholders will have no opportunity to provide meaningful input into significant new laws and policies that are being introduced by the Scottish ministers.

For those reasons, I will press my amendments 47 to 51.

The Presiding Officer

The question is, that amendment 47 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The vote is now closed. I ask members to alert me if they have had any difficulties in voting.

Kenneth Gibson (Scottish National Party, Cunninghame North)

I would have voted no, but I was unable to access the platform.

The Presiding Officer

Mr Gibson would have voted no. I will make sure that that is added to the voting roll.

Mike Rumbles (Liberal Democrat, North East Scotland)

My phone would not let me vote. I would have voted against.

The Presiding Officer

You would have voted no. I will make sure that your vote is added to the voting roll.

I can tell Aileen Campbell that her vote was registered.

The Presiding Officer

The result of the division is: For 27, Against 90, Abstentions 0.

Amendment 47 disagreed to.

Amendment 48 moved—[Dean Lockhart].

The question is, that amendment 48 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 27, Against 89, Abstentions 0.

Amendment 48 disagreed to.

Section 4—Scrutiny of regulations under section 1(1)

Amendment 9 moved—[Michelle Ballantyne].

The Presiding Officer

The question is, that amendment 9 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The vote is now closed. Please let me know if you had any difficulties in voting.

Ivan McKee (Scottish National Party, Glasgow Provan)

On a point of order, Presiding Officer. My voting app did not connect.

The Presiding Officer

Thank you, Mr McKee. I did not recognise you under the light there. Mr McKee would have voted no. That vote will be added to the voting register.

Ben Macpherson (Scottish National Party, Edinburgh Northern and Leith)

On a point of order, Presiding Officer. Likewise, it did not come up on the app for me to vote. I would have voted no.

The Presiding Officer

Mr Macpherson’s vote will be added to the register. Mr Macpherson would have voted no.

George Adam (Scottish National Party, Paisley)

On a point of order, Presiding Officer. I continually had an error message. I would have voted no.

The Presiding Officer

Your vote will be added to the register. You would have voted no.

Alex Neil (Scottish National Party, Airdrie and Shotts)

On a point of order, Presiding Officer. My app would not allow me to vote either. I would have voted no.

The Presiding Officer

Your vote will be added to the register. You would have voted no.

Shirley-Anne Somerville and Margaret Mitchell, your votes were registered. There is no need to make a point of order.

The Presiding Officer

The result of the division is: For 27, Against 91, Abstentions 0.

Amendment 9 disagreed to.

Amendment 49 moved—[Dean Lockhart].

The question is, that amendment 49 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The vote is now closed. If any member had any difficulty, I ask them to please let me know.

Miles Briggs (Conservative, Lothian)

On a point of order, Presiding Officer. I would have voted yes.

The Presiding Officer

I will make sure that your vote is added. You would have voted yes.

Fiona Hyslop (Scottish National Party, Linlithgow)

On a point of order, Presiding Officer. I would have voted no if I could have voted.

The Presiding Officer

Your vote will now be added to the register. You voted no, Ms Hyslop.

Bill Bowman (Conservative, North East Scotland)

On a point of order, Presiding Officer. I would have voted yes.

The Presiding Officer

You would have voted yes and that will be added to the register.

The Presiding Officer

The result of the division is: For 27, Against 91, Abstentions 0.

Amendment 49 disagreed to.

Amendment 50 moved—[Dean Lockhart].

The question is, that amendment 50 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division. It will be a one-minute division.

The vote is now closed. If any members had any difficulty in exercising their vote, I ask them to please let me know.

Fiona Hyslop (Scottish National Party, Linlithgow)

On a point of order, Presiding Officer. I would have voted no if I had access to the app.

The Presiding Officer

I will make sure that your voted is added. You voted no.

Roseanna Cunningham (Scottish National Party, Perthshire South and Kinross-shire)

On a point of order, Presiding Officer. My screen has not cleared, so I am not sure whether my vote is recorded.

The Presiding Officer

Your vote is recorded, you can be reassured.

Kevin Stewart (Scottish National Party, Aberdeen Central)

On a point of order, Presiding Officer. Like Ms Cunningham, my screen has not cleared on this occasion. I would have voted no.

The Presiding Officer

In this case, I assure you that your vote has been recorded, Mr Stewart.

Oliver Mundell (Conservative, Dumfriesshire)

On a point of order, Presiding Officer. My screen has refreshed and it says that I have not voted—I would have voted yes.

The Presiding Officer

Your vote will be added. You voted yes.

Paul Wheelhouse (Scottish National Party, South Scotland)

On a point of order, Presiding Officer. I have a message saying that there has been a problem with the digital voting connection. I would have voted no.

The Presiding Officer

I assure you that your vote registered.

Angela Constance (Scottish National Party, Almond Valley)

On a point of order, Presiding Officer. I had the same problem as Mr Wheelhouse, as a message came up about my digital voting connection. I would have voted no.

The Presiding Officer

I assure Ms Constance that her vote was counted. I can also tell Jamie Hepburn that his vote was registered.

The Presiding Officer

The result of the division is: For 26, Against 91, Abstentions 0.

Amendment

50 disagreed to.

Amendment 51 moved—[Dean Lockhart].

The question is, that amendment 51 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a one-minute division.

The vote is now closed. If any member thinks that they were not able to cast their vote, please let me know. Give it a second, and then let me know.

Gil Paterson (Scottish National Party, Clydebank and Milngavie)

On a point of order, Presiding Officer. The screen on my phone did not renew, but I would have voted no.

The Presiding Officer

Your vote will be added to the register.

Fiona Hyslop (Scottish National Party, Linlithgow)

On a point of order, Presiding Officer. I would have voted no.

The Presiding Officer

Your vote will also be added to the register. Fiona Hyslop and Gil Paterson both voted no. I can assure Mr Briggs that he voted.

The Presiding Officer

The result of the division is: For 27, Against 91, Abstentions 0.

Amendment 51

disagreed

to.

After section 4

Amendment 10 moved—[Michelle Ballantyne].

The Presiding Officer

The question is, that amendment 10 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a one-minute division.

The vote is now closed. I ask members to let me know if they had any difficulty in voting.

Alex Rowley (Labour, Mid Scotland and Fife)

On a point of order, Presiding Officer. I was not able to vote using the app, but I would have voted no.

The Presiding Officer

That vote will be added to the register.

Gil Paterson (Scottish National Party, Clydebank and Milngavie)

On a point of order, Presiding Officer. I am not entirely sure that I was able to vote. My screen had frozen, so I went back to basics and refreshed, but I do not know whether I made it in time. I would have voted no.

The Presiding Officer

I have been told that your vote was registered, Mr Paterson. I can also assure you that your vote was registered, Mr Hepburn.

The Presiding Officer

The result of the division is: For 28, Against 90, Abstentions 0.

Amendment 10

disagreed

to.

Group 5 is on the policy statement and reports on the section 1(1) power. Amendment 12, in the name of Liam McArthur, is grouped with amendments 13, 52, 15 to 21, 24 to 29, 31, 32, and 53.

Liam McArthur (Liberal Democrat, Orkney Islands)

There are many amendments in the group, so I apologise if it takes a bit of time to walk through them.

The purpose of my amendments is to increase transparency in use of section 1(1) powers and to strengthen the role of the Scottish Parliament in that process. That reflects an amendment that I lodged at stage 2 and a concern that was highlighted by various members

about powers that the bill will vest in ministers to keep pace with EU legislation and standards.

There is strong cross-party agreement that such significant powers need to be accompanied by robust mechanisms for ensuring that they are used responsibly and that ministers are properly accountable for their decisions. That cross-party recognition of the need for a better balance to be struck is important. I am very grateful to Angela Constance, Patrick Harvie and Alex Rowley, as well as the cabinet secretary, for working with me following stage 2 to develop a way to address those concerns.

To that end, the amendments in my name in the group offer a suite of changes that would strengthen the requirements for Scottish ministers to openly and publicly account for how they use the powers, and would provide a greater role for the Scottish Parliament in that process.

Section 4A of the bill requires Scottish ministers to publish a statement of their policy on the factors that are to be taken into account when considering whether to use the power to align. Amendments 12 and 13 would add to the required content of that policy statement so that ministers would also have to set out the approach that they intend to take and the process that they will follow in deciding whether to use the power to align. That would mean that ministers would have to set out their approach to important matters such as consultation of stakeholders, and that the policy statement would therefore act as the transparent guiding framework within which ministers would use the power.

Amendment 18 would give the Parliament a significant role in development of that policy statement. First, it would require that ministers lay the statement in draft form for at least 28 days, and that they

“have regard to any representations”

made about that draft during that period. Secondly, ministers must thereafter lay a copy of the statement for approval by the Parliament, accompanied by an explanation of how ministers

“have had regard to any representations”.

It allows that within 28 days of its being laid, the Parliament can resolve that the statement not be approved. If that were to be the case, the Government would be prevented from publishing the statement and would instead have to lay a revised version for approval.

Although the expectation is, of course, that ministers will use the power in accordance with the terms of the policy statement, I recognise that there might be circumstances—I hope, very rarely—in which it is judged necessary to use the power either before a policy statement is approved and published, or in some way that is not in accordance with the policy statement. My amendments do not seek to prevent the Government from acting in such a way, but amendment 21 would require it to account for its actions by making a statement explaining why it considers there to be good reasons for doing so.

Amendment 15 would require that when the Government has felt it necessary to act other than in accordance with the policy statement, it must review the policy statement. That point was made by Patrick Harvie.

Similarly, amendment 32 is concerned with the Parliament’s ability to have its say on how the Government plans to align with EU law. It would require that the Government’s report setting out its intended uses of the power be laid before the Parliament in draft form before it is finalised, and that the report be laid in draft form within two months of the end of the previous reporting period.

Amendment 31 is consequential and would delete the earlier timing requirement. That would give the Parliament an opportunity to express its views on the intentions, and it would provide an important extra layer of scrutiny and oversight. The amendment would require ministers to have regard to those views before finalising the report and, furthermore, to set out how they have done so when they finalise the report.

Amendment 32 also deals with the circumstances in which the Parliament might feel that primary legislation is a more appropriate vehicle than regulations. That issue has been of particular interest to a number of MSPs, particularly my colleague Mike Rumbles, who has been working with the cabinet secretary to introduce further safeguards in that respect. That is very welcome.

My amendments represent a genuinely collaborative effort—cross-party and between the Parliament and the Government—for which I am very grateful. I believe that they would put in place a workable solution that would provide transparency and accountability, and would provide public confidence in the process of ensuring that Scotland continues to keep pace with the highest environmental standards and protections.

I move amendment 12.

Michelle Ballantyne (Independent, South Scotland)

In the light of the amendments that Liam McArthur has lodged and his explanation of them, I intend not to move amendments 52 and 17, because they overlap with head (1) of amendment 18.

However, I will move amendment 16, because it would strengthen the way in which the statement was laid. The amendment would require slightly stronger approval of the statement when it comes to the Parliament.

I have lodged amendment 20 because it is important that we understand the implications of regulations that are introduced, particularly the social benefits that might result and the costs that might be incurred as a result of having to implement them. I would like the Government to explain what alternative approaches that have been considered that could deliver the same or more ambitious outcomes for the people of Scotland. It is not necessarily the EU that can define the best ways to do things; Scotland can do that for itself.

Amendment 26, which I will move, would require that the report identify the parliamentary procedure that ministers expect to apply.

Mark Ruskell (Green, Mid Scotland and Fife)

I welcome Liam McArthur’s work on the matter and the strong cross-party agreement behind his amendments.

I will briefly explain why I have lodged amendment 19. It is disappointing that the European principle of animal sentience has not been included in the bill. At stage 2, I moved amendments to part 2 of the bill seeking to retain that principle, but they were defeated, with the Government returning to the argument that animal welfare laws from more than 100 years ago are somehow still sufficient.

One year ago, Roseanna Cunningham told the Environment, Climate Change and Land Reform Committee that the Scottish Animal Welfare Commission was considering the principle further. However, as yet there has been no conclusion to that work and no report from it. There is a lack of clarity as to whether Liam McArthur’s amendments would actually deliver that detailed consideration by a specific date.

Amendment 19 is a belt-and-braces amendment: it acknowledges that the Government wants more time to consider definitions of animal sentience, but would also require it to consult and report to the Parliament within one year.

The Presiding Officer

I call the cabinet secretary, Mr Russell, to speak to amendment 24 and the other amendments in group 5.

Michael Russell (Scottish National Party, Argyll and Bute)

This is the lengthiest group that applies to the part of the bill for which I am responsible, and covers the policy statement, reporting and explanatory statements.

With respect to the amendments on the policy statement, I am grateful to Liam McArthur for the constructive way in which he has approached developing his amendments, and am happy to support them. Strong will from the Parliament will be needed, because the policy statement will be the key document that will guide and define how ministers approach use of the power.

Taken together, Liam McArthur’s amendments will do the following. First, they will require that the policy statement contains detail of the approach that ministers intend to follow in deciding whether to use the power. That will enable the Government—as part of the policy statement—to set out the approach that it intends to take to consultation.

Secondly, the amendments set out the process that must be undertaken to consult the Parliament on, and seek its approval for, the draft policy statement. If the Parliament is unhappy with what the Government says on consultation, or anything else, it could resolve not to approve the policy statement.

Thirdly, the amendments will require ministers to make an explanatory statement accompanying regulations that are made in advance of the policy statement being agreed, and which are not in accordance with the policy statement. That statement will explain why that is considered necessary and would bring the issue to the Parliament’s attention for appropriate scrutiny, but would not prevent the Government from acting, when necessary.

Liam McArthur’s amendments will achieve more clearly and in a more rounded and balanced way what Michelle Ballantyne’s amendments 52, 16 and 17 seek to do. Amendment 52 would require ministers to publish an additional statement, but there is no express provision allowing that additional statement to be revised.

Amendment 17 would require ministers to lay draft statements, but amendment 18 achieves that in a clearer and more comprehensive way.

Amendment 16 seeks to make it clear that ministers cannot use the power to align until statements have been approved. There are some severe technical deficiencies with the amendment. It is unclear, for example, how it will relate to section 4A(3), which provides that

“It is not necessary for a policy statement to have been published ... before the power under section 1(1) may be used.”

However, more fundamentally, unlike Liam McArthur’s amendment 21, amendment 16 fails to recognise that a situation might arise in which it is in Scotland’s best interests to use the power. Michelle Ballantyne has said that she intends to press the amendment; I think that it represents the worst of all worlds.

I turn to reporting. Section 7 requires ministers to report on use of the power. Voting on amendments at stage 2 produced a rather confused set of provisions. Amendments 24, 25, 27, 28 and 29, which are in my name, will in essence tidy up the bill and address those anomalies.

Amendment 24 will remove an overlapping duty on ministers to report on intended uses of the power.

Amendment 25 will remove some unnecessary wording.

Amendment 27 will omit the duty on ministers to lay a first report setting out intended use of the power within two months of that power taking effect. That will avoid clashes with the Scottish Parliament elections.

Amendment 28 will tidy up the definition of “first reporting period”.

Amendment 29 will alter the reporting requirements so that they are in a yearly rhythm, which is in step with the European Commission’s annual work programme.

I am happy to support Liam McArthur’s amendment 32 and consequential amendment 31. Amendment 32 will strengthen the Parliament’s role in relation to how the Government intends to use the power to align with EU law, and makes specific provision in relation to circumstances in which people might feel that primary legislation is more appropriate.

Mike Rumbles and others have expressed their views on that point. Indeed, Mike Rumbles had objections to the first continuity bill as well as specific objections on the point in this bill. I thank him for the discussion that we have had, and am happy to confirm to him that amendment 32 addresses his concerns, as he has acknowledged. It will allow the Parliament the opportunity to set out a clear view that certain matters should not be the subject of secondary legislation, and will force the Government to have regard to those views and respond specifically to them. It will not—because it would not be appropriate to do so—force any Government to create primary legislation. However, it will remain open to the Parliament to annul or not to approve secondary legislation if it does not agree with it, and to create its own primary legislation when it feels that that is right.

There has always been a role for primary legislation in the bill—particularly in areas of major innovation in which I would not expect the Government to create secondary legislation. I am very happy to confirm that through my support for amendment 32. I hope that the Parliament will agree.

As I come to an end, I want to thank Patrick Harvie, Liam McArthur, Alex Rowley, Angela Constance and Mike Rumbles, in particular, for engaging in a pragmatic way to take the issues forward.

I cannot support amendment 53 in the name of Dean Lockhart. It would introduce—as many of his amendments would—an unhelpful procedure that would tie the Government up in endless rounds of reporting, and would essentially stymie effective use of the power. Amendment 53 is unnecessary, because Angela Constance’s amendments 22 and 23 will require ministers to report on how past and future uses of the power contribute to achieving the purpose that is set out in amendment 7. Ministers will have to report on any uses of the power that have been under active consideration but have not been implemented.

Liam McArthur’s amendments 15 and 21 will require that if ministers bring forward legislation that is not in accordance with the policy statement, they must not only make a statement explaining why they have done so but must review the policy statement itself. That, too, makes amendment 53 unnecessary.

Amendment 26, in the name of Michelle Ballantyne, would require ministers to report on which parliamentary procedures should apply. It would, in some cases, be premature for the Government to indicate which procedure would be most appropriate, because a particular measure might be at an early stage of development. The report will be an anticipatory report: for that reason it would not be appropriate to require that that information be included in the report.

Michelle Ballantyne’s amendment 20 duplicates something that the bill already requires, which is that when ministers use the power, they must make a statement explaining the instrument, saying why there are good reasons for it, saying what the law was previously and explaining the effect on retained EU law. They must also make statements on the effect of the instrument on equality legislation, human rights, employment and health and safety. Ministers must explain the financial implications of the instrument and must say whether there has been a consultation.

There is vast crossover between the terms of amendment 20 and what we have already agreed in our consideration of whether alternative approaches could deliver equivalent outcomes. That is exactly the sort of issue that will be addressed in the Scottish ministers’ policy statement, which will, if Liam McArthur’s amendment 18 is agreed to, have to be approved by the Parliament.

Amendment 19, in the name of Mark Ruskell, deals with animal sentience. Some people hold to a misunderstanding that all species of animals are sentient beings. That seems to have led to some confusion as to what it means to implement the sentience principle.

Whether a particular animal is sentient is a matter of scientific fact and evidence, not of principle. It is widely accepted that vertebrates such as mammals, fish, reptiles and birds are sentient, but that that is not true for the majority of invertebrates. The sentience principle is an obligation to have regard to the welfare needs of sentient animals when we develop policy and legislation. Amendment 19 is not necessary for us to do that.

As I said when I supported Angela Constance’s amendment 7, that amendment will require the Government to have due regard to the purpose, which is—among other things—to

“contribute towards maintaining and advancing standards”

of animal health and welfare when the power is used to align with EU law.

Angela Constance’s amendments 22 and 23 will require ministers to report, in each reporting period, on how use of section 1(1) has contributed or continues to contribute, or is expected to contribute, to achieving the purpose that is provided for by amendment 7. The amendment does not impinge on the generality of the power, whereas amendment 19 would. Amendment 19 attempts to imply that this one matter is more important than all the others in relation to which the power to align can be used.

Nonetheless, I appreciate amendment 19 and say to Mark Ruskell that the Scottish Government will consider, and report on, how section the 1(1) power can be used to maintain and advance welfare standards for sentient animals. Therefore, considering what amendments 7, 22 and 23 will achieve, and the fact that the Scottish Animal Welfare Commission has a remit to report annually on how the welfare of sentient animals has been addressed, I urge the member not to press amendment 19.

I ask members to support the amendments in my name and I commend Liam McArthur’s amendments. I am grateful to the members who have worked hard to come together in supporting the amendments and I ask Mark Ruskell, Michelle Ballantyne and Dean Lockhart not to move the amendments in their names.

Dean Lockhart (Conservative, Mid Scotland and Fife)

Amendment 53 would introduce a reporting requirement in limited circumstances where the Scottish ministers decided not to exercise the keeping pace powers. The amendment goes beyond the others in this group and would give the relevant parliamentary committee the power to request a report by the Scottish ministers on the non-use of those powers, but only if the committee considered that a significant change in EU law or policy had not been followed. The reasoning behind the amendment is that it would provide the Parliament and stakeholders with a better understanding of where and why Scots law is aligned—or not aligned, as the case may be—with future EU law.

With regard to the other amendments in the group, we will support Liam McArthur’s amendments and Michelle Ballantyne’s amendments 16, 20 and 26, but not amendment 17. We are unable to support the cabinet secretary’s amendments in the group as, in large part, they seek to reduce the reporting requirements that were agreed at stage 2.

Mike Rumbles (Liberal Democrat, North East Scotland)

I support anything that allows Scotland to trade more easily with our neighbours, and that includes this bill. However, I was genuinely concerned that the bill as drafted, and before any amendment at stage 3, allowed the Government to use regulations for keeping pace powers when, for major change, it should use primary legislation. As we all know, regulations cannot be amended, so that would make it difficult in the Scottish Parliament to do anything else. I lodged amendments at stage 2 to prevent that from happening, but I did not press them. I was particularly taken by Alex Rowley’s comment at stage 2 that he thought that I had gone a bit too far; I recognised that.

I want to give credit where credit is due, and I give that credit to Mike Russell, the cabinet secretary. He has worked really well with everybody, including me, to reach a consensus on the very important issue of the power of the Parliament vis-à-vis the power of the executive. Over the years, it has been my experience that executives or Governments of any party tend to want to use regulations quite extensively, when other arrangements might be more appropriate.

The cabinet secretary engaged with me and other colleagues. As a result, subsection (6) of the new section that amendment 32, in Liam McArthur’s name, would insert, really tackles the issue. It ensures that if the Parliament feels that changes should be made by primary legislation, it can say so formally to the Scottish Government, and the Scottish Government must respond to that statement. Mike Russell is quite right that no Parliament can force a Government to introduce primary legislation on something. However, if the Parliament spoke and said that the Government should do that, I would be very surprised if any Government turned around and said to the Parliament that it would not and would instead proceed with laying regulations.

The provision in amendment 32 is a pragmatic and very good compromise. It achieves the objectives, and I have not seen a better example of everybody working together to do that. I want to compliment the cabinet secretary on his willingness to reach agreement across the board.

Christine Grahame (Scottish National Party, Midlothian South, Tweeddale and Lauderdale)

I very much support the sentiments behind Mark Ruskell’s amendment 19. He will accept my view on the principle of animal sentience.

The cabinet secretary has pre-empted, as he is definitely entitled to do, much of what I wanted to say, which will make this a shorter contribution. The difficulty with Mark Ruskell’s amendment is that this is not the place for it. In the proposed new section, “Purpose of maintaining and advancing standards”, which Ms Constance’s amendment 7, would insert, there are five different sectors to be dealt with—“environmental protection”, “animal health and welfare”, “plant health”, “equality” and “social protection”—all of which must be reported on, but Mr Ruskell is seeking a special report on animal sentience, which I do not think is appropriate in this bill, although it might be appropriate elsewhere.

Amendment 7 would also require ministers to

“have due regard to the purpose”—

that is, animal welfare, which is significant. Also, amendments 22 and 23 require ministers to report.

Mr Ruskell’s approach would require a stand-alone consultation—although he does not say who is to be consulted or how it is to be gone about—on animal sentience alone. I do not think that that is appropriate.

Finally, as the cabinet secretary mentioned, the Scottish Animal Welfare Commission has a role to play. It is early days for the commission—it was established only in September 2019. I have looked at its minutes. Its previous meeting was in December 2020, and I see that it has joined the European Forum for Animal Welfare Councils. One of the commission’s objectives is to consider the welfare of sentient animals. I think that we should give it time to breathe and report. Its duty is, of course, to look at how devolved policy is meeting the welfare of such animals. I note that Mr Ruskell said that amendment 19 is “belt and braces”. I do not think that we need that.

The Presiding Officer

I call Liam McArthur to wind up, and to press or withdraw amendment 12.

Liam McArthur (Liberal Democrat, Orkney Islands)

I am always willing to take Christine Grahame’s advice on the wearing of belts and braces.

I thank all those who have contributed to the debate on this group. First of all, I offer an apology to Michelle Ballantyne, Dean Lockhart and Mark Ruskell for not addressing their amendments in my opening remarks—I hope that they will appreciate that I had quite a bit of ground to cover.

I welcome Michelle Ballantyne’s comments when she talked about not moving a number of her amendments. However, we cannot support those that she has indicated that she will move, for many of the reasons that the cabinet secretary has outlined, not least because they duplicate the amendments in my name or are unnecessary because of my amendments, which I hope will be agreed to.

On Mark Ruskell’s amendment 19, I very much find myself in the same place as Christine Grahame—that is, I am sympathetic to the principle underlying it. However, for the reasons set out by the cabinet secretary and echoed by Christine Grahame, we cannot support it.

I am grateful to a number of members, particularly Patrick Harvie, Angela Constance and Alex Rowley, for their help and support in progressing the amendments, but I am especially grateful to the cabinet secretary for the way in which has engaged with me. As he said, the amendments are about improving transparency and accountability and underpinning the Parliament’s legitimate scrutiny and oversight functions in relation to the significant powers that the bill will invest in ministers. That is right and proper.

It has been a genuinely collaborative, cross-party effort between the Parliament and the Government. It is a signal of the festive season of goodwill to all men and women that we find Mike Russell and Mike Rumbles in unison on the bill. There is no finer way to end my contribution than that.

I press amendment 12.

Amendment 12 agreed to.

Amendment 13 moved—[Liam McArthur]—and agreed to.

Amendment 52 not moved.

Amendment 15 moved—[Liam McArthur]—and agreed to.

Amendment 16 moved—[Michelle Ballantyne.]