���˿���

Thank you. Professor de Londras’s suggestion is also pragmatic. Mr Fraser will probably know that, in parliamentary questions last week, Dr Gulhane made a suggestion to me in relation to this area. There is scope for us to explore how to satisfy legitimate parliamentary concern on being persuaded of the merits of a particular action by the production of, for example, a statement of urgency to justify actions, as Professor de Londras suggests. I am open to discussing how we can properly address that point.

I want the statute book to be equipped with powers that enable us to act swiftly but, in acting swiftly, we also have to act appropriately. If there are other ways to strengthen the provisions of the bill to address those issues, I am open to using them.

As Mr Rowley will have heard from my responses to Mr Fraser’s points, I am willing to discuss with members of the Parliament of all shades of opinion how we can address any issues that are causing concern. I rehearsed with Mr Fraser the issues around what might be put on the record in relation to the justification for the use of any of the powers in advance. I hope that that is interpreted as a welcome and positive step in that respect.

On the wider point that Mr Rowley raises with me about particular powers, I would make the point that they can only be exercised in relation to a specific and significant risk to public health. It cannot happen any day of the week; it can only happen where there is a significant risk to public health. That is trigger point number 1: there must be a justifiable case.

Secondly, if ministers were to utilise those powers, they would have to come to Parliament to exercise them, either through the affirmative process, whereby Parliament itself would be able to judge whether they were required or not, or through the made affirmative process, whereby Parliament gives its consent once the Government has taken its actions, although that is conditional on the Government taking those steps and Parliament giving its consent. Therefore, there are a number of safeguards on the exercise of any of those responsibilities.

I hope that that provides some reassurance to Mr Rowley. However, I reiterate what I said to him at the start of my answer: that I am happy to engage with other parties. As I have said, I will consider and engage with the recommendations that the Delegated Powers and Law Reform Committee made. I do not want to pre-empt what the COVID-19 Recovery Committee as the lead committee will say but I will be very happy to engage with it on its stage 1 report and any recommendations that it makes.

It is not an either/or. We must ensure that we have arrangements in place to meet everybody’s needs. For some people, registering remotely will be much more convenient and straightforward and they will be happy to do so. Others might feel reticent and anxious about it and an in-person appointment might suit them better. The best way to approach that is by providing the options that enable us to better meet all individuals’ needs in recognition that those might differ from individual to individual.

The powers are being included to address potential situations in which regulations are needed to respond to a public health threat that might conflict with existing legislation. That is the justification. As with all regulations that are made under the legislation that was put in place, the powers could be used only where it was necessary to respond to a significant risk to public health as a result of the pandemic. There are significant regulatory constraints and limits around what the Government would be able to do but, fundamentally, there would have to be a significant risk to public health to justify the use of any of those powers.

That is the rationale behind those powers being in place. The threat to public health is the trigger, and there is the possibility that there might be a conflict with existing legislation that needs to be resolved.

We have to do both. We could do nothing to update the statute book but, if we have another pandemic, we will find ourselves having to rush through parliamentary legislation and, heaven forfend, but Mr Whittle might be one of the people who say that it is ridiculous to rush it all through in a few days. I do not rule out that possibility.

Then there are the logistical preparations for pandemics. Those are all elements that Lady Poole will look at during the public inquiry, and the Government is reviewing the preparations that we have in place for a whole range of emergencies. We regularly review the potential threats that we face and consider the degree to which we are equipped to deal with those threats. We will continue to do that for the foreseeable future.

The Covid virus emerged from China in the latter days of 2019 and it started to take effect in Scotland in late February to early March. There was therefore a limited window for us to put in place the arrangements that Mr Whittle envisages.

Looking back, one of the most critical elements that should be the foundation of our response is the testing infrastructure. It is absolutely critical to all that we are doing. I subscribe to the argument that we should have in place effective testing arrangements to enable us to ratchet that up to a much greater level than was the case back in the early part of 2020.

Yes, there are practical preparations that we can and should be making, but we were able to handle the pandemic only because we were able to exercise legislative control through the measures that we put in place. That was the Government recognising the scale of the threat and putting measures in place as quickly as possible.

I cannot honestly say what was in the minds of ministers at that particular time. I would have to go and look at past papers to consider whether those issues had been looked at and what the purpose of that public health legislation was. I suspect that the 2008 act was reviewed to update specific issues relating to localised incidents and that it did not have the scope to look at the population-wide challenge of the nature that we have faced. That would be my first response, but I will consider the matter further and, if there is any more information that I can share with the committee, I will write to the convener accordingly.

It is important that those are fully and properly understood. There is a statutory code of practice to help people to understand the role of a named person. The code states that it would be best for the mental health officer or any other practitioner to discuss the matter with the nominee to ensure that they are provided with information about the role of a named person

“in a form which is helpful to them”,

that it would be best practice to provide information to the nominee about their rights and the patient’s rights, and that the process of checking understanding is separate from the requirement for the nominated person’s consent to be witnessed. Therefore, a number of protections are in place to ensure that the concept of the role can be properly explained to, and understood by, individuals.

The first point is that there can be no debate or questioning about the protection of applicants’ human rights, so that must underpin the process that is put in place. We then have to satisfy ourselves that we have in place arrangements that enable individuals to achieve proper engagement with public authorities and that assure their rights in the process.

The bill is designed to give appropriate specification on that point. If there are issues about whether sufficient specification has been given, I will be happy to consider those as part of the bill process.

I am very concerned about that, because it gets to the heart of the wider cost of living challenges that we will face in our society. The Scottish Government will do everything that we possibly can to maximise support for the resilience of people in our society who are facing these challenges and this hardship, but it is a significant challenge to do all those things within the financial constraints that we are operating under.