Coronavirus (COVID-19) recovery - justice system, health and public services reform: consultation

Chapter 2: Public health resilience

13. During the Covid pandemic, a number of powers have been used to safeguard public health. This has included specific powers to make public health protection regulations, but has also included powers to impose requirements on educational establishments, and to ensure we could deliver a vaccine programme of unprecedented speed and scale.

14. In the cases highlighted above, the powers that have enabled this are temporary and will exist only for as long as the current Covid pandemic remains a public health threat. However, it seems likely that Covid will not be the last infectious disease or public health threat Scotland will face. As a result, and based on the experience of managing Covid, the Government considers that building public health resilience in the future requires action to ensure a permanent suite of powers that will allow Scottish Ministers to tackle any type of infectious disease or contamination that may pose a significant health threat.

15. While there is still much to be learned from this pandemic over the months and years ahead to influence future responses, the Government proposes that those powers that have played a particularly significant role in managing the Covid response should be available permanently on the Scottish statute book, ensuring that Ministers are able to respond swiftly and appropriately to infectious diseases or pandemic threats.

Proposals within this Chapter

16. The first three of the four public health proposals set out in this Chapter originate in the UK Act and are set to expire in March 2022, although there is potential for them to be extended via secondary legislation with the agreement of the Scottish Parliament (or to be expired earlier). The Scottish Government is working on the basis that if those powers are still required to respond to the Covid pandemic, we anticipate the power to delay their expiry will be used to retain the powers. However, because the UK Act is specifically about responding to Covid, any extension will only operate in relation to Covid. Therefore, the consultation proposals set out here are that these public health powers will be made permanent via further primary legislation, and that this permanent legislation should provide much greater scope to protect against future spread of infection or contamination that could be a significant threat to human health in Scotland.

17. The fourth measure (Topic H4 - Virtual public meetings under the Schools (Consultation) (Scotland) Act 2010) is a new, and in the Scottish Government’s view, complementary proposal.

18. Topics within this Chapter are listed in alphabetical order rather than by their position in the UK Act. No First or Second Scottish Act provisions are within this Chapter.

Topic H1 – Education: powers to make directions to close educational establishments, and to ensure continuity of education

Legislative references: Part 2 of schedule 16 of the UK Act (legislation.gov.uk) and Part 2 of schedule 17 of the UK Act (legislation.gov.uk)

19. The proposal is to make permanent provisions in the UK Act that relate to education, namely the duty on all operators of educational establishments to have regard to the advice of the Chief Medical Officer for Scotland (“CMO”), and the powers for Scottish Ministers to give directions in relation to the closure of educational establishments and the continuity of educational provision during the remainder of the current pandemic and future pandemics.

20. Scottish educational establishments have been very significantly impacted by the pandemic, closing for significant periods and following stringent guidance on re-opening. The actions taken by the Scottish Government have been underpinned by provisions in the UK Act which placed a duty on the relevant operators of educational establishments^[13] to have regard to the advice of the CMO. The UK Act also gave powers to Scottish Ministers to - where it is necessary and proportionate - direct the closure of educational establishments, and give directions relating to the continuity of education. This could include directing the operator of an educational establishment to take specified actions as Ministers consider reasonable; require safe hygiene standards etc.; take on additional functions; close or restrict access to educational establishments; or keep open, or reopen either partially or fully. It may also provide that a failure to comply with a specified statutory duty or time limit is to be disregarded to the extent it can be attributed to the direction being in place.

21. During the current Covid pandemic the educational closure direction making power was not used. However, the educational continuity direction making power was used extensively^[14] to support actions in society to prevent the spread of the virus, and to ensure that educational provision was maintained for children and young people in a way that was safe. This included measures such as ensuring the provision of free school meals to eligible pupils via alternative means and the provision of education and childcare for vulnerable children and young people and children of key workers. It also provided the education sector, in particular schools and day care of children settings, with certainty about the requirements being placed upon them during the pandemic.

22. While Scottish Ministers had the power to give educational continuity directions to higher and further education institutions, independent or grant-aided schools sectors, private and voluntary and independent (PVI) day care of children settings, none of the directions that were issued applied to these sectors. However, all adhered to the guidance issued by the Scottish Government and closed their in-person provision in the same way as the education authority run schools and day care of children settings which were subject to the directions (and maintained these restrictions even where they were being relaxed for schools and day care of children settings). Whilst these powers have not been used previously, maintaining these in relation to all types of educational establishment would mean that Ministers have the appropriate powers to ensure all types of educational establishment take the necessary action to address infection risk if that is required.

23. Future pandemics may have an impact on educational provision, given the large gatherings of children and young people involved, and action may need to be taken to control transmission. Scottish Ministers are minded to provide for permanent powers – either in their entirety or adapted to reflect our experience of the use of the powers in the various types of educational institution during the Covid pandemic or with additional safeguards – so they can be deployed as necessary during the remainder of the pandemic. In the event of a future pandemic, the broad nature of the powers will provide Ministers with the flexibility to take the action needed to address the specific circumstances of the health emergency.

24. Underpinning these powers would be significant safeguards including a requirement that Ministers must have regard to the advice of the CMO before giving a direction, that Ministers be satisfied that giving a direction is necessary and proportionate, and that any directions should apply for a defined period and be subject to regular review.

Question 1:

It is proposed that the provisions for Topic H1 (Education: powers to make directions to close educational establishments, and to ensure continuity of education) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic H1 should be extended beyond March 2022 and made permanent

I think the provisions for Topic H1 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic H1 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic H1, or the proposal for permanence, please write them below.

Topic H2 – Power to make public health protection regulations

Legislative reference: Schedule 19 of the UK Act

25. In order to ensure the continuance of the provisions which enable the Scottish Ministers to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination which presents or could present significant harm to human health in Scotland, we are proposing to make permanent the provisions in schedule 19 of the UK Act.

26. Schedule 19 of the UK Act provides the Scottish Ministers with a regulation-making power for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination by Covid in Scotland. These powers are limited to Covid infection by virtue of section 1(2) of the UK Act.

27. These powers have been appropriately relied upon during the response to the Covid pandemic in Scotland and have enabled necessary and proportionate legal restrictions and requirements to be implemented to protect public health. During the pandemic, among other uses, they have been the means of prohibiting or limiting numbers at gatherings; introducing lockdown measures; and requiring that face coverings are worn.

28. Our experience of using these regulations during the pandemic has demonstrated the importance of ensuring the Scottish Ministers can respond effectively and rapidly to any future threats to public health in Scotland. The proposal is therefore to give the Scottish Ministers the same powers to protect the people of Scotland from any incidence or spread of infection or contamination which presents or could present significant harm to human health in Scotland, not just Covid. It should be noted that, although the regulation-making powers are proposed to remain the same as those used throughout the pandemic, it does not follow that future public health responses using these powers would involve the same restrictions or measures. The benefit of adopting the approach set out in schedule 19 is that it will enable Scotland to respond flexibly and proportionately to specific threats as they arise.

29. Powers equivalent to those included in schedule 19 (although not restricted to use in response to the Covid pandemic) are already in statute in England and Wales in the Public Health (Control of Disease) Act 1984 and these are not temporary measures. As mentioned, the proposal is to put Scotland in a similar position in having permanent powers available to protect against the spread of infection or contamination that is or could present a significant threat to human health in Scotland.

30. As mentioned above, because the UK Act is specifically about responding to Covid, extension of provisions using the powers in the UK Act would only operate in relation to Covid; it should therefore be stressed the consultation proposal is for permanent legislation that would operate to protect against the spread of any infection or contamination that is or could be a significant threat to human health in Scotland.

Question 2:

It is proposed that the provisions for Topic H2 (Power to make public health protection regulations) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic H2 should be extended beyond March 2022 and made permanent

I think the provisions for Topic H2 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic H2 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic H2, or the proposal for permanence, please write them below.

Topic H3 – Vaccinations and immunisations

Legislative reference: Section 36 of the UK Act (legislation.gov.uk)

31. The proposal is to make permanent the relaxation of the restriction within the National Health Service (Scotland) Act 1978 on vaccinations and immunisations being carried out by doctors or persons acting under their direction and control.

32. The purpose of this proposal is to allow a wider range of health professionals to administer vaccinations and immunisations (such as nurses, midwives and paramedics, in accordance with existing regulatory provisions about the administration of vaccines in the Human Medicines Regulations 2012) in order to make it easier to quickly protect the population from infectious diseases.

33. There are currently requirements set out in the National Health Service (Scotland) Act 1978 which provide that vaccinations and immunisations must be administered by medical practitioners or persons acting under their direction and control.

34. Scottish health boards are restricted to delivering vaccination programmes through doctors, or persons acting under their direction or control in terms of section 40 of the National Health Service (Scotland) Act 1978. Section 36 of the UK Act removes this requirement until March 2022. The purpose of this provision was to give health boards the ability to arrange for any vaccinations during the pandemic to be delivered more flexibly – this would include routine vaccinations such as the seasonal influenza programme, as well as Covid vaccinations.

35. The expanded seasonal influenza programme and the possibility of having to provide “boosters” for Covid immunisation will both require large vaccination workforces and flexibility within delivery models. This is currently supported under section 36 of the UK Act, and we are now proposing that this should be a permanent change in order to run effective vaccination programmes to protect the population from infectious diseases.

36. The Scottish Government had also agreed with representatives of general practice several years ahead of the pandemic that GP practices should no longer routinely be providing vaccinations and there is an ongoing programme (the Vaccination Transformation Programme) to transfer vaccinations to health board delivery.

Question 3:

It is proposed that the provisions for Topic H3 (Vaccinations and immunisations) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic H3 should be extended beyond March 2022 and made permanent

I think the provisions for Topic H3 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic H3 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic H3, or the proposal for permanence, please write them below.

Topic H4 – Virtual public meetings under the Schools (Consultation) (Scotland) Act 2010

Legislative reference: proposed new provisions so no existing legislative reference

37. The Schools (Consultation) (Scotland) Act 2010 (“the 2010 Act”) sets out the requirements education authorities must comply with when consulting on particular changes to how school provision is organised in their area. The definition of ‘school’ is wide and includes any institution that provides primary and/or secondary education (including a nursery school and a special school) that is under the management of an education authority. It does not include private, voluntary or independently run early learning and childcare settings.

38. The requirements of the 2010 Act are aimed at ensuring that local communities have an opportunity to have their views heard. This will help ensure that proposals meet the needs of communities and support education authorities' decision making.

39. The 2010 Act requires that a public meeting is held as part of the consultation process. Public meetings are a crucial part of the consultation process and enable members of the local community to give their views on proposals. Importantly, they allow attendees to hear the range of views there may be in the wider community. The Scottish Government sees a continuing role for public meetings in the 2010 Act consultation process. The 2010 Act also requires paper copies of proposal papers and reports to be made available physically at council offices and other locations.

40. The Covid pandemic has, however, brought unprecedented changes to the operation of public services to minimise the risk of spread of the virus. It has meant that education authorities face uncertainty over whether it is safe to hold such meetings both for their own staff and the public who may wish to attend. Other public services, such as planning, had the flexibility during the pandemic to issue regulations permitting public meetings to be held virtually.

41. We intend to legislate so that in the event of a significant health emergency in the future, akin to the Covid pandemic, local authorities will have the flexibility to hold public meetings virtually. We wish this to be in place on a permanent basis so it can be utilised during any future pandemic. This will provide education authorities with greater certainty about what arrangements to make and help keep the public safe. The current statutory requirement on education providers to hold public meetings in-person would remain in place during normal times. Similarly, we intend to legislate to introduce more flexibility in these circumstances around the current requirement for paper copies of documents to be made available at council offices or other locations.

Question 4:

It is proposed that new permanent legislative provisions for Topic H4 (Virtual public meetings under the Schools (Consultation) (Scotland) Act 2010) as described will be developed. Which of the following best describes what you think about this?

I think the proposed provisions for Topic H4 should be developed

I do not think the proposed provisions for Topic H4 should be developed

Unsure

I have no view

If you have any comments on the proposed provisions for Topic H4 please write them below.