COVID-19 Committee

Wednesday 9 September 2020

Session 5

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Wednesday 9 September 2020

CONTENTS Col. INTERESTS...... 1 SUBORDINATE LEGISLATION...... 2 Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020 (SSI 2020/249) ...... 2 Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2020 [Draft] ...... 2

COVID-19 COMMITTEE 15th Meeting 2020, Session 5

CONVENER *Donald Cameron (Highlands and Islands) (Con)

DEPUTY CONVENER *Monica Lennon (Central Scotland) (Lab)

COMMITTEE MEMBERS *Willie Coffey (Kilmarnock and Irvine Valley) (SNP) *Maurice Corry (West Scotland) (Con) *Annabelle Ewing (Cowdenbeath) (SNP) Ross Greer (West Scotland) (Green) *Shona Robison (Dundee City East) (SNP) *Stewart Stevenson (Banffshire and Buchan Coast) (SNP) Beatrice Wishart (Shetland Islands) (LD)

*attended

THE FOLLOWING ALSO PARTICIPATED: Professor Linda Bauld (University of Edinburgh) Sarah Booth (Scottish Human Rights Commission) Michael Clancy (Law Society of Scotland) Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP) Helen Martin (Scottish Trades Union Congress) Willie Rennie (North East Fife) (LD) (Committee Substitute)

CLERK TO THE COMMITTEE Sigrid Robinson

LOCATION Virtual Meeting

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Scottish Parliament Subordinate Legislation

COVID-19 Committee Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020 (SSI Wednesday 9 September 2020 2020/249)

[The Convener opened the meeting at 09:30] Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2020 [Draft] Interests 09:32 The Convener (Donald Cameron): Good morning, and welcome to the 15th meeting of the The Convener: The main item of business COVID-19 Committee. We have received today is an evidence-taking session with apologies from Ross Greer and Beatrice Wishart, stakeholders from a range of sectors, to obtain who are both attending other parliamentary their views generally on the Scottish Government’s committees this morning. proposals to extend the use of some of its emergency powers and to expire other provisions I welcome Willie Rennie, who is substituting for early under the Coronavirus (Scotland) Acts. Beatrice Wishart, and Christine Grahame, who has an interest in the matters that we are I welcome our witnesses to the meeting. With considering today. us, we have Professor Linda Bauld, who is the Bruce and John Usher professor of public health Under our first item of business, we have and the co-director of the centre for population various declarations of interest to be made. health sciences at the University of Edinburgh; Stewart Stevenson, do you have any relevant Sarah Booth, who is a legal officer representing interests to declare? the Scottish Human Rights Commission; Michael Stewart Stevenson (Banffshire and Buchan Clancy, who is the director of law reform at the Coast) (SNP): I simply record that I am the Law Society of Scotland; and Helen Martin, who is complainant in a criminal trial that is expected to the deputy general secretary for policy, political take place before a jury. Accordingly, I will take no liaison and equalities at the Scottish Trades Union part in that section of the meeting that refers to Congress. procedures in court and related matters. I will ask the first question, which is a general The Convener: Willie Rennie, do you have any one for any of our witnesses to answer. If they all relevant interests to declare? wish to answer, perhaps they could do so in the order that I have just read out. Willie Rennie (North East Fife) (LD): No, I have nothing to declare. Extending emergency legislation is a significant step when it comes to individual liberty. For The Convener: Finally, Christine Grahame, do example, the committee has received several you have any relevant interests? submissions relating to the rights of children and Christine Grahame (Midlothian South, the impact that the extension of emergency Tweeddale and Lauderdale) (SNP): No, I have legislation has on them. What is the justification for none. an extension of emergency powers at the moment? Professor Linda Bauld (University of Edinburgh): I have been invited to give evidence to the committee in order to provide a public health perspective. I do not have any expertise in the law or human rights, which I know are the issues at hand. We are still in the middle of a global crisis. We have 25 million cases globally and there have been more than 900,000 deaths. In Scotland, there have been more than 4,000 deaths and, as you have all heard from the Scottish Government recently, unfortunately, the number of cases here is rising again. In common with many countries, Scotland has many more months to run in terms of the public health consequences of dealing with the

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new virus. It is understandable that states and committee. We could come back to that issue nations around the world have to use necessary later, or, if you like, we could address it just now. powers to enable the public health protection that The Convener: It would help if you could say a our population deserves to remain in place. few words about that issue now, given that we are Therefore, as long as the powers are considering it at the moment. proportionate and the needs and rights of all groups are considered, we have to recognise that Michael Clancy: I was interested to read the now is the time when we should be extending the Official Report of the debate that took place a appropriate parts of this legislation to help us deal couple of weeks ago, when Jeanne Freeman was with the on-going crisis. I hope that, by next before the committee. Professor Tomkins spring, we will be in a better place than we are in narrowed in on the introductory paragraph of the now. regulations that were then under consideration, talking about legislation being necessary and Sarah Booth (Law Society of Scotland): proportionate. He focused on the regulations being Thank you for the opportunity to speak to the the least restrictive available means of achieving committee this morning. the aim of Government. I think that “least The Scottish Human Rights Commission restrictive” is one component of proportionality. understands the need to take measures to protect Some have described it as whether or not the aim the population and deal with the on-going crisis. that is to be achieved is a legitimate aim— We believe that it is a fundamental principle of [Inaudible.]—legislation is used to achieve that human rights law that measures that impact on an aim. A component of that consideration would individual’s rights and freedoms should be lawful, include questions that the Government would ask necessary, proportionate and time limited. For itself before laying an order before the Parliament, those reasons, we have welcomed the Scottish such as why the rights are being restricted, what Government’s commitment to human rights in problem is being resolved, whether the restriction addressing the significant challenges of Covid-19. will lead to a reduction of the problem, whether a In particular, we welcome the commitment to less restrictive alternative exists and whether review the legislation and to lift restrictions as sufficient regard has been paid to the rights of the soon as they are deemed to be no longer people who are affected. necessary to protect against the coronavirus. Proportionality is a sum of many parts and not Michael Clancy (The Law Society of simply the “least restrictive” component. I am sure Scotland): Good morning. Thank you for that that the Government has that in mind, because the interesting question. Professor Bauld and Sarah consequences of getting it wrong could mean Booth have explained the framework. There is still action being taken against the Government for an on-going coronavirus crisis. It has not gone breaching human rights, so it will be cautious away, and the legislation that was enacted earlier about bringing forward orders in which the in the year still has a role to play in keeping proportionality aspect and other considerations society safe and ensuring that we are not exposed have not been taken into account. unduly to the virus. Various laws and subordinate orders have been passed by the Scottish 09:40 Parliament—I think that, as of yesterday, there had been a total of 64 regulations concerning Helen Martin (Scottish Trades Union coronavirus, which shows you the breadth of Congress): My point is similar to those of the activity that needs to be undertaken to keep us other witnesses. The reason we need emergency safe. powers to continue is that the crisis continues. In terms of the actions that people need to take, we The concept of proportionality has been still need members of the general public to take mentioned, with Sarah Booth mentioning the specific action in their lives and we need action to quartet of requirements that state that measures be taken in the workplace to put in place should be lawful, necessary, proportionate and mitigations that stop the spread of the virus. We time limited. The legislation is clearly lawful, as it need to continue to have some level of the powers has been properly scrutinised and passed; it is enacted, because it is not business as usual. necessary, because the Government deems it to be so as a result of the scientific evidence that it The Convener: My next question follows on has received; it is proportionate; and it is time from that. In lockdowns to date, the Scottish limited, with the regulations that are before the Government has variously used guidance or committee today indicating the time-limited nature regulations to direct the public. Is that an effective and requiring an extension of the statutory time method? What implications does the distinction limits if they have been met. between the two have for parliamentary scrutiny and enforcement? Professor Bauld, do you have a I know that there was a debate about view? proportionality at a previous meeting of the

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Professor Bauld: I will reflect on wider public It is important that we realise that the health measures for which guidance and regulations are of supreme importance, because regulation have distinct purposes. In this crisis, as that is where the issues that Sarah Booth in other situations, guidance gives evidence-based highlighted about legality crystallise. The information to the public about actions that need to regulations have to be scrutinised and passed by be taken—for example, the behaviours that we are Parliament, although many of them are made asked to engage in as part of the FACTS public affirmative regulations. It is fair to say that health campaign. regulations are of primary importance, and the guidance should supplement and explain those In some cases, regulations are necessary to regulations. Sometimes, there is an issue of empower or make possible enforcement. That is communication whereby ministers give guidance needed to send a clear message to the public that, in such a way that it does not match the text of the if there are breaches of what is, in effect, regulation. I remember clearly that, in the early guidance, there are regulations that allow the days of dealing with the coronavirus legislation, police or others to take action. Good examples of there were occasional references to people being that are the ability to take action when people take able to exercise for an hour a day although the part in large gatherings unnecessarily and when regulations made it clear that an individual, subject people in particular groups are being put at risk. to—[Inaudible.]—should not leave their house The powers are for not just the police but other unless—[Inaudible.]—was to take exercise. No public bodies. time limit on exercise was stated in the Guidance and regulation are both important. I regulations. will give you an example from another public I see that I have just been muted in video terms. health topic, which is perhaps not quite as relevant. The introduction of the smoke-free We must be careful to make sure that the Scotland legislation was done largely through communication of guidance conforms to the guidance to the public not to smoke in indoor or regulations, because the law matters. public places, but compliance was supported by The Convener: Thank you, Michael. We are fines and signage. Even though the enforcement having problems with your connection. For that powers in the regulations were needed only in a reason, the broadcasting team has taken your few cases, they sent a strong message to the video off, but we can still hear you. I hope that we public that the guidance was stronger than just can resolve the problem. I ask Helen Martin to advice, which is how the public might interpret answer the same question. guidance. Helen Martin: The vast majority of ordinary Guidance and regulation are therefore both people do not necessarily understand what is needed, but guidance in itself is often sufficient. being given as guidance and what is being given Sarah Booth: It is our position that legality and as legislation. Often, what really matters to people the lawfulness of regulations are vital in is the tone in which the guidance is given. addressing the crisis. In this situation, laws can be Therefore, my answer is similar to the point that useful in allowing people to hold abuses of power Michael Clancy made: people rely on the way in to account. For example, we support a human which the information is expressed by the First rights-based approach to legislation and policies Minister. that ensure that there are mechanisms of There are examples of things that were just accountability, and regulations are particularly guidance being accepted by the public as important in that regard. legislation, such as in the example that Michael Clancy just gave. There are also examples of 09:45 instructions that were initially given as guidance Michael Clancy: If we thought that it was good but that were not well accepted by the public, so enough to simply have guidance, there would the Government had to move to legislation. An have been no need for three coronavirus acts and example of that is the advice to wear face hundreds of regulations across the United coverings on public transport. There was a long Kingdom. Guidance can go only so far in advising period in which that was just guidance. The people of the behaviours that will keep them and Government felt that it needed to put that in others safe, which is the fundamental objective of legislation because the number of people using the guidance. However, the Government was wise face coverings was so low that even the people enough to know that some people will not follow who were using face coverings on buses said that advice, even if it is very good, and that, therefore, they felt uncomfortable using them. Therefore, in there has to be a legal framework to establish the order to see sufficient numbers of people using the ground rules for behaviour in the midst of the coverings, the Government needed to make it pandemic. mandatory.

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If people feel that the advice is a requirement for active spread—we need to shut down those and there is some level of enforcement behind it, chains of transmission as soon as possible. That they will start to comply, because the vast majority is the reason for speed, but I do not think that the of people are law abiding. It is about creating the public understand that as well as they could. They feeling that things need to be done. Sometimes, probably understand it better here, in Scotland, legislation is the only way to do that, but it is also because we have continued to have daily useful to issue guidance and encouragement. At briefings, but they understand it far less in times, that can be sufficient to get people to England. change their behaviour. From a behavioural perspective, it would be The Convener: Thank you very much. Before I helpful if, in one of the briefings, one of our turn to colleagues for their questions, I remind colleagues said clearly why things such as local members of the committee and attendees to restrictions are being imposed with just a few pause for a couple of seconds just before they ask hours’ notice and commented on, for example, or answer questions so that broadcasting can hear countries being added to or taken off the them. Also, I have asked my questions to every quarantine list, although they have already witness attending, but colleagues might wish to mentioned some of the reasons for that. That is direct specific questions to specific witnesses. because, again from a behavioural perspective, clear communication and explaining the evidence Shona Robison (Dundee City East) (SNP): I precisely are very helpful. In some of the want to pick up on public consent and interviews that I have done this morning on the communication. It strikes me that we are entering new restrictions in England, I was quite rightly into quite a difficult period of dealing with the virus asked why the measures are coming in next in that decisions are having to be taken fairly Monday, which is several days’ delay, in contrast quickly about measures that have to be put in to Bolton, which was given 24 hours’ notice of a place. That was the case with the local lockdowns new and quite restrictive local lockdown. Better that have happened in the west of Scotland, and in communication on that is key. England, where changes to the number of people who can meet indoors and outdoors have just That said—please bear with me convener, been announced, with some pretty hefty fines by because I want to go into a little bit of detail, so way of enforcement. this might take a few minutes—it is crystal clear from the University College London social impacts Turning to Professor Linda Bauld and John survey and others that public support for the Usher first, I wonder whether you have any view of Government’s approach in Scotland is significantly how communication to the public is best carried higher than it is in England and other parts of the out at a time when things are changing almost UK. Scotland is at the top of the graphs for that, weekly. What is your view of the level of public and that has been the case since early in the support for those measures? There is a view that pandemic. there are differences relating to age and a question as to whether young people, for example, In recent months, across the UK, including in are adhering to the guidance and regulations. Can Scotland, we have seen a declining gradient. the Government or the agencies do more to get Public support for the measures that are being put the message across during this challenging period in place, and for the Government’s messaging, is that we are entering into? declining. Support is lower among men than among women, although not in all groups of men, Professor Bauld: You have raised three issues and it is slightly lower among young people, and there: the timing of announcements of new compliance is lower among young people. That is measures; public support for those measures, not unusual. If you look at any risk behaviour or which I think will be an on-going issue; and how patterns in understanding Government policies, we support different groups to comply and what you will see that that is often the case. evidence there is on that from the data that we have. We need to take a nuanced approach to communicating to different groups in order to The first thing to say from a public health maintain support. I am very concerned about the perspective is that, as you are all aware, the main next few months and about potential unrest. We reason why some of these changes are introduced are seeing that around the world. Groups are rapidly is that time is crucial when we are dealing spreading misinformation and are gathering—as with a virus that is highly infectious and moves we have already seen in Scotland—to express incredibly quickly. The reason why measures are distaste for, or distrust of, the messaging and the introduced often with just a few hours’ notice, or guidance that has been given. We will have to be 24 hours’ notice, is that, as soon as the data very careful to keep on top of that. History shows suggests that one person could spread it to that, following pandemics, there is social unrest. another—our R number is now up to between 0.9 and 1.4, so there is potential in some communities

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There is research on that issue and we need to be not good to see a peak around commuting times. cognisant of it. Such a peak does not currently exist, but, if office workers go back, we would be likely to see that Shona Robison asked how we enhance pattern of behaviour re-emerge, which would be engagement. We need a stratified, targeted very negative indeed. approach to communicating to different groups in the population. How we might communicate to We also have to think about the types of office older people who are shielding will be different buildings that people would be returning to. Some from how we communicate to young people in buildings do not have windows that open, or they school or to those who have just left school, and it have air-conditioning systems that recirculate air. will be different from how we communicate to Those factors are potentially quite problematic as people from different ethnic minority backgrounds. we move into winter. If it is unnecessary for people We need to support our third sector and to be in those spaces and they are working community groups and others to make sure that effectively at home, we think that, on balance, for they have adequate resources to diffuse or the public health good, people should continue to disseminate the public health messages work from home. appropriately to their communities, and we need to Shona Robison: That is my questions finished, build engagement and ownership. Research convener. I wonder, though, whether Helen Martin shows that having a tailored, segmented approach would agree to share that research with the rather than national campaigns is important. committee, once it is completed. Sorry for the lengthy response. I hope that it was helpful. 10:00 Shona Robison: Thank you for the fascinating Helen Martin: Yes, that should be fine. I can information, Professor Bauld. take that request away with me. I will also ask about the balance of risk. It strikes The Convener: Thank you. I am grateful for that me that, as well as the numbers going up, we are offer. I turn next to Christine Grahame for a also entering a difficult period of enhanced risk, question. whether due to students going back to universities or to more people going back to offices, all of Christine Grahame: Thank you, convener. I am which give the virus the opportunity to spread. obliged to you for letting me join the meeting. I have found it extremely interesting, and I wish that Helen Martin, do you share that concern, and do I had come to this committee before. you think that it is important to reiterate the plea that, if people are able to work from home, they It is interesting that the data on transmission should do so in order to reduce the risk of shows that it is often related to gatherings in spreading the virus, particularly in offices? I am households and so-called house parties. However, interested to hear your view on the issue. I want to focus on commercial house parties or large gatherings—raves and things like that—and Helen Martin: Absolutely. I could not agree put that into the context of what I think Professor more. Our position is very much safety first. If Bauld called a segmented approach when working from home is working, there is no reason regulations are introduced or enforced that take for anybody to return to offices over the next away some liberties. I stand to be corrected on period. Just now, we have a working group that is this by Michael Clancy or Professor Bauld, but my looking at the issue, and we have been taking understanding is that those who attend a large evidence on the economic impact of office house party or rave are subject to Covid closures. The position is not as clear-cut as the regulations and can be fined, if necessary, by the debate might currently suggest. There is a lot of police, whereas those who organise such large discussion about the economic impact of offices gatherings or permit them to be organised in a being closed in city centres, but another element is place are not subject to Covid regulations but, in the displacement of economic activity into town fact, have to be pursued under the criminal law, and rural locations, where it is supporting the which the police had to do for a gathering of 300 economy in those regions. The debate might people in my constituency recently. suggest that office workers working at home is a clear economic drag, but the position is not that I am looking at deterrence rather than the police clear-cut. In some ways, it can boost the economy having to be involved all the time. My questions of certain local areas. can be responded to by any of the witnesses who think that it is relevant from a public health or legal Equally, we are very clear that the return of point of view. Do we require regulations that are office workers could put severe pressure on public targeted at those who organise or permit to be transport, which is a particular risk area, given that organised commercial large gatherings or raves? it involves people being within 1m of others— Could substantial fines or confiscation of profits be potentially strangers—in an enclosed space. It is

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considered for those people, given that it seems prohibition on gatherings of, for example, 300 that we are going to get tougher? Would that people. That is not the situation in Scotland, as reduce transmission in a substantial way, given Christine Grahame has pointed out. It might be that, as far as I know, track and trace is almost worth looking at those regulations as they apply in impossible? Would the approach that I suggest England and Wales to ascertain whether there is have public support? I heard what Professor Bauld any gap in our provisions that could be filled by said about unrest and so on, and I agree that we something similar. I bring that to the attention of have to take the public with us. In the context of the committee and perhaps others will hear the what I have outlined, what is your view on message, too. extending regulations, particularly as we get into Christine Grahame: That is very helpful, the dangers of winter and people becoming because I was not aware of the English restive? regulations. Professor Bauld: Obviously, I cannot comment Willie Rennie: My question is for Professor on the nuanced differences between those two Bauld and is on the clarity and simplicity of the aspects of how the law works, but I understand message. In England, there has been a change in Christine Grahame’s point from a public health the number of people who can meet inside and perspective. Those large indoor events are highly outside—the limit on gatherings is now six. There irresponsible at the moment. The people who have been increased restrictions in the west of attend those events are frustrated and want life to Scotland that affect up to 1 million people. return to more normality and to be able to However, this weekend, we are going to restart socialise, see their friends and enjoy themselves, having spectators viewing football matches—in particularly if they are back in education or work. I two cases—and just last weekend we had a trial understand that and we are concerned about it in rugby match with spectators. Does that add to the the university sector, as you would anticipate. complexity and potentially lead to mixed However, I think that it is correct that, in terms of messages as we move through the different pursuing or using regulation or the law to penalise phases? people, it is entirely appropriate that there should Professor Bauld: That is a good question. be much more severe consequences for those Again, we can see from the data that has been who irresponsibly organise those events, because pulled together from the surveys that, as countries the people attending would not be there unless move out of lockdown—this is the case in lots of they had been organised by somebody. If there is other countries—the messaging becomes more a mismatch in the way that Christine Grahame complex and people’s understanding becomes highlighted, that needs to be dealt with. more limited. The best example is the first one that I return to my earlier point, which I made in the Willie Rennie gave. I am spending almost all my opening comments that the convener asked for, time on this topic nowadays, but if he were to ask that enforcement and penalties are useful from a me to rehearse the number of people who are public health perspective because they enhance allowed to meet in which settings, across the compliance. As Helen Martin said, in the case of different devolved nations, I could not tell you the face coverings, if the public know that there will be answer quickly—I have a rough idea of what it is a consequence if they do not follow the guidance, and I know exactly what the situation is in compliance increases. We see that consistently Scotland. However, that level of complexity with any public health topic. Those who organise causes confusion, particularly in the UK. large gatherings need to be cognisant of the fact Willie Rennie asked about sporting events and that doing so has consequences. Of course, balancing those with on-going restrictions in people want a profit and they do not care about localities where there are spikes, which is public health when they are making a profit. something that I expect to continue. We have to Christine Grahame’s question about that is a very strike a balance in the coming months between good one. living with the virus—because it will be with us Michael Clancy: Christine Grahame has raised indefinitely even with better treatments and a an interesting and topical matter. The Law Society vaccine—and not crippling the economy further. I has not thought about it very deeply, but I am am no expert on sport in Scotland, but I aware of the situation in England and Wales, understand that it is an important part of our where raves and house parties have been a economy and of people’s lives. There are ways in problem recently and have been dealt with by the which we can get those events running again, with Health Protection (Coronavirus) (Restrictions on very limited numbers of spectators and as safely Holding of Gatherings and Amendment) (England) as possible, given that they are largely outdoor Regulations 2020, which can impose on the events. As Mr Rennie knows, that will require clear organisers of such events fines of up to £10,000. guidance and clear support for those who are That is a pretty hefty fine for contravening the responsible the venues and premises. I am not

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opposed to opening up those sectors of the You raised two issues: test and protect, and economy if that can be done in a controlled and quarantine. You asked whether I think that test measured way. and protect is working. From the data that I have seen, and from discussions with my colleagues As Helen Martin said, the biggest risks are in who are involved in the system, I think that it is socialising indoors and in hospitality venues, working very well, as much as it can do, but there where there may be breaches of rules on what are sometimes problems that are outwith the people can do, and in unnecessary indoor working teams’ control. in venues that have poor ventilation or air conditioning, which, from the data that we have The first part of test and protect is test, and that seen, will make things worse. We need to be very is currently where the problem is. The problem is careful about those things. not in the contact tracing—the teams are highly skilled, and they are doing that to the best of their With sporting events, as long as the guidance is ability. We will soon have the app, which will add followed, we should not abandon them; we should to that. However, if we cannot get rapid testing, we try to get them restarted. The same goes for really are in trouble. The situation that we have concerts. As you have probably seen, there was seen of people not being able to access tests is an interesting trial in Germany to look at how to worrying. England is in the middle of that right run a live concert with limited numbers and face now—there is clearly a problem with laboratory coverings. That sort of approach would allow capacity. some of the arts to get up and running again. It is about co-existence, and we have to strike a The Scottish Government made a commitment balance. to get up to 60,000 tests a day, but yesterday we did 19,000 tests, so we are nowhere near that Willie Rennie: I will move on to whether we are figure. Testing is crucial. We need mass testing putting in place effective public health and control and more testing. The committee and others need measures. I am really concerned that we have to keep on communicating that message. gone from what was almost elimination to having restrictions that affect more than a million people I know that it is not just Scotland—we are reliant in a large chunk of our country. on a UK system as well—but we really must improve our capacity and ability. We also need to I will focus on the contributory factors of the move with technology. I am talking about a group- quarantine measures and spot checks and on the testing approach, where we put samples together test and protect system. Do you have confidence and they are tested together to see whether there in both of those measures? There are reports of is no virus in 20 samples. Saliva testing, which is non-compliance and of people being missed by much less invasive and more tolerable for people, quarantine checks. I am interested in your view on will also now be available. We need to use those that. methods. Professor Bauld: The crux of the issue is this: I have spoken publicly about quarantine on how did we get to where we are now? The several occasions. Last week, a good paper was elimination strategy—zero Covid, as it is often published on a UK study in which only 25 per cent called, or maximum suppression, which is of people who were advised to self-isolate probably a better term—is definitely what the reported that they were doing so comprehensively. Scottish Government has been trying to pursue. I can understand why it might be tough for The data for June and July, in particular, and to a someone to self-isolate, especially if they do not lesser extent for May, shows that, as a nation, we have enough resources. Incoming travellers are were very successful in getting the numbers down. not necessarily following the guidance—we have We did well, or reasonably well, during the seen examples of that—and the penalties and summer, but the problem is that the numbers are enforcement, as a follow-up, are pretty limited, now up again. That was not unexpected; indeed, although I cannot comment on that in detail. most of us expected it. Looking ahead, we will require airport testing. I The main drivers for that were as follows. As the know that the Scottish and UK Governments have virus was not totally eliminated as it was in the been honest about the fact that there are key Faroe Islands and New Zealand, it was always questions around the timing of the second test in potentially going to spread again when people particular. Would the test be done on day 5 or day started moving around more, and that is exactly 8? What proportion of cases would be missed what has happened. Another point is that we under each of those approaches? I accept that cannot cut ourselves off, and travel has been a there are genuine scientific questions on airport problem. It is clear that people coming back into testing, but other countries are doing it. the country have brought the virus with them—we have specific examples of that—and that The bigger reason why we do not yet have quarantine rules are not being followed. airport testing is to do with infrastructure. We do

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not have a system that is operating at scale in the that is important for compliance with article 6 of community, so it is a big challenge to add a the European convention on human rights—and layer—a very complex new system—on top of the use of that. However, I am relatively confident that we will “pre-recorded evidence and remote links at police stations have to embrace that in the future, because for witnesses to give evidence.” mandatory airport testing and repeat testing will minimise the risk of people not following what is All those things will help to make it easier to run essentially voluntary quarantine. I think that there trials by reducing the need for so many people to are problems with that. attend court. The point about the balloting of jurors is that, in 10:15 the olden days, before the crisis, jurors attended as they had been requested to in the notices that Willie Coffey (Kilmarnock and Irvine Valley) they received, and there would be several times (SNP): My first question is for Michael Clancy. the 15 people who were needed. Jurors would Lord Carloway says in his letter to the committee: then be found by balloting the people who had “Ensuring that the administration of justice does not grind attended. to a halt due to the backlog in cases demands inventive and enduring political solutions.” Of course, all the new technology has to work. It has to be effective, and there has to be adequate Will you give us your perspective on where we are training so that everybody who is involved in the with that? Are we making progress with inventive structure knows how to use it. ways to resolve the huge backlog, particularly in criminal cases? There are issues around the vulnerable accused. Lots of our legislation deals with Michael Clancy: The Lord President is correct. vulnerable witnesses, but the vulnerable accused He ends his letter by saying: may not be as well equipped as some witnesses “We are doing what we can, if others do what they can are, and they may not be at liberty. We must think then I am optimistic the challenges are readily about the rights of the accused person and about surmountable.” how they can get adequate access to a solicitor That points to what we talk about in our and advice on what to do in the situation in which submission to the committee and in the letter that they find themselves. the president of the Law Society, Amanda Millar, The introduction of virtual custody courts has sent to Adam Tomkins in his capacity as convener highlighted the issues arising through an earlier of the Justice Committee. All the agencies in the lack of consultation. We published a report on the justice system—the courts, the Scottish Courts matter, which said that there may be potential and Tribunals Service, the Law Society, the advantages in custody courts beyond the Faculty of Advocates, the Scottish Legal Aid immediate need for Covid-19 safety measures, Board, the police and the prisons—have roles to although there are significant practical problems perform in making sure that the justice system arising from the pilot, which need to be ironed out. works. We are pleased that the Lord President has now One of our guiding principles in looking at recognised the need to address those by ceasing coronavirus legislation has been to try to envisage any Scotland-wide roll-out before the Glasgow a justice system in which people are kept safe pilot, which has now started, is monitored and while, at the same time, we uphold the interests of evaluated. justice and the rule of law. The innovations that we I hope that that answers your question. are looking at include increased use of legal technology and technology in general, including Willie Coffey: That was a very full reply. We are video technology and other such aspects. We are hearing most of what you are saying—we have looking for creative solutions. our own issues with the technology in conducting our meetings. The Law Society’s letter to the Justice Committee states: I want to follow up by asking whether the possibilities that the online or virtual solution offers “We fully agree that the greater use of technology us are overcoming issues and are now becoming provides workable solutions.” the favoured option, rather than having cinema or Those include hotel settings for administering court proceedings. “the possible use of remote balloting, greater utilisation of Do we not need even to think about that any obtaining evidence on commission, the public being able to more? Is the online solution the direction of travel hear trials remotely”— that we will probably take?

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Michael Clancy: It is important to realise that shows that some of the mechanisms might be the justice system is a big structure, with lots of disrupted by vitamin D levels and that, therefore, moving parts. [Inaudible.]—in others. there might be some protection for people who have adequate vitamin D levels. We also know Willie Coffey: We lost you there. that vitamin D is important more generally, Michael Clancy: You may not have heard my particularly for some groups of people, and that comment that there was a pilot in Glasgow sheriff having access to that vitamin is important for court of a virtual custody court, and we are looking immune response. Vitamin D is not invasive and forward to the evaluation of that before the courts can be provided to the population safely at can roll it out. recommended doses, particularly to older people. We cannot immediately leap to a virtual solution, I read Helga Rhein’s evidence. Even though because a lot of things have to be put in place for there are unknowns and scientific questions, if we that to work across the board. That means that we added that measure to the others that we are will still need the use of cinemas or large venues, pursuing, I cannot see that it would do any harm or which was a solution that we suggested to Lady be contraindicative for particular groups. Helga, Dorrian’s jury trials working group. That still has to who is a general practitioner, has raised a useful go on, because our court system still has to point, and it would be good for the committee to function in a way that is safe for everyone: for ask for the issue to be explored further, particularly jurors, witnesses, court staff, judges and the when we are expanding our flu vaccination lawyers involved. That is a key feature. programme. The two in partnership might be particularly useful for higher-risk groups. There may be some future point at which there is a preference for virtual courts, but we are not Willie Coffey: Helga specifically mentioned quite there yet. care homes and care home workers as potential beneficiaries of that during the winter months. Willie Coffey: My second question is for Linda Would that be sensible? Bauld. You must be aware of the argument and debate surrounding vitamin D. In a submission to Professor Bauld: I would not be opposed to the committee, Helga Rhein tells us that people in that at all. As we move forward, particularly when Finland we have higher rates of the virus in the community than we would wish, we need to look increasingly “have 2-3 times higher vitamin D blood levels than people living in the UK” at how we can maximise protection of the groups that are most vulnerable. I do not suggest a return and that to shielding; I suggest that we consider other “Finland has no excess Covid19 deaths”. measures and whether we could make interventions of that type or others. It would She makes a causal link between those two absolutely be good to raise that with the things. Could you shed some light on that for the Government and, crucially, with the chief medical committee? Is there a case for making provisions officer to get his views. to increase vitamin D among the population? Would that help? Monica Lennon (Central Scotland) (Lab): I will direct my first question to Professor Bauld, but Professor Bauld: When it comes to attributing others can respond if they feel that they have Finland’s differences to just vitamin D, I would not something to offer. With cases rising again in say that that causal link is clear. Finland has done Scotland, do we have enough information and lots of other very good things in its public health data to make decisions about what restrictions and response, as have the Nordic countries generally, emergency powers are still required? For despite what has been happening in Sweden. example, we know that local lockdowns are Those countries have had lower numbers overall. increasingly happening at local authority level, but However, there may be something in that point. data is still available only at health board level, The science on the issue is still emerging. We which does not always help with public scrutiny. know how the virus enters the body, but we do not To go back to the point that you made to Shona yet fully understand all the biological mechanisms Robison about public buy-in, people need to that are involved in how it affects our health, both believe what they are being told by the in the immediate term during the acute illness and Government, politicians and so on. How could that then in recovery. So-called long Covid appears to situation be improved? Could anything else be be an increasingly big problem that we will have to done to improve the availability of test and trace face. data to inform decisions about local restrictions There is some evidence that vitamin D might be and further regulations? helpful. I emphasise that this is not my direct area Professor Bauld: I hoped that I could raise with of expertise, but one recently published study the committee some of the ways in which we could

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improve the transparency and availability of some Those are the main things that I wanted to of the data. The dashboard that Public Health cover. There are a couple of other points on data Scotland produces is excellent, and I know how that I have not raised because of limited time but hard all the analytical teams have been working at that I could send to the committee. They are scale. There are fantastic researchers and experts issues that other researchers have raised. Thank working on that, not only in Public Health Scotland you for that question. but in the NHS boards and other bodies. They are Monica Lennon: That is very helpful. Any to be commended for their efforts. It has improved written follow-up would also be helpful, because hugely and is very valuable for researchers and the cabinet secretary will be appearing at others. committee next week. I have a supplementary for However, there are gaps. The first one, which Professor Bauld before I raise another matter. you pointed to, is that there is a need for reporting That was a helpful run-through of the existing data the data by local authority as well as by NHS gaps. Can you give any examples of other board. You can drill down into that. If you go countries that publish data by age, sex and through all the tables, it is possible to figure it out, ethnicity and of how that data has been used, but providing that up front would be useful, including to inform public health measures? particularly for local authority partners. Therefore, Professor Bauld: A number of countries do let us do that, because it is not difficult. very well on the data front. I would need to trawl The second thing that I would like, which is into that in more detail but I know that good quality probably a longer-term ask, is more transparent data is available in Germany for some of those age-specific and sex-specific data for cases, measures. When New Zealand put together its hospitalisations—as you know, there is an issue equivalent of the public health dashboard earlier in around how we define people in hospital, which I the pandemic there was more information there. understand will be resolved—and intensive care The Canadians provide it by province and unit admissions. Age and sex-specific data should federally, and again there is more data there. be more readily available, although you can get it There are probably a number of examples of if you look for it. Throughout the pandemic, it has where researchers are able to access that data. been clear that there are differences by sex and As I say, much of that data exists here, with the age and, as we saw in Public Health Scotland’s exception of some of the things that I mentioned, useful report, for ethnic minority communities. It but it would help if it was reported more openly so would be useful to have more of that data readily that people would not have to trawl through huge available, for tests, cases, hospitalisations and Excel tables, which is what we often have to do at deaths. All-age combined data is not sufficient. the moment. Monica Lennon: Thank you. We all want to 10:30 improve transparency where possible. On test and protect data, which you mentioned, what we are getting now is better than it was, but I I turn to the issue of adults with incapacity, so would like to have publicly available data on not my question is for the Law Society of Scotland and just the proportion of contacts who are reached the Scottish Human Rights Commission. I note but the time that it takes for people to be contacted that it has been welcomed that the provisions are and what happens with those contacts. Obviously, due to expire at the end of September. However, they are all advised to self-isolate, but are people we have had written submissions that express following that guidance? It could even just be data concern, including the submission from the centre from a sample. What is the adherence, for mental health and capacity law at Edinburgh understanding and compliance? In other words, is Napier University. Have witnesses assessed the it working? impact that the provisions have had on adults with incapacity for the duration of the emergency The final thing on test and protect is that we are legislation so far? Do we have enough information testing symptomatic and asymptomatic people. on that and is there any independent assessment Most people who are tested are symptomatic. That or information gathering about how many people is the public, because they are coming forward for have potentially been affected by moves to reduce tests. A lot of other people—care home workers, delayed discharge, for example? NHS staff and so on—are now being routinely tested and are therefore not symptomatic. That is Michael Clancy: The Coronavirus (Scotland) the asymptomatic group. I would like to see a Acts (Early Expiry of Provisions) Regulations 2020 clearer breakdown of those two groups, because refer to the provisions on care of adults with they are quite different populations. That would incapacity in paragraph 11(1) of schedule 3 to the give us a sense of how many people are Coronavirus (Scotland) Act 2020, which have not experiencing symptoms and why they are coming been commenced yet. forward for tests.

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We expressed concerns regarding paragraph can go into more detail about, is the data on those 11(1) and called on the Government to confirm who are in pre-trial detention. We cannot provide that the provisions would not be brought into force an analysis of how many people are affected by during the course of the debates on the those provisions, so it is absolutely vital that the Coronavirus (Scotland) Act 2020, on the basis that committee is able to monitor those issues and to do so would cause ensure that pre-trial detention can be better “serious and unnecessary violations of ... human rights.” monitored and the people affected safeguarded. In that context, we were particularly concerned My apologies; my screen seems to have frozen. that the modifications in paragraph 11(1) could Can you still hear me? cause problems in the context of article 5 of the Monica Lennon: We can still hear you. European convention on human rights— [Inaudible.] It says in the policy note on the Sarah Booth: Perfect. We think that it is vital regulations: that the committee be able to gather information on pre-trial detention. I can talk in more detail “the Scottish Government has examined very carefully about our particular concerns, if the committee the considerations in relation to human rights” wishes to hear them. in determining that the provisions should expire Coming back to the question about adults with early. Therefore, we were quite content with that incapacity, I echo the comments of my colleague decision. Michael Clancy. We are delighted that paragraph I hope that I have covered the point. You will, no 11(1) will be expired. As Michael Clancy said, doubt, let me know if I have not done so, Ms under the UNCRPD there is a requirement for Lennon. state parties to provide disabled people with access to the support that is necessary to enable Monica Lennon: Thank you; that is helpful. I do them to make decisions. As a result, we are not know whether you have had a chance to see supportive of those provisions being expired. the written submission from the mental health and capacity law team at Edinburgh Napier University, The commission conducted research into the who raised further concerns, saying: impact of Covid-19 on social care in Scotland—the full report will be available at the beginning of “We continue to be very concerned that since the start of the pandemic adults who lack capacity may have been October. During the process of gathering the discharged or moved”— information, we spoke to a wide range of actors and organisations involved in social care, such as presumably from hospitals— social care providers, disabled people’s “without due legal process in what appears to be a violation organisations and mental health professionals. As of Articles 5 and 8 ECHR and 12 and 14” part of that process, we found that there was a of the United Nations Convention on the Rights of profound impact on the way in which social care Persons with Disabilities. support has been delivered in Scotland, which has led to significant gaps in the realisation of rights for Do you have anything to say on that? Perhaps I people who need access to and rely on social care have not fully understood. We would be happy to support. hear back from you in writing, if that is more appropriate. On the evidence about the use of the powers, paragraph 11(1), which would remove the need to Michael Clancy: I think that, in all seek the views of adults with capacity and their circumstances, it would be better for me to have families, has not come into force. However, we your question particularly considered by our found that one interviewee, a mental health mental health and disability committee. It is very professional, was concerned about the test for interested in those issues, and we have good triggering the provision and felt that how decisions relationships with those at Edinburgh Napier would be made was unclear. They said: University, so, if you do not mind, I will do that. “Where do we use it, after we gather the evidence, is it 5 Monica Lennon: Thank you, Michael—that cases or 6, or is it a trend which then triggers the would be helpful. Sarah Booth, apologies, as I legislation, it’s very unclear. They were gathering evidence, but there were no clear mechanisms of how to do that.” think that you wanted to respond to my earlier question to Professor Bauld. If you want to pick up That demonstrates the confusion that surrounds on that question first, that would be great. the legislation and what would bring those measures into force. Sarah Booth: Thank you. Coming back to the data point that Professor Bauld spoke about, we The commission has not seen any pressing think that it is key to be able to collect data in need to justify dispensing with the duty to take an relation to a wide variety of issues. One topic that adult’s wishes and feelings into account. That is we have not spoken about thus far, and which I

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why we are pleased to see that those provisions There is, of course, a distinction between are not used. guidance and regulation. Advice—albeit that it is given by highly placed people in Government and We do not have any data about whether, for their advisers—is advice, not law. It is possible for example, professionals were moving people from people to say, “I have a different view about hospitals to residential settings without their advice.” It is not necessary to take advice. consent. We think that having the ability to see that data and find out what has happened in It is about how the guidance is employed. The individual cases and whether people’s rights have police have a structure for trying to engage with been ignored is a vital part of the scrutiny of the people whom they think are contravening the measures. regulations. First, they point out to people that the guidance says that a mask should be worn in a I can address the committee on paragraphs certain situation—or whatever it might be. If there 11(2) and 11(3), on non-guardianship orders, if is resistance to accepting the advice, the police that would be of use. then ramp it up to reflect what the law says about Monica Lennon: I am happy for you to do that, such things. It is about the tone of the guidance, but I will be guided by our convener with regard to the way in which it is used as a precursor to— how we are doing for time. I have no further [Inaudible.] That is a coherent approach to taking questions at this point. this forward. The Convener: Given that a few members still Maurice Corry: Do you agree that, running have questions, it might be better if Sarah Booth parallel to that, there is a need for effective could put down her thoughts on those provisions communication to ensure the successful in a brief written submission to the committee. Is implementation of the regulations, and a need to that acceptable, Ms Booth? target the sectors and populations in the geographical areas of the country where the Sarah Booth: Yes, absolutely. issues are particularly bad? Maurice Corry (West Scotland) (Con): Professor Bauld’s reference to long Covid gives Professor Bauld and Michael Clancy, do you me a slight cause for concern. agree that the regulations bring sharp clarity for the public—the issue in hand—and build on the Professor Bauld: That is absolutely the case. guidance that was given by the Scottish Shona Robison made the point that we are in a Government initially? difficult period and, given the complexities of the guidance and regulations, clear communication is Professor Bauld: Absolutely. I reiterate my even more important than it was earlier in the previous points about the fact that, in a crisis of pandemic. As I said, I very much welcome the on- this scale, it is absolutely appropriate that there going daily briefings. They are absent at a UK are regulations and that they are extended, for level, but we still have them. They are a helpful reasons relating to all the excellent examples that tool. the other witnesses have provided in relation to how the legal system operates, issues in the Unfortunately, lots of people will not be tuning workplace and so on. Those examples into the daily briefings and might be relying on demonstrate the need to have not only regulations other ways of obtaining information. It is important but, unfortunately, penalties associated with that other agencies are adequately resourced to breaching different parts of the guidance, which is be able to convey public health advice and the about keeping people safe. To be brief, my view is detail of the regulations to their populations. that that is entirely appropriate. Maurice Corry raises a good point. When local restrictions are imposed on an area, we might 10:45 need to provide additional resource and support Michael Clancy: Thank you very much for the for agencies in that area. That resource could be question, Mr Corry. We covered some of these used to fund door-to-door visits or to purchase points earlier in the discussion. It is crucial to have local radio station time. Local radio is an important a legal structure in place following the coronavirus way to communicate, particularly with communities legislation—the two Scottish acts, the one at UK who listen to certain stations, including those in level and the hundreds of regulations that have their own language. We need more nuanced been made cumulatively under those acts, which communication. deal with important issues about our liberty. It is The inequalities relating to Covid are stark. The important that we have regulations that ensure more deprived parts of our country have already that the actions of Government are lawful, been badly affected not only by Covid directly but proportionate and time limited, as we said earlier. by the unintended consequences of Covid, such as lack of access to normal healthcare and so on. Those communities, in particular, need resources.

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I know that the committee is not looking at and able to set some of this up, but they will need furlough, sick pay and other matters that are not Government support and involvement to do that. It devolved, but I want to emphasise that one of my should not be separate from our national testing big concerns—and one that we in public health all system; it needs to be integrated. have—is that people are simply not going to have At a time when we are still trying to expand enough resources in the coming months to testing at scale in other settings—I mentioned the weather the storm, whether it be Covid or not. numbers in Scotland’s testing strategy—I would What is concerning me about long Covid? There not be surprised if the effort that would be required is a new paper from Italy today that looks at to get that running in all of Scotland’s airports Bergamo, where they are bringing back in the might be an additional demand that is not a priority people who had Covid in March and April and at the moment, because we are trying to get some were hospitalised—I emphasise that those people of the other parts of the testing system operating would have been more unwell. About half of them at scale. have on-going symptoms and are struggling to I was just making that general point; I am sure cope with a whole variety of problems. The NHS is that others will be more expert in being able to going to need to make sure that it can support point to exactly what steps would be required to such patients, and I know that the Scottish put that in place, and what the implications would Government is looking at that closely. be for other parts of our testing system. Michael Clancy: I agree with what Professor The Convener: Before we move on to the next Bauld has already said. At the beginning of the question, I believe that Helen Martin would like to lockdown, the four-country approach meant that come in on some of those points. the regulations were pretty much the same from Land’s End to John O’Groats and from Berwick- Helen Martin: I would like to comment on the upon-Tweed to Belfast. That coherence, however, issue of consistency of message, which will be has broken down as each of the countries that vital as we move forward. Workers keep getting make up the UK have developed their own different messages from their employers about the coronavirus legislation, and there is a significant standards in their workplaces that are often out of amount of it in each jurisdiction. step with the wider public health message. For example, when the Glasgow lockdown was being That, of itself, if not carefully communicated, extended and a million people were being could create circumstances in which people are subjected to far greater restrictions, the Scottish confused about what law applies to them. I Government moved to put in place in the therefore echo Professor Bauld’s comments about manufacturing sector a consultation on reducing how proper, clear and effective communication social distancing from 2m to 1m. There have also about the legal arrangements affecting people in been outbreaks and clusters within manufacturing all four jurisdictions is essential. That will then workplaces. clear up issues around whether we are to stay alert or stay at home, which is the famous I make a plea for people to think consistently example from early May, when people just did not about the message. If we continue to make holes know what jurisdictions were affected. It also in our public health message about 2m social creates a need for jurisdictions that do not have distancing by saying that it is not necessary in such provisions as stay alert to then say, “That schools and that it is okay to have 1m distancing does not apply here.” Of course, as people travel in hospitality, on buses or in some types of across the country, they might encounter different workplace, that confuses the message for a lot of regimes from the ones that are local to them, and people. that also has to be clearly communicated. To coin If people do not have to socially distance when a phrase, it is about communication, they go into work and they spend all day in an communication, communication. environment where the standards are not high, it is Maurice Corry: I have one final question for difficult to get them to maintain high standards in Professor Bauld. You mentioned airport testing; I their own lives. I am concerned that we might see must declare an interest as a member of the an increased tightening of the guidance on home Glasgow airport consultative committee. You life—for example, the guidance on how many talked about infrastructure problems. What are people can come into someone’s home—but a those problems as you see them? loosening of the guidance on economic life. People are very conscious of the idea that they Professor Bauld: I was just speaking in general are not just economic entities, and that they have terms from a non-expert position, as I am not wellbeing issues, a desire to see their family and involved in any of the procurement or the set-up of so on. such services, and I do not underestimate the scale of the challenge. I was trying to say that I We must have consistency of message and know that the airports themselves would be willing keep the balance between home life and

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economic life. That is quite a challenge, because and I think that we will see a lot of development in the desire to open up the economy as much as that area. possible while still controlling the virus sends The technology and our knowledge around people in a specific direction. It is important to testing are expanding all the time. I do not want to keep the message as consistent as possible stray beyond my areas of expertise but, in the across all areas. context of the committee’s deliberations, I make Maurice Corry: That was very interesting. the general point that getting the existing testing system working and expanded at scale is Annabelle Ewing (Cowdenbeath) (SNP): something that all members of the Parliament Good morning. It has been an interesting should continue to ask for. In addition, we should discussion. We have had a wide-ranging debate look carefully at all the emerging research and about the role of emergency powers in a pandemic best approaches to identify whether Scotland and the need for buy-in from citizens. In looking could be slightly ahead of the game in embracing ahead to the winter months and wondering what and taking advantage of some of the new that might bring, it is apparent that that buy-in is technology, in partnership with our excellent linked to trust that the Government is doing all that research community. it can to control the pandemic. Annabelle Ewing has raised an important Professor Bauld has said today and on many general point, and I am sure that others are better occasions that rapid testing and mass testing are placed to comment on it. essential. Last week, I read an interesting article in the Financial Times that cited Julian Peto, who is Annabelle Ewing: If that technique worked— an epidemiologist at the London School of the writer suggested that it could be carried out on Economics. He suggested that there should be a weekly basis—it would be a game changer in mass testing of the population—universal dealing with the pandemic and avoiding mass, testing—together with contact tracing. He felt that blanket lockdowns, which we are fortunately that was the best way to control the pandemic. He avoiding at the moment compared with four specifically suggested the adoption of what he months ago, although we still have the winter to called the RT-LAMP—which apparently stands for deal with. I will certainly pursue the matter. reverse transcriptase loop amplification— My other question is for Michael Clancy. First, I technology. I do not know whether the committee remind members of my declaration in the register has heard of that; the convener is looking puzzled of members’ interests, which notes that I am a and I am puzzled, too. I hope that Professor Bauld member of the Law Society of Scotland and hold a is not. current practising certificate, albeit that I am not Professor Peto suggested that that would be currently practising. any easy way for people to be tested, as it is I return to a question that my colleague Willie saliva based and does not involve nasal swabs. Coffey asked, which Michael Clancy answered at He said that it would be cheap—it might cost £1 some length, on the backlog facing the courts. We per test, or less—and would therefore be easy to heard of the many developments to try to tackle roll out widely across the population, although it that. Do you think that, if we did not approve the would not replace the need, in the event of a extension of the emergency legislation, including positive test, to go on and have a high-tech test to its provisions on justice matters, such a failure to check for a false positive. Professor Peto believed extend would put in jeopardy the courts’ that the sensitivity of the test was sufficient to deal functioning while we are still in the midst of the with pandemic control issues. pandemic and the possibility of starting to tackle Professor Bauld, are you aware of whether that the backlog in a meaningful way? type of testing is being looked at, here or Michael Clancy: It is fair to say that we support elsewhere? To what extent is it seen as a realistic entirely the extension of the legislation. The option? consequences of not extending it could be—well, it Professor Bauld: I am not a virologist, and is just unthinkable that it would not be extended at testing techniques are not my core area of the present time. We need to do that to allow the expertise. As I have not seen that paper, I will current arrangements to continue while we cope comment only in general terms. with the crisis and until the crisis is much more manageable and there is less potential for the The technology is advancing all the time, and I virus to re-emerge. We should continue with the am more familiar in my work with how to use law as it stands. saliva testing for other purposes. It is a far less invasive method, and it makes it much easier to Annabelle Ewing: I thank Michael Clancy for get people to be tested. As you will know, the US that unequivocal clarification. and other countries are already using that approach more than we are. I would support that,

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The Convener: Finally, we come to questions The Convener: Michael Clancy, do you have an from Stewart Stevenson. answer to Stewart Stevenson’s question? Stewart Stevenson: The Children and Young Michael Clancy: I would like to take it away People’s Commissioner Scotland’s written with me and give due consideration to exactly submission states, on concerns that the what the Children and Young People’s commissioner previously raised about the Commissioner has said, because my scant notes, detention of young people, “We remain extremely which I made over the course of the past couple of concerned”. The submission also states that days, do not allow me to answer Mr Stevenson’s “the proportion of children and young people detained on question fully. remand has increased.” The Convener: Stewart, do you have further What do the panel members, but Sarah Booth questions? and Michael Clancy in particular, say in response Stewart Stevenson: No—that will do for now. to the Children and Young People’s Commissioner’s input to our deliberations? The Convener: In that case, I thank our four witnesses—Professor Bauld, Ms Booth, Mr Clancy Sarah Booth: We have not undertaken a and Ms Martin—for attending the meeting. detailed analysis of the provisions in relation to young people in order to avoid a duplication of That concludes our business for today. At our mandate with our sister organisation, the Children meeting next Wednesday, we will take evidence and Young People’s Commissioner. However, we from the Scottish Government on various Scottish note that it has particular concerns about statutory instruments, including the two that were children’s panels, attendance at children’s on our agenda today and on which we heard hearings and secure placements being a evidence relating to the expiry and extension of deprivation of liberty. We also understand that provisions in the Coronavirus (Scotland) Acts. I there are concerns about children and young thank the panel and colleagues. people being detained and the fact that no or very few children and young people have been Meeting closed at 11:07. released under the early release scheme. Stewart Stevenson: I am quite content with that, convener; I will let others pick up the baton.

This is the final edition of the Official Report of this meeting. It is part of the Scottish Parliament Official Report archive and has been sent for legal deposit.

Published in Edinburgh by the Scottish Parliamentary Corporate Body, the Scottish Parliament, Edinburgh, EH99 1SP

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