The Coronavirus (Recovery and Reform) (Scotland) Bill, introduced into the Scottish Parliament at the end of January 2022 by the Deputy First Minister on behalf of the Scottish Government, seeks to make changes across a number of areas of law - from public health legislation and the operation of the justice system to education and housing.

Of particular relevance to the education sector are the provisions contained in Part 2 of the Bill, which give powers to the Scottish Ministers to make regulations on the operation of education establishments and to restrict or prohibit access to student accommodation.

Parliamentary progress of the Bill

The Bill has now completed its Stage 1 in the Scottish Parliament, having been considered by a number of parliamentary committees who took evidence from stakeholders across society, with some concerns expressed about the breadth of powers being given to the Scottish Ministers to be exercised through regulations.

The Government indicated at the Stage 1 debate in the Parliament Chamber on 12 May 2022 that it was in ‘listening mode’ and gave commitments that key amendments would be brought forward at Stage 2 of the Bill’s consideration to address some stakeholder concerns.

The Government noted specifically that it was continuing to engage with education sector bodies in this regard to address legal and operational issues that had been raised in relation to the Bill.

This briefing provides information as to what the Bill in its current form could do, in relation to the operation of higher education institutions and student accommodation.

Part 2 of the Bill – Education

This deals with the operation of educational establishments, giving Scottish Ministers a power to make regulations for the continuity of educational provision in a manner that is consistent with the protection of public health, as well as having regard to public health advice and guidance.

The Bill defines “education establishments” to include early learning and childcare settings, schools, colleges, further education institutions and higher education institutions and, in so doing, legislates in the same way for a wide variety of very different establishments.

Wide-ranging powers for Scottish Ministers to make regulations

The Bill creates a legal duty to have regard to advice from the Scottish Government’s Chief Medical Officer, or another person designated by Scottish Ministers, about protecting public health. It also creates a legal duty to have regard to guidance from the Scottish Ministers about protecting public health and ensuring the continuity of education.

This duty will apply to every “relevant authority”, which will include the governing bodies of further and higher education institutions and the managers of student accommodation.

The Bill will give the Scottish Ministers a power to make regulations relating to the continuing operation of an educational establishment for a specific period, having had regard to advice from the Chief Medical Officer.

Regulations could confer additional powers on the governing bodies of further and higher education institutions in relation to the provision of education and related services and the use of institutions’ premises for the purpose of public health protection.

The Bill will also give the Scottish Ministers a power to make regulations on the following matters:

• to require institutions to open, stay open, re-open or open at times where they would not usually be open,
• to allow specified people or defined groups to attend an institution to receive further or higher education,
• to completely restrict or prohibit access to the whole or part of an education establishment’s premises, or to restrict or prohibit access to the premises in respect of all activities or specified activities,
• to ensure safe standards of hygiene, and other measures to protect public health, are put in place,
• to require the alteration of term dates, holiday dates or examination dates,
• to require the taking of general or particular actions that the Scottish Ministers consider appropriate, and
• to make different provision for different purposes, for example, for different descriptions of people attending an educational establishment.

Regulations on student accommodation

The Bill gives the Scottish Ministers a power to make regulations that will apply specifically to the managers of student accommodation during the subsistence of public health threats in Scotland.

Regulations could also be made to require the restriction or prohibition of access to student accommodation premises (or any part of such premises). Such restrictions or prohibitions may contain specific measures in relation to certain activities, such as access for the continuity of education or for urgent student welfare reasons.

Regulations can also require managers of student accommodation to take general or specific actions, and make them provide support for students to enable the students to comply with public health law requirements, e.g. to quarantine, or to follow public health guidance, advice and recommendations.

Necessary and proportionate action

Although the Bill provides for certain regulations to be made in accordance with the principle of taking necessary and proportionate action to protect public health, and with certain safeguards in place, including a requirement to review regulations every 21 days, the broad scope of the regulation-making power has resulted in a number of concerns being expressed during the Stage 1 debate in Parliament.

The Deputy First Minister was asked whether it was really necessary to legislate now for these powers in order to deal with future as yet unknown public health emergencies which often come as a surprise and bring their own particular issues and challenges. The Deputy First Minister considered that it was necessary to do so.

Lessons still to be learned from the Scottish Covid-19 Public Inquiry

Given that the Scottish Covid-19 Public Inquiry is still to get underway, the Government has not been able to consider the lessons that will be learned from that Inquiry in preparing this legislation and Parliament has not been able to apply any of those lessons to its scrutiny of the Bill, including in relation to operational issues and the rights of individuals.

In adopting a human rights-based approach to its work and hearing witness accounts of real-life experience, the Inquiry may well provide insights into a number of areas of the law that need to be reformed, insights which are not currently available to Ministers or MSPs.

This may well result in the Bill, if enacted, being revisited in due course.

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