Controversial powers designed for future health emergencies are necessary in case ministers have to deal with university bosses who favour a looser, “Boris Johnson”-style response, the Education Secretary has suggested.  

Shirley-Anne Somerville’s remarks come after sector representatives attacked plans for new legislation that would put a raft of measures permanently on the statute books.  

Many of the capabilities outlined are similar to those the Scottish Government was given on a temporary basis earlier in the Covid pandemic. They include powers to introduce lockdown restrictions and bar access to schools.

However, critics claim that passing the Coronavirus (Recovery and Reform) (Scotland) Bill as introduced may bring legally problematic intrusion into parental choice and lead to the micromanagement or "fettering" of universities and colleges.

Higher education (HE) bosses have said the legislation would put ministers in the position of deciding whether specific buildings remain open or closed, whether courses are delivered in-person, online or on a blended basis, and even whether students need to be moved to another institution to continue their studies. They insist that no government would ever be “competent” to determine specific requirements at such a granular level.

READ MORE: SNP 'power grab' fears over post-Covid emergency law plan

HE representative body Universities Scotland (US) has argued that a less prescriptive arrangement would be better, with ministers setting out “general requirements” and making sure the “granular implementation” is done by “the people on the ground who know how to do it”.

There are also worries among college leaders, who stress it would be harmful for ministers to impose measures while working in isolation and “at a distance”. Paul Little, Vice-Chair of the College Principals Group at Colleges Scotland, said the legal plans were “completely unnecessary”, adding: “They are simple planning overreach.”

The Herald: Paul Little, Vice-Chair of the College Principals Group at Colleges Scotland, said the Scottish Government's legal plans for emergency powers were an example of "overreach".Paul Little, Vice-Chair of the College Principals Group at Colleges Scotland, said the Scottish Government's legal plans for emergency powers were an example of "overreach".

However, the criticisms were firmly rejected by Ms Somerville during an occasionally bad-tempered meeting of Holyrood’s Education, Children and Young People Committee. She told MSPs that the framework process proposed by US leaders would still lead to “gaps” in decision-making abilities.

“In the area around some of the aspects where we really get into the granularity of it, I’m more than happy to carry on the conversations with Universities Scotland to see if we can come to more of an agreement on this than we have at the moment,” she added.

“But I think it is very important that we have the ability to be able to take quick decisions and allow that to be enforceable. Now, as we do that, we would of course be working with institutions to ensure that nothing is being done that would be inappropriate. I give you one example – of animal welfare measures that we’d obviously have to take into account as we move forward with regulations etc.

“But what I think would be difficult to get into a position of is if... [at] a public health level, we are receiving advice as a government that would perhaps suggest a later start to a term, to a semester, and we have an institution that just says, ‘no, actually, we think everyone should come back and we think we should have in-person learning’. If we don’t have the ability to say, ‘well, actually, no, I’m sorry, the public health advice is, actually, that is inappropriate’, then a framework doesn’t get us through that.

“So we can have the framework where we talk about it and try and work in partnership but when push comes to shove, if we have an institution that says, ‘no, we think – for example – in-person learning is the way forward and we’re going to move forward at a far greater pace than government would at all be comfortable with, with the public health advice, [then] with the greatest of respect to what Universities Scotland is proposing at this point, I don’t think it allows any government to be able to deal with that."

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Ms Somerville added: “I would point out – and I appreciate that Conservative members on the committee may agree with the approach taken to coronavirus by the UK Government – but if we had an institution, a senior management team, that has perhaps the more Boris Johnson approach to how you deal with coronavirus than actually listening to public health guidance such as we have up here, then we need the powers to be able to deal with that.

“Otherwise, we would have large institutions, with thousands of staff, thousands of students, that are integral parts of our community, having a very different approach... than the government does. And I don’t think that that would be particularly welcome in the communities that are, of course, university towns and cities across the country.”

The Herald: Conservative MSP Stephen Kerr was clearly irritated by the Education Secretary's reference to UK Prime Minister Boris Johnson.Conservative MSP Stephen Kerr was clearly irritated by the Education Secretary's reference to UK Prime Minister Boris Johnson.

Stephen Kerr, committee convener and Conservative MSP, described Ms Somerville's reference to the Prime Minister as “highly contentious”.

A US spokesman said later: “Universities and the Scottish Government have worked together in a partnership approach since the start of the pandemic, navigating fast-moving, unprecedented and incredibly challenging circumstances in close dialogue together, without the need to invoke the existing emergency legislation.

"Such an approach, which puts trust in universities to do the right thing in the interests of their communities, has seen universities consistently go above and beyond what has been asked of them, including a vast and early testing programme for students in 2020 and institutions operating to a higher level of caution than the rest of society between September 2021 and February 2022.

"That collaborative approach is what we believe would be most effective in the future, should Scotland face another public health emergency. We’re not against the Scottish Government having emergency powers, with sufficient checks and balances, for use in a severe crisis, but detailed decisions about how to implement emergency restrictions need to be made by the people on the ground who can apply them at individual course, student and building level.

“We will be delighted to take up the Cabinet Secretary’s offer to keep talking about a constructive and workable way forward to achieve the desired aims of this Bill.”