Chamber and committees

First, let me say that I and the Government share Mercedes Villalba’s concerns regarding high rents. That is why the Government has set out the action that we will take. Our upcoming housing bill will seek to put in place a framework for a new set of rent controls, and will improve rent adjudication further by limiting the increase in rents that tenants might face in the adjudication process.

The whole issue of rent controls is important, but we have to recognise that its consideration cannot be rushed, despite the difficulties that individuals are facing. I do not in any way question that they are having those difficulties, but there are complex issues to address and there is, quite simply, no quick-fix solution that can be implemented. All the international evidence shows that the systems that are robust and provide lasting benefit are those that are developed over time.

With the bill—the same argument that I deployed in relation to issues that were previously raised by Edward Mountain applies here—there has been no opportunity for Parliament to take evidence from a range of stakeholders on the pros and cons of a rent freeze. That means that there has been no opportunity to assess the likely impact of the proposal in a range of situations, or to consider how the rent freeze is to interact with a broader discussion of rent controls, as set out in our consultation “A New Deal for Tenants—Draft Strategy Consultation Paper”. In my view, therefore, taking such action through the bill would, at this stage, be premature.

Obviously, the Government will seek to take whatever action we can in the short term. I do not, in any way, doubt the testimony that has been put on the record today, and I acknowledge the challenges that individuals face. However, a range of substantial and complex issues have to be wrestled with in relation to the question of rent controls. Regardless of whether the issues are addressed on an emergency basis or over the longer term, their significance remains the same.

I will set out a few points in relation to particular challenges that the amendments raise. There are three problems with amendment 66. First, it states that the rent freeze should apply to “all tenancies in Scotland”, but it does not specify whether those are residential, commercial or agricultural tenancies and would therefore apply to all three.

Secondly, the proposed rent freeze is to be in place until rent control legislation is introduced, yet there is no clarity about the nature of the legislation that would be required. Amendment 66 does not take into account the fact that rent control measures are already in place in some form, with limitations on landlords regarding the number of rent increases that can be applied in a year. We also have in place, via the Private Housing (Tenancies) (Scotland) Act 2016, rent adjudication, which allows tenants to challenge unfair rent increases. That addresses, in part, the issue that Alex Rowley put to me.

It is not clear what further measures would count as the bringing forward of rent control measures so, as drafted, amendment 66 would not give any clarity as to the duration of the proposed rent freeze.

Thirdly, the amendment would oblige the Scottish Government to produce a plan to impose a rent freeze, but the Scottish Government has no power to implement a rent freeze. Amendment 66 would not confer such a power on the Government.

It is not clear how the proposed rent freeze would take account of the individual circumstances of the tenant, the landlord or the property. That would include giving due consideration to the impact of high rents in certain areas and the impact of the cost of living crisis.

The difficulties that I have highlighted with amendment 66 demonstrate why it is necessary to do detailed work to create a system of rent control that is effective, sustainable and robust against challenge, and which will stand the test of time. Proper consultation is a central part of that work.

Although the amendments in the group have been lodged with the best of intentions, I ask the committee to reject amendments 66 and 68 on the understanding that the Government is currently going through the required consideration of the implementation of rent controls and will consult all stakeholders fully on the issues.

I am certainly willing to consider the issues that arise. Colleagues will make a number of points this morning and, perhaps, this evening. I am happy to reflect on those points and to have further discussions. Indeed, on certain amendments, I will offer to do so.

In relation to the current point, there will be times when decisions on whether to impose restrictions or requirements are made locally. For the reasons that have been set out already, those decisions should be made by the people who know communities best, but it would be disproportionate to suggest that, for example, an environmental health officer must always consult the chief medical officer before making a decision.

It is important to highlight how many safeguards are included in the public health protection provisions and that expert advice will be sought under each. By way of example, Scottish ministers are required to carry out a proportionality assessment when making regulations under new section 86A in the 2008 act, and clinical advice would necessarily inform that assessment.

Additionally, regulations can be made only in response to a threat that presents or could present a “significant” risk, and regulations that enable the imposition of a special restriction or requirement can be made only where the threat is “serious and imminent”. Assessment of threat levels could be carried out only with advice from the CMO or other qualified advisers.

Finally in this respect, if the public health declaration amendment is accepted, it would require Scottish ministers to consult the chief medical officer or equivalent before proposing to make a public health declaration. I hope that that provides further assurances that appropriate advice and evidence will inform Government action.

I therefore cannot support amendment 4. I believe that it would impact the speed at which we could respond to a public health threat in an emergency situation, result in a disproportionate demand on the chief medical officer’s time and expertise and, in reality, reduce accountability for decisions that could have profound consequences.

I am grateful for Mr Whittle’s consideration of the matters raised in amendment 5, and I am willing to listen to arguments in favour of it. However, at present, I am not convinced of its value. My chief reason for that is that, as noted, all regulations must meet a proportionality test. In assessing that, the long-term health impacts, where relevant, would of course inform thinking. However, that may just be one of the many factors, and to mention only one in the bill may prejudice deliberations in its favour.

Additionally, the amendment does not distinguish between the regulations to which it would apply, unless it would apply to any that are made under new section 86A(1), regardless of their purpose. Concerns around the long-term impacts on public health as a result of Covid control measures are well documented. However, Covid should not be the template for consideration of all public health threats. Others may take different forms and require wholly different measures. Thus, a blanket requirement to consider long-term health impacts may not be appropriate. It would also be impossible to measure the long-term impacts of preparedness regulations, which would not impose restrictions directly and which might only impose obligations on the Scottish ministers or other bodies. A statement would therefore add nothing meaningful to scrutiny.

For all those reasons, I currently do not support amendment 5 but, as I said, I am open to arguments in its favour and will consider it further.

Amendment 24 is, I hope, uncontroversial. It would exempt regulations that are made on a “general” or “contingent” basis—that is, regulations empowering potential action if a significant public health threat emerged but which do not themselves impose any new restrictions or requirements—from the on-going three-weekly review process that is set out in new section 86G in the 2008 act.

Of course, amendment 24 has no impact on regulations that are made in response to a significant public health threat and which, if the Government’s amendment 23 on a public health declaration is passed, could not be laid without such a declaration. The reason for amendment 24 is that it would be both unduly onerous and an unreasonable use of public resources to subject to review every three weeks regulations that are intended to sit on the statute book on an on-going basis and that do not impose any new restrictions or requirements.

I have considered the issues that were raised during stage 1 by this committee and the Delegated Powers and Law Reform Committee. Amendment 28 provides for an explanation of urgency if the made affirmative procedure needs to be used in urgent circumstances to make public health regulations. The bill already provides for the draft affirmative procedure to be the norm and the made affirmative procedure may be used only for reasons of urgency. Members are aware that the parliamentary authorities are working with Government officials on a protocol for an expedited draft affirmative procedure in appropriate cases.

Amendment 28 also provides for an expiry or sunset provision to be included in public health regulations where the made affirmative procedure is used, unless the regulations amend regulations that already include an expiry provision.

The alternative amendments 6, 10, 11 and 12 that have been lodged by Mr Fraser and Mr Simpson in relation to made affirmative regulations would either mean that the made affirmative procedure was not available or lead to delay. I consider that the Government’s amendment 28 fully addresses the points that were made by the scrutiny committees at stage 1, and it should be preferred.

Amendment 7 would remove the public health regulation-making power entirely. I have already documented why these public health measures are so important, but the recent pandemic speaks more clearly on that point than I could. Therefore, I will not dwell on arguments against the amendment; I simply say that the amendments that the Government has lodged will add significant safeguards to the rules that were already included in the bill when it was introduced. I hope that that reassures members that their voices have been heard and that the bill will be better as a result.

For the reasons that I have given, I invite the committee to support my amendments in the group, and I ask other members not to press their amendments.

I would expect the CMO to be involved intimately in that process, but as I have just recounted, it will not always be the CMO who is best placed to do that.

Evidence is gathered for ministers from a multitude of sources. Ultimately, ministers make judgments based on the advice that they are given, because ministers are accountable. The CMO is not accountable for decisions. Decisions are, properly, for ministers to take. Independently, ministers must assess the evidence that is put in front of them and come to a judgment.

I understand all the points that Mr Rowley makes, and the strength of his opinion on that point, and I would not question in any way his commendation of John Mason’s debating skills. Nonetheless, I ask him to reflect on the amendments that I have lodged to the specific powers that Mr Rowley mentions. I have conceded—I did so in the stage 1 debate, and I have brought forward changes this morning—that any exercise of these powers would have to be approved by Parliament. A parliamentary regulation would have to be brought forward.

That cannot be undertaken under the made affirmative process; it has to be done under the draft affirmative process. Parliament would have to actively approve any changes before they were brought into effect, and that could happen only if the gateway mechanism had been gone through, because we were dealing with a public health emergency.

Since the bill was published, the Government has proposed two very substantial additional safeguards in its amendments, in response to the concerns that have been expressed by commentators. Some of the commentators that Mr Rowley cited have since reflected publicly on the points that I made in the stage 1 debate, and they welcome the steps that the Government has taken to revise the proposals accordingly in the light of the comments that I made during the stage 1 debate.

The licensing board is subject to statutory requirements but is in control of its own proceedings. As a consequence of the provisions that are proposed in the amendments, licensing boards or authorities must consider any representations made to them but are not obliged to accept them. Mr Rowley will be familiar with legislative terms; language matters, which is a point that I have made in the course of today’s proceedings. Expressions such as “must take into account” or “must have regard to” are different from “must accept”. The licensing board or authority is required to consider the opinions and views expressed by participants, but is not obliged to accept those views.

Should the amendments be accepted, Mr Rowley would be free to return to the provisions at a later stage in proceedings, if there was a desire to strengthen them. I am willing to engage in dialogue on that question.

The amendments respond directly to the recommendation in the committee’s stage 1 report that amendments should make it explicit that those entitled to participate in licensing hearings and meetings are able to be involved in the process of decision making on the format of meetings. Following the stage 1 report, we have undertaken engagement with licensing stakeholders in relation to the decision-making process around the format of licensing hearings and meetings. The policy contained in the amendments reflects that engagement and codifies current good practice

The amendments ensure that licensing boards and licensing authorities retain flexibility and discretion to decide the format of licensing hearings and meetings as part of their overall responsibilities, but must ensure that any views expressed by participants are taken into account.

Ensuring that the licensing board or licensing authority retains overall discretion is important for two key reasons. First, licensing boards and licensing authorities have to ensure that licensing hearings and meetings are fair for all parties involved, not just one party; failure to do so may result in licensing decisions being appealed. Secondly, licensing boards and licensing authorities have to be mindful of the statutory timescales for determining a licence application. Because some larger licensing boards may hear 25 or more cases at a meeting, ensuring that the decision to be made on meeting or hearing format sits with the licensing board or licensing authority is important in allowing for the effective operation of the licensing system.

The amendments that I have lodged are a pragmatic and proportionate response to the committee’s recommendation and balance the goal of public participation alongside the need to be mindful of the responsibilities of licensing boards and authorities.

Members will recall that the preceding group included amendments that were intended to minimise digital exclusion risks. I acknowledge that the committee’s stage 1 report posited wider cross-cutting amendments requiring public authorities to preserve the option of in-person or paper-based services. As the Government committed to do in the stage 1 response, we have considered whether any further amendments to other aspects of the bill might be brought forward and I can confirm that we have concluded that none is needed beyond those in this and the preceding group. We are satisfied that, across the bill as it is now proposed to be amended, the potential for digital exclusion has been minimised.

I invite the committee to support the amendments on the licensing context.

I move amendment 60.

I understand the dilemma, and I know that the Church of Scotland has made representations to the Government about that point. There are further discussions to be had with it on those particular arrangements. I understand the context that the Church of Scotland sets out, but options for resolving those questions are available to aid churches.

I accept that those options are not guaranteed, because a tribunal has the ability to come to a judgment. Earlier, I made the point that a tribunal considers all the facts and must do what is reasonable in the particular circumstances of each case. I do not wish to draft the outcome of a tribunal judgment, but I would think that a church appointing a minister after a period of vacancy and therefore requiring the accommodation to house that minister is a reasonable set of circumstances to put to a tribunal, should that be required. The overwhelming majority of eviction cases do not go anywhere near a tribunal; they are resolved outwith the precincts of a tribunal.

There is an extensive amount of material in the group of amendments, so I have quite a lot to say. I will try to minimise what I have to say on later amendments.

The overarching amendment in the group is amendment 23. Alongside amendments 38 and 39 in group 2, it will strengthen parliamentary safeguards in the bill by introducing the gateway vote mechanism that was announced in the stage 1 debate.

I will repeat the key points that I set out in that debate. There is a clear and compelling argument for ministers to have public health protection powers in the bill. Action by ministers must be grounded in evidence, and Parliament must be involved in decision making more effectively than was originally proposed in the bill.

Amendment 23 proposes adding new sections 86AA and 86AB to the Public Health etc (Scotland) Act 2008. That would mean that key aspects of the public health protection power could have effect only after a parliamentary vote on, and approval of, a formal Government declaration. To ensure that Government action is grounded in evidence, such a declaration would be informed by the advice of the chief medical officer or another designated person.

The key aspects of the power could be exercised only while the approved declaration remained in place. Conversely, were ministers to revoke the declaration, those same aspects could not be used without a further declaration. A public health declaration’s coming into force would not require the Scottish ministers to make regulations; it would simply open up the potential for them to do so if the other tests for making regulations in the bill were met.

As I signalled in the stage 1 debate, provision is made for circumstances in which Parliament cannot meet to approve a declaration—for example, when it has been dissolved in a pre-election period. For clarity, I point out that weekends, public holidays and periods of recess would not ordinarily fall into that category. It would usually be practicable in those circumstances to seek a recall of Parliament in sufficient time for the necessary public health response to be put in place.

As I also signalled in the stage 1 debate, amendment 23 excludes standing preparedness measures that would be intended to strengthen the public health resilience framework. They would be subject to parliamentary safeguards and could not objectively be described as “emergency measures”.

By agreeing to amendment 23, the committee would preserve the ability for swift and effective action to be taken to respond to a public health threat, balanced with proper parliamentary scrutiny. Parliament can enact the bill’s public health protection powers with the confidence that, in the event of a future public health threat, lockdown and other emergency response measures could be imposed only if Parliament approves a declaration.

In speaking to amendments 25, 26 and 27, I am mindful of the significant concerns regarding the ability for regulations that are made under the power in proposed new section 86A(1) to amend primary legislation—the so-called Henry VIII power—and of the recommendations that the committee made at stage 1. Amendments 25 to 27 are designed to strengthen parliamentary scrutiny. If the amendments are agreed to, regulations that are made under proposed new section 86A(1) that would modify primary legislation could be made only using the draft affirmative procedure. That means that primary legislation could not be amended by proposed new section 86A regulations that are made using the made affirmative procedure, and that Parliament would always have the fullest opportunity for scrutiny.

I hope that that reassures members that the Government has acted on the concerns about the scope of the power, and that Parliament’s role in scrutinising regulations that would amend primary legislation has been secured.

I acknowledge that some members wish us to go further. Alex Rowley’s amendment 1 would entirely remove the ability to amend enactments. I believe that it is necessary to include the provisions that I have set out in the restricted form that amendments 26 and 27 would deliver. First, I reiterate that it is intended that the power would be used only for existing legislation that, without modification, would cause confusion—for example, where provisions in public health regulations conflicted with other primary legislation or lessened the effectiveness of a public health response.

Secondly, the public health provisions in the bill are rightly informed by our experiences of the pandemic, which demonstrated that measures that will be needed are not always foreseeable and that speed can be vital. As an example, I point out that the 2008 act requires health boards to pay compensation to individuals who are asked to isolate. Earlier this year, expedited primary legislation was required to ensure that boards were not overwhelmed by that duty when isolation was related to coronavirus. Using primary legislation was practical at that time, but it might not always be. Although I hope that the power will never be used or needed, it is prudent to ensure that it is available if necessary.

Thirdly, as I outlined to the committee in April, the provision in proposed new section 86F(2)(d) of the 2008 act is part of the wider power in proposed new section 86A, which contains important safeguards and thresholds. Those have been extensively documented. In particular, the power could be used only as part of a response to a public health threat that

“presents or could present significant harm to human health”.

Amendments 25 to 27 will also add the safeguard of parliamentary scrutiny before any changes to primary legislation can take effect.

My final point is that the power, although it is significant, is not without precedent.

The lessons of the pandemic have convinced us of the need to be able to amend other legislation, even though equivalent provision is not part of the English and Welsh model. I hope that the committee will acknowledge that our experience of the pandemic has led us to diverge from England and Wales in other areas, and that therefore the case is made on the matter.

In a later group, I will speak to amendment 67, which relates to commencement. However, for the present, I will set out why I do not support amendments 8 and 9. In general, my reason for opposing any delay to public health provisions is that the Covid pandemic clearly highlighted a gap in our legislative framework in respect of responding to significant public health threats. We had to rely on emergency United Kingdom legislation to provide Scottish ministers with powers to control the virus’s spread.

It would be ill-advised to delay closing a gap that we have already identified. Recent experiences of unusual presentations of hepatitis in children and the monkeypox outbreak are irrefutable evidence that public health threats can emerge with very little warning. The Government would be rightly criticised were another threat to emerge and we had once again to resort to emergency legislation. Moreover, the powers will merely align us with England and Wales, which have had the powers for over a decade.

On the specific content of amendment 8, first, there has already been a 12-week consultation on the bill, in addition to the usual evidence gathering by committees. Appropriate impact assessments were also carried out in line with standard parliamentary process. Indeed, that is one of the strengths of having the powers on a permanent basis, rather than relying on emergency legislation for future threats.

Secondly, section 1 provides a general power to make regulations; it does not impose restrictions or requirements. Therefore, consultation would yield very little about the impact of the power that has not been found in the already extensive consultation period.

Thirdly, the groups that are set out for consultation mirror the groups that have been significantly affected by Covid restrictions, but those might not be the groups that would be most impacted by future responses. As the Government has stressed from the outset, one public health threat might be very different from another; so, too, might the measures that are needed in order to respond be different.

For those reasons, consultation should be determined by the content of regulations as and when they are laid. Section 122 of the 2008 act already specifies that, where practicable, consultation should be carried out with affected persons. That requirement would apply to any regulations that are made under proposed new section 86A.

With regard to amendment 9, there are lessons to be learned from the Covid response, and the inquiry is an important part of that process. Following its conclusion, there might be recommendations for other legislative changes but, as I have noted, we have already identified a clear gap and should move quickly to address it. Additionally, amendment 9 would go considerably further by delaying commencement of all the public health measures in the bill.

Although I recognise that section 1 has been a source of concern, other matters in part 1, such as monitoring provisions, provisions to ensure that the regime governing potential travelling restrictions is consistent, and provisions to expand the range of individuals who can deliver vaccines, have been well received or are uncontroversial.

With regard to amendment 4, I understand Mr Whittle’s perspective. Before placing restrictions and requirements on people and business, gathering supporting evidence is crucial. However, there are very good reasons for the fact that we have not explicitly in the bill required chief medical officer advice in relation to making regulations under the public health protection powers.

The chief medical officer might not always be the person who is best placed to make a determination as to the threat and might, in exceptional circumstances, be unavailable to make such a determination. For example, in the event of a chemical agent attack, the most appropriate person could be the chief scientific adviser. Amendment 4 does not allow for substitutions.

On more substantive grounds, it is precisely because of the potentially significant impacts of public health regulations that, with advice from relevant authorities, ministers should take the decisions to lay regulations, and nothing should detract from that ultimate responsibility.

The purpose of amendments 60 to 63 is to ensure that any views that participants at a licensing hearing or meeting may offer with regard to the appropriate format for the hearing or meeting must be taken into account by a licensing board or licensing authority, prior to finalising its decision on the format. That applies to anyone who notifies the authority of their intention to participate, such as the licence holder or an objector.

There may well be an argument for further dialogue. However, one of the points that Mr Whittle made to me earlier is the importance of knowing where clear decision making can be undertaken so that we all know where we stand. My view—this is also my experience of the past couple of years—is that that is critical, particularly in a public health emergency.

Amendment 121 and its more general alternative amendment 131 require ministers to establish an educational advisory council after making regulations and to seek its views. I have sympathy with the intent behind the amendments to secure in statute a consultative mechanism for education stakeholders for the duration of a public health emergency.

I respect the role and responsibilities of local government in these matters, which it has highlighted to the committee in its support for amendment 121. As the committee knows, the Government worked very closely throughout the pandemic with the Covid-19 education recovery group and would expect to use similar arrangements in future. I do not think that the composition of the amendments is appropriate today, but I would be willing to explore the issue further with a view to lodging an amendment at stage 3 that delivers a consultative mechanism in a more practicable way.

Amendments 122 and 133 would prevent regulations from swiftly addressing a public health emergency, and would result in a 48-hour delay between regulations requiring school closures being made and coming into force, or a seven-day delay before compliance with regulations could be enforced.

Amendment 123 requires that all regulations are accompanied by a statement on ministers’ policy for continuity of educational provision. That is unnecessary, because any regulations would be expected to include provision relating to ensuring continuity of educational provision and to be accompanied by guidance that would explain their purpose and how they support the continuity of education.

Amendment 124 places a requirement on ministers to direct that weekly contact between children and young people and the educational establishment that they normally attend be facilitated during a period of closure. It is not clear who ministers would direct and what the consequences of non-compliance with such a direction would be. The amendment also does not differentiate between the stages of education that children or young people are in, and is not limited to term time. It would be better to make clear in guidance or in regulations that such contact should be facilitated and give operators appropriate flexibility for different stages of education or needs and to cover all users—for example, students.

Amendments 125 and 126—[Interruption.] I am sorry; I will make progress, convener.

Amendments 125 and 126 would provide discretion despite regulations closing an educational establishment for an operator to conclude that a young person would be best supported by opening the establishment or for a parent to request that their child attend the establishment in person. Apart from the lack of clarity on which age groups of child or young person each provision would apply to, and whether they would apply to all types of educational establishments, the amendments would appear to undermine a national approach to restrictions on establishments where those were necessary and proportionate, according to the tests in the bill.

In practice, it is likely that limited continued in-person provision might continue during a general restriction—for example, to support vulnerable children or the children of key workers, or for students and boarding school pupils who are unable to return home for good reason. An operator’s legal duties towards their learners, pupils and students would continue alongside any requirements that are made in regulations. It is not helpful to provide further discretion to deviate from restrictions that have been put in place following all the tests established in the bill, and would undermine tackling the public health emergency. I therefore encourage the committee not to support amendments 125 and 126.

Amendment 128 is, in my view, unworkable. It is for the Scottish ministers to make regulations in relation to student accommodation that they consider necessary and proportionate in view of CMO advice. That cannot be wholly contingent on the actions or views of relevant managers of student accommodation who will be required to comply with such regulations. However, the regulations themselves can make provision to ensure that students are to be provided with necessary support.

Throughout the Covid pandemic, we worked in partnership with stakeholders including colleges, universities and student representatives to provide guidance for the safe operation of student accommodation and support of students staying in student accommodation. That would be our preferred approach in any future public health emergency. The Government will also work with stakeholders to explore what possible guidance would look like in advance of any future public health emergency.

Amendment 132 would put in statute a requirement on ministers to seek voluntary arrangements with education providers before making any regulations under sections 8, 9 or 10, and would be unworkable. It would significantly delay bringing forward any regulations, and would be undeliverable if even a small number of operators were unwilling to observe a voluntary arrangement.

Where appropriate, ministers would expect to use voluntary arrangements. During the Covid pandemic, it was on that basis that advice and guidance, rather than directions, were given to all operators other than education authorities. However, a requirement to agree that with all operators before using the powers would not be workable. In some circumstances, statutory arrangements will remain the only and most appropriate option to provide legal certainty.

Amendments 138 and 139 would add an additional requirement to review any regulations within seven days of a new member of the Scottish Government or junior minister assuming responsibility for the regulations. Such an approach does not properly reflect the principle of collective responsibility that is enshrined in the Scotland Act 1998 and reflected in the Scottish ministerial code, so I cannot support those amendments.

The proposed approach also seems unnecessary, given that regulations under part 2 will be made for a specific period and ministers will be required to review them every 21 days. An earlier review and, if appropriate, urgent revocation of regulations, as is provided for in amendment 37, will be possible at any time.

Amendment 141, on relevant authorities using their professional judgment, is drafted in unclear terms that would, unhelpfully, add doubt about duties under the bill. It could be read as giving relevant authorities significant scope to make different decisions from their establishments, despite national advice, guidance or regulations. There is already scope for deviation from guidance and advice where necessary. For example, a relevant authority will continue to have other legal responsibilities and will be expected to balance its different duties.

I accept the spirit behind amendment 141, which is that central Government should respect the professional judgment and knowledge of the people who are responsible for education establishments. Nothing in this bill is intended to undermine that. Government’s actions must be reasonable at all times. However, amendment 141 would not add clarity for operators on the action that they needed to take and would hinder the bill’s purpose of providing the basis for swift and decisive national action to tackle a public health emergency.