Contents
- Attendance
- “COVID-19—A Framework for Decision Making”
- Subordinate Legislation
Subordinate Legislation
Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No 2) Regulations 2020 (SSI 2020/126)
The next item is to take evidence on the Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No 2) Regulations 2020. We have with us the Cabinet Secretary for the Constitution, Europe and External Affairs in the Scottish Government, Michael Russell. I welcome Mr Russell back to the committee and invite him to introduce and speak to the regulations.
As I explained last Friday, it is presently my responsibility to take forward the legislative part of the Scottish Government’s response to the pandemic. That includes the regulations that give effect to various aspects of the lockdown.
As some of the activity in the legislative response precedes the establishment of the committee and the regulations are amending regulations, I will recap the background.
The lockdown regulations—the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020—came into force on 26 March. The regulations were made using the made affirmative procedure, and they came into force immediately after they were made. They were approved by resolution of Parliament on 1 April 2020. Minor textual adjustments were made to the principal regulations by amending regulations.
The principal regulations make a number of provisions for the lockdown. Broadly, those cover requiring people to stay at home, other than for very limited purposes, closing certain businesses and venues, and stopping gatherings of more than two people in public, other than for very limited purposes. The regulations need to be reviewed at least once every 21 days.
The First Minister announced the outcome of the first review of the restrictions and requirements that are set out in the principal regulations on 16 April. The outcome of that review was that the requirements and restrictions remain necessary. The next review period ends on 7 May.
The Scottish Government made amending regulations by way of the made affirmative procedure on 21 April. Those amendments entered into force immediately after being made, and a plenary vote on the amending regulations is planned for next week.
The amending regulations make a number of adjustments to the principal regulations to adjust areas in which the regulations could operate more effectively, to ensure that physical distancing is maintained as widely as possible, and to clarify specific circumstances and remove any ambiguity from the principal regulations. The proposals were developed in line with the four-nations approach that we are taking, and many of the same measures have been taken by the other Administrations.
The amending regulations strengthen the position that is already set out in our guidance that all businesses must take all reasonable steps to ensure that their employees are able to maintain physical distancing. Businesses must also take reasonable measures to ensure that they admit people into their premises in sufficiently small numbers to maintain a distance of 2m, and they must take reasonable steps to ensure that that distance can be maintained by people—that is, customers—who are waiting to enter their premises. Adding that to the regulations extends the enforcement powers of local authorities and the police. If a business is unreasonably not following physical distancing rules, it could be fined or, ultimately, prosecuted. That ensures that there are additional tools to help to address reports of poor social distancing and to take measures to reverse those.
The amending regulations make it clear that some businesses can remain open. That includes livestock markets, which are critical to the food supply chain in Scotland, and a wider range of money services businesses, including currency exchange offices and savings clubs, to ensure that people have access to financial services at this difficult time. We have also been clear that holiday accommodation businesses must close at the moment, unless they are delivering the specific services that are set out in the principal regulations, such as providing accommodation for key workers.
I am sure that we are all looking forward to a time in the future when those restrictions can be relaxed. Although we do not know when that will be, some companies might wish to take bookings for future dates, when they have reopened to the public. The amending regulations enable holiday accommodation services to take online bookings and provide information for future dates when those services are no longer closed.
Finally, the amending regulations also make clear that burial grounds and gardens of remembrance that are associated with crematoriums are able to stay open to the public, although the final decision on that matter will rest with the relevant burial authority. That is the main content of the amending regulations.
I will now touch on future amending regulations, which are linked very closely to the discussion that the committee has just had with the Deputy First Minister. Last week, the Scottish Government published a paper setting out its thinking on how future reviews should be carried out. The paper set out the criteria and factors that should be considered, and the framework on which decisions might be based. It is a key focus for the Government in shaping a response from here on.
The First Minister has been clear that we want to be open and transparent about the options for Scotland. We will continue to revisit this issue in the coming days and weeks as we develop the approach. Our assessment framework will inform the required reviews of the lockdown regulations and the collective assessment and decision making with the UK Government and with other devolved Administrations, where possible.
I hope that that was a helpful explanation, and I am happy to answer questions as best I can.
That was a very helpful outline of the provisions that are in the regulations.
I have questions on the impact on businesses of the regulations and, in particular, the requirement for them to implement social distancing measures. The regulations are now being extended so that the requirement for social distancing will apply to all businesses that are open and powers will be given to local authorities and the police to impose fines on businesses that do not follow social distancing rules properly. Two questions arise from that. First, why did the initial regulations restrict that requirement only to certain business and not apply to all of them, and why is it now necessary to extend the requirement? Secondly, is there evidence that there is a problem with businesses not complying that has required amending regulations to be brought in that give powers to impose fines?
If you cast your mind back to the start of this process, you will see that the issue of social distancing has grown in importance from then to now.
The reason why not all businesses were included to begin with was probably simply that we were dealing with where we expected people to be at that stage of the lockdown. However, some businesses have now reopened—there are a number of examples, including hardware stores and a number of other businesses—and people have returned to work. They can do that only if it is safe to do so.
Hygiene is obviously extremely important, as is social isolation if people have symptoms, but social distancing is one of the primary tools that will perhaps allow us to normalise this situation. Social distancing is not normal, but it will protect people, and we want to ensure that they are well protected.
In response to the member’s point about evidence of a problem, reassurance is also important. Constituency MSPs and other MSPs know that some people have complained about businesses and about having to go to work in circumstances that they felt were unsafe. The updated regulations give them reassurance. They are also a helpful guide to businesses, so that they know what they need to do to be able to operate in an effective and safe manner.
The method of enforcement is important, too. It is primarily local authority environmental health and training standards offices and the Health and Safety Executive that will be looking at businesses, and they will be doing so in the context of safe working spaces. That is a wider issue that is being discussed by the four nations.
That is a very helpful explanation of where we are.
I want to seek clarity from the cabinet secretary.
The regulations include additional tools, including fines and potential prosecution, which the cabinet secretary referred to. Perhaps my issue is only based on my reading of the phraseology. However, the policy note mentions the test for imposing fines and prosecutions as being that a business has “unreasonably” failed to secure social distancing. What happens if a business has “reasonably” failed to do so? That is not only semantics, because the underlying issue is that, if an employer cannot ensure that people can be kept apart by the required social distance of 2m, presumably their business cannot open, and if it does open and, notwithstanding all the best efforts that they take to try and make it work in their premises, it does not work, presumably the business cannot stay open?
16:15
That would be absolutely true. If a business cannot operate safely, it should not be open—that is axiomatic—because the risk of not being able to operate safely is a risk to people’s lives. A reasonable failure is nonetheless a failure, and it should not be happening.
Okay.
I have one substantive question, on auction houses. Will the relaxations in the provisions also allow private trading of animals between individual farmers? Particularly at this time of year, we see calves and sheep being traded in that way.
My other point is an observation. As someone who is coming to this relatively new—because, of course, as an eighth decader, I am excluded from Parliament—I am finding the depths of changes to changes to changes in the legislation quite difficult to follow, and the legislation.gov.uk website takes a long time to reflect changes to original legislation. Clarity is important. Is there any chance that we might see clarity in that regard? I hasten to add that this is not a new question, cabinet secretary.
On the second issue, it is important that we prioritise the core messages. The detail is often not necessary to know unless people are in a particular circumstance. For example, the issue of money advice centres is relevant only to a comparatively small group of people—there might be demand for the centres, but only a small group of people are involved in their provision—so let us stick to the main messages. Those messages are stay at home, protect the NHS and save lives. How that is done involves ensuring that people are observing social distancing and that they are not going out. Those are the main messages that we want to be taken from these things and which we promote, and we will go on doing so.
It is necessary to make changes to regulations, just as it is in normal times. When regulations have had to be put together quickly, there are inevitably things that have to be changed, and I see small matters almost every day that are being dealt with. However, the main messages are inherently clear.
On the question of individual trading of livestock, my initial reaction is to think that that is not a regulated business per se. However, I would not want to say anything that is untrue or unhelpful, so thank you, Mr Stevenson—as ever, you have required more work from ministers and their officials. I shall ask that a response to that question be provided to you and to the committee. My initial reaction is that a private transaction is a private transaction, but of course the two farmers involved would have to observe strict social distancing.
Thank you.
Cabinet secretary, in your opening statement you mentioned that the regulations bring some clarity on access to burial grounds. There have been questions from the public about access to cemeteries aside from attending funerals, for people who might tend to visit a grave to lay flowers, particularly on an anniversary. You mentioned that that is still a matter for local authorities to decide about for individual cemeteries, but is there a general rule of thumb? Should people on their way to lay flowers on a grave, who are on their own or with their family households, be worried that the police will stop them?
That is a good question. I would be distressed to feel that the regulations were oppressive or made doing that difficult in any way. The principal regulations left the matter ambiguous, and it is important to make it clear that they do not lay a duty on the operators or owners of burial grounds to prevent people from doing that. That is a discretionary matter for them, and I suspect that they will want to make a judgment based on a variety of criteria, including their ability to staff those areas and make sure that social distancing is observed. There is no blanket ban, which is the interpretation that some were putting on the principal regulations.
To be straight, we would not want to have a blanket ban on people visiting the graves of their loved ones or any garden of remembrance. However, such visits must be done within the rules on social distancing and the bar on groups of people meeting together—that is, it would be with their immediate household only and nobody else, and it would have to be done carefully. As I have said, there is no blanket ban, and if the owners and operators of burial grounds and gardens of remembrance associated with crematoria consider that visits could be done safely, it would be possible to allow that under the new regulations.
Thank you for that very helpful clarification.
As no other members have questions, we move to item 3. I ask the cabinet secretary to move motion S5M-21572.
Motion moved,
That the Covid-19 Committee recommends that The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No 2) Regulations 2020 (SSI 2020/126) be approved.—[Michael Russell]
I think that that might have been the first time that a statutory instrument has been moved virtually.
Motion agreed to.
The committee will publish a report to Parliament setting out our decision on the statutory instrument in the coming days.
That was our last agenda item. I thank the cabinet secretary for joining us and I also thank members.
Meeting closed at 16:22.