Meeting of the Parliament (Hybrid)

Meeting date: Tuesday, August 11, 2020

Official Report 770KB pdf

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Coronavirus Acts Report

The next item of business is a statement by the Cabinet Secretary for the Constitution, Europe and External Affairs, Michael Russell, on reporting to Parliament on the coronavirus legislation.

14:33  

Since I made a statement in the chamber on 9 June on our first report on the coronavirus legislation, Scotland has progressed to, and remains in, phase 3 of the route map. Major progress has been made in tackling coronavirus but, as last week’s events clearly underlined, we are still required to show caution.

The measures in the United Kingdom Coronavirus Act 2020 and the two Scottish acts remain necessary because of the continuing severe public health and economic challenges posed by the pandemic, despite the significant progress that Scotland has made. Today I have laid before Parliament the second report on the operation and continued necessity of the powers in both the Scottish acts and the UK act, which covers the reporting period that ended on 31 July.

Building on the first report published on 9 June, this report includes provisions from the second Scottish act—the Coronavirus (Scotland) (No 2) Act 2020—as well as information on Scottish statutory instruments whose main purpose relates to the coronavirus but which are not made under the UK or Scottish coronavirus acts. That follows an amendment made during consideration of the Coronavirus (Scotland) (No 2) Bill, which was originally proposed by Adam Tomkins, and which reflected the views of the Delegated Powers and Law Reform Committee. As a result of that amendment, we now report on a total of 32 SSIs.

In preparing the second report, we have fulfilled the requirement to take account of available information about—to quote from the Coronavirus (Scotland) (No 2) Act 2020—

“the nature and the number of incidents of domestic abuse occurring during the reporting period”.

That reflects an important amendment to the Coronavirus (Scotland) (No 2) Bill that was lodged by Pauline McNeill to help inform the approach that was taken to domestic abuse during the outbreak.

Overall, this second report forms a crucial part of our coronavirus strategy, demonstrating that accountability is integral to our efforts to suppress the virus. Today’s report shows, I believe, that the powers available to ministers have been used proportionately and, crucially, that they have not been used unless it has been judged necessary to do so. That means that while in some cases powers have not been commenced as there has been no need to do so, in other cases we have commenced powers but have not proceeded to use them. That should not be a surprise.

The legislation was intended to be enabling so that we could respond to the virus across all its many and varied impacts with speed, determination and all necessary tools to hand. In preparing this report, we have again sought to maintain a proportionate approach and have avoided placing undue pressure on those whose priority is properly to preserve lives. We have also provided, as we did in our first report, detail over and above the reporting requirements set out in the Scottish acts on the operation of the powers, where we think that that would be helpful.

Since our first report was published, we have continued to develop and refine our data collection and monitoring process. For example, we have issued further surveys to establish the extent of the operation of the powers at a local level for the powers under the UK act relating to local authority needs assessments. In the report, we have also included information on rights and equality impacts. That is key to ensuring that human rights are respected, protected and fulfilled, and that equality objectives are achieved. We have also sought to include, where possible, information on how the impact of the legislation on those with protected characteristics has been taken into account.

We will continue to work to consider carefully recommendations and best practice coming from the work that is being undertaken by the Parliament, stakeholders and others to ensure that human rights, children’s rights and equality are protected at this time. I hope that the report also indicates clearly the positive benefits of some of the key elements in the emergency legislation. For example, there is information on provisions that have allowed for the effective use of technology to deliver essential public services, such as those relating to courts and tribunals and the conduct of business by electronic means, which have enabled three criminal summary trials to be held virtually in the reporting period.

The use of electronic signatures and digital transmission of documents has enabled swift process changes that have been necessary to operate court services efficiently. Similar benefits relating to the use of technology have also been demonstrable in the use of the powers for licensing and land registration. The powers relating to suspension of pension scheme rules and the establishment of the temporary social work register have also provided additional resilience and enhanced capacity in the workforce. In addition, the second Scottish act introduced provisions relating to the carers allowance supplement. At the end of June, payment was made successfully to approximately 83,000 unpaid carers.

We are now two thirds of the way through the lifespan of the Scottish acts and there is considerable interest from stakeholders regarding the possible extension of the Scottish acts beyond their current expiry point of 30 September. We are giving very careful consideration to the details of such an extension. We are mindful of the calls from stakeholders that provisions of the legislation in areas such as housing have provided vital protections for individuals throughout the pandemic, and there is a continuing need for them. However, we are equally mindful of the commitments that we have made, which I have regularly reiterated, that such legislation must not be in place for a moment longer than is necessary.

On the overall question, I can now confirm that, before the end of this month, we will lay regulations that will, with Parliament’s agreement, seek to extend the Scottish acts from 30 September 2020 to 31 March 2021. However, we will lay at the same time regulations that will expire certain provisions within the legislation that we deem are no longer needed. That will mean that some provisions now in place will not be extended.

Work continues in order to arrive at a final position on those matters and I will return to the Parliament in due course with recommendations. The timing of laying those regulations is intended to ensure that Parliament has time to scrutinise them and that they are drafted sufficiently close to the point at which the acts expire, in order to enable us to reflect the latest position as regards provisions that need to be covered by a proposed extension and those that can now be proposed for expiry.

I turn briefly to the position regarding powers in the UK act to which the Scottish Parliament gave its consent on 24 March this year, 20 weeks ago. The UK act has a sunset clause by which it will expire on 25 March 2022, two years after it was passed, subject to certain exceptions that are set out in the legislation.

Under the requirements of the act, the House of Commons will undertake a review of its non-devolved provisions after six months of operation, which will be at the end of September, and it will debate a motion on whether those provisions continue to be necessary—in precise terms, that the provisions should not yet expire.

The devolved provisions in the UK act will not be in the scope of that House of Commons six-month review. However, a review of the status, operation and continuing necessity of those provisions is part of the Scottish Government’s own reporting on the UK and Scottish acts.

The Scottish Government’s third report to Parliament on those powers will be due following the end of the reporting period on 30 September. As part of that we will give full consideration, as we did in our previous reports, to whether those powers continue to be necessary and proportionate. The Scottish Parliament will have the opportunity to scrutinise the judgments that we have made and to express its view when it considers our third report.

I conclude by noting formally, as is required by section 15 of the first Scottish act and section 12 of the second Scottish act, that Scottish ministers have conducted a review of the provisions in part 1 of those acts and have prepared this report.

We are satisfied that the status of the provisions that are set out in part 1 of those acts remains appropriate. We have also undertaken a review of the SSIs to which section 14 of the second Scottish act applies. Scottish ministers are also satisfied that the status of those SSIs at the end of the reporting period is appropriate. A review has also been conducted of the provisions of the UK act for which the Scottish Parliament gave legislative consent. Those are also covered in the report and we remain satisfied that the status of those provisions remains appropriate. I now look forward to, and welcome, the opportunity to engage with the Parliament as it considers the second report.

Although we have made considerable progress through the phases of emerging from lockdown, the crisis that we are going through has not yet ended. Indeed, the events of the past week and the necessary reintroduction of lockdown measures in Aberdeen remind us of the real risks of a potential resurgence of the virus. It is essential that we as a Parliament provide the legislative tools and measures to respond to the serious threat that we continue to face. We only need to look around Europe and beyond to see that Governments and Parliaments elsewhere are still grappling with those challenges—as we are. Our job is not yet done. I commend this report on the coronavirus acts to the chamber.

The cabinet secretary will now take questions. The first question is from Murdo Fraser, who is joining the meeting remotely. He will be followed by Alex Rowley.

I thank the cabinet secretary for advance sight of his statement. When the emergency coronavirus measures were introduced, it was understood that those would be temporary and would last only as long as was necessary. The cabinet secretary has told us that the Scottish Government intends to extend those by six months from the end of September. Given the on-going threat of Covid-19, that will perhaps not come as a surprise, and is a measure that we would support. However, I hope that the Scottish Government will go as far as it can to remove restrictions that are no longer necessary. I look forward to hearing more from the Scottish Government about that in the coming days.

The on-going serious nature of the Covid-19 pandemic highlights the need for individual responsibility when it comes to compliance with regulations. In that respect, I have two questions for the cabinet secretary. First, is he able to give us an update on how many penalty notices have been issued by the police for breach of the coronavirus regulations? Secondly, I have been advised by constituents that in many cases the police are not issuing penalty notices, despite there being flagrant breaches of the regulations by individuals. Has the Scottish Government had any discussions with Police Scotland about the circumstances in which penalty notices will be issued, as opposed to warnings simply being given to the individuals involved?

I thank Murdo Fraser for his question and for his indication of support for the renewal of the necessary provisions—that word is very important, and I am glad that he agrees with that—within the acts. This is not a blanket proposal for renewal. There will need to be a very serious consideration of items in the legislation that might not be renewed, as well as items that will be renewed, and I look forward to that discussion with the COVID-19 Committee, which will likely take forward some of those issues.

On the question about the operation of the act and the role of the police, Police Scotland has been confident and has said publicly that, to date, compliance with the regulations has been generally good. We would agree with Police Scotland that—of the important four Es—enforcement is a last resort, where engagement, explanation and encouragement have failed. The chief constable has made it clear from the outset that it is important that the tone and style of policing reflect the need for positive engagement.

With regard to the statistics, between 27 March and 21 July Police Scotland made 61,593 interventions, the majority—94 per cent—of which were dispersals when informed or instructed. In other words, people were warned as to their behaviour and took that warning. Of the remaining 6 per cent of interventions, 3,310 fixed-penalty notices were issued, 349 were dispersed using reasonable force and 268 arrests were made.

The number of interventions has gradually fallen. The peak, at 9,778, was in the week ending 10 May and it dropped to 42 in the week ending 19 July, the last week in this reporting period for which we have full statistics. I agree with Murdo Fraser that, if there is no other means of going forward, enforcement is essential. However, we have seen proportionate, effective policing and the numbers have come down, both as the regulations change and because people have wished to meet what is required. That is the bedrock of ensuring that we stay safe.

[Inaudible.]—made the comment that progress has been made in tackling and driving down the virus. However, I worry that there are those who have taken their eyes off the ball; that is visible when people, for example, go into shops without wearing a mask. We need to be vigilant, and Labour will continue to support the Government where we need powers.

I welcome the proposed extension to the coronavirus acts, specifically with regard to housing. Shelter Scotland and Citizens Advice Scotland have put forward a strong case, which Labour supports, for extending legislation to ensure that we prevent evictions until April next year. Does the cabinet secretary agree that, given that council housing applications have been frozen in most parts of the country since the Covid crisis started, the housing crisis that Shelter Scotland talked about before Covid is becoming even greater and that more and more people are finding it difficult to access housing? At the same time, the need to grow the economy should be driven by investment in infrastructure; housing should be a national infrastructure priority, so that we can get the houses that we need, as well as the jobs, skills and training.

When the Government looks at the extension of that legislation, will the cabinet secretary seek to have a wider debate on how we tackle the housing crisis in Scotland and grow our economy at the same time?

The housing minister, Kevin Stewart, will want to bring to the chamber debates and discussions on a range of issues; I am sure that he will note and be sympathetic to that request to discuss all issues of housing.

In terms of the narrower responsibility that I bring to the chamber for this act, we are mindful of some of the arguments that Alex Rowley is putting, although the issues are not as clear cut as they might be. Undoubtedly, there is a need to continue to protect tenants; we recognise that, and yesterday we laid regulations for a new requirement for tribunals to consider whether a landlord has undertaken actions to support tenants before eviction, so we are taking actions outwith and on top of the bill. Also, from representations from the housing association in my area, I recognise issues about allocation, which have not been addressed because of lockdown, and issues over how housing associations operate. There are complicated issues in there; as part of the renewal, Kevin Stewart will want to bring forward proposals that meet need and demand, but they are not the only issues that are relevant in housing at the moment and I am sure that he will take account of that request from Alex Rowley.

I thank the cabinet secretary for advance sight of his statement.

On 18 June, the Scottish Courts and Tribunals Service responded to a written question from me, saying that 158 applications for eviction were made between 25 March and 16 June, and that 484 applications were outstanding. The vast majority were initiated before the emergency period.

Will the cabinet secretary confirm that the rented sector provisions in the act will be extended? In particular, will the Government agree to extend the existing six-month notice period to 12 months to ensure that there are no winter evictions? Will the Government also reconsider the need to outlaw for ever evictions on the ground of arrears accrued due to coronavirus?

Finally, why, in paragraph 7.1.1.16 of the report, in relation to the equality impact assessment, is there mention only of the landlord’s property rights under article 1, protocol 1 of the European convention on human rights, but no mention at all of the balancing article 8 right, on a person’s private and family life, home and correspondence?

I make it clear that I am sure that the Minister for Local Government, Housing and Planning will come to committee and the chamber with his detailed proposals.

We cannot, in renewal of the legislation, change the detail of it. That would require new legislation. We can either continue the powers or not continue them, and we have to decide on that before we put the regulations to Parliament. It is a clear process; we will not be able to amend the detail.

I think that the Minister for Local Government, Housing and Planning has made it clear that he would like continuation for six months, although I do not want to commit absolutely to that, because discussions continue. However, if there is a continuation—I hope that there will be—the terms of the continuation cannot be changed within the legislation. Doing so would require new legislation, and we are not planning new legislation at the moment.

On the wider question of evictions, nobody wishes to see evictions taking place. I repeat unequivocally that there should be no evictions due to coronavirus. There are other circumstances in which evictions take place: as members of Parliament, we are all aware of circumstances in which eviction was not only inevitable but necessary, sometimes due to antisocial behaviour, for example. In all circumstances, we want to protect tenants and their rights, and to make sure that they enjoy their security.

However, I ask members to remember that we cannot choose to change the legislation—we can only decide what we do and do not renew. That will be the question before us.

I am grateful to the cabinet secretary for advance sight of his statement.

I will ask once again about schedule 9 and the changes to mental health regulations, which can increase the amount of time for which a person is detained, and can reduce the number of clinicians who are required for intervention. The powers remain available to the Scottish Government, but no circumstances have yet emerged during the crisis that have required their use. When, after his statement on the previous report, I asked the cabinet secretary to repeal schedule 9, he quoted to me the view of a senior psychiatrist in support of its retention. Psychiatrists might be experts in mental health, but they are not experts in human rights, and many human rights champions are calling for the schedule’s repeal. Will the cabinet secretary reconsider?

I am happy to say to Alex Cole-Hamilton that every provision in the legislation will be considered with regard to whether to renew it. If I may use an Irish word, it is not very flaithulach to dismiss the president of the Royal College of Psychiatrists as just another psychiatrist. When the president of the Royal College of Psychiatrists says that such powers are necessary in the circumstances, it behoves every member in the chamber to listen to that individual.

I will not dismiss the point out of hand—there will be a discussion about it and consideration of the provision’s renewal. When we make recommendations, I am sure that we will hear again from Alex Cole-Hamilton.

There has been a lot of comment recently about development of a vaccine. Is there anything in the coronavirus acts that can help to ensure widespread coverage in Scotland, should a vaccine become available?

Fulton MacGregor has asked an interesting question. There is a provision in the first act that allows a wider group of people to legally administer vaccines. That power has not been used yet, but there are circumstances in which it could be used.

That is an interesting example of legislation that has not yet been required, but might be required. It could be required in two sets of circumstances: when there is a need and a request for mass vaccinations for the coronavirus, and in the intensive flu virus vaccination programme this year. I think that everybody over 55 is to be offered the opportunity to have the flu vaccine. That is a provision in the legislation that it would be wise to hold on to, although it has not yet been used. There are a number of such provisions that we should be aware of and discuss.

It is very welcome that the Scottish Government is taking such a proactive approach to domestic abuse during the coronavirus outbreak. Can the cabinet secretary confirm that the guidance for local authorities on how to respond to domestic abuse will continue to be refreshed regularly, in order that it reflects changing circumstances in relation to the lockdown measures that are in place?

I do not expect that we will wish at this time to dispense with the provisions in the legislation on that matter, so they will continue. The initial analysis of the figures that we have indicates that there was a rise in domestic abuse during the reporting period, but we need to drill down much further into the figures before we can talk about them in detail. The domestic abuse provisions are a very important part of the legislation; the Government certainly has no intention of walking away from them, so I expect the provisions to continue.

Will the cabinet secretary set out to me, as the constituency member for Gretna Green, why the draconian one-size-fits-all restrictions on wedding gatherings remain proportionate and necessary? How can it be fair to leave individuals and businesses in limbo and to delay such important life events, when similar-sized gatherings are allowed in pubs and restaurants and on public transport, and all involve strangers?

We all receive representations from a range of businesses, and we feel very deeply about them. I have received representations in the past few days about wedding venues.

We have to look at the matter in two ways. First, we should say that, clearly, weddings can take place and that there has, as a result of weddings being possible again, been a big increase in the number of weddings taking place.

However, the regulations about weddings are not the same as the regulations about social gatherings; a wedding reception is a social gathering in which it is likely that people from many households will come together. In the circumstances, wedding receptions need to be regulated in the same way as other social gatherings. That is a necessity. I wish that it was not so, but we need to look at the entire balance of how such things are managed. It is not as simple as taking one item and comparing it to another item.

The priority today should be, and is, to get schools back. That has been the First Minister’s declared priority, and it is now taking place. Nobody wants any regulations or restrictions to last a moment longer than is necessary. Mr Mundell’s simply shaking his head does not make something true. There continue to be dangers from unlimited gatherings; as a result, difficult decisions have to be made.

The cabinet secretary will be aware that debt is increasing because people are losing their jobs as a result of coronavirus. I hope, therefore, that the provisions on bankruptcy and debt in the first two emergency acts will be extended, because they are needed now more than ever.

I also ask the cabinet secretary to consider doing something that the Scottish Government has so far refused to do, which is to freeze interest rates and fees. I sincerely hope that the Scottish Government will not continue to set its face against that progressive measure, which would make a real difference to debtors. On that basis, will the cabinet secretary work with me to help people who end up in debt because they have lost their jobs?

I am quite sure that Jamie Hepburn, who is the minister who deals with such matters, will be happy to continue his discussions with Jackie Baillie—I know that they have been intensive, which I am sure is benefiting both members—on trying to find a way to resolve the issue.

I pay tribute to the work that Jackie Baillie did on the second coronavirus act to ensure that we moved on the matter, because it has had an impact. Quite a number of people have paid nothing at all, and others have been able to get their charges reduced as a result of her amendment, which was the result of productive discussions across the chamber.

I am certain that Jackie Baillie will want a discussion with Jamie Hepburn. Items will either be renewed or taken out of the legislation. As I have said, it will not be possible to make changes such as she suggests, although I am sure that there exists the potential for other action.

Will the cabinet secretary say more about what engagement the Scottish Government will have with external bodies—equalities and human rights bodies, in particular—to inform decisions on which provisions in the coronavirus acts will be renewed and which will expire?

It is clear that the timescale for renewal is tight, but as I indicated in my statement, we want to make sure that, in bringing forward such proposals, we stay as close to that timescale as possible, so that we can be as active as possible in making changes.

Within that, I want the Government and Parliament’s committees to engage with others in order to find out their views on the matter. People who feel that they should now be able to open premises but cannot yet do so should be part of the process, as should human rights bodies. There should be as much consultation as possible. It is because people are being asked to observe the regulations that we want them to be engaged in setting the regulations or renewal of regulations.

The cabinet secretary said in his statement that the powers have been used “proportionately”. In the light of that, how is it proportionate that gyms in Scotland are not to open until the middle of September, some two months after gyms south of the border opened, when no Covid clusters have been traced to transmission in a gym? How is that a proportionate use of power?

The First Minister addresses such questions when she reports to the chamber, as she does regularly. I seem to remember that on the most recent occasion on which she addressed the issue that Mr Tomkins raises, she made it clear that if evidence was produced that would allow gyms to open safely earlier—we are always looking for such evidence—it would be considered.

Presently, the view is that that is not the case—[Interruption.] It is certainly possible to shout, but it is probably more sensible to listen to the evidence that is produced and the information that is provided, and to ensure that we are all taking part in a process that is designed to suppress the pandemic and to enable us to move on. If all that members do is shout, they are not listening to the evidence and are not thinking of all their fellow citizens.

Quarantine after foreign travel has been quite a contentious issue. Can the cabinet secretary comment on such restrictions continuing and the question of which countries should be included or excluded?

That issue is considered closely on a four-nations basis. The evidence comes from two sources. In the end, we always make sure that we make the judgment based on what we regard as being the risks to the safety of citizens. That is not an easy thing to do—as we saw when one country was excluded that was not excluded elsewhere.

Quarantine is essential, because the bringing into the country of the virus is a major issue. Today in New Zealand, for the first time in 102 days, there are four cases in the city of Auckland. Action has been taken in Auckland to ensure that there is no possibility of that virus coming in from elsewhere.

We learn from other people, and we should do that by considering the totality of the matter, rather than just by looking at the situation in one sector compared with that in another.

I accept what the cabinet secretary has said about taking a proportionate and evidence-based approach to the legislation and the guidelines, but I want to raise the issue of funerals, which colleagues have raised recently at the COVID-19 Committee.

Can the cabinet secretary explain or publish the evidence base that limits attendance at funerals in places of worship to only 20 people? Many people from multiple households can gather in pubs and restaurants, but we cannot do so to mourn our loved ones. I ask the cabinet secretary to spell out the evidence behind that.

Monica Lennon knows—I have said this in committee previously—that if individual members wish to receive individual evidence, they should ask for it and they will get it.

However, there is the overall balance of risk to consider. A judgment is reached on what the balance should be after a great deal of consideration. It is not simply a case of saying, “There’s one sector, there’s another sector; let’s look at the two of them.” It is a case of making sure that a balance is struck and that safety is preserved by making sure, for example, that the R number is kept as low as possible.

It behoves us all to look at that as carefully and calmly as we can, and to make sure that we understand that promoting one sector over another might have unexpected consequences that could be immensely serious. Let us try to do things as we did when this process began, because that way led to success. We should continue with that success.

Paragraph 7.1.3.9 of the report concerns aspects of the legislation relating to vulnerable adults and the powers that have been given to local authorities to provide services without involving the views of the vulnerable adult or their guardian, welfare attorney or intervener. Can the cabinet secretary reassure us that the purpose of that power is only to keep the individual safe? Given the human rights implications of that restriction on people with a protected characteristic, will stakeholders be engaged with in order to understand the impact of the provisions?

Those provisions, like the provisions that Alex Cole-Hamilton mentioned, are kept under constant review. It is very important that we listen to practitioners and to people who are involved in the issues, as we make judgments on them. I confirm that we will consider very carefully whether the provisions need to be renewed. We will also ensure that people who are involved—service users and practitioners—are included in discussion of what should happen next.