Meeting of the Parliament (Hybrid)
Meeting date: Thursday, May 12, 2022
Agenda: General Question Time, First Minister’s Question Time, Striking University Staff, Portfolio Question Time, Cladding Remediation, Coronavirus (Recovery and Reform) (Scotland) Bill: Stage 1, Coronavirus (Recovery and Reform) (Scotland) Bill: Financial Resolution, Appointments to Scottish Fiscal Commission, Business Motion, Decision Time, International Nurses Day
- General Question Time
- First Minister’s Question Time
- Striking University Staff
- Portfolio Question Time
- Cladding Remediation
- Coronavirus (Recovery and Reform) (Scotland) Bill: Stage 1
- Coronavirus (Recovery and Reform) (Scotland) Bill: Financial Resolution
- Appointments to Scottish Fiscal Commission
- Business Motion
- Decision Time
- International Nurses Day
Coronavirus (Recovery and Reform) (Scotland) Bill: Stage 1
The next item of business is a debate on motion S6M-04310, in the name of John Swinney, on the Coronavirus (Recovery and Reform) (Scotland) Bill at stage 1.15:00
I welcome the opportunity to open the debate on the general principles of the Coronavirus (Recovery and Reform) (Scotland) Bill, and I thank committees of Parliament for their careful consideration of the bill’s provisions.
With the benefit of hindsight, I think that we can all agree that our statute book was not sufficient to deal with the circumstances that we faced in March 2020. Members will recall that we required two pieces of emergency legislation in a matter of days, to provide the legislative ability to handle the pandemic.
If it is passed, the bill will put in place legislation that we consider to be necessary, proportionate and appropriate to ensure that we can respond in the future, when the circumstances require it.
The measures in the bill fall into three broad categories: powers to counter future public health threats; the embedding of practical public service reforms that have demonstrated their value, irrespective of the public health position; and extended temporary measures to help to manage the impact of Covid, specifically on the Scottish justice system. The latter two categories have largely been endorsed in the scrutiny to date, but the first has generated significant difference of opinion, and my speech will focus mostly on that issue.
For the most part, the measures in the bill across all categories already exist in temporary legislation, but they will expire in September. The bill updates and equips the statute book in sensible and appropriate ways, based on lessons that have been learned from the pandemic. The measures were consulted on as a coherent package in a full 12-week public consultation that took place between August and November last year, and the measures in the bill collectively support the Government’s Covid recovery strategy and the recently updated Covid strategic framework.
I am pleased that the lead committee, having had regard to the other scrutiny committees’ reports, has endorsed the general principles of the bill and has recognised that it is appropriate to equip the statute book with powers to counter future public health threats.
The Covid pandemic caught us by surprise—that is in the nature of pandemics—and the next pandemic will catch us by surprise, too. We cannot legislate for that now. For sure, we can do preparation—we can have our civil servants draft up contingencies—but is it really necessary to legislate now to retain the draconian powers that the Government handed itself at the start of the current pandemic?
I encourage Alex Cole-Hamilton to listen to the arguments that I will develop during this opening speech, but I do not accept that there is material that we do not need to legislate for to enable us to prepare for future pandemics, because we can foresee a lot of what will emerge in that respect.
I and my ministerial colleagues have read with interest the recommendations that are contained in the various committees’ stage 1 reports. Although there are some recommendations that we are not persuaded are necessary, there are places where we agree that change may be needed, and we are now actively considering appropriate amendments at stage 2.
The Delegated Powers and Law Reform Committee’s report recommended that an explanation of the requirement for urgency be added when the made affirmative procedure is to be used for powers that are taken in the bill. I agree that it is appropriate to explain why regulations require to be made urgently, so the Government will lodge an amendment to that effect at stage 2. I can also confirm that my officials are working with parliamentary counterparts to develop a protocol for an expedited draft affirmative procedure, to be used in appropriate cases.
In relation to the proposed powers to modify primary legislation through future public health protection regulations—the so-called Henry VIII powers—I remain of the view that those powers are appropriate and that their use is already subject to significant safeguards. However, having considered the views of members, we will lodge amendments at stage 2 to add the further restriction that the powers will be available only when ministers make regulations under the draft affirmative procedure. That would mean that parliamentary approval would have to be in place before any modification to primary legislation took place.
I am grateful to the cabinet secretary for the concessions that he has announced on the Henry VIII powers, which the committee identified as a key area of concern. The cabinet secretary has consistently said that the Government is just trying to reflect legislation that already exists south of the border. Does he accept that the Henry VIII powers do not exist in the equivalent legislation in England and Wales?
It is my view that they do exist but that they require to be put in place with the necessary safeguards, which is what I am addressing today. If Mr Fraser thinks that I have already given ground, I encourage him to wait patiently for what is to come.
I will take some time to address a proposal that was developed in stage 1 scrutiny: that some key powers should be taken out of the bill and held in reserve or kept on the shelf for emergency enactment at a future point. I acknowledge the concerns behind that proposal and accept that the provisions in the bill as introduced did not strike the right balance between the legislative framework that we need and the necessary level of parliamentary oversight. There are three points to consider in that respect.
The first is that there remains a clear and compelling argument for ministers to have the public health protection and educational continuity powers that are in parts 1 and 2 of the bill. The statute book is currently not complete, and legislative action is required now. The public health protection powers would allow ministers not only to make regulations in a time of emergency, such as—in the most extreme circumstances—to impose a national lockdown, as we had to do to combat Covid, but to make regulations in what we might call “peacetime”, to prepare for future threats. That was my point to Mr Cole-Hamilton. I am thinking here of standing preparedness measures such as those that have been in place in England and Wales since 2010.
Will the minister accept an intervention?
I hope that Mr Greene will forgive me, but I have a lot of material to put on the record.
The second point that I recognise is the need for future action by ministers to be grounded in evidence. Throughout the Covid pandemic, decision making was guided by the advice of our chief medical officer and other advisers, as members saw most recently when key scientific evidence concerning the potential impacts of the omicron variant was provided to the Parliament in December.
Thirdly, I have acknowledged that there is a need to involve Parliament in decision making more effectively than was originally proposed. The need for swift and effective action in the event of a future public health threat must be balanced by proper parliamentary scrutiny.
Drawing those three points together, I consider that the most appropriate approach is to enact the necessary legislative framework now but to insert a mechanism that requires Parliament to authorise the use of such powers in a specific circumstance. We need the ability to co-ordinate a national public health response that could supplement local action that is already possible under existing public health legislation, and we also need adequate parliamentary oversight.
To ensure that the necessary parliamentary oversight is in place, the Government will lodge amendments to introduce a gateway vote mechanism, which would mean that key aspects of the public health protection and educational continuity powers would have effect only if a parliamentary vote on a formal Government declaration was held and the declaration approved. That would allow the Parliament to enact these powers with the confidence that lockdown, school closure and other emergency response measures could be imposed only in the event of a future public health threat—and in an emergency situation—if the Parliament has so authorised.
I do not consider that the standing preparedness measures would be subject to the gateway control, because they would be resilience preparations that would be the subject of regulations under the draft affirmative procedure and would be approved by Parliament before they were enacted. They cannot objectively be described as emergency measures. That capability is an important measure in our response toolkit. The powers to make such measures have not been available in Scotland as they have been in England and Wales, and the bill already sets out sufficient safeguards for their use, including, of course, parliamentary approval under the draft affirmative procedure.
Consideration will also need to be given to exceptional circumstances in which Parliament cannot meet—for example, when it has been dissolved in the pre-election period. I will provide members with more details at stage 2, for scrutiny at that point. Building on the practices with which we have become familiar through the Covid pandemic and the need that I have identified for an appropriate evidence base, the Government declaration underpinning those issues would rely on the advice of the chief medical officer.
Cabinet secretary, I must ask that you conclude.
I hope that the amendments that I have announced this afternoon, together with the further points that were made in the stage 1 report in relation to the Henry VIII powers and the introduction of a gateway provision, demonstrate the Government’s willingness to listen to Parliament as we bring forward necessary measures that are required to ensure that we have adequate protection in place for a future pandemic, but which—crucially—pay respect to and observe the importance of parliamentary accountability.
That the Parliament agrees to the general principles of the Coronavirus (Recovery and Reform) (Scotland) Bill.
I call Siobhian Brown to speak on behalf of the COVID-19 Recovery Committee.15:10
I am pleased to speak in the debate on behalf of the COVID-19 Recovery Committee. I put on the record the committee’s thanks for the hard work and support of our clerking team.
I will first provide an overview of how the bill has been scrutinised at stage 1, before I outline the committee’s key findings in its stage 1 report.
The wide-ranging nature of the policy areas that are engaged by the bill arguably reflects the profound impact that Covid-19 has had on our society and our economy. As we enter the recovery phase of the pandemic and much of the temporary coronavirus legislation expires, the bill invites us to consider what lessons we have learned since 2020 and which measures should be retained to ensure that we can respond to future public health threats effectively and proportionately.
We worked with relevant subject committees to ensure that the bill received thorough and informed scrutiny to answer that question. I am grateful to the Education, Children and Young People Committee, the Criminal Justice Committee and the Local Government, Housing and Planning Committee for working jointly with our committee to scrutinise the bill. I am pleased that the conveners of those committees will take part in today’s debate, and I will therefore focus my contribution on the provisions that our committee scrutinised in parts 1 and 3 of the bill.
Part 1 contains powers to co-ordinate a national response to a public health threat. Those powers formed the backbone of the Covid-19 response but they are broadened by the bill to enable the Scottish ministers to respond to any infectious disease or biological or chemical contamination in the future.
We do not often consider legislative provisions that have had such a profound and direct impact on all our constituents, and I think that that is reflected in the high response rate to our consultation. We received more than 3,900 responses to our survey, and nearly 100 written submissions. A clear majority of the responses to the short survey were opposed to the bill. For example, more than 80 per cent of responses argued against the provisions in part 1 being made permanent. Although the responses to our survey do not form a representative sample of the population’s views, they highlight that there is significant public interest in the bill.
The committee was therefore keen to reflect on how the powers were used in response to Covid-19 and whether they provide the right framework for dealing with a future threat. I thought that it was interesting that an expert in public health drew an analogy with preparations for war, noting that
“military planners are always planning for the previous war, not the next war”.—[Official Report, COVID-19 Recovery Committee, 3 March 2022; c 4.]
When we looked into the legislative template that has been used, we found that the provisions implement the World Health Organization’s international standards for public health legislation. That is an important point. The framework was developed internationally in response to the experience with severe acute respiratory syndrome—SARS—and similar powers have been in place in England and Wales since 2008.
Part 1 of the bill largely mirrors the English and Welsh legislation, but it includes some substantive differences. The key difference that we focused on was the inclusion of the Henry VIII powers that are found in parts 1 and 6, which would enable the Scottish ministers to amend any legislation for a purpose related to the scope of the bill.
The committee noted that there are alternative approaches to the inclusion of the Henry VIII powers in the bill. The provisions could be removed entirely and brought forward in emergency legislation in the future, if required. Another approach would be to delay the commencement of those provisions until a public health emergency arises, and to give the Parliament a role in scrutinising the decision to commence the powers in those circumstances. The committee did not come to a consensus on that matter, but I welcome the fact that the Scottish Government has considered it, and I welcome the update from the Deputy First Minister in his opening speech.
Some members of the committee agreed with the general purpose of the provisions in chapter 1 of part 1, which is to enable the Scottish ministers to co-ordinate a national response to future health threats. Other members considered that the Scottish Government had not made a sufficient case as to why those powers should be made permanent. Instead, they considered that the powers could be brought forward quickly in primary legislation, if required, in the future.
However, committee members were in agreement on many aspects of the bill. We all agreed that the role of the Parliament in a public health emergency is paramount, notwithstanding the challenges faced by the Government in responding to such threats. That is why we argue that part 1 could be strengthened, including in relation to the use of the made affirmative procedure. On that, we are in agreement with the Delegated Powers and Law Reform Committee. My colleague Stuart McMillan will contribute to the debate, so I leave it to him to explain those recommendations in more detail.
The COVID-19 Recovery Committee would also like some of the best practice that was developed between the Parliament and the Government to be reflected in the bill, such as the reporting requirements that were contained in the temporary Covid-19 legislation and the requirement that the reviews of the use of the legislation be reported to the Parliament. We also ask that the Government consider amending the bill to require that an appeals process be created if the requirement to use the powers in part 1 is triggered. I note that the Government has indicated that it does not support those recommendations, and we may return to the reasons for and against them during the debate.
I conclude by commenting on part 3 of the bill. The non-justice measures in part 3 are aimed largely at ensuring that our public services can be delivered remotely and are intended to ensure that our public services are more resilient to any disruption in the delivery of in-person services. The committee agreed with the general principles of those provisions, but we argue that the bill should also include a requirement for local authorities to provide a choice between remote and in-person services. We also ask the Scottish Government to give further consideration to how it is going to work with local authorities and the third sector to ensure that sufficient and appropriate support is available to users of online services, particularly those who are digitally excluded. I welcome the Scottish Government’s agreement, in its response to our report, that we cannot disadvantage those who do not want to, or cannot, access public services online.
The bill also deals with the nomination of a named person under the Mental Health (Care and Treatment) (Scotland) Act 2003. We consider that the bill could be strengthened by requiring a nominated person to confirm that they have read and understood the guidance on their role, when they take it on. We also recommend that more needs to be done to ensure that people take up what is an important safeguard, and I note that the Scottish Government intends to take forward some of our recommendations in guidance.
The committee recommends that the Parliament approve the general principles of the bill. We came to that decision through a vote.
I look forward to hearing more detail on the Scottish Government’s response to our report during the debate.15:18
I am pleased to open in the debate on behalf of the Criminal Justice Committee, which is a secondary committee on the bill and has considered its justice provisions. At the outset, I thank the witnesses who took the time to give evidence on the bill. Their views have helped to shape the committee’s views on the proposals. I also thank the committee’s clerking team for its support in leading us through the stage 1 process and producing our stage 1 report.
The justice provisions in the bill can be divided into two types of measure: permanent and temporary. The permanent changes are those that were put in place during the pandemic and that the Scottish Government has decided are worthy of permanent retention. In general, those attracted limited comment and were fairly non-contentious. For example, the bill proposes the establishment of a permanent system whereby interim payments can be made to lawyers for legal aid work.
The temporary justice measures in the bill attracted more interest. The bill sets out what “temporary” means in practice. All the temporary justice measures will expire on 30 November 2023 unless an extension is agreed by statutory instrument. The temporary measures cannot be extended beyond 30 November 2025.
I will briefly highlight four of the temporary justice measures. First, the bill proposes to extend the current temporary measures that supported electronic court business—sometimes referred to as virtual courts or virtual trials—during the pandemic. The committee heard from some in the justice sector who see the advantages of virtual working; however, the committee heard other, more sceptical, views, including fundamental concerns about how that impacts on the solemnity of justice and practical concerns about digital exclusion. The committee’s view is that more virtual trials need to take place in the criminal courts before a properly informed view can be taken about making them permanent. In particular, we are concerned that only a limited number of virtual summary trials had gone ahead. In effect, there needs to be an expansion of the pilot so that more evidence can be gathered as to their effectiveness.
If the Scottish Government seeks to extend the temporary provisions beyond 2023, the committee would expect to see robust evidence to justify that. The committee notes in the Scottish Government’s response its intention to consult more broadly on virtual proceedings and on improving victims’ experiences in the justice system, such as with the use of virtual trials in summary proceedings.
A second temporary measure in the bill relates to fiscal fines. The bill will temporarily increase the maximum level of fiscal fine that is available to prosecutors from £300 to £500. A majority of the committee supported those temporary provisions. However, the committee’s view is
“that there should be more transparency and improved reporting on the use of fiscal fines”,
“may help the victims understand the process.”
We would also question any moves
“to extend the fiscal fine provisions to include more types of crime.”
The committee notes the Scottish Government’s response, which highlights existing reporting on fiscal fines and the reassurance that is provided by the temporary nature of the measure.
The bill proposes a temporary relaxation of the statutory time limits that criminal proceedings are subject to. Some witnesses described those provisions as “a necessary evil”, given the need to ensure the delivery of justice. The committee’s view is that the further extension of time limits is concerning, and that there are good reasons for returning to normal time limits as soon as feasible. The committee seeks reassurance that the use of extended time limits will be monitored and used proportionately. The committee notes that, in its response, the Scottish Government agrees that
“the extended time limits ... should not become the ‘new normal’”.
Finally, there is also a temporary power in the bill to allow Scottish ministers to make regulations to release certain people from prisons and young offenders institutions early. Various safeguards around the use of that power are included in the bill. The committee’s view is that a balance must be stuck between the risks that are associated with the early release of prisoners and the risks that are associated with a Covid outbreak in prison. We consider that the power should be used only in the case of a significant deterioration in the Covid-19 position in Scotland and where a Covid outbreak cannot be managed through any measure other than reducing the prison population. The cabinet secretary has provided reassurance that he has no current plans to use the power. Any regulations on the early release of prisoners would be subject to close parliamentary scrutiny by the committee.
In the time that was available to it, the Criminal Justice Committee gave careful consideration to the justice provisions in the bill. If the bill passes at stage 1, we stand ready to consider those justice provisions line by line at stage 2.
I call Ariane Burgess to speak on behalf of the Local Government, Housing and Planning Committee.15:25
The bill covers many areas of policy, beyond the scope of any one committee. With our clear remit for housing issues and our keen interest in homelessness and ensuring that everyone is able to have somewhere secure that they can call home, the Local Government, Housing and Planning Committee welcomed the opportunity to consider part 4 of the legislation.
The bill will continue some but not all of the mitigations for tenants that were introduced during the pandemic. It makes all grounds for eviction discretionary and provides for landlords to undertake certain actions to support tenants when rent arrears start to build.
I read the report of the Local Government, Housing and Planning Committee with interest but noticed that it did not include all types of housing providers. The Scottish Property Federation has said:
“We believe that the overall impact of this Bill could be to weaken the PRS by fuelling a perception of regulation and risk for investors that will undermine efforts to attract capital investment to the sector.”
As the bill progresses through its stages, could the committee, in making an assessment, reflect further on the impact on all stakeholders and all housing providers?
I will take that on board. If the member allows me to continue, she will hear that we are aware of those matters.
Making the grounds for eviction discretionary ensures that the First-tier Tribunal for Scotland can consider all sides and perspectives when eviction is sought. The provision ensures that there is more security for tenants and breathing space for both parties to consider what is the best outcome, and it reduces the likelihood of a family potentially becoming homeless. The tribunal will have the opportunity to balance the needs of tenants with the rights and needs of landlords. We heard, loud and clear, from the organisations supporting and advising tenants that they support those changes in the emergency legislation becoming permanent.
The actions of landlords, such as discussing ways in which any debt can be repaid and signposting tenants to support when they start falling behind in their rent, will also be considered by the tribunal when eviction is sought. That is what happens in the social housing sector, and it represents a humane way to respond to a family who are struggling to remain in their home.
Witnesses representing landlords made their case clearly and thoughtfully, allowing us to understand the risks that landlords could face and their concerns about the bill creating uncertainty for landlords. We understand that properties might have been purchased to fund retirement or be required for landlords’ own housing needs. The tribunal can consider those factors fully in its deliberations.
Witnesses representing landlords also highlighted the potential unintended consequence of those perceived risks: that landlords would exit the long-term private rented market, thereby worsening the situation for those seeking to rent privately. We were made aware that the vast majority of landlords in Scotland have only one rental property and are reliant on it as an investment that they can realise when they need to.
We also heard that the relationship between local authorities, which have responsibility for dealing with homelessness, and the private rented sector needs to improve. Good mutual understanding is required, as is an understanding of the nature of the sector across local authorities to allow better collaboration to prevent homelessness. We hear the concerns of landlords, and we note that a tribunal will still be able to grant an eviction and use its discretion to decide what a reasonable and fair outcome is for both landlords and tenants.
To conclude, the committee supports the provisions being made permanent, with the understanding that a comprehensive housing bill will be introduced in the next parliamentary year. We believe that the provisions will provide continuity and security for tenants in the short-to-medium term. The Government must closely monitor the effects—intended and unintended—of the legislation. Will evictions reduce? Will the sector shrink and will landlords leave the market, worsening homelessness in the longer term? We hope that the answer to the first question is yes and that the answer to the second is no. In any event, we ask that that evidence be made available ahead of any future housing legislation. Landlords should be reassured that we will look closely at the effects of that change during our scrutiny of any future legislation in the area.
We also urge the Government to work closely with the private rented sector and local authorities. We must recognise the invaluable contribution that the private sector makes in offering a healthy mixed economy of long-term housing options, and all levels of Government need to work in a constructive way to prevent homelessness. A place that is safe to call home provides the most fundamental base for families to thrive.
I call Stephen Kerr to speak on behalf of the Education, Children and Young People Committee. You have up to four minutes, Mr Kerr.15:30
On this occasion, I am delighted to speak on behalf of the Education, Children and Young People Committee about our work at stage 1 on the Coronavirus (Recovery and Reform) (Scotland) Bill.
Our committee considered the provisions in part 2 of the bill, which are designed to ensure that the Scottish ministers have powers to enable educational establishments to take action to protect public health and ensure the continuity of educational provision relating to the temporary closure, or conditions on the functioning, of educational establishments or student accommodation, and relating to how local authorities would need to undertake consultations about proposals in relation to schools.
The committee is grateful to all those who provided evidence, which informed our report.
The majority of the members of the committee were content with the regulation-making powers conferred on ministers in part 2 of the bill, but the committee was not unanimous in its support. The recommendations that we set out in our report are intended to be constructive and seek to improve the bill.
I do not have lot of time this afternoon—I have been allocated only four minutes—so I will focus on our recommendations, which call for greater clarity in some of the provisions in part 2, including those that relate to the closure of schools, colleges and universities.
In their evidence, the Educational Institute of Scotland and the Convention of Scottish Local Authorities stated that local authorities do not have the power to unilaterally close a school on public health grounds. In such circumstances, a school must obtain permission from the local public health authority.
In their evidence, Universities Scotland and Colleges Scotland stated that the Scottish Government would not have the detailed local knowledge to exercise its powers to make decisions on which departments, buildings or research projects should close in a public health emergency, as is provided for in the legislation. The cabinet secretary has acknowledged that such practical issues would require to be managed flexibly and that some exceptions might have to be applied.
The committee agreed that
“local authorities and other stakeholders should have a clear and unambiguous understanding of where responsibility lies to close schools quickly in any future public health emergencies.”
The committee also agreed that it is essential that there is clarity on how exceptions to closure in university and college settings will be managed. We have therefore called on the Scottish Government
“to provide further detail on—
how it intends to consult with institutions to identify those facilities whose closure may not be possible or may have to be limited for practical, safety or welfare reasons; and
how such issues would be addressed in the development and application of regulations under this Part of the Bill.”
When the Cabinet Secretary for Education and Skills gave evidence to the committee, she expressed the Scottish Government’s willingness to engage further with key stakeholders to discuss any concerns. The committee welcomed that intent, and it looks forward to hearing more about the results of that engagement at some point this afternoon.
I call Stuart McMillan to speak on behalf of the Delegated Powers and Law Reform Committee. You have up to four minutes, Mr McMillan.15:34
I am delighted to speak in this stage 1 debate on behalf of the Delegated Powers and Law Reform Committee.
As has already been touched on by other members, the bill includes significant powers that can be exercised using the made affirmative procedure. Given that the use of that procedure was relatively unusual until recently, I want to take a few moments to highlight the committee’s recent inquiry into its use during the pandemic. That work helped to inform and shape the committee’s findings on the bill.
The made affirmative procedure, which allows the Scottish Government to change aspects of the law straight away, was usually seen by the Parliament only once or twice a year, but the procedure has been used more than 150 times since March 2020. In scrutinising those changes to the law, the committee understood that it was necessary to use emergency powers to respond to the public health emergency. However, our inquiry raised concerns about how clear and accessible the laws that were created with those powers were, particularly when they came into law prior to being scrutinised in the Scottish Parliament.
We highlighted in our inquiry report a set of principles that might provide the basis for parliamentary scrutiny where legislation includes such provisions—the bill is a prime example of that. Our stage 1 report, reflecting on what we found in our inquiry, recommended that the Scottish Government lodge amendments for each power that can be exercised subject to the made affirmative procedure. Those statutory requirements would be threefold: first, that each Scottish statutory instrument is accompanied by a written statement explaining and providing evidence of why the regulations need to be made urgently; secondly, that the Government includes an assessment of the impact of the instrument on all those likely to be affected; and thirdly, that such SSIs are subject to a sunset provision, so that changes to the law are not in force indefinitely.
From its response to our stage 1 report, and from the Deputy First Minister’s comments earlier, we know that the Scottish Government intends to lodge an amendment to provide an explanation of urgency and that it is considering adding a sunset provision to the powers at stage 2. I am sure that committee colleagues will welcome that.
There was not the same consensus among committee members on the five powers that can be exercised subject to the made affirmative procedure. The five powers are: the public health protection regulations in section 1; the continuing operation of educational establishments in section 8; school boarding accommodation in section 9; student accommodation in section 10; and early release from prison or a young offenders institution in paragraph 24(1) of the schedule.
Some members of the committee considered that the Scottish Government did not make a sufficient case for why those powers should be delegated and argued that such changes to the law could instead be made quickly under primary legislation. However, a majority of the committee—three of the five members—was content in principle with the delegation of each of the powers. Nevertheless, on school boarding and student accommodation, the committee considered by a majority of three to two that each power should only be capable of being exercised subject to the affirmative procedure.
I note the COVID-19 Recovery Committee’s recommendations on Henry VIII powers. Our call for a statement of urgency when making such regulations in an emergency might provide additional limitations to the potential use of the made affirmative procedure when exercising such powers.
The committee is working with the Scottish Government to develop a protocol for an expedited affirmative procedure, and the Deputy First Minister commented on that earlier. That work follows on from previous protocols that have been established between the DPLR Committee and the Scottish Government. We believe that that could be used in place of the made affirmative procedure.
In closing, I restate the committee’s consistent and strongly held position that the Scottish Government should use the affirmative procedure in all but exceptional and urgent circumstances. I note what the cabinet secretary said earlier in the debate, and the committee looks forward to seeing the fruits of that when we next consider the bill following the lodging of amendments at stage 2.15:38
I remind members of my entry in the register of members’ interests; I am a member of the Law Society of Scotland, and I derive some income from rental properties. I am also a member of the Church of Scotland, which I will mention later.
I join the convener of the COVID-19 Recovery Committee and other committee conveners in thanking all those who gave evidence to our committee or to other committees at stage 1, and I thank our committee clerks for their support. The COVID-19 Recovery Committee produced a very detailed and thorough report on the bill, which I commend to all members.
The Coronavirus (Recovery and Reform) (Scotland) Bill seeks to make permanent emergency powers that were taken by the Scottish Government to deal with the coronavirus pandemic. Some of the bill’s provisions that provide long-term reform are very sensible—for example, we would have no hesitation in supporting measures to allow nurses to administer vaccinations on an on-going basis, and we agree with some of the proposals to allow services that currently have to be provided face to face to be provided digitally and online.
However, too much of the bill is simply not necessary at this stage. To make permanent what were emergency and extraordinary powers would pass control from the Parliament to the Government. That would represent a power grab on the part of Scottish National Party ministers, which we cannot support.
The depth of concern about what is proposed was illustrated by the consultation that was run by the COVID-19 Recovery Committee, which the convener referred to. Nearly 4,000 respondents completed the committee’s survey—I cannot remember a committee receiving a response as large as that—with as many as 90 per cent of respondents expressing concern about what is being proposed. Many stakeholders also detailed their opposition to the powers in the bill.
I note what the member has said, but does he accept that the Deputy First Minister’s quite major concessions allay those concerns?
That remains to be seen. I recognise that some concessions have been made. Nevertheless, the bill will still be on the statute book, and it still represents a shift of power away from the Parliament to the Government. The trigger mechanism that has been proposed by the cabinet secretary would still not give the Parliament the opportunity to amend the legislation, as and when required, so we still have reservations about the bill, and we will see what stakeholders have to say in due course.
When it came to the general principles, the committee agreed to support the bill only on the casting vote of its convener. There is no consensus that the bill is required, which is why we will oppose it at decision time.
The Scottish Government argues that the measures in the bill simply reflect legislation elsewhere in the United Kingdom. However, the fact is that the bill’s provisions go well beyond what is permitted elsewhere. There are no limits on the amount of time that can be removed before a prisoner is released, unlike the situation south of the border. One of the most controversial aspects of the bill—the use of Henry VIII powers—is also not reflected in the equivalent legislation south of the border.
Will the member take an intervention on that point?
Will the member take an intervention?
I will give way to the cabinet secretary.
I am grateful to Mr Fraser for giving way. Does he not accept the argument that I have made to the committee that there are deficiencies in the legislation on the statute book in Scotland, and that the way to solve that is to legislate in order to address some of the issues that have been addressed in England and Wales, where the authorities are able to better prepare for pandemics in the future? Surely we need to consider that important issue with open minds in the legislative process.
The Government could have pursued an alternative approach, as proposed to the committee by Professor Fiona de Londras of the University of Birmingham, whereby the Parliament could agree draft legislation that would deal with the issues in the bill and could be left on the shelf to be introduced as and when it was required. Two years ago, the Parliament demonstrated that it can legislate very quickly in an emergency situation. We have already proved that that can be done. We could have approached the bill in that way. Crucially, that would put the Parliament, not the Government, in control of the process and would allow the legislation to be amended.
Will the member take an intervention?
I have given way several times. I need to make some progress. Sorry, Mr Fairlie.
I will turn to some of the specific measures in the bill. My colleague Jamie Greene will comment in more detail on the justice provisions, and I will mention the measures on housing and tenancies. A great deal of concern has been expressed by stakeholders that the temporary measures that were introduced in response to the pandemic are now to be made permanent, which will restrict the right of landlords to recover possession at the end of a tenancy period. The joint submission by NFU Scotland, Scottish Land & Estates and the Scottish Association of Landlords states that those proposals will deeply damage the private rented sector and could lead to many landlords simply withdrawing from the sector, thus restricting the supply of property for rent. At a time when rents are already rising—
Will the member give way on that point?
I will, briefly.
I put on record that I have an interest in buy-to-let property, but not in institutional investors, as per my earlier point.
Is the member aware that a survey by the National Residential Landlords Association that was published in November 2021 showed that 28 per cent of landlords in England and Wales were seeking to exit the market as a direct consequence of section 24, which is an unfair tax change that was introduced by the Westminster Government, and that that is having a significant effect?
I recognise that there are a number of issues for private landlords, but the answer to that is not to introduce even more legislation that will impact on them, as this bill seeks to do.
The language that is used in the joint submission by NFU Scotland, Scottish Land & Estates and the Scottish Association of Landlords is striking. It says that the Government’s suggestion
“that stopping these emergency provisions would cause confusion is at best spurious and at worst deliberately dishonest”.
The Scottish Government really needs to listen to those sectors.
Those concerns have been raised not just by landlords’ representatives. We have also heard from churches, including the Church of Scotland, which is concerned that it will no longer be able to safely let out church properties, such as manses that might be temporarily vacant, without the security of knowing that they can recover possession when they are needed for a new minister. The consequence of that is likely to be that those properties will simply lie empty, rather than be made available for housing. That must be contrary to public policy, yet it is an unintended consequence of what the Government is proposing.
Will the member take an intervention?
If I have time, I am happy to take a further intervention.
Mr Fraser, I appreciate your generosity in that regard, but you should bring your remarks to a close.
I offer my apologies to Mr Harvie.
Elsewhere in the bill, there are concerns about powers to close educational establishments. Stephen Kerr referred to those concerns in relation to the impact on universities and colleges. The Cabinet Secretary for Education and Skills told the Education, Children and Young People Committee that the power to shut down universities would be necessary in the case of defiance by right-wing university principals. If there are right-wing university principals in Scotland, I would really like to meet them, but I fear that that is a bogus argument.
There are very serious concerns, which I do not have time to cover, about the Henry VIII powers that are in the bill. We cannot accept this transfer of power from the Parliament to the Government. It is unjustified and inappropriate, and, for those reasons, we will oppose the bill at stage 1.
I call Jackie Baillie to open the debate on behalf of Scottish Labour.15:46
I am grateful for the opportunity to speak in the stage 1 debate on the Coronavirus (Recovery and Reform) (Scotland) Bill. It could have been an opportunity to pass legislation that would support Scotland’s recovery and introduce some sensible and much-needed change. Unfortunately, the bill is more about legacy legislation than about looking forward. It reacts to past challenges, while failing to learn lessons from the pandemic. The Scottish Government wants to drive through legislation before the independent public inquiry has had a chance to examine the Government’s handling of the pandemic.
The SNP is pushing through a bill that, as it stands, would have serious and long-term consequences for this country and our democracy. Throughout its 15 years in office, the SNP has been very effective in centralising power in St Andrew’s house. The bill is another step on that trajectory. It would grant ministers far-reaching powers to introduce, amend or repeal laws without advance parliamentary scrutiny, so, in our view, the bill as it stands must be opposed.
However, I will examine the detail of the Deputy First Minister’s proposal for amendments. We will come back to that.
I have explained with care to Parliament that, in response to exactly the feedback that Jackie Baillie has mentioned, the Government will substantively amend the bill, given the necessity of ensuring greater parliamentary oversight and prior decision making. I hope that that makes a substantial difference to the Labour Party’s thinking and that Labour members will approach the legislation that is before Parliament with an open mind.
As I said before the Deputy First Minister stood up, we will examine the detail of his proposal before stage 2.
We know that, as well as the SNP being a centralising Government that sucks up power, it is a Government that is completely lacking in transparency and that takes pride in the culture of secrecy at its very heart. [Interruption.] I can only call what I see and what the people of Scotland see each and every day.
Had the bill’s provisions been in place at the start of the pandemic, the SNP would have succeeded in its attempt to suspend freedom of information legislation. That important tool for holding any Government to account, which the SNP resists at every turn, would have been suspended for an indefinite period. That would undoubtedly have harmed our democracy. The so-called Henry VIII powers amount to a power grab and must be opposed in their entirety.
I think that we can all acknowledge that the Scottish Government’s response to the pandemic was flawed. When it came to personal protective equipment, the withdrawal of many social care services, the transfer of untested patients from hospital and other measures, the Government did not always get it right. The bill would enable the Scottish Government to double down on those areas, with no checks and balances in place to stop them. Ministers would be able to do all sorts of things, such as closing schools without approval from local government or the Parliament.
The proposals do not just lack transparency; they are simply not necessary. The Parliament has shown, time and time again, that it can respond quickly to events as they unfold, allowing MSPs from all constituencies and all parties to scrutinise, debate and perfect legislation in a robust way. In fact, the Parliament’s first-ever piece of legislation was passed in just a week. The Mental Health (Public Safety and Appeals) (Scotland) Act 1999 is proof of how quickly the Parliament can act, and it is evidence that making temporary powers permanent is unnecessary.
When the Parliament at Holyrood was formed, 23 years ago, key principles were adopted to ensure that it would serve the people of Scotland well. Those principles stated that
“the Scottish Parliament should embody and reflect the sharing of power between the people of Scotland, the legislators and the Scottish Executive”
“the Scottish Executive should be accountable to the Scottish Parliament and the Parliament and Executive should be accountable to the people of Scotland”.
The bill that is before us flies in the face of the very principles on which the Parliament was built. It would therefore be inappropriate to support the bill in its current form, and the SNP and Greens should not use their majority in Parliament to ram it through.
I will turn to other aspects of the bill. Scottish Labour views many individual provisions as positive. The proposals on vaccination, such as ensuring that a wider group of healthcare staff are able to administer vaccines over the course of a pandemic, which eases the pressure on general practice services and allows them to focus on primary care. The continuation of that policy makes sense. The bill would also allow parents to register the births of their children online, instead of in person—a move that is befitting of the 21st century. Other sections of the bill tackle homelessness and bankruptcy provision, and they are a step in the right direction. It is a shame that those proposals come wrapped together with others that hand sweeping powers to ministers. The point has also been made that there are other, perhaps better, legislative opportunities to take forward those measures.
Other proposals have caused concern. On justice, the bill would extend the period in which proceedings must commence to nine months. The Criminal Justice Committee believes that that proposed extension is too long, and the Law Society of Scotland has even argued that extensions should be decided on a case-by-case basis.
Therefore, I am afraid that Scottish Labour will not support the general principles of the bill at stage 1, because it is largely a power grab and it undermines the Parliament’s role in scrutinising and shaping legislation. It denies not just the Parliament but the people of Scotland that opportunity. If the Scottish Government wants our support for the bill, it must take the contentious powers off the table by stage 2.
I call Alex Cole-Hamilton to open on behalf of the Scottish Liberal Democrats. You have up to six minutes, please, Mr Cole-Hamilton.15:52
I rise to speak for the Scottish Liberal Democrats at stage 1 of the bill. When we were forced to lock down in March 2020, Scottish Liberal Democrats reluctantly agreed to the deep and wide-ranging powers being granted to the Scottish Government, which were necessary to get us through the work of the pandemic. We turned those bills around in just days; however, they were not meant to last forever.
Lessons have undoubtedly been learned from the pandemic, and it is right that sensible reforms are made in response to that. The situation caused public services to innovate, and many found new ways of working and adaptations that should, by rights, be retained. Much in the bill falls into that category, particularly those items that will allow the sensible use of technology when appropriate, providing that the necessary infrastructure is in place and that the changes are given scrutiny.
However, my party and I are clear that many aspects of the bill represent an unprecedented power grab by the Scottish Government and, despite the concessions that were announced this afternoon by the Deputy First Minister, the bill still represents an unacceptable transfer of power from the legislature to the Executive. The Parliament would never have countenanced handing over many of those powers to ministers before the pandemic, and we must not do so now.
The bill will represent a permanent transfer of some powers from the Parliament to the Executive, undermining democracy and civil liberties in the process. That is chilling. It is made even more troubling by the fact that it is wholly unnecessary and perhaps even unhelpful.
On 24 March 2020, just as millions of people were put into lockdown, Nicola Sturgeon said:
“I am very clear that the emergency powers are necessary, but that they should be used only if and when we deem it necessary and they should exist only for as long as they are needed.”
She went on to say:
“at a time when we are taking emergency powers and we are asking the public to do things that restrict the liberty of all of us, scrutiny is absolutely essential”.—[Official Report, 24 March 2020; c 18.]
So what has changed? It seems that the Government has simply grown quite accustomed to having those unprecedented powers and no longer feels the same sense of unease or solemnity.
Does Alex Cole-Hamilton not agree that the Scottish Parliament and the Scottish Government should have the same level of legislative authority to make such decisions as is held in England and Wales?
First, I contend that the bill is not a mirror image of the legislation that applies south of the border, which Liberal Democrats there opposed.
Let us be honest: the Scottish Government centralises power at its leisure. It has taken every opportunity to transfer control from local authorities to St Andrew’s house. There can be absolutely no justification for the Executive permanently retaining the ability to shut schools, release prisoners and impose lockdowns. The thought of that is still quite alarming.
We could not have legislated for everything that we needed to do to enable us to respond to Covid-19 before we had heard of it, any more than we can now legislate for the next variant of the virus or perhaps the next pandemic that might come down the track. As other members, particularly Murdo Fraser, have said, it would be far better to instruct civil servants now to prepare draft legislation—a toolkit—to put on the shelf, to be ready for such an eventuality. The power to make changes to our justice or education systems, for example, should come from the ground up. It should lie with people who understand those systems, have existing responsibility for managing them and are able to monitor the impact of any changes that are made.
If the powers contained in the bill were to be used in the future without the scrutiny and unanimous backing of the Parliament, public support for necessary measures would immediately be undermined. Even with the concessions that have been announced today, the Parliament would not be able to amend such strictures.
If the Government will not take my word for it, perhaps it will listen to Michael Russell, who said during the stage 3 debate on the Coronavirus (Scotland) Bill that it was important for the Scottish people to see the unanimous support of their Parliament for the action that was being taken. That cannot be guaranteed with what is proposed. It was important then, as it is now and ever shall be in the future.
The bill has been badly thought out and the Government’s argument for it is paper thin. The Deputy First Minister said that it will allow the Government to speed up “sufficient comprehensive action” in the event of a future pandemic or public health emergency. However, in March 2020, faced with an unprecedented situation and without access to many of the facts, Parliament was able to pass the necessary legislation in a matter of days.
There is no guarantee that the measures in the bill would even be helpful in the face of a future, different virus. As I have said, it would be far more appropriate to draft primary legislation that would be ready to go at a moment’s notice. That way, Parliament would only need to decide which and whatever powers in the draft legislation were necessary and proportionate, without the need to write them from scratch. That is not just my view; the Criminal Justice Committee has also posed that as an alternative.
To be clear, I am all for the Government having a better plan for future pandemics. Its Silver Swan strategy planned for the wrong type of pandemic. It overlooked care homes and did not even mention testing. We need something better, but this bill is not it. Let us not forget that, during the recent pandemic, the Government needed the scrutiny of Parliament to prevent it from taking the gratuitous step of stopping jury trials for the first time in 800 years. The scrutiny of the Parliament really matters.
Nicola Sturgeon has said many times that she did not want the powers for a moment longer than necessary, and yet here we are. The SNP talks a good game about the importance of democracy when it suits it, but the bill demonstrates that it does not possess the necessary wisdom and humility to safeguard it. The Liberal Democrats see it as one of our core duties to stand up for civil liberties and democracy—the clue is in our name. Therefore, we whole-heartedly reject this power grab and the cynical and, quite frankly, chilling politics that it represents.
We move to the open debate, with speeches of five minutes. There is no time in hand, so any interventions must be absorbed within the allocated time.15:59
There is a lot in the bill that is welcomed by all members of the COVID-19 Recovery Committee, not least the increase in the amount owed before a creditor can force a debtor into bankruptcy, the remote registration of births and deaths, and vaccinations not having to be under the control of a medical practitioner. Much of the bill is not contentious at all.
Where there has been a bit of disagreement, it has concerned what legislation should be put in place now so that a future Government is better placed to act quickly—in comparison to the situation where we needed rushed primary legislation in early 2020. It is true that we rushed legislation through at that point and, on the whole, it has worked. However, most of us agree that it was not perfect and could have been better had it not been so rushed.
The next problem is that we do not know what the next pandemic or other crisis might be, which could be an argument for doing nothing now and waiting to see what happens. However, it would seem unfortunate if we were not at least a bit better prepared next time than we were this time. There certainly would be a problem next time around if, say, half the MSPs caught the virus at the start and Parliament itself was more disrupted than it was last time around.
Given that, as Mr Mason suggested, we do not know the nature of what is coming down the line, would it not be better to have the legislation waiting at the side to be enacted, so that we could amend it to recognise the next pandemic—or whatever other emergency—that comes down the line?
I accept that that is one option, but so is having the legislation in place and ready. The Deputy First Minister has given a reassurance that that legislation will not come into effect until Parliament agrees. There will obviously be a need for further legislation at that time, in which Parliament can be involved. Therefore, I do not really accept Mr Whittle’s point.
I wonder whether there might be room for compromise on the matter. That is what we are hearing this afternoon from the Government, which is very positive.
The COVID-19 Recovery Committee took a fair amount of evidence on the question of what a proportionate response is and whether a threat is “serious” or “imminent”. Some witnesses tended to feel that we needed a bit more explanation of the issue. The policy memorandum outlines the factors that might be considered, but the bill itself does not. In paragraph 42 of its report, the committee was inclined to seek some of that detail appearing in the bill itself. I note that the Government is not convinced about that and I accept that there are risks with being “overly prescriptive”.
The Government’s response refers to “providing definitions”, although I do not think that the committee was going as far as asking for definitions; it was asking more for a non-exhaustive list of factors. Again, there might be room for a bit of compromise on that point.
I know that the committee had serious concerns about the frequency with which the made affirmative procedure was being used, and we previously had a debate on that subject. I agree that there is a need for parliamentary oversight of that matter, so I welcome the Government’s agreement to lodge amendments at stage 2 specifically to require an explanation of urgency when the MAP is used.
I turn to the Henry Vlll powers. The committee invited the Government to consider that point in the recommendation in paragraph 57 of its report. Therefore, I welcome the fact that Government is proposing amendments. We are seeking to strike a balance between the Government having the necessary powers to act in an emergency and Parliament fulfilling its role and duty to hold the Government to account.
We have to remember, too, that, although we currently have a nice Government that is headed by Nicola Sturgeon and John Swinney, there is always the remote chance of a nasty Government in the future, headed by Douglas Ross or someone like him, and we would not want that type of Government to have unlimited powers.
As I said at the beginning of my speech, there was a general welcome for the option of registering births and deaths online and for some licensing meetings to take place remotely or in a hybrid format. However, that comes with the proviso that some people are unable to take part digitally and that some situations are better handled in person—for example, sensitive discussions with a vulnerable person about what exactly should go on a birth certificate might best be had in person.
There was some concern at the committee about a conscious or unconscious drift towards more and more services being provided digitally and fewer and fewer being available in person. Local authorities are obviously also aware of the need for balance in that matter, but it was felt that the Government should at least consider whether provision for stronger protection of in-person services should be made in the bill.
I am running out of time. I am happy to support the bill at stage 1. The COVID-19 Recovery Committee has made clear that it would like some amendments, so I look forward to seeing them at stage 2. The bill will help us to be better prepared for the next pandemic.16:04
In 2020, the United Kingdom Government passed the Coronavirus Act 2020, which gave the Scottish ministers the ability to create regulations to protect members of the public against the spread of coronavirus in Scotland. At the time, the act was necessary, as it allowed Governments to have the freedom to make decisions outwith normal processes during the peak of the pandemic.
Fast forward two years and I am relieved that Governments are now focusing their attention on economic recovery across the UK. It was reassuring to see figures released today that show that, in the first quarter of 2022, the UK economy grew faster than the economies of the USA, France, Germany, Italy, Spain and the European Union. That demonstrates the UK Government’s commitment to getting our country back on track.
However, it is concerning that, following the Scottish Government’s Coronavirus (Scotland) Act 2020, the SNP now intends to make the powers in that act permanent. Although the Deputy First Minister announced measures on safeguards, the unpopular Coronavirus (Recovery and Reform) (Scotland) Bill would allow the SNP to impose lockdowns, release prisoners early and close schools without appropriate parliamentary scrutiny or votes. At this stage, although MSPs have heard the DFM’s announcement, we still do not know the wording of the amendment that the Government intends to lodge, so the bill will have to be taken at face value when we vote at decision time. Given that we do not know at this stage if or when another pandemic will emerge, as Alex Cole-Hamilton said, we should not be passing a blanket law, especially before a public inquiry has been completed.
My colleague Murdo Fraser highlighted that some of the bill’s provisions would provide much-needed longer-term reform, such as allowing nurses to administer vaccinations and enabling the digitisation of services in order to move them online. I agree that those proposals are sensible. However, following the announcement, there are still concerns that will require further consideration by MSPs. As Murdo Fraser said, although safeguards have been announced, there are serious questions yet to be addressed, such as the proposed amendments to the bill.
There are flaws in the bill’s provisions on education that could have a detrimental impact on our schools and other education facilities. During the peak of the pandemic, the Scottish Government had the power to close schools in response to outbreaks of the virus. That was, of course, to keep pupils and teachers safe. However, part 2 of the bill would allow the Scottish ministers to shut down schools and change term and exam dates without a vote taking place in this chamber. The EIS has said that the Scottish Government could use those emergency powers to close schools for other purposes, which is a cause for concern. That could upset the balance of power between local authorities and the Scottish Government. We know that the SNP is obsessed with power, but that would be a step too far, even for this Government.
When it comes to education, ministers do not need additional powers that would hinder our young people’s ability to learn in the classroom. Ministers must use the powers that they already have to increase teacher numbers, reduce the attainment gap and improve school standards.
The overreach of the Scottish ministers speaks to a lack of trust in our university and college sector, as well as in local government. The NASUWT teaching union has expressed serious concerns about making permanent some of the powers under the 2020 act. The union raised concerns about the Government’s contempt for scrutiny and the ability for Opposition MSPs to carry out their role of holding the Government to account.
Colleges have stated that the bill’s provisions are not necessary. In its written submission to the Education, Children and Young People Committee, Colleges Scotland said:
“On the basis of this experience, we would advise that the intended provisions which have been proposed within the Bill are not required.”
The Scottish Government could use other methods outwith the bill to implement measures in the event of another crisis. The Scottish Government should further consider that point, as preparation for an emergency could take place without the need to legislate.
With many education institutions speaking out against the bill, the Scottish Government must listen to their concerns, instead of using bizarre explanations—such as needing the power to shut down universities in case of right-wing defiance—to justify its intentions. The Scottish Conservatives believe that the bill should be scrapped. Ministers should be trying to empower our educational settings, instead of trying to remove decision making from them as part of an SNP power grab.
The Scottish Conservatives have been clear in our position on Covid recovery, and some of our asks have already been implemented. There are other measures that we would like to be introduced, such as a national tutoring programme and a school catch-up premium, to ensure that our young people are front and centre in the Government’s Covid recovery priorities.
I agree with the education institutions that have spoken out against the bill. I will vote to ensure that Scottish Government ministers do not implement a bill that, in its entirety, is not necessary and could create more problems than it resolves.16:09
I refer to my entry in the register of members’ interests, as I am a union member.
I welcome the opportunity to contribute to the debate on this important bill, the sole purpose of which is to empower the Government to act swiftly in the interests of public health to prevent illness and death and to protect public services in the event of future outbreaks of this deadly virus.
I further welcome the Deputy First Minister’s clarification that the Parliament will always be required to approve the use of the powers in the bill. Clearly defined caveats are also included in the bill and I will refer to those later in my speech.
The impact of the pandemic is fresh in our collective memory. The effect on our daily lives of the first and subsequent lockdowns will be felt in so many ways for years to come. We are enjoying some uplift of that and getting back to some kind of normality.
Staff in schools and other education institutions faced a hugely challenging situation, both in terms of how they delivered education to their pupils and students, and in terms of their duty of care. As someone who worked in education throughout the first lockdown in March 2020, I know that it was a complete shock to everyone involved when schools were closed overnight. We had to turn on a sixpence and adopt remote learning practices with little or, in my case, no experience. Nevertheless, we know that our schools and teachers were a real lifeline for children and families.
By the time of the second lockdown, at the end of 2020, with action from the Scottish Government on speeding up local delivery of technology and funding provided by Connecting Scotland to deliver tablets and wi-fi devices via various partners and schools, teachers and pupils were much better prepared to teach and learn remotely. Improvements continue to be made there.
The bill’s provisions underline that commitment to continuity of learning, and there are repeated caveats throughout, including in the sections that deal with the power to make provision
“relating to the continuing operation of an educational establishment for a specified period.”
The bill confirms that such a power is to be used only if it is
“a necessary and proportionate action for or in connection with protecting public health.”
What that ultimately means is that remote learning, which is nobody’s preferred option—not teachers’, parents’ or children’s—can be introduced quickly across the country if, and only if, it is deemed necessary and proportionate in the interests of protecting public health.
Having worked as a teacher before, during and after the lockdowns, I am fully aware of the challenges that have to be faced, and I understand the concerns of the teaching unions. I thank the NASUWT for its briefing, which was sent to all members and which outlined its concerns. The Deputy First Minister will have addressed some of those concerns during the updates that he has made today.
The reason for the bill is clear. The ability to act swiftly and comprehensively to save lives and protect services is absolutely vital. The commitment from the Deputy First Minister that the Scottish Parliament will always be consulted before the legislation is enacted is welcome, and it reassures me that the sole purpose of the legislation is to serve the public good in the event of a future deadly strain of the virus.16:13
In these spring days in Scotland, I suppose that things are beginning to feel a little bit more normal. We seem to be a society that is going about its business again. However, behind the doors, we are a country that is significantly broken. The collapse of services, the economic impacts and the grief that remains shows that our recovery has not really begun.
By most metrics, the record of the whole of the UK in response to Covid-19 has been truly dreadful. We are among the worst in the world for deaths, infections, and the economic impact that we are just beginning to feel fully. The full inquiry into the pandemic will unpick many of those issues. It should help us to learn the lessons, but nobody has been able to explain to me, to the parliamentary committee on which I sit or to members now or previously why the bill requires to be passed ahead of the conclusions of that inquiry.
I thank Michael Marra for giving way, and I will elaborate on his points in my closing. However, neither he nor I have the gift of knowing how long such a public inquiry will take. Surely, it is crucial to have the powers, which are mirrored in English and Welsh legislation, to be prepared for the next pandemic.
I will make a couple of points in response to that. We already have legislation on the books, which will last until September. As a Parliament, we have been able to extend that legislation quite easily and at short notice, and that option remains open to us. The cabinet secretary does not know what the next pandemic will be or what preparations will be required. It is far from certain that the necessary provisions are in the bill before us.
One of the principal reasons for our country’s dreadful record in handling the pandemic is that we were acting to the wrong plan—we were acting to a plan for a flu pandemic, not to one for the pandemic that we actually faced. The mistakes that were made at the outset have become ossified in public policy. At times, we still appear to treat Covid as a disease that is spread in droplets, rather than as the airborne pathogen that it has been proven to be.
That fatally undermines our current consideration of preventative measures, such as ventilation, the importance of which is far too routinely dismissed by the Scottish Government, in spite of the available and growing global evidence. A large study that was carried out in Italy showed that six air changes in an hour in a classroom will reduce infections by 82 per cent. The findings of a recent major study by the University of Leeds show that the use of high-efficiency particulate air filters is an effective back-up when high-performing mechanical ventilation is unavailable.
There is a wealth of growing evidence, yet the Scottish Government has refused requests for roll-outs of such devices, has commissioned no scientific trials of its own and seems to be locked into a mode of thinking that is based on outdated guidance and plans; its approach is based on treating Covid as being spread through droplets rather than as an airborne pathogen and on cleaning surfaces rather than providing ventilation.
All of that is an illustration of a tendency that is common in all Governments, which we—as an Opposition and as a Parliament—must work strongly against: a tendency to fight the previous war rather than the war that we are in. We must work against the tendency to fight the previous pandemic rather than the one that we face.
It is bad enough that, as a country, we failed to prepare and to respond timeously to emerging evidence and lost many thousands of our fellow citizens as a result. Now, we are being asked to set the response to the previous pandemic in the laws of the country, when we do not know the shape of what will come next. Nobody has given a reasonable explanation. I am attempting to illustrate that that is not a step without risk. The next Government will reach for what is at hand, and it is our responsibility to make sure that the mistakes of the current Government are not repeated.
The overwhelming view of those who submitted evidence to the Education, Children and Young People Committee was that the laws that are proposed are replete with risk. The Government invited the committee to ignore 90-odd per cent of respondents, but the evidence that followed was no less supportive of their position.
Our universities want to know why a Government minister is better able to understand the consequences of closing a lab than a university professor is. Our colleges want to know why a Government minister better understands the physical proximities that are involved in, and the practical restraints on training than a lecturer or a technician does. Given their consequences, such decisions are better made in discussion. The Cabinet Secretary for Education and Skills said as much in her evidence, and she was keen to emphasise how well such discussions had gone this time around. It seems that that is a reason not to have them again, when we might face a different pathogen with different behaviours.
The committee also listened to significant concerns that the bill might not be compatible with the European convention on human rights. Those concerns, along with the constructive proposals that have been made for other possible models of legislative framework bills—those have been mentioned—and the idea of having draft bills waiting for parliamentary approval should they prove to be appropriate, have, to date, all been summarily dismissed by ministers. Those suggestions do not come from libertarian, anti-vaxxer conspiracy theorists who are determined to thwart the work of Government. They come from the public payroll organisations that have been partners in tackling the pandemic, and they deserve to be listened to.16:18
I apologise to members for the fact that I will be absent from the chamber during closing speeches. I am stepping in to give this speech on behalf of another member who is unwell, and I have another engagement during the closing speeches. I will return as quickly as possible, and I thank the Presiding Officer for her tolerance.
The process of passing two pieces of emergency legislation at the height of the first phase of the pandemic, and before remote participation arrangements had been made, was a difficult one for the Parliament, but it was one that I believe showed us in our best light: responding to a crisis—in general, collegiately and with common purpose.
However, the coronavirus acts that were passed did not get everything right. One of the key questions that we are presented with today is whether we want to leave ourselves in the position of needing to go through that process again. Do we want to delay potentially life-saving and self-evidently obvious actions even for a matter of days, if we are again hit by a pandemic that is unlike anything that has been experienced in living memory? Alternatively, should we consolidate what we have learned from our experience of Covid so that the necessary powers are available, in the event that they are needed?
I welcome the Deputy First Minister’s commitment to introduce a gateway section, which is something that the Greens were keen to see to address perfectly valid concerns about the primacy of Parliament over Government. In the previous session, the Greens amended the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, with amendments that were designed to provide appropriate limits and safeguards on the Henry VIII powers that were being afforded to the Government through that process. I am glad to see similar restraint being shown now, without it unduly interfering with the Government’s ability to fulfil its obligations to the public during a future health crisis.
Beyond the powers that are specific to the circumstances of a public health emergency, we can all recognise that some of the changes that were introduced in the two coronavirus acts simply made sense and should probably have been the case all along.
The most obvious example of that is that processes that previously had to be completed in person and by using hard-copy papers can now be done digitally. If we are committed to delivery of efficient, effective and easily accessed public services, a return to the pre-pandemic situation in that respect would clearly be a retrograde step. Those provisions will be of particular benefit to people in more rural communities, for whom the reality of travelling to a council office to register a relative’s death is quite different to that of urban residents.
It is important to highlight that that is not an either/or situation. The Association of Registrars of Scotland was right to point out that, for some people, the opportunity to complete such a process in person is important, whether for personal reasons, because of lack of digital access or some other circumstance. It is not permission for councils to move some services entirely online.
During the two emergency bill processes, Green MSPs put considerable effort into provisions on housing—specifically, protection of tenants, including those in purpose-built student accommodation. Since then, we have joined the Government on the basis of an agreement that includes our proposal for a new deal for tenants, which is now being taken forward by Patrick Harvie in his role as the minister who has responsibility for tenants’ rights.
We felt that it was far too easy before the pandemic for landlords to evict tenants; it is still too easy now. The protections that were brought in in 2020 made a real difference to many people who were at risk of losing their homes. There is no good reason for going back to where we were before—a system in which all the cards were stacked in favour of landlords.
A number of other progressive provisions that were first introduced in the context of the emergency are now, appropriately, being extended. Those include the bankruptcy protections that were—if I remember correctly—first pushed for by Jackie Baillie.
The duty on providers of purpose-built student accommodation to take account of the chief medical officer’s advice should avoid any repeat of the scenes that we saw at the Murano Street student village in Glasgow, and elsewhere, in autumn 2020. There are other provisions that I am glad to see being included, but do not have time to cover now.
The bill takes a pragmatic approach to maintaining the improvements that were brought about as a result of our response to the pandemic. It gives the Government the powers that it would need in the event of another such crisis, and the amendments that have been confirmed today will strike the appropriate balance between parliamentary oversight and Executive action. For those reasons, the Greens will support the bill.16:22
We have all seen them: the bad boys in my school used to get themselves expelled by abusing them, which is something that ministers should take note of. I mean the little glass-fronted cases with a hammer hanging on a chain and a message that says, “Break glass in case of emergency.”
If the Government had included that sort of fire alarm warning in the bill, it might have tempered some of the more ludicrous overhyped descriptions of what the bill actually is. As my colleague John Mason pointed out, there is a lot in the bill that the committee broadly agreed on. I was particularly keen to stress digital exclusion and the ability of service users to continue having face-to-face meetings if they choose to do so. I am glad that that has been heard.
To continue on the theme of agreement, I say that we can surely all agree that we were not fully prepared for a pandemic before Covid hit us. The various desktop exercises and plans that existed turned out not to be entirely adequate for the reality. It would be a catastrophic mistake to go back to where we were. I do not often quote Winston Churchill, but
“Those who fail to learn from history are condemned to repeat it.”
Let us not forget that when Covid struck there was no possibility of breaking the glass in case of emergency, because we did not have the powers to do so. Had the Scottish Government not extended the powers and put them in our statute book, they would have fallen here, too, when they fell in England and Wales. The Coronavirus Act 2020 was, in effect, parent legislation allowing the Scottish Government to continue protecting the Scottish people with Scotland-centric thinking.
My committee colleague Alex Rowley raised his genuine and principled concerns about the Henry VIII powers—concerns for which there was genuine sympathy right across the committee. Thankfully, it is clear that, following our evidence session, the Deputy First Minister has taken those concerns on board and delivered what I believe to be an eminently sensible solution—a trigger section that means that the powers will be exercisable only in the event of a genuine emergency, as dictated by professionals who are charged with delivering the kind of support that we saw during the pandemic.
In committee, I put it to Professor de Londras that the bill simply means that, in a legislative sense, we are preparing ourselves for the future, so that in the event of another emergency we will have the legislative competence to enable us to deal with it in this Parliament. I asked her whether that was a fair assessment, and she said:
“Yes, that is exactly right.”—[Official Report, COVID-19 Recovery Committee, 3 March 2022; c 11.]
Only after an emergency has been declared and Parliament has had time to debate it will the Government be able to lift that wee hammer and smash the glass to release the powers. Indeed, it was Tory member Sandesh Gulhane who, following a portfolio question that Jackie Baillie asked in the chamber on 23 March, asked for that provision in the first place.
Will the member take an intervention?
I ask Alex Cole-Hamilton to give me a second.
Not only has that provision been delivered, but the Government has gone further. I hope that Alex Rowley is satisfied with that.
Jim Fairlie talked about the time that would be taken by the Parliament to debate and to allow the smashing of the glass with his hammer, under emergency legislation. Does he not recognise that this Parliament has shown itself to be eminently capable of turning primary legislation around in a matter of hours to respond to imminent threats? Does he not see that we could do that again?
I absolutely accept that there is the possibility for that to happen if the Parliament can sit, but the member has no idea what the next pandemic or the next emergency is going to be. It is therefore required that we have legislation sitting ready to go.
The real irony in the debate is that, as has been mentioned, the bill just brings us into line with England and Wales, which already have such powers. One has to wonder why the Tories are so desperate to hamstring this Parliament’s ability to act quickly and effectively using powers that are ready to use at a moment’s notice.
I concede that the Henry VIII powers are controversial, but I am satisfied with Mr Swinney’s announcement today. However, I will make one final point. Opposition members are absolutely right to point out that the powers go further than the England and Wales powers in respect of what is available under health protection legislation. Although they are comparable to those in schedule 19 of the Coronavirus Act 2020 and section 45F(2) of the Public Health (Control of Disease) Act 1984, neither of those UK acts contains Henry VIII powers.
However, the UK Government has—and has used—the Civil Contingencies Act 2004, which, in effect, gives it the right to impose Henry VIII powers over anything that it likes if it declares an emergency. The Tories’ objection to the relevant part of the bill seems to be that although it is okay for Westminster to hold such powers for all scenarios, the Scottish Government must not hold the same powers even if they are exercisable only after parliamentary approval. Their position simply makes no sense.
The Scottish Government has listened to the committee’s genuine concerns, which were ably put by Mr Rowley. It has made the distinction, modified its thinking and proposed a measured piece of legislation that will be on our statute book for the time—that will arise—when we need to break the glass in an emergency.16:28
In the time that I have for my comments, I want to concentrate on part 4 of the bill.
The wide-ranging powers that were brought in during the pandemic, including on the removal of eviction grounds, were supported as an emergency response to the pandemic. We all want to see good and responsible landlords, and I believe that the vast majority of landlords across Scotland are indeed responsible. It is obviously in the interests of all parties that they work to secure tenancies, but also that tenants are supported and sustained when they face financial difficulties.
If there is one thing that we know—this is important and I hope that ministers will listen to it—it is that changes in policy and interventions in the property market can often result in changes in behaviour by property owners, such as decisions being taken to remove properties from the rental market. I think that Michelle Thomson pointed to the key concern, which is that the proposals in part 4 of the bill do not take into account the wider private rented sector and that they pre-empt and prejudge the outcomes of the Scottish Government’s proposed housing bill—and, indeed, as has been highlighted, the consultation on the draft strategy “A New Deal for Tenants”.
Housing policy in Scotland and across the developed world is littered with unintended consequences, as the convener of the Local Government, Housing and Planning Committee highlighted. I very much share the concerns about the possible loss from the rental market of affordable homes that the bill could drive.
I put it to the member that that is a slight overreaction to the measures in the bill. Pre-action protocols are already standard practice; they are required in the social rented sector and we have been told that they are best practice in the private rented sector. As for making repossession grounds discretionary, none of that prevents any landlord from seeking repossession; it means only that their circumstances and those of their tenant will all be taken into account when the decision is made.
Maybe the minister needs to consider all the organisations and individuals who will be affected by the changes and who have put forward their concerns. The Government’s response—the Deputy First Minister’s response—to our committee report stretched to just 23 words, basically admitting that the Government acknowledged those concerns. However, we have heard nothing about that today. Consideration of proposals on individual aspects of the private rented sector in complete isolation from the wider market does not allow for proper parliamentary scrutiny. Sadly, as a committee, we have not been able to do that proper scrutiny.
Rural Scotland is perhaps most vulnerable to the housing crisis. The potential impact of the bill on the supply of and demand for rented properties in rural Scotland should be of concern to us all, including SNP and Green ministers, who do not seem to be taking those concerns as seriously as they should.
The concerns are being expressed across the rural sector. Key stakeholders include Scottish Land & Estates, the Scottish Association of Landlords, the Scottish Property Federation, NFU Scotland and the Church of Scotland—which has already been mentioned—as well as individual landlords. As stated in their letter to the Deputy First Minister, Scottish Land & Estates, the Scottish Association of Landlords and NFU Scotland believe that the Scottish Government is misusing Covid legislation to push through housing elements of the agreement between the SNP and the Scottish Green Party.
A key component of the solution to the housing crisis in Scotland is the supply and improvement of homes for rent. Ministers have undertaken no work to consult on or assess the impact on those issues, and the sector wants a pause so that we can understand the potential situations that tenants will face, and the unintended consequences. Given the increases in interest rates and the cost of living crisis, rental properties are essential, and any measures that could be detrimental to their provision need to be fully understood and considered. Sadly, the bill has not achieved that to date.
The real and concerning impact that part 4 could have on the supply of rental properties and their potential removal from the market appears not to have been fully considered by the Scottish Government. I hope that ministers will pause and consider the real impact of the bill, as they have suggested they will do at stage 2. The Scottish Conservatives will lodge amendments to part 4 at stage 2. I hope that there will be engagement from across the chamber on the issue. It is important that we consider those unintended consequences for the property market in Scotland.16:32
I am a member of the Criminal Justice Committee, so I will focus on that aspect of the legislation. Audrey Nicoll, the convener of the committee, has already spoken to our report. The issues that I will raise relate largely to process rather than fundamental principle—other than in relation to the extension of time limits, which I will deal with later.
A number of the provisions in the bill will result in significant changes to the criminal justice system, some of which are complex. However, the committee was unable to scrutinise many of those measures in detail, due to the time constraints resulting from the truncated nature of the process. It would have been more appropriate for some of those provisions to be brought forward in standalone legislation, with a timetable to enable the full scrutiny process, particularly given that even some of the temporary measures could be in place until 2025.
I will focus on specific aspects of the bill. The first relates to remote custody appearances, which the Scottish Government has indicated it wishes to become a normal part of the justice system. Our understanding is that there is considerable concern in the legal profession and the wider justice system about remote custody appearances, which were enabled by the emergency Covid legislation and are therefore operating currently.
For example, in the Glasgow custody court last Monday, the court ran until half past 9 at night due to a range of technical problems. I know that because my colleague Pauline McNeill attended the court and witnessed what happened. We understand that that is far from being an unusual occurrence: in their evidence to the committee, both the Scottish Solicitors Bar Association and the Law Society of Scotland said that those appearances are often subject to technical problems.
Concerns have also been raised about the greater difficulty that lawyers have in obtaining instructions from an accused person, and the Scottish Association of Social Work expressed its concern about access arrangements. These are significant changes to how the legal system operates in Scotland, and I believe that they are matters that the Criminal Justice Committee and the wider Parliament should have had the opportunity to find out a great deal more about.
Another aspect that I will focus on is virtual trials. As the committee’s report states, there is very little evidence that full virtual trials have taken place. Therefore, there is very little evidence on how they are working. What is clear is that aspects of trials have been virtual, such as people giving evidence virtually via a link, or remote jury trials taking place in cinemas. I am concerned about some of the undertakings from ministers, and I ask that an attempt be made to ensure that those trials go ahead only when everyone agrees, and that there is proper scrutiny of how they operate.
The provisions of the bill that give me greatest concern in relation to justice and human rights are those relating to the extension of time limits, which is already in place as a result of the emergency Covid legislation. The bill proposes that, on a temporary basis—which could mean until 2025—the extended statutory time limits are continued. There are some minor changes to the provisions, but, in general, they are very similar to the provisions under the emergency Covid legislation. That means that it could take far longer for a case to come to court.
Perhaps of even more concern is that the length of time for which a person can be held on remand is also being extended. For example, a person could be held on remand for nine months before they are served with the indictment, which contains the full charges that they face. Scotland has the largest remand and prison populations in western Europe, along with poor conditions and overcrowding in many parts of the prison estate. Between 2014 and 2017, 57.18 per cent of prisoners who were later convicted in summary cases, and 28.9 per cent of prisoners who were later convicted in solemn cases, did not receive a custodial sentence at the end of the proceedings. There are considerable human rights concerns about that aspect of the process. There would never be a situation in which a person who should be in prison was not, because there has always been provision in Scots law to have time limits extended on cause shown.
I believe that those are fundamental issues that members in the chamber today should be concerned about.
Willie Coffey is the final speaker in the open debate.16:18
Our Local Government, Housing and Planning Committee focused its attention on tenancy issues, which are contained in part 4 of the bill. The whole committee was content to support the proposals by the Scottish Government, including our Tory and Labour colleagues, who supported the provisions then but who will vote against the bill in about 20 minutes. That is very curious.
There are two key proposals in the bill to retain temporary measures that were introduced to protect private sector tenants from eviction during the Covid period. One proposal is to continue to make all eviction cases that go to the housing and property chamber of the First-tier Tribunal for Scotland discretionary rather than mandatory, as they were pre-Covid. The other is to require landlords to carry out pre-action protocols concerning grounds for evictions due to rent arrears.
For what I hope are clear and obvious reasons, those measures were necessary during Covid to protect people from eviction from their tenancy in the private rented sector during a major health pandemic. The Scottish Government is asking Parliament to agree to retain those measures.
All eviction grounds have been discretionary in the social rented sector for around 20 years, and the proposal to retain that in the private rented sector basically aligns both sectors and continues that level of protection for tenants. That has meant a fairer approach for tenants and balances the needs of tenants and landlords a bit more.
Shelter backs both proposals. Its submission describes the measures as important and progressive, and it says that they will help support tenants to keep their homes wherever possible and will prevent homelessness.
We must remember that the discretionary element does not prevent landlords from pursuing an eviction, should that be necessary, and that point was well made during our committee’s work. However, it provides additional comfort that circumstances must be taken into account before a decision is taken.
It is fair to say that some landlords are concerned by the measure and some fear that landlords with perhaps one property or only a few properties might opt to leave the sector. However, Matt Downie from Crisis argued that the issue is not about whether landlords will or will not leave the sector but simply that the discretionary element allows the support needs both of the tenants and of the landlords to be taken into account, which was never the case before. He described it as a commonsense move that could be to everyone’s advantage.
The minister also commented that the measure does not fundamentally alter the rights of landlords but provides a fairer balance of rights for everyone. In its response to our committee’s report, the Government has given an assurance that it will liaise with the First-tier Tribunal to monitor eviction cases.
Part 4 of the bill also retains the pre-action protocol provisions that have also been in place in the social rented sector for some time. Those basically mean that things such as having clear information on the tenancy and the level of arrears in question, stating the rights of the tenant, signposting to support and advice, making a reasonable effort to agree a payment plan with a tenant, and giving reasonable consideration to any steps that a tenant has taken to address their situation are all recommended. Although those steps are not mandatory in themselves, the tribunal can take them into account and consider whether a landlord has complied with the protocol before granting a decree for eviction.
The Scottish Association of Landlords does not have any objection to that measure and says that the measures represent what it has always considered to be best practice anyway, with landlords trying to engage with tenants and trying to help them to overcome the problems so that, ultimately, they can sustain their tenancy.
Not many positives have come out of the Covid experience for anyone. We might cite, as others have done today, the deployment of digital technology in a number of settings, not least in the Scottish Parliament, to allow activities to continue to function. In many areas, the ability to work online meant that people could stay in a job or continue to do business. That has been a revelation to many of us with regard to how we can work in future. However, I think that the two measures in part 4, which were brought in temporarily to try to protect people from eviction during a public health emergency have also been particularly helpful and are worthy of retaining on a permanent basis.
I hope that the Parliament agrees the principles of the bill at stage 1, and these measures are an important part of that. Protecting people who face eviction by supporting both tenants and landlords is something that is worthy of being put before the Scottish Parliament, and I am happy to support the bill today.16:43
In closing today’s debate for Labour, I restate the point that I made to John Swinney in committee, which is that, with the co-operation of the Greens, the SNP can force this legislation through but that, if it does so, we will end up with another piece of poor legislation that will, without doubt, remove powers from this Parliament and place them in the hands of the Executive. I have listened carefully to what John Swinney said today, and I will address that.
I also want to restate a point that I have made previously. There is much in this wide-ranging bill that is good and has support, as we have seen from the evidence sessions that were conducted by all the committees that took evidence on various aspects of the bill.
I said that the bill is wide-ranging, and I would suggest that it is too wide-ranging. The Parliament must have the time and space that is needed to do justice to the issues that require attention and come up with good legislation that will address them.
Let us take justice as an example. There is no doubt that the pandemic has caused major problems, but it is also clear that there were major problems before the pandemic that required action. As Katy Clark said, the fact that Scotland has the highest remand and prison population figures in western Europe along with poor, overcrowded conditions in many prisons should be a concern across the chamber. Is a catch-all Covid recovery bill the best approach to that? I think not—and I note that the Criminal Justice Committee said time and again in its report that it had limited time to scrutinise the bill.
I turn to education. As a di of four grandchildren—in Fife, di means grandad—I really worry about the impact that Covid has had on education and the downward spiral that we saw pre-Covid. The changes for education in the bill give me no confidence that the Government is even beginning to get on top of the issues in education, and I have concluded that the bill will do little to aid the recovery and reform of Scottish education, which are desperately needed at this time. We must do more to rebuild education in Scotland, and that must be a priority.
I turn to the parts of the bill that the COVID-19 Recovery Committee considered. Many positive aspects were discussed in looking at the evidence. However, there is one part of the bill that is, for me—and, I hope, for the Parliament—a red line: the so-called Henry VIII power.
When I first heard Murdo Fraser talk about a power grab, I thought that that was a bit rich. However, the more I looked at the evidence, the more I realised that the proposal was to remove powers from the Parliament, which is the legislator, and put them into the hands of ministers, who are the Executive. We can frame that however we like, but that would remove power from the democratically elected Parliament and put it into the hands of ministers. That is not acceptable under any circumstances, and we need to address that.
The written submission from Dr Andrew Tickell and Professor Alison Britton of Glasgow Caledonian University states:
“we conclude that the main provisions of Part 1 of this Bill are generally in keeping with the law already applying in England and Wales ... and will establish a more flexible and resilient framework for coordinating the public health response to any future ... health emergencies”.
That is good, but they went on to say:
“As currently drafted .. the Bill includes one highly problematic element which has not been adequately explained or justified by the Scottish Government.”
The Henry VIII powers empowered the then King
“to make law without reference to the English parliament in 1539.”
Now, in 2022, the SNP wants to do similarly, and take powers from the Scottish Parliament. As Tickell and Britton put it,
“While powers of this kind have been used by the UK government to adapt the statute book to the United Kingdom’s departure from the European Union, Henry VIII powers are rightly controversial, as they infringe upon the separation of powers, give legislative functions to the executive, and can be imposed with modest opportunities for parliamentary scrutiny, particularly in circumstances when they are used on an emergency basis.”
Although I welcome and will study closely what Mr Swinney had to say, I ask the Government to think again about what is certainly a red line for Labour.
I acknowledge that there is much support for aspects of the bill, no more so than from Crisis Scotland, whose brief I read this morning—it makes a very strong case for part 4 of the bill. Therefore, let us work together to build the future, look at where we can find compromise and move forward in the Parliament to build a better future for Scotland.16:49
At the beginning of the pandemic, members came together in good faith to respond to the very real and severe threat that Covid posed to every one of us. Lives were at risk and we had to act fast. Of course, we did not get everything right as legislators, but we can be proud of the fact that we acted quickly, nimbly and mostly constructively when needed, going from stage 1 right through to royal assent in record time.
The First Minister, though, has stated that the current direction of travel is to get back to normality as quickly as possible while maintaining vigilance against future outbreaks. The Deputy First Minister and Cabinet Secretary for Covid Recovery, Mr Swinney, has said:
“We want to ensure we remove measures no longer needed in order to respond to the pandemic whilst keeping those where there is demonstrable benefit to the people of Scotland”.
I do not disagree with that—vigilance is prudent—and I do not disagree with the thrust of Mr Swinney’s argument that some adaptations to the delivery of public services, such as digitisation, are useful; frankly, some of them should have happened sooner. Now that they are here, some might be here to stay; we all accept that, but our argument is that the bill goes far too far and contains measures that are no longer necessary or of “demonstrable benefit”, to use Mr Swinney’s phrase.
He also said that the bill is “necessary, proportionate and appropriate”, and I want us all to be mindful of those three words as we go through the bill process. Some of the measures that we took in the past may be necessary in the future, and some of the powers that we gave the Government in that scenario may be appropriate when needed, but proportionality is a whole different ball game.
The bill has been called a power grab by many, but that oversimplifies what is a grave attempt by the Government to retain extraordinary powers. In the previous session of Parliament—many members here were also members then—the Parliament was cautiously uneasy about affording the Government those powers in the first place. We did it because we had to, but at no time was there any suggestion that we would be asked to give the Government those powers on a permanent basis—anything but.
It is depressing that the parliamentary arithmetic will probably result in the bill passing, and that the many concerns that have been voiced within and outwith Parliament will be ignored. My colleague Murdo Fraser rightly pointed out that the depth of concern started back in the consultation process.
One phrase in the COVID-19 Recovery Committee’s report jumped out at me. It states:
“the Scottish Government has not made a sufficient case for why the powers should be made permanent.”
The Government did not make a sufficient case then, and it still has not made a sufficient case. The committee heard that there were viable alternatives to the so-called Henry VIII powers, including the removal of the provisions entirely until a public health emergency arises. That would give Parliament a proper say in passing new emergency laws. We did that before, and I ask why we cannot be trusted to do it again. That is a point that Jackie Baillie, Alex Cole-Hamilton and many others made and that the Government is yet to answer.
It is not just politicians who have concerns about the bill. The Law Society warned:
“These provisions have the potential to result in very significant restrictions on liberty being imposed by Regulation, with reduced opportunities for parliamentary oversight and scrutiny.”
It also said that the bill
“creates a risk of misuse, or”—
worse than that—
“of powers being used in error.”
I am afraid that the use of those powers is not reflected in equivalent legislation in other parts of the UK, no matter what we have heard today.
Will the member take an intervention?
I will in a second.
In fact, the suggestion that the powers are reflected elsewhere is not only unhelpful but misleading. Let me explain where there are differences. As drafted, the bill includes the power to modify or amend any enactment—any piece of legislation. Ministers want that power, but it is simply not found elsewhere.
Will the member take an intervention?
I am happy to give way in a second.
I will mention another point about the UK legislation that is deeply personal to me. The ability of ministers to remove early release and reduce people’s prison sentences is unlimited in the Scottish bill but, in UK legislation, it is capped at 180 days, which is sensible. We will give the Scottish Government the benefit of the doubt—let us see what stage 2 amendments are lodged on that.
The affirmative procedure is not the same as the three-stage process that primary legislation goes through, which is sacrosanct to us in a unicameral Parliament. In fact, I would go so far as to say that regulations are dealt with on the basis of simple vote majorities, and that they are also victims to the whims of political majorities, as was the case with the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill and other so-called emergency law.
As I said, there are some sensible and reasonable justice-related provisions, which we support, but there are others that we do not. Virtual trials have been widely condemned by many. The senators of the College of Justice said that video hearings should not become the norm, because
“the dignity and solemnity of the court room are missing in a video conference.”
The Faculty of Advocates, the Scottish Solicitors Bar Association and many others have raised concerns about that.
I will briefly raise the main concern about early release. That power was used in emergency situations, and 348 people were granted early release under it. [Interruption.] Members on the Government front benches might want to hear my points.
Of those 348 people, 142 reoffended within six months of their early release. That should be a statistical alarm bell in every one of our ears. To be frank, I am afraid that that is not a risk that members on the Conservative benches are willing to take.
The COVID-19 Recovery Committee was also divided on fiscal fines, and many other things.
You will have to conclude now, Mr Greene.
In closing, I want the Government to think about two final things. The first is that I am afraid that nothing about the bill feels very consensual. We have heard the speeches today, and the committee was split over its report—the fact that a casting vote was needed should have been a warning sign. My second and most important point is that I urge the Government to take cognisance of the debate. The speeches were powerful in their combined attempt to protect the sanctity of the separation of powers of Parliament and executive.
You must conclude, Mr Greene.
Let us not cross that line on a permanent basis. We do so at our peril.16:56
As the cabinet secretary who is responsible for part 1 of the bill, which includes public health protection proposals and arrangements for vaccination and immunisation, I am pleased to close the debate for the Scottish Government.
It has been an interesting debate that has touched on not only public health policy but many other aspects of the bill, and I hope to spend most of my time trying to address some of the points that have been raised. The Deputy First Minister, other Government ministers and cabinet secretaries and I will continue to engage with members of the Parliament and important stakeholders in advance of the parliamentary processes that the bill still has to go through.
I thank the five scrutiny committees that worked on stage 1—supported, of course, by full and thoughtful briefings from external stakeholders and the Scottish Parliament information centre. As Siobhian Brown, convener of the lead COVID-19 Recovery Committee has said, no stone was left unturned in scrutiny of those proposals.
In the Government’s view, that demonstrates the Parliament’s adeptness at scrutinising longer, more complex and cross-portfolio bills. We remain of the view that it was best to group the range of proposals that are being consulted on into a single bill, intended for commencement from September 2022.
Following the Government’s response to stage 1 reports at the beginning of the week, there has been a full debate on our position on stage 2 amendments, and I have listened carefully to all the points that have been made. I hope that those members who often talk about railroading or bulldozing legislation will have listened carefully to what the Deputy First Minister said about the compromises that we are willing to make. Any objective view on those compromises would be that we are wanting to give the Parliament further scrutiny over the measures and powers in the bill.
The Government could agree to take the good bits of the bill on which there is consensus across the chamber and package them up as a piece of legislation, which we would agree to and pass, and ditch the bits that are hugely controversial, because that would protect the primacy and sanctity of the Parliament.
I was going to come to that point.
Will the member take an intervention?
I will respond to Jamie Greene, and then I will give way.
The emergency powers are required to respond at quick speed. If we simply take legislation off the shelf to deal with a particular pandemic or emergency, it might be inadequate, so we would have to enact emergency legislation, which would take days. As the cabinet secretary for health who is dealing with the immediate pandemic, I can tell you that every day counts. We cannot afford to do that.
I will give way to my friend Jim Fairlie.
To go back to the point that I was trying to raise with Jamie Greene, Andrew Tickell has made this statement today:
“Most of what this Bill does is extend the powers which already exist on a permanent basis in England and Wales under the 1984 Public Health Act to Scotland on a permanent basis—which seems unobjectionable to me.”
Sandesh Gulhane asked for a 90-minute debate in order to release the powers that are going to be held in situ. Surely, if members want something packaged up, the kinds of measures that are being taken by the Government would give them what they are looking for.
That is the very point—those powers exist in England and Wales. The UK Government has sweeping and widespread powers over public health protection. We are suggesting that we should also have emergency powers. We propose not only that we provide a statement of why those emergency powers and regulations should be enacted, but that the Parliament should authorise that. Therefore, anyone who suggests that the Government could impose a lockdown without Parliament’s authorisation has not listened to what the Deputy First Minister has said.
I appreciate entirely that the devil will be in the detail and that members will want to examine the amendment closely. That is absolutely appropriate. I will read again what we are proposing.
To ensure that necessary parliamentary oversight is in place, the Government will lodge amendments to introduce a gateway vote mechanism, which would mean that key aspects of the public health protection and educational continuity powers would have effect only if a parliamentary vote, on a formal Government declaration, is held and the declaration approved. That would allow the Parliament to enact those powers with the confidence that lockdown, school closure and other emergency response measures could be imposed only in the event of a future public health threat, in an emergency situation, and if the Parliament has so authorised.
That is the critical point. I reiterate that we respect the fact that the Parliament will want to see the detail of those amendments at stage 2, but I ask members to wait to do so in good faith. If they did that in good faith, they would not vote against the general principles of the bill at stage 1.
The cabinet secretary and I have had this conversation before, and I have also had it with the Deputy First Minister. Surely the pandemic highlighted the shortcomings in the national health service’s information technology and education systems and in data gathering and usage. We also allowed the recommendations from the Silver Swan exercise to slide. Surely, it is the readiness and preparedness that we need to focus on. That would have the desired effect in helping us with future emergencies. I do not see anything on that in the Government proposals.
I have the greatest respect for Brian Whittle, but he needs to read the bill carefully, because the powers over preparedness are one of the key aspects of the bill. The emergency powers are the other part. Through this bill, we are seeking powers similar to those that the UK Government already has.
A number of issues on the justice provisions were raised. In particular, Audrey Nicoll made very powerful arguments around some of the disagreements that exist in relation to virtual trials. That is why the Government’s approach is sensible. Those powers are in there temporarily, and we are holding consultations—one of which launched today—on some of the justice provisions. We will bring forward our thoughts on the back of those consultations.
Katy Clark spoke well and powerfully about the human rights implications and impacts in relation to the time limits. My colleague, the Cabinet Secretary for Justice and Veterans, and I will continue to give her and this Parliament very strong assurances that that is why the powers are temporary. We understand those human rights. The measures are being brought forward and extended at this point only in order to reduce that backlog. In itself, that backlog has huge human rights implications and impacts on many men and women across Scotland.
In relation to some of the other points that were made on education by Stephen Kerr and a number of other members across the chamber, we are continuing our engagement. The Cabinet Secretary for Education and Skills and Scottish Government officials have had continual engagement. My colleague Shirley-Anne Somerville met Universities Scotland and Colleges Scotland as recently as 4 May. We will keep Parliament updated, and of course we are considering what universities, colleges, COSLA, EIS and others have to say in advance of stage 2.
I do not have time to go into detail on the issues that were raised around tenancies. I thought that my colleague Patrick Harvie, as well as Willie Coffey, made the point very well that all that the provisions do is enable the tribunal to take into account all of the circumstances relating to a case before making a decision. The points that Murdo Fraser raised about the concerns of the Church of Scotland are ones that we will reflect further on ahead of stage 2.
I will sum up, Presiding Officer—
—simply by saying that, on the so-called Henry VIII powers and, perhaps more significantly, the addition of a gateway vote mechanism for any future regulations of an emergency nature, I hope that those provisions give some comfort to the Parliament. I hope that, collectively, the amendments give members and parties assurances that they can vote for the general principles of the bill.
I invite the Parliament to vote to learn the lessons of the pandemic, to complete the statute book and to put in place that resilience for whatever challenges may come in the years ahead.
That concludes the stage 1 debate on the Coronavirus (Recovery and Reform) (Scotland) Bill.