Chamber and committees

Of course, I am all for a debate about Scottish education, but let us recognise the strength of Scottish education. A record number of young people are going into work, further education, higher education, training or voluntary placements as a consequence of the strength of our education system. Why cannot people such as Mr Kerr celebrate that achievement? Why cannot they come here and say something positive about Scottish education for one minute rather than—whether it is Mr Kerr, Mr Mundell or any of the others among them—belittling the achievements of Scottish education? That is an insult to the teaching staff of Scotland and to the fine young people in our schools.

In my view, amendment 46 would frustrate the effective implementation of regulations in a public health emergency. The implementation of any regulations cannot be contingent on the actions of relevant managers of student accommodation, who will be required to comply with such regulations. The regulations themselves can make provision to ensure that students are to be provided with necessary support.

Throughout the pandemic, we worked in partnership with stakeholders to produce guidance for the safe operation of student accommodation and the support of students staying in that accommodation. That would be our preferred approach in any future public health emergency.

Amendment 48 would require ministers to set out plans for providing additional financial support to students. During the Covid pandemic, we provided substantial support to students, including more than £96 million via hardship funding, digital access support and mental health support, and for student associations. We also worked with stakeholders, including student representatives, to ensure the continued welfare and safety of students. By taking that non-legislative and broader approach, we can ensure that any additional support for students is appropriate to the circumstances at the time and includes non-financial support where appropriate.

On amendment 53, there is already flexibility for individual applications to be made to the education authority for pupils to repeat a year, and those applications are assessed on their merits.

In a completely uncharitable comment, Mr Mundell said, in speaking to the previous group of amendments, that it had to be the Government’s way or no way at all. Amendment 12 proposes reporting on readiness for remote learning. I have further considered that proposal following stage 2. The amendment now places a more proportionate requirement on ministers to publish a report as soon as practicable after 31 July 2023 on the readiness for remote learning, and thereafter as ministers consider it appropriate. I agree with Oliver Mundell that that would give greater assurance across the education sector. On that basis, the Government is happy to support amendment 12. That demonstrates that we are prepared to listen to arguments from the Opposition when they are decent arguments.

Amendment 64 does not take into account the efforts that educators are making to aid pupils and students as we deal with the effects of the pandemic. It would not help to provide any further legal certainty, and it would place additional burdens on educators across all types of educational institution.

For the reasons that I have given, I invite members not to vote in favour of any of the amendments in the group, with the exception of amendment 12, in the name of Oliver Mundell, on remote learning.

On a point of order, Presiding Officer. I was not able to connect to the app. I would have voted no.

I agree with Mr Mundell but, in my experience of handling the pandemic, that was not always what I heard from Mr Mundell’s colleagues. I have had endless exchanges with members of the committee about the importance of reopening clubs, pubs and airports before schools. Philosophically, I agree with Mr Mundell’s point. I was the education secretary who took the decision to cancel exams and close schools. That was a difficult day in my life; I was walking up and down the floor wondering at what moment we would have to act and whether we had to act so abruptly and so early. I totally agree with Mr Mundell, but what he said is not what I heard at all times.

I have made a number of points in that regard. Mr Kerr encourages me to ignore the routes by which such things must happen. We have to work with local authorities and schools on the delivery of that proposition. Mr Mundell has just rehearsed the fact that we have 32 local authorities that do things in different ways. Not all local authorities deliver electronic access to education in exactly the same way; they have different means and methods of doing so and utilise different technologies. The point that I am making is that the amendment does not take that into account.

With regard to the Government amendments in the group, amendments 30 to 35 replace the cross-references in sections 8 to 10 to section 6, which relate to the duty on relevant authorities to have regard to any advice of the chief medical officer, with the term “about protecting public health”. The effect of the amendments is to make clearer the subject matter of the advice from the CMO that ministers must have regard to before they make any regulations under sections 8 to 10.

The current approach may have implied that the only advice to which ministers must have regard before making regulations under sections 8 to 10 was advice given under section 6. The more specific reference to advice “about protecting public health” will mean that a wider range of advice from the CMO may be considered before any regulations are made, including advice that relates specifically to the measures to be used in such regulations.

The amendments will ensure that there is clarity about the nature of the advice that the CMO will provide to ministers to inform their decision to use the regulation-making powers. The amendments will further strengthen those important provisions and help to ensure that the powers are fully and appropriately informed by advice from the CMO. As was debated under groups 1 and 2, CMO advice is also built into the gateway vote mechanism that will apply before any educational continuity regulations are made.

I turn to the other amendments in the group. Amendment 113 seeks to add to the requirements in section 6. Under section 6(1), a relevant authority must properly consider the advice of the CMO with an open mind and take it into account when carrying out their functions. CMO advice will be an important consideration alongside the rights and interests of the people whom a relevant authority serves, such as pupils or students; other advice, including legal advice; advice on health and safety matters; and advice on pedagogical issues and other matters.

The potential effect of amendment 113 would be to set out in law the specific actions that relevant authorities must take when exercising their existing functions in relation to the duty to have regard to CMO advice. The same argument applies in relation to amendment 116 and the changes that it proposes in relation to statutory guidance that is issued by ministers under section 7.

Those measures would place a significant additional burden on relevant authorities and, via the ability to delay implementation for up to 28 days, would negatively affect how swiftly mitigating actions that are advised by the CMO can be introduced. They could also lead to significant divergence in the actions that are taken by relevant authorities, allowing some, but not others, to act swiftly in accordance with the advice of the CMO and guidance from ministers.

The measures would also place an additional burden on operators of educational establishments ranging from local authorities to childminders and universities by requiring them to conduct consultation exercises in the midst of a public health crisis. I urge the committee not to support those amendments.

For the reasons that I have given, I invite the committee to support my amendments in the group, and I ask Oliver Mundell not to press amendment 113 or move his other amendments.

The principal amendment in the group is amendment 67, which seeks to codify most aspects of commencement policy on the bill to ensure a seamless transfer from the existing temporary provisions, which will expire in September 2022, and to eliminate the need for commencement regulations immediately after summer recess.

The Government considers that, generally, where temporary provisions transition to replacement provisions under the bill on the dates that are given, no transitional or savings provisions are required.

I will speak to amendments for cases for which the Government considers that appropriate transitional and saving provisions are required in order to enable a smooth legislative transition. Amendments 64 and 65 will ensure that appropriate transitional and savings arrangements are in place in relation to part 4 of the bill, which is on tenancies.

Discretionary grounds of eviction and pre-action requirements were introduced via the emergency coronavirus legislation and mean that all eviction notices that were served on or after 7 April 2020, and all proceedings raised in relation to those notices, are subject to discretionary grounds of eviction and, for rent arrears cases, the pre-action requirements.

The new law in the bill will apply to all post-commencement eviction notices and all eviction proceedings that are raised in relation to those notices. In addition, for those post-commencement eviction notices and connected eviction proceedings, the Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 will be deemed to have been made under the powers in the bill in relation to the pre-action protocol.

The effect of amendments 64 and 65 will be that, where an eviction notice has been served on a tenant prior to 1 October 2022, the law, as framed by the Scottish coronavirus acts and the relevant regulations, will continue despite the expiry of the relevant provisions in those acts and regulations. If an eviction notice is served on or after 1 October 2022, the new law, as framed by the bill, will apply and the relevant regulations will continue in effect as if they were made under the new pre-action protocol powers that are created by the bill.

Those technical amendments are crucial to ensure a seamless transition from the emergency legislation that will end on 30 September to the proposed new law coming into force on 1 October 2022. They will ensure that the law remains stable for anyone who has already begun an eviction process, and they take account of the fact that there might not be enough time before 1 October 2022 to pass new regulations for the pre-action protocol. The seamless continuation of that important protection for renters will avoid any confusion or uncertainty for landlords and tenants, which would be caused if there was a short gap between the expiry of the emergency legislation and the making of new regulations under the bill.

Amendments 40 and 42, which are on bankruptcy provisions, are technical amendments to provide clarity on the specific subsections that are referred to in sections 15 and 16 of the bill, respectively.

Amendment 41 provides that amendments that are made by section 15 of the bill, which is on service of documents, apply in relation to documents that are sent or transmitted on or after 1 October 2022.

Amendment 43 provides a saving provision for the provision in section 16 of the bill. Section 16 sets at £5,000, on a permanent basis, the minimum debt level that a creditor must be owed in order to petition the court for bankruptcy of the debtor. Amendment 43 will ensure that any creditor petition for bankruptcy that is presented before 1 October 2022 is not impacted by the change to the creditor petition level.

Amendment 67A would bring into effect, on 1 November 2022, proposed changes to the protected minimum balance that is applied when someone is subject to a bank arrestment. That amendment is consequential to amendment 69, which was lodged by John Mason, and it will be considered more fully when we consider group 7. The Government supports those amendments, which together will introduce the change at an early opportunity in order to allow debtors to benefit from the revised figure.

I move amendment 40.

The Government is happy to support amendment 69, which seeks to increase the funds that can be retained in a bank account that has been subject to a bank arrestment. The Government also supports the creation of a power to amend the figure through regulations.

The Government is aware that the issue emerged during the stage 1 scrutiny of the bill. We are acutely aware that the cost of living pressures have compounded the financial uncertainty that arose during the coronavirus pandemic. Amendment 69 will provide some respite for people and households that are experiencing issues of problem debt, and it will improve financial resilience.

I understand that provisions already exist for bank arrestments to be challenged on hardship grounds, but I am aware that they can be quite arduous to effect and that they do not provide an immediate resolution for many when what they need is urgent and early help to better manage their situation.

I also understand that bank arrestments are used predominately by local authorities to recover unpaid debt, and I acknowledge that Mr Mason’s amendment will reduce the amount of funds that local authorities and other creditors can recover using such diligence. However, in the current climate in particular, the Scottish Government considers that the proposed reform achieves the right balance and that the revised arrangements to fix the protected sums will provide greater flexibility to respond to economic factors in the future.

We accept the need to do something immediately to protect individuals from unnecessary hardship. In the coming year, we will carry out further consultation to look at both the process and the thresholds and consider what longer-term improvements can be made to bank arrestments. Some of that might address the legitimate points that Murdo Fraser raised. However, for now, the Government agrees that amendment 69 is a necessary stopgap, and I welcome the fact that John Mason has lodged it. The Government encourages members to support it.

Oh, no. I think that that would be called interfering, convener.

Amendments 71 to 81 moved—[Edward Mountain].

In a sense, Mr Rowley has made my argument for me. We all accept the threat of another pandemic. Parliament had to legislate, in extremis, with primary legislation that was rushed through Parliament to try to address the situation. I am trying to learn early lessons from the pandemic and equip the statute book with the ability for us to respond, with necessary Parliamentary oversight, and to exercise the appropriate powers. Indeed, Fiona de Londras, whom Mr Rowley quoted, has welcomed the steps that I have taken to strengthen parliamentary oversight.

Mr Rowley is making comments that were relevant prior to and in the stage 1 debate but, in the light of the amendments that the Government proposes, I suggest that he is not adapting to the proposed changes in which parliamentary oversight is being given. As Mr Mason says, a veto is being given to Parliament on any changes that it does not believe to be appropriate. We are putting in place the means by which we can respond speedily in a situation that Parliament has thought about well in advance. That is what the 12-week consultation and the three-stage process of parliamentary scrutiny to make legislative change are all about.

I think that we all understand and that, regardless of our reflections on the pandemic and on regulations and restrictions, no member of Parliament suggests that there was no need for any restrictions whatsoever; all members of Parliament accept that point, and that is welcome.

There are varying degrees to which the extent of the regulations was judged to be appropriate, or whether all of them or as many of them had to be introduced with quite the pace with which they were introduced. I accept that there is no black and white position in all that. We need to approach this with some principles, which are that we have to move fast, but we also have to maximise parliamentary scrutiny. If we try to address a position between those two principles, I suspect that we will get somewhere. That is what I was trying to do with my interaction with the Delegated Powers and Law Reform Committee to signal that.

Amendment 37 provides that urgent regulations under sections 8 to 10 that only revoke any part of existing regulations would be made by a laid no-procedure SSI. That would enable the swift removal of education regulations that are no longer necessary and proportionate. The option would be available only when the new urgency test in section 12, that is proposed in amendment 36, is met.

Amendment 137 in Mr Mundell’s name is connected to those provisions in that it would provide that education regulations could be in place only when public health protection regulations are in place. It might not necessarily have that effect, as some regulations that are made under the public health provision might be permanent preparedness regulations, in which case amendment 137 would not achieve what it is trying to achieve. It is an unhelpful addition to the carefully crafted layers of safeguards that are in the bill to ensure that regulations are in place for no longer than necessary, as I have covered in amendments 38 and 39. Further, the amendment does not reflect that the nature of a public health emergency might lead to different considerations for health and education.