Chamber and committees

Although I understand Mr Fraser’s motivation in lodging them, the Scottish Government does not consider that amendments 2 and 3 are necessary for a number of reasons, which I will set out.

Amendment 2 would require the Scottish ministers to publish guidance on named persons. However, such guidance is already available through our website. We propose to revise the content to take account of changes to legislation, and we will do that in partnership with key stakeholders, including the Mental Welfare Commission. The revised documents will make it clear that, in addition to the published guidance, there should be on-going engagement through clinical teams and that that should always be the default position.

The Mental Health (Care and Treatment) (Scotland) Act 2003 already places specific duties on mental health officers when it comes to the role of named persons. Those duties direct them to seek out and talk to a named person before certain orders and applications are made or, in some cases, as soon as practicable after an order is made. Therefore, the potential for a person not to understand the role is extremely minimal.

In addition, the statutory code of practice that accompanies the 2003 act is clear that

“it would be best practice for the”

mental health officer or any other practitioner discussing the matter with the nominee

“to ensure that they are provided with information about the role in a form which is helpful to them.”

That role will not change.

The legislation as it stands only places a duty on a prescribed person to act as a witness to the nominee’s signature. The process of checking understanding is separate to the requirement for the nominated person’s signature to be witnessed and can be undertaken by a range of professionals, not just mental health officers.

Amendment 3 proposes that a nominee should declare that they understand the role and responsibilities that are associated with becoming a named person, but the legislation does not provide specific duties for named persons, because they will vary in each case. The named person and the patient are each entitled to act independently of the other. Unlike, for example, a welfare guardian—depending on their powers—a named person does not step into the shoes of the patient.

Although the proposals would extend the reach of that provision, they would also be difficult to verify, because we are unclear how one would evidence that a nominee has been provided with guidance on their role, rights and responsibilities before they accept their nomination. There is no statutory form to complete at present, although there is a suggested template, and we are aware that some local authorities have their own versions.

Our aim is to reduce bureaucracy and encourage more people to accept the role of named person, which this committee agrees is a vital safeguard in the patient’s care and treatment. The change that amendment 3 proposes would be difficult to verify and offers no new safeguard, because there is already an established practice, which should ensure that nominated persons are provided with relevant guidance in a form that is helpful to them before they accept their nomination.

Given the position that I have just set out, these suggested stage 2 amendments are, in my view, not required. They potentially and unhelpfully introduce more procedure before the role of supporting a patient takes effect.

The intention behind the reform is to remove a requirement that is currently experienced as disproportionately bureaucratic and might even be a disincentive to taking up the role. I believe that amendments 2 and 3 would not assist in the efforts that we are trying to make in that respect, and I invite Murdo Fraser not to press them.

Amendment 109 would introduce what I consider to be unnecessary reporting arrangements. As significant reporting duties are already included in the Coronavirus (Scotland) Act 2020 and Coronavirus (Scotland) (No 2) Act 2020, including two-monthly reports to Parliament on the operation of the tenancy provisions, the preparation of a further report on the operation of those acts is unnecessary.

In addition, we have committed to carrying out a review of all repossession grounds. That will include the consideration of the impact of part 4 of the bill and is a more appropriate vehicle for assessing and reporting on the impact of the changes. It is far more meaningful to assess the impact of the statutory framework for private tenancies as a whole, of which those changes are a part.

On amendment 110, obliging the First-tier Tribunal to collect, prepare and publish statistical information on its roles and responsibilities in relation to part 4, to contribute to the Scottish ministers’ reporting duties, is both problematic and unnecessary. It is problematic because it is not clear what information would be required, and because the tribunal does not have any roles and responsibilities in relation to part 4, as its powers and duties are contained in the Rent (Scotland) Act 1984, the Housing (Scotland) Act 1988 and the Private Housing (Tenancies) (Scotland) Act 2016. It is unnecessary because the First-tier Tribunal already provides a range of statistical information to the Government on a monthly basis.

Amendment 111 seeks to oblige the Scottish ministers to introduce primary legislation to reform the law on residential tenancies, without specifying what aspects should be reformed. The Government has already committed to introducing legislation to reform residential tenancies, which will deliver a new deal for tenants. Therefore, amendment 111 is unnecessary.

I urge members not to support amendments 109, 110 and 111. However, if it would be helpful, the Minister for Zero Carbon Buildings, Active Travel and Tenants’ Rights, who will lead on the upcoming housing bill, will be happy to meet Mr Griffin to explore how some of his thinking in relation to the improvement of data on the private rented sector could be reflected in that work. I am sure that he would also be happy to meet Mr Mountain to discuss the issues that he is concerned about.

Yes, and I think that the bill makes that provision, but Mr Mundell and his colleagues need to reflect on the lines of argument that were being advanced during the pandemic. I say that in the respectful position that we are in in this exchange.

As colleagues will have deduced, I cannot support amendment 137. However, I am happy to explore other questions that we might come on to in this group.

On the remainder of the group, amendments 112, 115, 117, 13 to 15, 134, 136, 140 and 145 leave out sections 5 to 13 of the bill. The powers in those sections are necessary and proportionate and had majority support in committee and the chamber, so I cannot support those amendments.

Amendment 118 and its more general alternative, amendment 130, propose a new role for the Children and Young People’s Commissioner to consider and report on any proposed use of the education regulation-making powers. No timescale is provided for the commissioner’s report and no exception is offered for urgent cases. Therefore, those amendments would seriously delay the Government in responding swiftly to a public health emergency.

First, it is welcome to see Mr Mountain and I wish him well.

The amendments in this group seek: to significantly alter the provisions in part 4 of the bill that remove mandatory grounds of eviction; to remove the private landlord pre-action protocol provision; and to propose new eviction grounds relating to employees.

The Government’s view, as endorsed by the Local Government, Housing and Planning Committee, is that the position under the coronavirus acts should be continued so that all grounds of eviction remain discretionary. In a sense, that is one of the key points about this series of amendments and the consideration that has to be applied to them. I have had this thought about some of the other provisions in the bill that we have wrestled with today. The purpose of this piece of proposed legislation is to look at the arrangements and circumstances for which we have had to legislate as a consequence of the pandemic, and to put in place longer-term arrangements arising out of the pandemic. It is entirely legitimate to raise the issues that have been raised in this series of amendments, as we have seen in other amendments that we have looked at today, but they are not driven by the circumstances of the pandemic on its own. When the Local Government, Housing and Planning Committee looked at the question in relation to the coronavirus acts, it came to the same conclusion as the Government: all grounds of eviction should remain discretionary.

A tribunal is the correct place to balance the rights of tenants and landlords when deciding whether an eviction is reasonable, and the tribunal cannot arrive at a decision that is incompatible with the convention rights of either party in determining whether an eviction order should be granted. Moving permanently to discretionary grounds is not a bar to eviction; it simply allows the tribunal to consider all the facts and do what is reasonable in the particular circumstances of each case. I consider that the amendments seek to remove provisions that allow the full circumstances of both tenants and landlords to be taken into account by a tribunal. For that reason, I cannot support them.

The private landlord pre-action protocol is, again, not a bar to eviction, but we hope that, in many cases, the support that is provided to a tenant by things such as being signposted to information under the protocol will enable rent arrears to be addressed and the tenancy to continue. That is in the interests of both parties, as it costs a landlord to find a new tenant and it costs a tenant to move.

In addition, if all rent arrears grounds of eviction continue to be discretionary, the removal of the protocol would disadvantage landlords by removing a means by which they can demonstrate that eviction is reasonable in the circumstances. For those reasons, I oppose amendments 107 and 108.

Both Mr Fraser and Mr Mountain also seek to create a further ground of eviction where a landlord seeks to recover possession of a property in order to rent it to an employee of the landlord. I do not consider that any of those proposed new grounds of eviction is appropriate. There are already existing grounds to enable a landlord to evict a tenant from a property that is occupied for the purposes of employment, where the tenant is no longer an employee.

When we introduced the Private Housing (Tenancies) (Scotland) Act 2016, we committed to a review of all the grounds for repossession after five years, and that period ends in December this year. I am happy to reconfirm that commitment and to ensure that key stakeholders are consulted in the development of that work.

I am pleased—but not surprised—to hear that Jackie Baillie had a constructive meeting with Lady Poole, and I very much welcome her reflection that what she took from that conversation is the importance that Lady Poole attaches to hearing the voices of people who have been affected. That was the feeling that I got in my conversations with Lady Poole. I hope that the mechanisms that she is developing to enable that to be the case will help to assist with the process of healing, of which the inquiry must be part.

Jackie Baillie asked about the supply of information. The Government will comply fully with all requests for information from Lady Poole and the inquiry. We have started to do that already—we have had some requests, to which we have responded, and more requests will come in. We will reply to the fullest extent that we can.

We will have to wait for the conclusions that come from Lady Poole’s inquiry but, once that material is available, the Government is committed to considering and assessing it, building it into our Covid recovery strategy and looking at other approaches that we can take, especially in the resilience planning space. We want to ensure that, if there are steps that it is recommended that we take in order to be equipped to deal with any future pandemics, we can assess those recommendations thoroughly and properly and apply them where it is appropriate for us to do so.

There are a number of complex issues in there and I may have to follow up my answer with the letter to give Mr Fraser absolute clarity. I can say that there will be no question of the Government signing off Lady Poole’s report and that it would be completely inappropriate for that to be the case. Whatever report is produced by the inquiry will be the work and conclusions of Lady Poole, and the Government will have no prior sign-off on the detail of that.

On the issue of redaction, certain legal and general data protection regulation issues may have to be considered. We will, of course, explain that to Lady Poole in the submission of evidence to her. For example, I can envisage a situation in which certain advice might be offered openly and in its full form to Lady Poole by the Government, but in which we might say to her that there might be legal or GDPR considerations regarding referring to or publishing that advice.

I will reflect on the response that I have given to Mr Fraser and, if I need to write to him to set that out in more detail or more specifically, I will do so. I think that that is the fairest way to respond to his question.

The best way to answer that question is to refer to the quote from Lady Poole that I read out:

“The Terms of Reference do not attempt to present a definitive list of every issue or every person that the inquiry will consider. Instead, they specify areas of investigation, and the Inquiry will interpret them with flexibility to ensure particular groups or themes are not excluded.”

I encourage members to reflect that the inquiry’s terms of reference have been written to be broad but that they should not be looked at as a checklist. The fact that a particular term is not in them does not mean that it is off limits to the inquiry. I hope that that reassures Tess White that the intention behind the writing of the terms of reference has been to keep the inquiry as broad as possible.

If Dr Gulhane will forgive me, and with due respect to the fact that the Labour Party does not like me to talk about Wales, I will not talk about Wales.

On the substantive issues that Dr Gulhane has raised with me, I associate myself with all that he said about the contribution of health and social care staff during the pandemic.

While all of us appreciate and value everything that was done, the purpose of the inquiry is to learn lessons. If that involves us having to explore and examine what was done well and what could have been done better, that is what we will do, because that is the purpose of the inquiry and we should be open to such scrutiny.

On the practical issues that Dr Gulhane raised to do with reporting timescales and resources, accommodation and support for the inquiry, those are all operational matters for Lady Poole. It would be inappropriate of me to specify reporting timescales, other than to say that I have made it clear to Lady Poole that the Government is anxious to hear the conclusions of her inquiry at the earliest possible opportunity. We must respect her independence and the approach that she intends to take to pursue the terms of reference and to report accordingly.

I point out that different approaches to reporting have been taken in the range of inquiries that we have established. With some inquiries, the decision has been taken to report at the conclusion of their proceedings but, with others, such as the Scottish child abuse inquiry, reports on case studies have been provided on an interim basis. It is for Lady Poole to decide on the most appropriate reporting structures. Indeed, it is an essential part of her independence that she is able to do so.

The human rights-based approach is important to the inquiry, because the voices and experiences of individuals, and the impact that the pandemic has had on them, will be at the heart of the inquiry’s reflections.

In the amendments that I have made today to the terms of reference, and particularly in paragraph 6(c), there is very explicit wording about the necessity to

“consider any disparities in the strategic elements of handling of the pandemic, including unequal impacts on people.”

That is the manifestation of the human rights foundation of the inquiry.

We are fortunate that, in Lady Poole, we have an internationally renowned advocate on human rights and equalities issues who brings enormous experience to the inquiry. The changes that I have made to the terms of reference provide an opportunity to fulfil that. As I said in my response to Jackie Baillie, I know that Lady Poole is constructing an approach whereby she and the inquiry can hear the experiences of individuals as part of the evidence-gathering process.