Chamber and committees

I think that we are in danger of repeating ourselves. Of course, Mr Greene is perfectly entitled to repeat points that have already been aired in debates, including yesterday, on the approach that the Government has taken. Through the bill, the Government is trying to take forward a number of practical measures that are necessary to cope with the disruptive impact of Covid on public services.

Mr Greene and I can agree that there is a backlog of court business—that is beyond dispute. With the benefit of legislation that the Parliament has already passed—and had reports on—over the past 15 months, the Government is trying to continue the practical, mitigating approaches that are in place, which Parliament has already agreed to, where that is justifiable.

The justification here is that there remains a significant backlog of court cases. The provision contains sufficient flexibility to deal with that, and it could exist for a further 12 months after 30 September if Parliament agrees first to the bill and then to a renewal after six months. However, if there needs to be consideration of longer-term provisions beyond that time, the permanence bill, which we will consult on over the summer and take forward in the normal parliamentary sequence, as I assured Mr Fraser yesterday, could be a place for that to be undertaken.

I agree with Mr Greene, in that I do not think that this is a desirable long-term provision, but we need it now because of the backlog in the courts. The reassurance for Mr Greene is that, in accordance with guidance issued by the Lord Advocate, the measure will be used only where independent prosecutors consider such action to be appropriate in the public interest, having regard to the facts and circumstances of each case.

Safeguards are built into the operation of fiscal fines, which are not mandatory penalties. Anyone who is offered a fiscal fine as an alternative to prosecution may refuse such an offer by giving notice to the court to that effect. In such an event, the refusal is treated as a request by the alleged offender to be prosecuted for the offence, in which case the procurator fiscal decides what action to take in the public interest.

The measure allows, where appropriate, for a greater range of cases to be dealt with outwith the court setting. It remains an important part of the on-going recovery of our justice system from the impacts of coronavirus. I therefore invite Pauline McNeill not to move amendment 6.

Amendment 7 seeks to expire the provisions suspending certain time limits that are contained in the Criminal Procedure (Scotland) Act 1995. It might be helpful if I explain to members why the suspension of the time limits will continue to be important in enabling the justice system to recover from the effects of the pandemic, even after the immediate impact of coronavirus has abated.

The purpose of the provisions is to preserve scarce court resource from having to be used to extend time limits in individual cases. Expiring the provisions will not, in itself, provide any additional court capacity or result in anyone’s case being heard any more quickly than is currently the case; indeed, it could have the opposite effect. As members may be aware, almost all the time limits in question can be extended, case by case, on application to the Crown Office. The changes were made following discussion with justice agencies, which noted that, at a time of significant pressure on court resources, it would not have been an efficient use of court time to have to hold individual case hearings in potentially hundreds, if not thousands, of cases. That reasoning is the basis on which an extension to the effect of the changes is being sought in the bill.

It is anticipated that the resource pressures caused by the backlog will last for a number of years. Retaining the suspension periods as part of the operation of time limits is a policy that is designed to adapt to a changing environment. Over time, as steps are taken to reduce backlogs in the criminal justice process, it is expected that the suspension periods will not be needed to be used as extensively when someone is subject to court proceedings, and that when they are needed, they should not need to be used to their maximum extent. The numbers involved should reduce each year, but it is crucial that flexibility is retained to allow for effective and efficient prioritisation throughout the recovery and renewal period for the processing of court cases. I therefore invite Pauline McNeill not to move amendment 7.

Amendment 8 seeks to expire the provision that allows the court to admit evidence by statement when a witness is unable to attend the trial because of a risk attributable to coronavirus, for example because they are self-isolating or shielding, and when it is not reasonably practicable for them to give evidence in any other competent manner. That legislative change helps to minimise the impact of the outbreak on the ability of courts to proceed with trials, and so ensure that the justice system continues to operate as effectively as possible. It is especially important at a time when a number of people are required to self-isolate.

It should be remembered that section 259 of the Criminal Procedure (Scotland) Act 1995 already permits statements to be used in evidence in court when a person is, among other things, unfit to give evidence. However, that provision does not cover people who are unable to attend court because they are self-isolating for public health reasons. The measure should be considered along with the provisions that allow witnesses to give evidence remotely.

Evidence by statement would only ever be admissible where the witness could not give evidence in a competent manner. Someone who is self-isolating cannot easily be in contact with others, which includes when giving evidence remotely, as the courts would not generally permit evidence to be given remotely without safeguards through the presence of others to ensure that evidence was being given in a fair manner.

I am grateful to Jackie Baillie for her explanation of her amendments, starting with amendments 2 and 3. Although I understand the rationale behind those amendments, the Government intends to resist them, because they attempt to remove important flexibility from the bill.

As was commented on several times yesterday, we cannot predict the path of the pandemic or how long we may need some of the important measures that are contained in the acts.

Amendment 4 would duplicate reporting that is already undertaken on conditions in prisons. On its website, the Scottish Prison Service already regularly provides updated information on the effects of Covid, including a regular update on the numbers of prisoners who are infected or self-isolating, the number of prison staff who are absent from work due to Covid, and updates on prison operations and policies in response to Covid. There is also already regular reporting to Parliament on the legislation’s provisions.

I also fear that amendment 4 would not have the intended effect of requiring Scottish ministers to produce a report on conditions within prisons every two months. As drafted, the trigger for the report seems to be the use of the release power, so it would not happen unless that power was used again, and there are no current plans to use it. If the power were used, it does not seem proportionate to initiate an on-going reporting requirement that might end up continuing well beyond the period of release, when the context might have significantly changed.

Amendment 5 seeks to amend the Coronavirus (Scotland) Act 2020 by placing an additional reporting requirement on the Scottish ministers in relation to the operation of schedule 1 to the act, on eviction from dwelling houses. Subsection (1) of the section that amendment 5 would introduce is drawn widely, and it is unclear whether it refers to adequate “protection for tenants” on social, economic or health grounds.

Subsection (1) would also require the Scottish ministers to set out any

“limitations in protection for tenants”

that are encountered—which provision is also widely drawn—together with the reasons why such limitations exist. That would make the reporting requirement cumbersome and, in some cases, potentially impossible to comply with.

In addition, much of the information is already publicly available and is included in the bimonthly reports that are and will continue to be produced for the schedule 1 provisions. For example, the bimonthly reports set out how many orders to evict have been issued by the First-tier Tribunal for Scotland housing and property chamber, as well as levels of rent arrears in the social rented sector. However, we are always seeking to improve the data that we collect, and the Scottish Government is working with local authorities and the Society of Messengers-at-Arms and Sheriff Officers in order to collect new data to better understand what evictions are taking place across the country and for what reasons.

As we develop new sources of data, they will be reflected in bimonthly reports and I would be happy to discuss some of the issues and how we can enhance the reporting with Mr Griffin and other interested members to ensure that the reports that we supply to the Parliament for scrutiny meet the legitimate aspirations for information that Mr Griffin has highlighted today.

In its dashboard report, the Scottish Housing Regulator already reports on the number of notices and proceedings that have been issued to tenants in social housing, and on the total value of rent arrears in the social housing sector that have accumulated during the reporting period. For those reasons, I do not think that it is necessary to proceed with amendment 5 and I urge members not to support it.

I am surprised that Mr Griffin has lodged amendment 16, which would expire the pre-action requirements for rent arrears on the one hand but, through amendment 24, seek to preserve them until such time as all tenants who are applying for or receiving a loan under the tenant hardship loan fund have received a grant for their rent arrears. Amendment 24 appears to be designed to enable the continuation of pre-action requirements until such time as all tenants in Scotland have all their rent arrears paid by the grant from the Scottish Government or another body. In any event, amendment 24 would be time limited because the Coronavirus (Scotland) (No 2) Act 2020 will, by virtue of the current bill, expire either in March 2022 or September 2022.

We will make sure that everyone who is in receipt of a loan through our tenant hardship loan fund is made aware of the £10 million tenant grant fund that I announced yesterday. If people who are in receipt of a loan are eligible for a grant, they will be able to take that up.

Mr Fraser made the fair point that, in relation to the details of the tenant hardship loan fund, amendment 24 is rather premature. We intend to consult stakeholders over the summer and introduce the grant fund later in the year. Again, I would be prepared to engage with members—as would the Cabinet Secretary for Social Justice, Housing and Local Government—about the approach to the tenant hardship loan fund.

The pre-action requirements formalise the steps that all landlords should be taking to support tenants who have accrued rent arrears, which is why we committed in “Housing to 2040”, our long-term national strategy for housing, that we would take steps to place pre-action requirements on a permanent footing. The move to introduce pre-action requirements permanently has been broadly welcomed by tenant and landlord representatives alike. I confirm that our consultation on a permanence bill will seek views on making the pre-action requirements permanent, to prevent any gap until that bill is superseded by any future housing bill. Jackie Baillie raised the issue of the timescale on the permanence bill. We are consulting on the bill over the summer and the Parliament will then scrutinise it after the summer recess.

Mr Griffin’s amendments to expire the pre-action requirements on the one hand and to continue them, in effect, on the other are therefore unnecessary. In addition, they would introduce complexity for tenants and landlords as to when the pre-action requirements actually apply. That complexity does not currently exist, so I ask members to reject amendments 16 and 24.

Jackie Baillie’s amendment 18 raises very difficult issues. Her fundamental concern is about ensuring that appropriate arrangements are in place in care homes and that they are applied effectively. That is an absolutely legitimate subject of inquiry. The question is not whether there should be scrutiny, reporting and gathering of information about performance in care homes; the question is how it can best be undertaken.

Gillian Mackay raised legitimate points—they are at the heart of the arguments on the matter. They were about whether all that would best be served by enabling the Care Inspectorate to carry out the long-standing previously agreed and legislated for scrutiny of individual care homes, or whether some resource has been distracted by the overarching reporting and analysis that were envisaged for the circumstances.

The fortnightly reports on inspections—the 28th such report will be published this week—have been helpful in getting information into the public domain and in providing assurance to Parliament and the public, at a time when the level of anxiety about the safety and wellbeing of care home residents and staff has, understandably, been high. However, preparing the fortnightly reports has reduced the Care Inspectorate’s capacity to carry out wider scrutiny activity, because inspectors are involved in preparation of additional reports. As we move into recovery and remobilisation, it is important that inspectors can refocus their attention on scrutinising and supporting all care services and not focus only on care homes that are at the highest risk from Covid-19.

There is unnecessary duplication of effort. There has been a return to a near-normal pre-Covid process in which full inspection reports are published by the Care Inspectorate, usually within 10 days of an inspection. The result is that, in many cases, full reports are published at about the same time as the associated less-detailed parliamentary reports.

Gillian Mackay asked me to consider whether, should Parliament not agree to amendment 18, wider synchronisation of reporting could be done. I undertake to examine that in advance of stage 3 tomorrow.

On Alex Cole-Hamilton’s point, the weekly reporting of deaths in care homes has been heavily reliant on accurate reporting by care homes. The official statistics that are published by National Records of Scotland are now well established and include data on care homes. I therefore urge members not to support amendment 18, but I give an assurance that I will explore the point that Gillian Mackay raised.

I would like Parliament not to proceed with amendment 30, so that the Government can reflect on the matter and on wider scrutiny of the reporting requirements that can be included in the bill to enhance the existing reporting arrangements. There have been a number of requests that we enhance reporting requirements. I would like the opportunity to consolidate those requests to allow reporting requirements to be put into the bill at stage 3, in order to ensure that Parliament is properly updated on and advised of performance against the requirements of the legislation. I urge Pam Duncan-Glancy not to move amendment 30, on the basis that I will introduce reporting requirements at stage 3 tomorrow.

Amendment 12 would expire the provisions relating to the ability of licensing boards to exercise their discretion as to whether to hold meetings in public due to coronavirus. Although we are making good progress with the vaccine roll-out, the recent rise in cases indicates that new variants, such as the delta variant, might come to the fore and create further challenges and difficulties. Mr Simpson is, however, right to have characterised our assessment as being more optimistic than it has been for some time.

Licensing stakeholders have welcomed the flexibility that has been provided by the provision since its introduction in the first coronavirus act, and are broadly content for the provision to be extended beyond 30 September, on the ground that we cannot say with any certainty that new variants will not arise. Licensing stakeholders support the holding of meetings in person, but we and they agree that the added flexibility is important to ensure that the alcohol licensing regime can function, should there be a requirement to reimpose restrictions throughout Scotland or on a local authority basis.

The effect of amendment 12 could be that users of the alcohol licensing system would be unable to receive an effective service from licensing boards, including being unable to sell alcohol. That would be unfortunate and counterproductive at a time when we are all keen to do all that we can to support the hospitality sector. My officials engage regularly with licensing stakeholders and have been made aware of examples of good practice that has enabled members of the public to view proceedings online. Of course, if anyone is participating formally during proceedings as an objector, necessary arrangements are put in place by the licensing board to ensure their participation in meetings. For those reasons, I oppose amendment 12, and I ask members to oppose it, too.

I turn to amendment 13, which is in the name of Alex Cole-Hamilton. Scotland’s local authorities have responded extremely well in order to keep essential services available during the pandemic. Crucial to ensuring that that has been possible has been allowing governance structures in councils to continue to operate so that decisions about services can continue to be scrutinised and made.

The provision in question was never about universally excluding the public from local authority meetings; it was only ever to be applied at physical meetings where there was a risk of transmitting Covid. At all times, the Scottish Government, in the interests of openness, democracy and transparency, strongly encourages councils to make every effort to live stream their meetings to the public. We believe that the provision has enabled local authorities to continue to function and conduct committee business while simultaneously taking action to reduce and suppress the spread of the virus.

Councils have reacted well to the changing environment and have acted quickly to implement new governance arrangements that are safe and flexible. For example, all 32 councils now have arrangements in place to support remote meetings. In light of that, and recognising that the provision was being used only in limited situations by some councils, we recommend that Parliament supports amendment 13, which is in the name of Alex Cole-Hamilton.

I am grateful to Pauline McNeill for lodging amendment 25—well, I do not know that I am grateful, because this is a very challenging part of the debate.

I accept that the issues that Pauline McNeill raised, whether on weddings or on the impact on the live music sector or venues as a whole, are of significance.

This morning, I had a very helpful conversation with representatives of the Glasgow city centre task force, on which many live music venues are represented. A number of the points that Pauline McNeill made were raised during that discussion. The concern that somehow those issues are not on the Government’s agenda is not, I assure Pauline McNeill, valid. The Government has wrestled with those questions, because none of us wants to have to disrupt or delay the life plans of individuals at such important moments in their lives.

However, clinical advice and guidance inform our decisions. Yesterday, the First Minister set out our hope, subject to continued progress and the meeting of the caveats that we have set out, that the current requirements for 1m physical distancing will end once the country goes into level 0. Beyond that, we will remove all restrictions. There is therefore a clear pathway for the sector, so that it can understand the changes that are going to be made.

We are allowing live entertainment at weddings from 28 June. On the type of specific additional circumstance that Pauline McNeill raised, if she writes to me I will happily consider what can be done in such circumstances.

We recognise that we are in a very uncertain situation. We are optimistic about the situation—that is obvious—but there are still anxieties. The case numbers today cause me further anxiety. We are not absolutely certain about the course that the pandemic will take and we are therefore not certain of the implications over the coming winter. There may be a requirement for us to use some of the powers over a longer period of time.

I will come on to explain the rationale about the situation that we could face, which could see us having to return to more emergency legislation. I am trying to minimise the recourse to emergency legislation by having sufficient flexibility in the legislation that Parliament passes this week to enable us to address any circumstances that we may face in due course.

It makes no sense to remove a safety net that we may well need, especially because any further extension would require Parliament to scrutinise and approve affirmative regulations. I want to be clear on that point. The bill only enables the Government to ask for Parliament’s approval for an extension. It is for Parliament to determine any decision about whether such an extension should be granted.

The Scottish Government remains committed to retaining powers only for as long as they are necessary and appropriate. I remind members that Parliament will, on a bimonthly basis, scrutinise the decisions of this Government in relation to the continued need for measures in the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No 2) Act 2020, which this bill proposes to extend. There will therefore be numerous opportunities for Parliament to scrutinise the continued necessity for the provisions.

The removal of flexibility would also have an impact on the timing of a permanence bill, which we will soon consult on. Without that flexibility, the permanence bill would have to be in force by the end of March 2022 to ensure that there is no legislative gap. Parliament would therefore be deliberately choosing to put a deadline on the date by which the bill placing measures on a permanent basis must be enacted.

That does not appear to be consistent with the mood in Parliament, and is likely to have the effect of reducing the amount of time that Parliament will have to scrutinise the bill.

In addition, if it is necessary to extend the measures further, it could result in another emergency measure, without this power. Parliament will still be able to consider and debate any extension, and the necessity for that, through debate on the regulations. I do not consider an emergency bill designed to achieve the same aim would be an appropriate and effective use of Parliament’s time. I therefore ask members not to support amendments 2 and 3, which seek to remove important flexibility, have wider implications for legislative planning, and may necessitate further emergency legislation in six months’ time.

I am sure that Jackie Baillie will be glad to hear that the Government is content to support amendment 15, which will expire on 30 September 2021 the provisions relating to scrutiny of subordinate legislation in the Coronavirus (Scotland) Act 2020. The provisions in that amendment relate to allowing regulations to be progressed under the main affirmative procedure rather than the draft affirmative procedure, and therefore enable regulations to be brought into force immediately where necessary, but to remain in force only if parliamentary approval is secured.

As a result of Parliament’s willingness to accelerate timetabling of the scrutiny of relevant draft affirmative regulations, it has not been necessary to use those so far. Therefore, although it would be helpful to retain those provisions in case accelerated timetabling of necessary draft affirmative regulations is not always possible, the Government is willing to accept Parliament’s view on that matter. For those reasons, I lend my support to amendment 15. However, I wish to make Jackie Baillie aware that, if the amendment is agreed to by Parliament, technical tidying-up amendments will be lodged by the Government at stage 3 to make small consequential amendments.

Although I appreciate the sentiments behind amendment 19, it is, in my view, unworkable, and much more widely drawn than Jackie Baillie suggests. Obviously, Jackie Baillie has indicated that she will not move that amendment. The effect of that amendment could be to require ministers to lay a statement before Parliament on any change to any measure in response to Covid proposed by any person or authority. I do not think that that is deliverable, or what Parliament would want—nor would it be feasible for ministers to lay such statements 14 days before they are intended to have effect. By its very nature, the pandemic has necessitated urgent action in response to its changing impact. I wish that that were not so, but that is the reality that the Government must deal with, and which is likely to be the case for the foreseeable future.

At every stage during the pandemic, the Government has fully committed to being accountable to Parliament and its committees. We have agreed specific arrangements with the Parliament for the detailed scrutiny of ministerial statements and accompanying regulations. We stand ready to act on any further measures that the Presiding Officer or Parliament consider would assist scrutiny. However, ministers must retain the ability to move at pace where the public health and clinical advice indicates the need for immediate action. On that basis, the Government cannot support amendment 19. However, I am happy to commit to Jackie Baillie and other members that the Government will continue to have dialogue about how best to keep Parliament informed about any significant changes to measures that we consider necessary.

The Government also intends to resist amendments 20 and 21, as they attempt to remove important flexibility from the bill. It has been the Government’s view that a fine balance needs to be struck between making available as up-to-date evidence as possible and allowing sufficient time for scrutiny and implementation in order that stakeholders and public bodies can prepare for any changes. Indeed, we have been discussing that matter over the past couple of days. In my view, it is unhelpful for the Government to be unnecessarily constrained by having an arbitrary 45-day deadline imposed. It would instead be more helpful to maintain a balance and necessary flexibility. I therefore suggest that amendments 20 and 21 are unnecessary and invite members not to support them.

Paul Sweeney has raised a number of significant points in amendment 26 and his comments on it, and I am happy to consider how that and a variety of other requests for additional reporting requirements in the various amendments that we have heard today can be considered further in tomorrow’s discussions. Amendments 4, 5, 18, 25, 27, 28, 29 and 30 all seek additional reporting requirements, and I would like the opportunity to reflect on the issues and to formulate amendments to be lodged for stage 3. I want to ensure that the legitimate request for further reporting can be integrated into the already significant reporting requirements that the Government fulfils—and is happy to fulfil—to Parliament in this respect.

I urge Paul Sweeney not to move his amendment and to give us the opportunity to formulate proposals that can be considered in tomorrow’s session.

Amendment 14 agreed to.

Amendment 15 moved—[Jackie Baillie]—and agreed to.

Amendment 16 not moved.

I do not think that it will carry systematic volume data, but there will be information on the way in which prisons are able to operate within the context of the current situation. I am happy to write to Pauline McNeill with further detail on that issue.

If ministers considered it necessary in future to make use of the early release power, specific regulations would have to be presented to Parliament on the proposed process, which would have to demonstrate why the action was considered necessary and proportionate and how it would support the effective operation of prisons and protect the health of prison staff and prisoners. I therefore urge members to reject amendment 4.

Amendment 6 seeks to expire on 30 September 2021 paragraph 7 of schedule 4 to the Coronavirus (Scotland) Act 2020. That provision increased the maximum available fiscal fine from £300 to £500 and introduced a new scale of fixed penalties to give practical effect to that measure. The measure, which has been in force since 7 April 2020, represents a small but important part of the wider response to the on-going recovery of the justice system from the significant impacts of coronavirus, which is expected to last for a number of years, and certainly beyond 30 September.

The increase of the available upper limit of fiscal fines from £300 to £500 has allowed a greater number of cases to be diverted from summary court proceedings without the need for court procedure and associated appearance at court. That has, crucially, freed up the courts and prosecutors to deal with more serious cases and eased the burden on the courts during a time of significant resource pressure as a result of coronavirus.

As members are aware, there remains a significant backlog of cases in the court system as a result of the coronavirus outbreak, and retaining the Crown Office and Procurator Fiscal Service’s ability to divert a greater number of cases from the courts through the measure is an important and proportionate part of the wider approach to enabling the justice system to recover from the impact of coronavirus.