Chamber and committees

I thank Mercedes Villalba for lodging her amendments, because she raises some important issues. I have a great deal of sympathy with the case studies that she identified. However, what she proposes would potentially have unintended consequences.

We heard earlier about concerns that the supply of private rented property is already in decline. There is a danger that, by bringing in such a measure at this point, we would constrain further the supply of private rented property. That would not be in the interests of people who are seeking accommodation in the private rented sector. Such accommodation might suit young people or those who move around often with their jobs, for whom being in the private rented sector is very helpful.

There is a broader debate to be had around the issue, but the correct context for that would be a housing bill, which I understand the Scottish Government is considering, rather than this bill. Although I have some sympathy with the point that Mercedes Villalba makes, I do not think that the bill is the appropriate avenue for bringing in the particular measure that she proposes.

I read Mr Mason’s amendment with interest. I was a member of two committees that dealt with bankruptcy legislation in previous sessions of Parliament, so I am well aware of the issues around diligence and arrestment, and how difficult it is to balance the rights of creditors and debtors. When such issues have been raised in the past, creditors such as credit unions have expressed concerns about their inability to recover funds and the position that that might put them in.

My concern about amendment 69 is that the issue that it addresses is not one that we have taken any evidence on. The representation that I have seen from the Society of Messengers-at-Arms and Sheriff Officers expresses concern about the proposed increase in the level to what appears to be the arbitrary figure of £1,000. I find it difficult to agree to amendment 69 given the absence of substantial evidence in support of it.

We have legislative competence here; it is simply a matter of whether we decide to legislate now, putting the power in the hands of ministers to produce regulations that Parliament can only say yes or no to, or to retain power in the hands of Parliament, whose members can then lodge amendments to what has been proposed. There is simply a fundamental difference of view between me and Mr Fairlie on that particular issue.

I have two amendments in the group, which address an issue on which the committee took evidence at stage 1. Indeed, we made a unanimous recommendation on it in our report.

The background is that the Mental Health (Care and Treatment) (Scotland) Act 2003 provides for a named person to be appointed to support someone who is subject to compulsory powers—for example, where they may be detained in hospital or are subject to a compulsory treatment order. As the law stands, the signature of the named person accepting the appointment must be witnessed by a suitably qualified professional, with the intention that the responsibilities of being a named person should be explained to the person.

Section 28 of the bill removes that requirement. That is an understandable change and it has been supported by stakeholders and people from whom we took evidence. However, we also heard in evidence a concern that a named person could be appointed under the new procedure without a full understanding of the role and the responsibilities that it involves. When we took evidence, Dr Arun Chopra of the Mental Welfare Commission for Scotland and Dr Roger Smyth from the Royal College of Psychiatrists in Scotland agreed that a named person should have to declare that they understand their role. The point of my amendment 3 is to require that there should be a declaration from the named person that they understand the role, duties, rights and responsibilities of being a named person.

Amendment 2 is a complementary amendment that requires the Scottish ministers to issue guidance to named persons so that they are aware of their responsibilities. The fact that there will not be a person witnessing a named person’s signature leaves a lacuna. That is why it is important that the matter be addressed.

As I said, convener, we discussed the matter in the committee and there is a unanimous recommendation on it in our report. I hope that the amendments will have members’ support.

I move amendment 3.

Mr Swinney will recall that a number of members who spoke in the stage 1 debate, including me, raised the issue of manses and other church properties, which often lie vacant for a year or more while the church seeks a new minister. Rather than allow the property to lie empty, the church will seek to let it on a private residential basis. The Church of Scotland, among others, expressed concern that, without a mandatory ground to allow it to recover possession, that would be too risky.

As Mr Swinney says, the matter could go to a tribunal, but there would be no guarantee that the property could be recovered when it is required for a new minister taking up office. I think that Mr Swinney said during the stage 1 debate that he would reflect on that. Does he have any more thoughts as to how that issue could be addressed? I fear that the unintended consequence could be that churches will just leave such properties lying empty, when they could be used to house families, even on a short-term basis.

I am grateful to the cabinet secretary for that explanation. My concern, which I think has been expressed by the Church of Scotland, is that, although that might well be the case, there is no guarantee that a tribunal would reach that outcome. Therefore, the unintended consequence is likely to be that churches will just not take the risk of renting out such properties.

Let me just finish my sentence if I may, Mr Fairlie.

The Parliament has already demonstrated, as it did two years ago, that it can move very quickly in an emergency to pass legislation. The important point—this touches on the comments that Mr Rowley made a short time ago—is that progressing in that way allows Parliament at that point to amend legislation and Parliament as a whole to lodge amendments. That method of dealing with the law is not possible if we legislate in a way that passes to ministers the power to produce regulations that Parliament cannot amend. Although Parliament has the right to say yes or no to regulations—I welcome the cabinet secretary’s amendments that will strengthen Parliament’s power—it has no power to amend them. Making this a matter of primary legislation would put the power back into the hands of Parliament not just to vote yes or no, but to lodge amendments.

As this is my first contribution, I should refer members to 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 will speak to four amendments in the group—amendments 6, 7, 8 and 9—and I will comment briefly on the Government’s amendments and those of other members.

My amendment 7 seeks to remove section 1 of the bill in its entirety, which goes to the heart of our objections to the bill and asks whether it is necessary at all to legislate at the present time to make permanent what were emergency and extraordinary powers that were given to the Scottish ministers to deal with the public health crisis.

We explored those issues in detail during the stage 1 debate, so I will not rehearse all those arguments today. However, I believe that we still have to hear a credible justification as to why those public health measures need to be in the bill and why such matters cannot be dealt with in another way. The committee has heard from a range of stakeholders who share that view, and our public engagement showed, among those people who responded, a 90 per cent opposition to those measures being in the bill as proposed.

I thank Mr Mason for that intervention, but, as I set out in the stage 1 debate, there is an alternative approach, which was laid out to the committee by Professor Fiona de Londras, who said that it would be quite possible for all parties to agree draft legislation that could sit on the shelf, ready to be introduced as and when required—

Mr Whittle has made a very fair point.

That is the purpose of my amendment 7. If amendment 7 does not attract favour—it might not—I have a number of other amendments in the group that all seek to improve the measures in the bill.

My amendment 6 is very similar to amendment 11, in the name of my colleague Graham Simpson, but its reach is narrower. It requires a statement by ministers of reasons why the made affirmative procedure must be used. The committee recommended that at stage 1, following the evidence that we heard from a number of stakeholders. The amendment is very sensible and reasonable, and I commend it to colleagues.

My amendment 8 requires an assessment to be made of the impact of any regulations on impacted persons, including retail groups, industry organisations, trade bodies and any other relevant groups, before ministers introduce them. It requires ministers to consult such groups, “insofar as is practical”, prior to the introduction of such regulations. That addresses a concern that has been raised over the past two years by a variety of stakeholders, particularly in the business community, about the very negative impact that regulations have had on businesses. They were not adequately consulted on those before they were introduced, and no proper assessment of the impact was conducted. A very good example of that is the vaccination passport scheme, which, as we know, was very controversial and was strenuously opposed by business. Businesses felt that they were not adequately consulted on that before it was introduced and that no proper assessment of its impact was done. Amendment 8 would require ministers to consider the impact that regulations would have before bringing them in and to consult—but only “insofar as is practical”, because I understand the points that have been made about the need to act at speed in response to a public health emergency.