Meeting of the Parliament (Hybrid)

Meeting date: Tuesday, October 6, 2020

Official Report 888KB pdf

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Coronavirus Acts Report

I remind members that social distancing measures are in place in the debating chamber and across the parliamentary campus. Please take care to observe those measures over the course of the afternoon’s business, including when entering and exiting the chamber.

The next item of business is a statement by Michael Russell on his report on coronavirus legislation. The cabinet secretary will take questions at the end of his statement, so there should be no interventions or interruptions.

14:51  

Since my statement in the chamber on our second report on coronavirus, on 11 August, additional measures that are intended to bring Covid-19 back under control as we enter winter have come into force. The measures in the United Kingdom Coronavirus Act 2020 and the two Scottish acts—the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No 2) Act 2020—continue to be an important part of our response to the continuing significant public health risk and the economic challenges that are posed by the pandemic.

Today I have laid before Parliament “Coronavirus Acts: Third Report To Scottish Parliament” on the provisions in both Scottish acts and in the UK act. It covers the reporting period that ended on the 30 September. In addition to the reporting requirements under the legislation, we have also reported in more detail on 22 provisions that we have judged to be of most significant impact and interest. We have also reported on a total of 49 Scottish statutory instruments of which the main purpose relates to coronavirus, as required under section 14 of the second Scottish act.

We have fulfilled the requirement to take account of available information about the nature and number of incidents of domestic abuse that occurred during the reporting period, and we have included examples of the Scottish Government’s wider action to support women and children at risk of or experiencing domestic abuse. That includes additional funding of £4.25 million for organisations working on the front line across Scotland to allow services to be upscaled.

In the report, we have also included information on rights and equality impacts. That is key to ensuring that human rights are respected, protected and fulfilled, and that equality objectives are achieved. We will continue to work to consider carefully the recommendations and best practice that come from the work that is being undertaken by the Parliament, stakeholders and others to ensure that human rights, children’s rights and equality are protected at this difficult time.

In my statement on our second report, I announced our intention, subject to the will of the Parliament, to extend through regulations the expiry date of the Scottish acts to 31 March 2021. I also announced that we would seek the expiry through regulations of provisions that were deemed to be no longer necessary. Both sets of regulations came into force on 29 September, and separate regulations have also been made to suspend provisions that relate to vulnerable adults and muirburn, which are not currently required but which may be required in the future. That approach to extension, suspension and expiry of provisions in the Scottish acts is proportionate and appropriate to the scale of the on-going risks that are posed by the coronavirus. It reflects our commitment that provisions would not remain in place unless necessary.

I now turn to the provisions of the UK Coronavirus Act 2020. As required by the UK act, the House of Commons undertook a review of its non-devolved provisions after six months of operation. On 30 September, the motion that

“the temporary provisions of the Coronavirus Act 2020 should not yet expire”

was approved.

The devolved provisions in the UK act were not within the scope of that six-month review, but the Scottish Government has, in our third report, provided information on the operation and status of those provisions. That will provide this Parliament with the opportunity to scrutinise the judgments that we have made and to express its view. There are two provisions in particular that I wish to mention in this context.

The UK Secretary of State for Health confirmed last week that the UK Government intends that the temporary provisions in section 10 of and schedule 8 to the UK act will expire early. Those provisions apply to the Mental Health Act 1983, as they apply in England. I and my ministerial colleagues have answered questions on the Scottish Government’s approach to our equivalent provisions in this chamber and in committees, and our third report confirms our view that the provisions continue to be necessary. Although the equivalent Scottish provisions have not been commenced, they are designed to ensure that a person continues to have access to the right level of care and treatment when they are unwell, should the workforce come under severe pressure.

The short-life mental health legislation commencement consideration group has been a vital source of information and intelligence about the impact of Covid-19 on the operation of the Mental Health (Care and Treatment) (Scotland) Act 2003, in the form of formal data collected by the relevant organisations and more informal evidence of the views of members and practitioners. The group recognises that the mental health impacts of the pandemic and associated lockdown restrictions might not be felt in full for some months. It remains of the view that it is appropriate to retain the provisions on the statute book, as it would not be prudent to leave our services vulnerable to a potential second wave of Covid-19 and the approaching winter flu season. Our view is therefore that the Scottish provisions in the UK act relating to mental health remain necessary.

However, I can confirm today that the Scottish Government intends to bring forward regulations to suspend the provisions in section 16 of the UK act relating to social care needs assessments, as they apply to adult services. That follows a further survey of the extent of the operation of the powers at a local level, which has again demonstrated that few local authorities have needed to use those powers. However, there are concerns that demand for children’s services in particular might increase. The powers as they apply to children’s services are therefore not being proposed for suspension.

Our report again highlights that some provisions have not been commenced and that some have been commenced but have not been used, either extensively or at all, since coming into force. We consider that, together, the provisions continue to be necessary either as important tools as we progress through the route map or because they might be required to respond to future resurgence of the virus.

The report demonstrates that accountability continues to be integral to our efforts to suppress the virus, and the two-monthly reporting process continues to be a key part of aiding transparency in how the powers have been used.

I now turn to the issue that a number of members have raised about an enhanced role for Parliament in scrutinising coronavirus regulations. It is fair to say that, in the context of responding to the public health emergency, the Government has made every effort to be accountable to Parliament. The First Minister has appeared regularly to set out the Government’s intentions and to be questioned closely. I and my colleagues have appeared on many occasions in the chamber and before committees to give evidence. The First Minister and other ministers also attended meetings of the Parliament during the summer recess. There can therefore be no doubt about our commitment to be accountable to Parliament, but we wish to respond to the calls for enhanced scrutiny.

Presiding Officer, I have therefore today written to you, to the party leaders and to the Conveners Group asking for nominees to attend a meeting—this week, I hope—to work in collaboration to develop options for enhanced scrutiny arrangements. We will need to be radical in developing a procedure to reflect the reality that public health interventions often have to be brought into force at great pace. Also, when the time comes to remove restrictions, we will want to remove them from our fellow citizens at the earliest possible opportunity. We must recognise that we are dealing with a public health emergency, and we must have the ability to act without delay when the clinical advice indicates that urgent interventions are required. Indeed, the changes announced by the UK Government acknowledge that important point. I will now take that work forward urgently with Parliament and those nominated by their parties.

I conclude by noting that, as is required by section 15 of the first Scottish act and section 12 of the second Scottish act, Scottish ministers have conducted a review of the provisions in part 1 of both acts and have prepared the report.

We are satisfied that the status of the provisions set out in part 1 of the acts as at 30 September remain appropriate. We have also undertaken a review of the Scottish statutory instruments to which section 14 of the second Scottish act applies. Scottish ministers are also satisfied that the status of those SSIs at the end of the reporting period is appropriate. A review has also been conducted of the provisions of the UK act for which the Scottish Parliament gave consent, and we are satisfied that the status of those provisions is appropriate.

We welcome the opportunity to engage with the Parliament as its considers this third report.

The cabinet secretary will now take questions on the issues raised in his statement. I intend to allow around 20 minutes for questions, after which we will move on to the next item of business.

I thank the cabinet secretary for prior sight of his statement and for the report, which, as he indicated, covers the period until 30 September. It was published against the backdrop of the further restrictions that were announced on 22 September and potential additional measures to come tomorrow, which will doubtless raise a number of immediate issues for people and businesses across Scotland.

The reports provide an opportunity to take a broader view on issues that have arisen under the legislation during the pandemic. Members on the Conservative benches are particularly pleased to see the emphasis on human rights, given the fact that emergency measures have a significant impact on individuals’ liberty. My question is about parliamentary scrutiny. We will have a debate and vote on Covid restrictions on Thursday, and I acknowledge that the cabinet secretary is here today and has appeared before committees and in the chamber many times, as have others of his colleagues, but does he believe that the system that Parliament mandated in March, which involves, in effect, retrospective approval of Government action, is still fit for purpose?

I indicated in my statement that I wish to see that system changed. That is why I have proposed that people come together to do that. However, the parameters for changing the system have to be understood. I said very openly in my statement that, when we are dealing with public health emergencies, some of the procedures that we have for dealing with secondary legislation are inappropriate. As the Deputy Presiding Officer will know, being a committee convener himself, the choice lies between a negative instrument, an affirmative instrument, a super-affirmative instrument and a made affirmative instrument. They all have their own timetables, which does not suit regulations that have to be made very quickly.

I have asked whether we can we find another way of making secondary legislation and I am sympathetic to the idea, which has been raised by a number of members in the chamber and at committee. When I appear at Mr Cameron’s COVID-19 Committee tomorrow, I think that that will be the 11th occasion, and if we can find a better way to make regulations I will be very happy.

The member takes a particular lesson from where we are now, but let me suggest another lesson. We have a considerable distance to go to ensure that the virus is defeated in Scotland, and we must, in the interests of all our fellow citizens, use every tool that is available to us. I believe that we can make changes that will be appropriate and helpful. I hope that the other parties and the Parliament will help the Government to do that.

I, too, thank the cabinet secretary for advance sight of his statement and welcome his response to calls for enhanced scrutiny. The public want to understand the reasons behind the powers and restrictions, how their effectiveness is evaluated and what the evidence base for them is.

Sadly, case numbers are now going in the wrong direction, and inconsistencies in guidance and regulations—the recent outcry over restrictions on baby and toddler classes showed one example—lead to more questions about how effective restrictions are and have been in stopping the spread of the virus.

Many families have been affected by the heart-breaking limits on attendance at funerals, for example, whereas other areas of society have seemingly opened up. Now it seems that we are going backwards and even facing further harsh restrictions. On the eve of those apparent further restrictions, will the cabinet secretary say more about how the Government is evaluating the evidence base for them and, although we welcome the parliamentary scrutiny, can he tell us how the public can expect to be kept informed, not just through verbal updates in the media or in Parliament but through written evidence or evaluation of the policy decisions?

I caution the member against basing a question on what she referred to as “apparent” changes. We should wait to hear what the First Minister has to say; we should not speculate on that. Speculation is, no doubt, appropriate for the media, but it is not appropriate in the chamber, given that we do not know.

On the substance of the question, I am sorry that Monica Lennon did not specifically welcome something for which she might have been able to take some of the credit, which is the use of clause 16 of the UK act. We have listened to her and others on that clause and we have taken action. I pay credit to the member, who has questioned me—twice or three times, I think—about that clause. It is important that we recognise the progress that is being made.

With regard to information, nobody can say that there is a shortage of published information on the issue of the coronavirus. There is a vast amount of information—in fact, there is probably too much.

The regulations are set out clearly, as is the material on the websites. The First Minister gives answers in detail, including information on the scientific background, every day, and she still does so despite attempts by some to stop her. She is often accompanied by, for example, the clinical director of the national health service, the chief medical officer and others. There is a great deal of information provided.

Nevertheless, we all have a role to play in ensuring that we are familiar with the information and the science, and that we explain it carefully to people so that they understand the situation. Nobody is being asked to do anything except take the actions that we and the First Minister genuinely believe will save lives and take us through the pandemic as safely as possible. That is the motivation. Although we can, no doubt, debate the science, we should not debate the motivation.

Members understand that changes often need to be made at short notice in order to respond to a rapidly changing situation. I welcome the update that the cabinet secretary has provided on discussions with the Parliament on how further scrutiny can be enabled to happen at an earlier stage wherever possible.

When does the cabinet secretary expect the first meeting to take place? Is there scope for engagement to continue over the recess so that processes are in place when the Parliament resumes?

I am not going anywhere, so I am happy to have as much engagement as possible. I have suggested to my office today that, once the party leaders have responded, we try to arrange a virtual meeting this week; all these meetings will be virtual. I know that my officials have already engaged informally with the Parliament—we will look for ideas from the parties and the Parliament and we will bring ideas to the table ourselves. I hope that we can come to an early agreement about how we might do that, even in the interim, so that we can get on with enhanced scrutiny.

The member is absolutely right to say that we must remember that these are regulations for a public health emergency and that urgency underpins them. We must therefore ensure that urgency goes alongside scrutiny and that one does not trump the other.

The cabinet secretary’s statement indicated that, although the short-life mental health legislation may not have been utilised to any great extent, the Scottish Government intends to retain those provisions, as to do otherwise may “leave ... services vulnerable” if there is a second wave of Covid-19.

However, the legislation will surely not be required at short notice, as the cabinet secretary indicated, and it would therefore be perfectly feasible to suspend that part and bring it back only if the Parliament required that to happen. The Scottish Government should retain only those powers that it will need to act with any speed. Can the cabinet secretary comment on that?

I am aware that the legislation covers a difficult area, but I do not see that there would be much difference between suspending it and not operating it, and it has not been operated.

As I indicated in my statement, the decision is not made by ministers alone; the short-life mental health legislation commencement consideration group also looks at the matter. The group consists of people from the Mental Welfare Commission, the president of the Royal College of Psychiatrists, somebody from the Mental Health Tribunal for Scotland, somebody from the Scottish Courts and Tribunal Service, and somebody from Social Work Scotland. There is considerable expertise around the table.

The view of that group, as recently as September 9, when it last met, was that the legislation should remain on the statute book. It has not yet been used, and we hope that it will not be used. Nonetheless, it would not be desirable to go through the rigmarole of taking it off the statute book and putting it back on.

We can talk about the issue in terms of enhanced scrutiny. It might, for example, be appropriate to ensure that advance notice is given if such provisions are to be used, so that there could be a discussion beforehand. However, it would not be sensible to fiddle with the act.

I will listen to people—not just advisers, but members in the chamber—and, if we can find some way to ensure more scrutiny of the legislation, I would be comfortable with that. I genuinely hope that the member accepts that response.

In the cabinet secretary’s previous statement on coronavirus legislation, he outlined the actions that were taken to account for the nature and number of incidents of domestic abuse occurring during the reporting period. Can he outline how that work has informed the Government’s consideration of the emergency legislation since the previous reporting period?

I am grateful to those members who strongly supported that move. Pauline McNeill was instrumental in bringing the matter to the chamber, and other members strongly supported it. That has concentrated minds on the fact that this is not merely something that we feared might happen but something that is actually happening. Therefore, as I have indicated in my report, interventions have been stepped up. That includes the resource that has been made available in such circumstances. I think that that will continue.

There has been increased funding of £4.25 million for organisations working on the front line, allowing services to be upscaled, and the situation is kept under constant review. There has been pretty quick feedback in the area, and the issue influences decision making about what lies next. We have to recognise that this situation, which is a terrible thing, appears to be a consequence of some aspects of the lockdown. Therefore, we should work hard to avoid circumstances repeating themselves. Both of those things are important.

I welcome the cabinet secretary’s reference in his statement to the importance of children’s rights. Can he confirm whether there will be an updated children’s rights and wellbeing impact assessment, given the concerns that have been expressed by Barnardo’s and the Children and Young People’s Commissioner Scotland about the impact of the pandemic on children’s rights? I am conscious from my own casework of the impact of the loss of access to certain local services on children and young people’s wellbeing and mental health. I would very much appreciate an update on that from the cabinet secretary.

I am grateful to Sarah Boyack for that point. I am happy to take the suggestion from Sarah Boyack and the children’s charities that additional work is required on the matter to the relevant ministers—the Deputy First Minister and the Minister for Children and Young People. The member is aware that we try to keep rights at the centre of what we do, and I would therefore ask my colleagues to consider the matter. What Sarah Boyack has said will be reported to them, so that they may consider the point and perhaps come back to her directly.

I welcome the cabinet secretary’s statement, in particular his comments about enhanced scrutiny. It is important not just to look back but to look forward to events that are foreseeable, such as Christmas and winter demand on the NHS. In scrutinising the whole picture, does the cabinet secretary agree that we need oversight of those aspects that lie outside the regulations, such as the Government’s testing strategy, which may nevertheless have a strong bearing on the regulations themselves?

I am sure that the member would like to have further discussion and scrutiny of many things. That is what the Parliament is for, and it is what our democracy is for. I am here to report on the legislation and the regulations. The scrutiny issue that I am addressing entirely relates to the legitimate concerns that I have heard expressed by members of the Parliament. During First Minister’s questions last week and the week before, we heard from Graham Simpson, who has also raised these points at committee, and from other members, and we are reflecting on their concerns. I am sure that Mr Ruskell has many opportunities to raise issues such as testing and, if I may use a good Scottish word, I have not seen any member here who is blate at doing so.

I am glad that the Government has agreed to stand down powers under section 16 of the Coronavirus Act 2020, but I ask the cabinet secretary to reconsider disapplying them for children.

The Conservative Government at Westminster has recognised that mental health regulations under section 10 of the UK act are no longer needed, and that pressure on the health service will never be such that we need to dispense with the important safeguard of having a second qualified mental health professional sign off on a detention order. Is the cabinet secretary not concerned—as Brian Whittle has already suggested—that, for as long as the powers remain at the disposal of his Government, the human rights of mental health patients under the terms of the United Nations Convention on the Rights of Persons with Disabilities will be in peril?

No. I seem to recall a very similar question from the member during consideration of the previous report, and I pointed out to him that—great admirer as I am of his, regarding many of the things that he does—when I look for advice on mental health legislation, I look to the president of the Royal College of Psychiatrists before I look to Mr Cole-Hamilton, which I think is a fair judgment to make.

In those circumstances, I think that the explanation that I gave to Mr Whittle was not an unhelpful one—as a reasonable man, he indicated that he was accepting the explanation, and I am sorry that Mr Cole-Hamilton is not doing so. I think that there could, and should, be a discussion as to whether the powers here would be used and that that discussion should take place before they are used. I am quite happy to take that matter away.

If the short-life mental health legislation commencement consideration group makes a recommendation, I would likely be massively criticised by Mr Cole-Hamilton and others were I not to pay attention to it.

As we have heard already today, we know that the emergency legislation is wide ranging, and the provisions affect a wide variety of policy areas. Will the cabinet secretary provide details of how the Scottish Government arrives at the decision on which provisions will be renewed and which will expire?

That is good question, and Mr MacGregor is right to ask how such decisions are made. Almost from the moment one report is finished, there is extensive discussion with the very talented team that supports me about each individual team member’s policy area in the bill. They start with the assumption that they have to justify the continued presence of items in the legislation. We proceed on the basis that the sooner we can allow all of this to expire, the better.

After the discussion with the officials, there is a discussion with ministers about whether the recommendations to continue or not continue are acceptable to them. Evidence is taken and discussions with stakeholders take place—it is a wide-ranging process. So far, we have been able to suspend or withdraw a number of provisions, and we hope to be able to continue to do so.

However, we are also faced with what members in the chamber have seen—the resurgence of cases, evidence of the spread of the virus into older age groups and, from today’s figures, an increase in hospitalisation and people going into intensive care units. Therefore, we need to look at the provisions and ask, “If we needed them six months ago, might we still need them?” If the answer is yes, we need to think carefully about what we do next.

The discussion that we are having now is part of the process. Donald Cameron’s COVID-19 Committee will also consider the report, and no doubt I shall appear before that committee to answer questions on it. In two months, we will be back in the chamber to continue the process.

In his statement, the cabinet secretary said that the Scottish Government’s provisions in the UK act relating to mental health remain necessary. Is the Scottish Government considering making any further provision for mental health, and what would be the trigger for doing so?

Mr Corry’s question is very appropriate. It is not possible for us to add things to the legislation—all we can do is subtract things from it. There are no new moves that we could make under the UK act, and whether there are things that could be done by regulation is a moot point. We would be reluctant to make secondary legislation for the purposes of mental health actions. If we were to take new actions on mental health in relation to the pandemic, I suspect that we might need primary legislation, and we have no plans for further emergency legislation. I do not want to be totally specific, because I could imagine circumstances in which regulations could be used, but I would be very surprised if they were used.

When reaching its decisions, how does the Scottish Government balance keeping us safe and allowing individual freedom? Over the past few months, many people have had to cancel holidays, and many more will possibly have to do so tomorrow. Given that the virus is not going away any time soon, how can we move forward without constantly going into lockdown, which only suppresses and does not eradicate the virus?

I will caution Mr Lyle, as I cautioned another member, not to speculate on what may or may not be happening. At her briefing, the First Minister was clear that she was not anticipating a lockdown. Let us be very clear about the language that we use.

Mr Lyle is right about balance—there is a constant balance to be struck. The balance is complex, and it becomes more complex as time goes on. After six and a half or seven months, things have changed. We are all weary, but we all want to protect lives and help our fellow citizens.

Equally, however, we are all concerned about damage to our businesses, to our friends’ businesses and to our constituencies. For example, my constituency has many islands and a great deal of tourism, and I do not wish to see any further damage. There has been considerable damage and I want to mitigate that, if possible. All those matters are borne in mind.

The First Minister indicated that the Cabinet met this morning, for a lengthy discussion of where we are now. There is considerable discussion; the First Minister talks constantly to her advisers; she reads; she listens—we all do. However, in the end, decisions have to be made and, although I hope that members and committees will be part of the process of thinking them through, sometimes decisions have to be made and implemented quickly if we are to make a difference. That is of course a hard thing to do, but it is a responsibility that the Government has to take.

I agree with the cabinet secretary that speculation is not a good thing. However, we have had two weeks of active speculation, which has been encouraged by members of the Government or their advisers—we have had back and forth on the so-called circuit breaker. I think that it is important, as the Government said at the outset of the virus, that we treat the public as grown-ups, particularly if we want to keep up compliance and maintain public support for the actions of the Parliament and the Government.

I also welcome what the cabinet secretary says about added scrutiny. That is a conversation that he and I have had right from the start of the pandemic, and I think that more scrutiny would be welcome.

Fundamentally, however, can we accept that the science can only go so far? Ultimately, it will come down to judgment calls and, when it comes to those, there should be greater scrutiny, greater discussion and greater debate, which will help to take the public with us.

As ever, I agree with a great deal of what Anas Sarwar has said, and I disagree with some bits. First, I will try to get through the agreement bit. I think that we need to have more scrutiny. We have made that clear. I want Mr Sarwar and others to understand, as I am sure that he does, the fact that we need to act urgently to make sure that things are done and we cannot hang about.

Equally, however, I very much understand that we should try to develop something new, because we need a new procedure—there is no existing procedure in the Parliament that would allow it to happen. It should not be beyond us to make sure that we can do things well and properly.

On the disagreement part of it, although I think that we are going into semantics, there is a difference between discussion and speculation. Mr Sarwar used the word “discussion”. If a minister is asked a question, and wants to inform people by answering that question, that is not necessarily speculation. Perhaps I should refine my words, as I know that Mr Sarwar likes precision in language as in all things; I think that I am asking people not to jump to conclusions about what is taking place but to remain open minded. I am sure that he, like every member, will be open minded.

In his statement, the cabinet secretary mentioned seven core principles, one of which is dignity. That is very important to older people, in particular. What engagement on the impact of the legislation will be undertaken with organisations and groups that support older people?

There continues to be discussion with many stakeholders. I am sure that the officials who are responsible for those areas of the special legislation that affect older people are in touch with those organisations. I know that the Cabinet Secretary for Health and Sport, for example, is in regular contact with organisations and individuals who represent relatives of those in the care home sector and is making sure that we are listening to them and understanding the very difficult situation that many people face and how they respond to that.

Sandra White knows the commitment of the Scottish Government to as much consultation and discussion as possible. That will apply to the area under discussion, as to every area.

That completes questions on the statement. In a moment, we will move to the next item of business.