Meeting of the Parliament (Hybrid)

Meeting date: Tuesday, June 9, 2020

Official Report 881KB pdf

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Coronavirus Acts Report

The next item of business is a statement by the Cabinet Secretary for the Constitution, Europe and External Affairs, Michael Russell, reporting to the Parliament on the Coronavirus Acts. The cabinet secretary will take questions following his statement; I encourage all members who wish to ask a question to press their request-to-speak button.

14:43  

We all know that the coronavirus outbreak is unprecedented in our lifetimes and that it poses a severe and sustained threat to human life in Scotland. The human cost is only too apparent, not just in the tragedy of death, but in illness, both physical and mental, and in the impact on all our lives. Jobs, businesses and the public service in Scotland have all been badly affected. Throughout our society, in every community, the magnitude of the challenge that we have faced and continue to face is unique and extraordinary, and extraordinary measures have been required to meet that challenge, including in Parliament.

In our collective role as leaders of Scottish society, we have a responsibility to ensure that we all take the necessary steps to protect the lives of people who live in Scotland and to support their livelihoods. In our role as legislators, we have a duty to ensure that we act for the public realm, keeping our statute book fit for purpose and providing the powers that are needed to tackle the virus and its effects. In short, our job is to secure the legislative and regulatory tools that will help us to overcome the problems that we face and remove any obstacles to that task.

The United Kingdom Coronavirus Act 2020, the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No 2) Act 2020 provide new measures to help to protect the public, maintain essential public services and support the economy. The measures are, and remain, necessary because of the continuing severe public health and economic challenges that are posed by the pandemic.

Back in early March, the four-nations coronavirus action plan outlined the collective approach and closely integrated planning processes that were put in place across these islands, including changes to legislation where needed, to help to prevent the spread of the outbreak and to combat the impact and consequences of the virus. The provisions in the UK act built on that plan and cover a range of topics and sectors, including bespoke provisions for Scotland to reflect our different legal system and devolved areas. Those provisions were subject to a separate legislative consent motion that the Scottish Parliament agreed to. However, although the UK act laid reporting requirements on the UK Government every two months, it did not do so for the devolved Governments.

The Coronavirus (Scotland) Act 2020 introduced further measures to support our own response here, and we took the opportunity to institute formal reporting arrangements for the Scottish Government for the powers that the act conferred. The Scottish Government will now report to the Parliament every two months on the continued necessity of all the measures in the Scottish act and on the use of the powers that it contains. When the Coronavirus (Scotland) Bill was passed, I also committed to include the provisions of the UK act, as they relate to Scotland, in the reporting process.

Today, I have laid before the Parliament the first report on the operation and continued necessity of the powers in both acts. The report is a key plank in the Scottish Government’s coronavirus strategy. Accountability is crucial to our work to suppress the virus. The report shows that the powers that are available to ministers have been used proportionately when it has been judged appropriate to use them, but that, crucially, they have not been used unless needed. That means that, in some cases, powers have not been commenced, because there has not been a need to do so.

More than 40 separate items are included in the first report. A great deal of work has been done within the Scottish Government—I pay tribute to the team that has done that work—and with our partners to compile a report that is clear and readable, but which maintains the proportionate approach that we set out at the start of the process, in order to avoid placing undue pressures on those who are, at this time, properly prioritising saving lives.

Our approach also reflects the fact that measures in the legislation are of varying degrees of significance in terms of their impacts and the level of interest in their operation. Some measures are of greater significance in relation to their potential impacts on individuals or groups, or to their implications for equality and human rights. Some measures are of significant interest to Parliament for other reasons. We have sought, where possible, to provide detail over and above the requirements, set out in the Scottish act, to report on the operation of the powers.

A central aspect of our reporting approach relates to the equality, human rights and children’s rights impacts of the legislation. We recognise that the Scottish Parliament’s Equalities and Human Rights Committee is particularly attentive to such matters in relation to the Government’s response to the crisis. As far as we can, we have sought to examine those impacts in the reporting and to include or signpost to information, including in relation to equality and protected characteristics. However, we wish to do more work in that regard, and that is one of the aspects in which we will seek to further develop our approach for future reports.

There are already some very positive examples of the benefits of using the powers under the legislation in the reporting period in order to support our response to the pandemic. The suspension of pension scheme rules has allowed former national health service staff to return to front-line NHS roles, which has added vital capacity to the workforce. The establishment of a temporary social work register has resulted in, at the end of the reporting period, more than 200 registrants being available to be deployed to front-line services. Powers that are included in the Scottish act have allowed for the easing of restrictions relating to civil alcohol and non-alcohol licensing regimes, which has worked towards ensuring that the unprecedented disruption does not cause anyone to lose their licence through no fault of their own.

The powers have also enabled extensions to be granted to planning permission, or planning permission in principle, should such permission lapse over the course of the emergency period. We have been able to ease—temporarily and where necessary—the reporting requirements that are imposed on some public bodies, to enable them to direct their focus towards the efforts to respond to the emergency, and to support, for example, access to documents by electronic means when current social distancing restrictions mean that physical access is not possible.

The report marks the beginning of our reporting process, with new measures having been in place for only a short time, and new monitoring and reporting arrangements being established, or in the process of being established, to support their operation. We will continue to develop our reporting arrangements and keep the approach under review in response to the requirements of the Scottish Parliament. In two instances, we have already responded to the views of committees and members about other items that should be included.

In addition to the items from the Coronavirus (Scotland) (No 2) Act 2020, our next report, which will be due following the end of the second reporting period, on 31 July, will include information on Scottish statutory instruments where their primary purpose relates to coronavirus. That follows the amendment to the second bill that was originally proposed by Adam Tomkins and reflected the views of the Delegated Powers and Law Reform Committee.

The second report will also take into account available information from the Scottish Police Authority or Police Scotland about

“the nature and the number of incidents of domestic abuse during each reporting period”.

That reflects the amendment that was lodged by Pauline McNeill to help to inform the approach taken to domestic abuse during the outbreak, also as part of the second Scottish bill process.

The Scottish ministers will, of course, continue to be answerable to Parliament for how the Scottish Government is responding to the pandemic, including the use of those statutory powers.

I note in conclusion that, as required by section 15 of the Coronavirus (Scotland) Act 2020, ministers have conducted a review of the provisions in part 1 of the act and have prepared the report that I laid before the Parliament today. We are satisfied that the status of the provisions that are set out in part 1 of the act remains appropriate.

A review has also been conducted of the provisions of the UK act, for which the Scottish Parliament gave legislative consent, and they are also covered in the report. We are satisfied that the status of the provisions in the UK act to which the Scottish Parliament gave its legislative consent remain appropriate.

We now look forward to and welcome the opportunity of engagement with the Parliament as it considers the first report.

The crisis that we are going through is not as yet ended, but I can give one final assurance to the Parliament: when it is ended, the acts will not be needed, and they will be immediately set aside. Moreover, we will take any and every opportunity that we can to set aside some of the provisions of the acts, even if the whole of the acts cannot be rescinded, whenever it is safe to do so.

In that connection, I am pleased to be able to inform members that the use of one provision has already been revoked. On 11 May 2020, the Minister for Public Health, Sport and Wellbeing signed a direction that revoked the use of the provision on the suspension of death certification review.

We are in exceptional times. These are exceptional measures. All of us want those times to be over and, with them, the measures that are born only out of necessity.

We now move to questions, the first of which is from Murdo Fraser.

I thank the cabinet secretary for his statement and for advance sight of it, and I welcome publication of the two-month report. It is a detailed publication that includes a great deal of information that MSPs and others will want to take time to absorb and consider carefully.

I will ask the cabinet secretary about police enforcement of health protection regulations, which restrict the behaviour of individuals. The latest statistics from Police Scotland indicate that about 5,000 notices have been issued. Their number has declined from a peak in early April. That indicates that although there have, overall, been very high levels of public compliance with the regulations, a persistent minority nevertheless continue to flout the rules, and to put themselves and others at risk.

In evidence to the Justice Sub-Committee on Policing, the Scottish Police Federation has said that measures in relation to restrictions on travel, entering other people’s houses and quarantine on return from holidays are nigh-on impossible to enforce. I have also been told that in rural areas, such as Perthshire, the local police have been advised not to take any action in relation to individuals who are moving between first and second homes, even though that causes real concern in their communities and is a breach of the regulations. I am sure that the cabinet secretary will understand the frustration that that causes. What is his view on the regulations continuing in operation if the police are not able to enforce them?

I thank Murdo Fraser for his welcome for the report, and I look forward to discussing it with his COVID-19 Committee.

There is, of course, always a balance to be struck between what is in legislation and what is in guidance. Police Scotland has been involved in the development of legislation and guidance, and we have absolute confidence in it, and in its ability and professionalism to support the measures that are in place. Police Scotland is keeping the people of Scotland safe in a very difficult time, and surveys show strong support for policing in Scotland during the pandemic.

The chief constable has always made it clear that it is important that policing’s tone and style reflect the need for positive engagement and common sense. The vast majority of people have complied, and continue to comply, with the rules. The rules are not there simply to impose on people; they are there to save lives.

I drove to Parliament early this morning. The message about staying at home and saving lives is still there on motorway gantries. We must reinforce that message all the time. We must also be able to say to our friends and neighbours that it remains essential that we observe the rules. I am sure that the police will continue to underwrite that, to try to continue with their four Es—engage, explain, encourage, enforce—strategy, and to explain to people why it is important.

I am sure that the police will enforce the regulations as they are: they are in place and can be enforced. We should not send out any message other than that the regulations are in force and can and will be enforced if that is required.

The report is welcome and includes a lot of detail that members will want to look at.

Some of the powers that have been brought in were intended to take pressure off local authorities—for example, in relation to carrying out assessments. Will here be more detailed information about that, either in the report or in a committee meeting? Before the Covid crisis, waiting times for assessments for care packages were already out of control in some local authorities. Goodness knows where they are now. We need to know what the impact of the powers has been on growing waiting lists for assessments for care packages.

Two Covid-19 bills have been through Parliament There are areas of concern including risk assessments in workplaces and health and safety. If the reproduction number starts to go up, will the cabinet secretary be willing to take further steps to look at the response to risk assessments in workplaces, to health and safety concerns, and to collective bargaining across the whole care sector?

I thank Alex Rowley for welcoming the report, which I am sure he and will have a chance to discuss.

Sections 16 and 17 of the Coronavirus Act 2020 address the duty of local authorities to assess needs; section 17 is about further section 16 provision. There is a comprehensive part about that in the report, which provides additional information. We have surveyed the 32 local authorities; 26 replied and six did not respond. We know now that five partnership areas, comprising six local authorities, used the powers during the survey period. The vast majority of local authorities used the powers.

The data that we have supplements, but does not replace, the data about how existing legislation is being used. We are adding a level of data that focuses specifically on how it is used. The next figures that we see on how the ordinary legislation is being used will tell us whether it is helping local authorities to meet targets, or is failing to do so.

It is also interesting, as Alex Rowley will find out when he reads the report in full, that some local authorities have used the powers across their whole area, while others are targeting powers very carefully—perhaps at areas where they have been performing worst. We will have to set that information against the other data.

It will take a lot of work to look at and compare data, and to work out what is happening, but we have the data and we will have more. We are keen for those powers to be an area on which we continue to add to the data that we have.

Regarding safe workplaces, I repeat assurances that I have given Alex Rowley before, and which I gave to Colin Smyth during the passage of the second bill. There exists the absolute legal right to a safe workplace. There are no ifs or buts. Nothing that we have done in legislation does anything but reinforce that. If a workplace is not safe, people should not, and must not, be there. It is utterly irresponsible of an employer to expect people to be in such a workplace, and there are legal remedies available so that people do not have to do that.

Alex Rowley asked if we would undertake the introduction of further legislation. We have had two emergency bills, which is a lot in two months. However, if any issue requires us to return to Parliament to legislate, we will do that. I hope that we will not have to do that, but if it is required, we will. If legislation on the issue that the member raises, or any other, were to become essential, we would, of course, act on that.

I thank the cabinet secretary for advance sight of the report, which is long and will take time to digest.

Paragraph 7.1.1.8 is about the establishment of the private rented sector resilience group. Who is in the group and who, if anyone, represents tenants. If no one does, why not? When was the group established, how often will it meet and will its agenda, minutes and other papers be published?

I need to have that information sent to Andy Wightman, because it is not in the report. The fact that the group has been set up is an indication of the serious intent of the Scottish Government to ensure that work is done, and continues to be done, on the provisions in the legislation. I want to stress that.

The report that I have published is not, in any sense, about the decisions that did not make it through to legislation; rather, it is about the provisions that did make it through, how they are operating and what is taking place. If Andy Wightman will allow me to do so, I will ensure that the questions that he has asked are noted, and that we provide him with answers to them in writing.

I thought that Andy Wightman might also want to ask me about his muirburn provision. I am happy to say that if he looks that up in the report, he will see that it can be reactivated in October, because there is the possibility of more muirburn at that time. No doubt, he will want to note that from the report and will, perhaps, come back to me on the matter, because he lodged successful amendments on that to the Coronavirus (Scotland) Act 2020.

I appreciate that the provisions in schedule 9 of the Coronavirus Act 2020 on temporary modification of mental health legislation have not yet commenced. Two of the most controversial elements of the act are to be found in those provisions: first, on increasing from 72 hours to 120 hours emergency detention on the ground of mental ill health; and secondly, on removing the need for a medical practitioner to consult a mental health officer before the imposition of a short-term detention certificate.

Those provisions were passed in good faith because, at the time, Parliament had no idea what the demands on the NHS were going to be. It is now not clear why those provisions would ever be needed, because we know that the capacity strain, even in the event of a second wave of coronavirus, does not impact prohibitively on that arm of the health service.

Does the cabinet secretary recognise the view of the Liberal Democrats and human rights organisations that those provisions are unnecessary, potentially illiberal and should be repealed as soon as possible?

I expressed my concern about the provisions when the legislative consent motion was passed; I am sure that I am on record as doing so. However, I am not a psychiatrist, and neither is Alex Cole-Hamilton.

Fortunately, I have the words of a psychiatrist in front of me. I have to say that he is no mean psychiatrist: Professor John Crichton is the chair of the Royal College of Psychiatrists in Scotland. Unfortunately, he directly contradicts what Alex Cole-Hamilton has said. I will read a paragraph from him:

“Up to this point, while there have been significant workforce impacts, our members have been able to cope”—

That is what Mr Cole-Hamilton has said. The letter goes on to say:

“In spite of evidence heard by the committee on 28 May, there remains a real possibility that these workforce pressures will come to bear later in the year. The real risk of a second spike, alongside an expected post-lockdown increase in severe mental health cases, would have the potential for a reduction in the mental health workforce to the point that they cannot operate mental health legislation in the normal way, placing vulnerable patients at risk. The decision to enact these emergency measures in such a scenario would need to be taken quickly in response. To not have these measures immediately available in such a situation could lead to patients facing unnecessary delays to treatment and resulting harm. We therefore call for the committee”—

that is, the Equalities and Human Rights committee—

“to reconsider its recommendation on schedule 9.”

I have to say that I disagree with Mr Cole-Hamilton. I was concerned about the provisions. We all remain concerned about them, but when we are in doubt about an issue to do with mental health, it is useful to listen to any psychiatrist—let alone the chair of the Royal College of Psychiatrists, who appears to be entirely clear about the matter.

The additional supplement to the carers allowance that is provided for in the legislation represents a lifeline for hard-working carers throughout Scotland. How many carers are expected to benefit from that additional funding?

I am grateful to Annabelle Ewing for her question.

The carers supplement was dealt with in part 3 of schedule 1 of the Coronavirus Scotland (No 2) Act 2020, on which we are not reporting currently because it has only just been passed. It will come into the reporting that is due by 31 July.

There will be an investment of about £19.2 million. We estimate that that will support about 83,000 carers with the additional costs of caring during the pandemic. I hope that that answers the member’s question. More detailed information on what is happening in relation to the Coronavirus Scotland (No 2) Act 2020 will come in the next reporting period.

The Scottish Government’s route map mentions allowing marriage ceremonies to take place in phase 2. I know that we are not yet in that phase, but the route map is not law. The law requires the Scottish ministers to take steps with the registrar general—they must do so now—to ensure that marriage ceremonies can go ahead so as to comply with the right to marry under article 12 of the European convention on human rights. What such steps have the Scottish ministers taken to date, and when will they report to Parliament on what those have achieved?

I know that Professor Tomkins has shown a particular interest in this subject. I commend him for doing so, because it is a serious and important one.

As I explained to Professor Tomkins when he asked a similar question at last week’s meeting of the COVID-19 Committee, two things have happened. The first is that emergency marriage ceremonies have continued. Indeed, I have been helpful—as I know that he, too, has been—to people who have sought to be able to hold such ceremonies. That has been one step forward. Secondly, the route map now says that marriage ceremonies can recommence. It does so in a proportionate and sensible way, bearing in mind all the current difficulties and pressures, and the judgments that have to be reached about each item.

I am very hopeful that the start of phase 2 will be not long delayed, and that we will therefore bring forward the time when ceremonies can recommence. The pressure that Professor Tomkins and others have applied over the issue will result in marriage ceremonies being able to take place sooner than they would otherwise have done, which is important.

Measures in the two coronavirus emergency bills have greatly reduced homelessness. The Equalities and Human Rights Committee recently heard from the Homeless Network Scotland that, across the country, the number of people sleeping rough is now down to about 30. What will the Scottish Government do to ensure that we do not go backwards once the legislation expires?

I think that all members will share that view. The reduction in the number of rough sleepers has been a useful and helpful step forward. Everyone regrets the way in which it has happened, but we should say that the recent approach has been effective and that we want it to continue to be so.

I know that the Minister for Local Government, Housing and Planning has addressed the chamber on that issue and that he will do so again. I will ask him to write to Ms Maguire with further details, but I know that his intention is to ensure that the previous level of rough sleeping does not happen again. That aim is outwith the purview of the coronavirus legislation and of the report, which concerns what the Scottish Government did and how it changed the legislation in this parliamentary session. What happens next will require a continued effort under existing legislation and possibly under new rules and future legislation. I will ask the minister to provide detailed information to Ms Maguire, but I think that we would all agree that progress must happen.

For emergency legislation to be effective, proper consultation with stakeholders and with the Parliament is required. It is therefore regrettable that, in its submission to the Parliament’s Justice Sub-Committee on Policing, the Scottish Police Federation said that there was too little consultation on the new regulations. Does the cabinet secretary therefore accept that, as we move through the different phases of the route map as we emerge from lockdown, there must be more effective effort to work with stakeholders such as the Scottish Police Federation on new regulations?

I will answer that question in two parts. By definition, emergency legislation is made in an emergency situation in which the Government cannot undertake the full consultation that it would normally wish to undertake on any bill. One just has to accept that the process is truncated. People do what they can do, they listen to what they can get hold of, and they try very hard to achieve balanced legislation. Of course, as time goes on, others have the opportunity to give information and views. I doubt that there is a member in the chamber who has not heard, in detail, from a whole range of organisations on a whole range of issues relating to the current regulations and how they might change or develop. That is also part of the consultation process. I am sure that all members have also made such representations, as have many bodies. Officials are still regularly talking to organisations about how to take such matters forward. Of course there needs to be continued discussion, because that is the basis of people’s confidence in regulations.

However, when a start is made on the process of enacting emergency legislation—particularly in the way that the Government had to work on a major LCM and two bills in less than eight weeks—the nature of consultation will not be the same as it would be for a piece of legislation that might normally take six or eight months to a year or longer to develop and then nine months to go through the chamber. Those are quite clearly two different processes.

A range of the powers in the coronavirus acts are intended to prevent delays and backlogs in the justice system. I will move on a bit from James Kelly’s question. Can the cabinet secretary advise members whether the measures are proving to be effective in mitigating delays and enabling our justice system to continue to function effectively?

I think that when the member has the pleasure of reading the report, he will discover that it gives details on all the legal provisions and an indication of whether they have been used—and the majority of them have been—and whether they are regarded as being effective. The conclusion to be reached is that the measures have been effective. Some will not operate as fully as we would expect—for example, should jury trials not take place. However, they are the measures that we felt were required immediately to make a difference.

I think that the report indicates that, in almost all cases, the measures have made a difference—whether small or large—and have served, and will continue to serve, their purpose.

I stress that some of the changes are only kicking in now as the issues around the pandemic develop. Therefore, one should look in the next report and perhaps in the report after that for an indication of the continued utility of some measures and perhaps less usage of others.

I know that there is some commentary in the report but, given that the prisoner release process has finished, can the cabinet secretary explain why those powers have not yet been revoked, and can he confirm that there are no plans to release further prisoners?

As far as I am aware, the report is completely up to date. Any further release is unlikely, given the criteria that are applied, but I want the member to have that assurance from the Cabinet Secretary for Justice rather than from me, so I shall ask him to give the member that assurance.

The issue is how the powers have been used. Whether they come to an end will require a recommendation from the Cabinet Secretary for Justice, and no doubt he will want to consult—he will probably consult the Justice Committee on that matter, too. The report is about how the powers have been used and the criteria. That also relates to a number of prisoners who have not been granted early release, for reasons that are given in the report.

Staying at home has been a vital part of preventing the spread of the virus, and measures to increase housing security have been an important part of enabling that. Can the cabinet secretary advise members whether the emergency measures to increase housing security are proving to be effective? How are levels of rent arrears being monitored to ensure that measures remain in place for as long as necessary?

The report contains useful detail that indicates that the measures have been not only well received but well used. That will continue to be the case. I know that the Minister for Local Government, Housing and Planning, Kevin Stewart, is looking at the continued use of the powers and at how much longer they will be required. Given what we know, it is clear that the powers will need to be in place for some further period of time. At the appropriate moment, the minister will come to the chamber and make those recommendations.

I welcome the report; in particular, I welcome the information on pages 56 and 57 on social work assessments. However, I am disappointed that not all local authorities replied to the survey. Can the cabinet secretary provide a list of the local authorities that have used the legislation, and can he tell us which authorities did not reply to the survey?

I can certainly give the member the list of authorities that did not reply to the survey. I regret to say that we did not hear from Argyll and Bute, Falkirk, Highland, Inverclyde, and Scottish Borders, and I know that officials will be in touch with them.

Of those local authorities that are using the powers, two—East Renfrewshire and Dundee—provided information on the number of assessments and comparator data, so they went further than they needed to go.

I do not seem to have the information here, but it is perfectly possible for me to provide the Covid-19 Committee—of which Monica Lennon is the deputy convener—with information on the local authorities that are using the powers. I cannot see any difficulty in that. Perhaps we can flesh that out if the committee wishes to ask questions about that provision.

I remember that Monica Lennon asked me about that provision when the legislation was going through. There was a fear, which I shared with her, that it would be more widely used than it appears to have been used to date. That is reassuring, although I stress that that is to date, because there is still an issue to be addressed in that regard.

I am sure that we can give Monica Lennon that information. I have given her the information on the councils that have not responded, and I will ensure that officials try to get some information from them.

It is understandable that powers have been given to local authorities to exclude the public from meetings on health grounds. However, it is vital that our democracy is transparent, and I note that Aberdeenshire Council has been putting recordings of all policy committees online throughout the lockdown and that it will be streaming meetings live from tomorrow. Has the Scottish Government engaged with all local authorities to encourage interim measures such as video broadcast of meetings?

The member makes an important point. The Scottish Parliament has excluded members of the public from its meetings, too, because the public galleries are closed—we have done what we have empowered local authorities to do. Of course, our proceedings are being broadcast live and they are reported verbatim. I am sure that that is not the most exciting read all the time, but it is there if people want to read it.

In the circumstances, local authorities should definitely pay heed to that. Because members of the public cannot be present as a result of social distancing and other restrictions, local authorities should be transparent in the operation of their proceedings. That should also apply to the proceedings of emergency committees that undertake business in some local authorities. I do not think that that is a burden; it is a necessity. I certainly encourage every local authority to recognise that.