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Chamber and committees

Meeting date: Wednesday, December 9, 2020

Meeting of the Parliament (Hybrid) 09 December 2020

Agenda: Portfolio Question Time, Budget Update, Education, Economy, Coronavirus Acts Report, Business Motions, Parliamentary Bureau Motions, Point of Order, Decision Time, Bus Services


Coronavirus Acts Report

The next item of business is a statement from the Cabinet Secretary for the Constitution, Europe and External Affairs, Michael Russell, on “Coronavirus Acts: Fourth Report to Scottish Parliament”.


I am pleased to lay before the Parliament “Coronavirus Acts: Fourth Report to Scottish Parliament”. The report covers provisions in both the Scottish Covid acts—the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No 2) Act 2020—and the United Kingdom Coronavirus Act 2020. It covers the reporting period for the two months up to the end of November.

The measures in the UK act and the two Scottish acts continue to be important parts of our response to the continuing and significant public health risk and the economic challenges that are posed by the pandemic. In addition to the general reporting requirements under the legislation, we have continued to report in more detail on 22 provisions that we have judged to be of most significant impact or interest. We have also reported on a total of 60 Scottish statutory instruments that were not delivered under the Covid acts, but whose main purpose relates to coronavirus, as required under section 14 of the second Scottish act.

The report’s contents—it is a very full report—also fulfil the requirement to take account of available information about the nature and number of instances of domestic abuse during the reporting period. It also includes examples of the Scottish Government’s wider action to support women and children who are at risk of, or are experiencing, domestic abuse.

From the outset of the pandemic, we have made it a central objective to put equalities at the heart of our response to Covid. In the latest report, we continue to include 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 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 equalities are protected at this time.

During the reporting period we have, as in previous periods, continued to adopt an approach to the extension, suspension and expiry of provisions in the Scottish acts that is proportionate and appropriate to the scale of the on-going risks that are posed by the coronavirus. That reflects our commitment that provisions will not remain in place unless they are necessary.

I turn to the provisions of the UK Coronavirus Act 2020. There is one provision in particular on which I wish to provide an update. In my statement to the Parliament two months ago on our third report, and following input from local authorities and from human rights and carers organisations, I noted the Scottish Government’s intention to develop regulations to suspend the provisions in section 16 of the UK act relating to social care need assessments, as they apply to adult services. I can now confirm that we have done so during the reporting period, with the suspension ensuring that we can bring back the powers in the future, if necessary.

However, there remains the potential that demand on children’s services will increase over the winter. Any delays in response times that could leave children unprotected or leave families without prompt support would be regretted. Ministers have therefore agreed that it is appropriate at this time to maintain the flexibility for local authorities to use the powers in respect of children services, where it is essential that they do so in order to provide urgent care without delay.

Our report again highlights that there are some provisions that have not been commenced, and some that have been commenced but not used, either extensively or at all, since they came into force. We consider that, together, the provisions continue to be necessary, either as important tools, as we regularly consider protection levels in our strategic framework, or because they might be required in order to enable us to respond to a 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 with regard to how powers have been used.

The Government has also taken account of concerns that were raised by members during previous reporting rounds—I remember Graham Simpson raising them at an early date—about the role of the Parliament in scrutinising regulations that are made to supplement the Covid strategic framework. The Government is always mindful of its duty to be held accountable by the Parliament; there was a debate on that matter yesterday. To that end, the Scottish ministers have worked constructively with the Parliament to agree additional arrangements to enhance scrutiny of such proposals. That weekly cycle affords members the opportunity to scrutinise any proposed changes to levels-based regulations relating to the strategic framework before such changes come into effect.

Those changes, which reaffirm—although I hope that that is not needed—the commitment to be accountable to the Parliament, are clearly set within a wider context of regular ministerial appearances, both in plenary and before committees, to give evidence on a range of issues relating to the pandemic. I, myself, have agreed over the course of the most recent reporting period to attend the Parliament’s COVID-19 Committee as a standing weekly item up to and probably beyond the Christmas recess. My colleague Humza Yousaf regularly appears before the Health and Sport Committee to give evidence on travel-related health restrictions, and the First Minister has been reporting weekly. The Cabinet Secretary for Health and Sport and the Deputy First Minister have also made appearances.

Since my statement in the chamber on our third report, the Scottish Government has adapted its approach to the evolving impacts of coronavirus by bringing into effect “Coronavirus (COVID-19): Scotland’s Strategic Framework”. The framework, which came into effect on 2 November, clearly sets out the five levels of restrictions that may apply in Scotland at any one time. We want the new levels to be clear and proportionate, which is a key reason for moving to that approach.

I conclude by noting that, as is required by section 15 of the first Scottish act, the Coronavirus (Scotland) Act 2020, and section 12 of the second Scottish act, the Coronavirus (Scotland) (No 2) Act 2020, Scottish ministers have conducted a review of the provisions in part 1 of both acts and have prepared the report that is now before the Parliament. We are satisfied that the status of the provisions that are set out in part 1 of the acts, as at 30 November, 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 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 its consent, and we are satisfied that the status of those provisions, too, is appropriate.

I will end on a positive point. Within a small number of days since regulatory approval, we are now, this very week, seeing the beginning of the vaccine being administered in Scotland. I am sure that we are united across the chamber in our hope that, after many long months, the corner has been turned in the fight to gain the upper hand against the virus.

In the interim, however, we must continue to take all necessary steps to protect ourselves and our vital public services. The provisions that I am reporting on today are one vital component of that on-going response. We all hope—I very much hope—that the need for the provisions can be consigned to the history books as soon as possible. Until that happy day arrives, we shall continue to do the duty to which we agreed: to report on the use of the powers to the Parliament, and to be held accountable for that use, on a regular basis.

As I said, this is the fourth time that I have reported on the legislation. We will continue with the two-monthly cycle, as is required by the legislation. I welcome the opportunity of engagement with the Parliament, as it considers the report and the wider issues.

I thank the cabinet secretary for prior sight of his statement, and I welcome the publication of “Coronavirus Acts: fourth report to Scottish Parliament”, which, as the cabinet secretary stated, covers provisions both in the Scottish acts and in the overarching UK act. I note in particular the mention of the rights of children who have been significantly impacted by the pandemic and the subsequent legislation, as is reflected in the many submissions that have been received from children’s organisations by the COVID-19 Committee.

The cabinet secretary will know that the coronavirus emergency legislation and the regulations made under it have a general date of expiry of 31 March 2021. At present, assuming no changes, that date comes after the proposed date of dissolution of this parliamentary session, and it will fall during the Scottish parliamentary election campaign. That being so, what are the Scottish Government’s current intentions in respect of the expiry of the legislation? Are there any contingency plans in place to deal with the potential scenario whereby the Parliament is dissolved but there is an on-going need for scrutiny of Government decision making?

I thank Donald Cameron for his question. As the convener of the COVID-19 Committee, he is familiar with the reporting process and absolutely correct to say that the act will expire at the end of March, that only one renewal is possible under the terms of the original act, and that if the act were therefore renewed on 31 March, it would expire at the end of September. It is also the situation that the next two-monthly report falls due at the end of February. I am happy to discuss the matter with the convener of the committee and then with the wider Parliament. It seems to me that, if we are to report at the end of February, as we will have to, we should also consider the issue of renewal at that time, so that there cannot be a hiatus during the election campaign.

It would be possible to consider the issue later than that, but we should at least start at that time to consider what we should do to carry the process forward and how we should do it. The next reporting period lies during the election itself, so we will have to make an arrangement to ensure that the matter is dealt with in some way.

I would like to commit to the consideration of those matters over the next reporting period, so that we can come to an agreement across the Parliament about how we will take the process forward, because that would be the best way to do it. We do not know precisely what the situation will be in February and March, given that it moves fast, but it would be best to put ourselves in the position to be prepared and to have the necessary provisions available.

I thank the cabinet secretary for advance sight of his statement. I also pay tribute to the public who, due to the coronavirus acts, have had to make huge sacrifices—people have had limited weddings, funerals and hospital and care visits. The cabinet secretary referred to the vaccine, which is of course a light at the end of the tunnel, but there is still a long road to go before we can be completely out of the restrictions and away from the need for any of these acts.

In his statement, the cabinet secretary also made important references to human rights. What work has been done to limit the violations that many feel there have been to the human rights of our care home staff and care home residents and their families, particularly in the run-up to Christmas, when people will feel the missing of a loved one even more sharply and will want to be close to them?

The cabinet secretary also referred to the Parliament’s scrutiny role. We had a debate on that point yesterday and it was reiterated that we need the important statements to be made in the chamber. More data sharing would also be welcomed by members across the chamber and by the public.

Finally, could the cabinet secretary consider the issue of the flying of kites? We often have statements put out either through leaks or in briefings about things that might happen or might be announced at some point in the future, and the public are then left on tenterhooks to see what the announcement will be. We already have an anxious public, so that is not the right thing to do. Can the cabinet secretary consider all those things in this next phase?

I welcome Anas Sarwar to this discussion. I think that it is the first time that he has dealt with this subject in his new role.

The issue of speculation has been raised again and again. Mr Sarwar’s predecessor in his role raised it, if I remember correctly. It is undesirable to have that speculation, but we have a free press and people are entitled to speculate if they wish to do so. Regrettably, politicians across parties leak or speculate themselves, and I advise them not to do so, because it is unhelpful. Every week that I have been at the Covid-19 Committee, I have stressed that we all have a leadership role in these matters and that we should give accurate information but not stoke fear and concern.

Too often, I hear questions that start with, “People are nervous about”, “People are concerned about”, or, “People are telling me that they are concerned about”. We should be cautious about that phrasing and try to give accurate information on all occasions. I am at one with Mr Sarwar on this matter, and if he can bring his influence to bear on it, I would be willing to work with him to ensure that such as shift happens.

The vast majority of the data—virtually all of it—is shared and published regularly. Tuesday, or yesterday—it is sometimes difficult to remember which day of the week it is, with so much data coming out—we saw yet again the publication of all the material, including the material on each of the local authority areas and a number of criteria. That will continue to be the case. The dashboard of information is immensely detailed. I do not think that there is a shortage of data, but it is always difficult to know where and how to get at it, and I am sure that we can assist in that regard in lots of ways.

From the very beginning, we have been concerned to ensure that human rights issues are considered in the report, and we continue to be so. As Anas Sarwar will see from the report, for each area that we consider, we take into account those human rights considerations. The issue of visiting loved ones in care homes is immensely important—we apply the human rights concern to that profoundly, and will continue to do so. If there are other ways in which we can do that, I am open to suggestions.

On the subject of limits, this process has led to changes being made. For example, in relation to the second coronavirus act, there was a lot of debate about the issue of marriage. Through this process, we have continued to find ways to make access to marriage easier, as we should continue to do. There was a period during which no marriages were taking place. I pay tribute to Adam Tomkins, who was deeply involved in looking at the emergency arrangements that were in place, and we will continue to consider that issue. It is very hard for people to have limited attendance at significant life events. I was at a funeral recently, and I know how difficult it is. Unfortunately, due to the emotional intensity of such events, and what they often lead to in terms of the spread of disease, it is necessary to recognise that they are vectors and act accordingly.

I am pleased to see the inclusion of rights and equality impacts in the report. As the cabinet secretary will know, I have been concerned about how the Parliament upholds our citizens’ rights to a home. I welcome the First Minister’s announcement that sheriffs will be prevented from evicting anyone from their home until 22 January. However, will the Government recognise that the provisions could still lead to a number of people being evicted at the end of January? I see that the draft regulations ban evictions until 22 January, but no provisions are included for tenants living in level 3 and 4 areas, whom the guidance already states should not be evicted. Will the cabinet secretary consider introducing legislation that will make sure that such people living in levels 3 and 4 continue to have protections?

Mr Wightman has addressed the issue on many occasions, and I acknowledge his expertise and concerns in the area. I assure him that his aim and the aim of the Scottish Government are the same: to ensure that nobody should be evicted from their home if that can possibly be avoided.

However, we cannot use the term “nobody” absolutely, because there will be circumstances—which will be presented to us by members from across the chamber—in which some individuals behave in such a thoroughly disreputable and damaging way towards their neighbours or others that, in the end, the only solution is to end the tenancy. In the vast majority of cases, particularly when there are difficulties due to the pandemic itself, we should ensure that nobody is evicted from their home.

We have managed to create a set of circumstances between now and the end of January in which people will not be evicted, and I hope that Andy Wightman will engage in earnest conversation with the relevant minister to ensure that we can create those circumstances after then and we can provide support to make sure that those who are responsible for and own the property are also not put in an impossible situation. That is our aim, which I hope Mr Wightman shares.

Regulations are only laid to change a level, so there is no vote this week on keeping Edinburgh, Perth and Kinross, Fife and Midlothian at level 3, despite their meeting the level 2 indicators. Does the cabinet secretary think that there should be a vote on such controversial non-changes?

In England, those with newborn babies can form a care bubble. Can we change the extended household criteria in Scotland to allow that to happen here as well?

On the second point, I would want to take advice, and I guarantee to Mr Rennie that he will get a response quickly. His inquiry is noted, but I do not want to give him a commitment without knowing the full facts.

With regard to regulations, the COVID-19 Committee will tomorrow have a significant opportunity to comment on the situation. I think that Mr Rennie has been to the committee on more than one occasion. The committee—I put this as kindly as possible—does not confine itself to the immediate issues at hand, and questions will range widely. I would be pretty astonished if the issue was not raised tomorrow. However, I do not think we would consider a vote on a non-change on this occasion.

Serious consideration is given to these matters. Yesterday, the First Minister outlined the considerations in exhaustive detail, and I am quite prepared to go into them again tomorrow. Of course, further consideration will be given next Tuesday.

Willie Rennie is a fair-minded man—he looks quizzical, but he will know himself whether he is a fair-minded man; my opinion of him is that he is, which might be taken as generous, but that is my opinion. Seriously, I think that he is a fair-minded man.

A great deal of thought and effort goes into deciding what to do. At the moment, one of the factors is undoubtedly the issue of the likelihood—I hope that it is not an inevitability—of a rising number of infections as a result of the changes over Christmas. That must weigh upon us, as well as every other consideration. However, I assure Mr Rennie that there is exhaustive—and exhausting—consideration of what is the right thing to do at this time.

Could the cabinet secretary expand on how the Scottish Government will take account of the nature and number of domestic abuse incidents when renewing the operation of the provisions in the Scottish and UK coronavirus acts?

The issue of domestic abuse will be one of concern as we come out of the crisis. The figures indicate a rise of, I think, 7 per cent, year on year, which is concerning.

The report, which I commend to the member, deals with some of the wider considerations and the actions that have been taken. However, we need to renew our focus on the issue, given the information that the report provides to us. I am glad that the requirement to provide information on the issue was inserted in the legislation; I think that Pauline McNeill was the moving spirit behind that. Now that we have seen that information, we need to renew our focus and our actions to ensure that that utterly unacceptable set of behaviours is eliminated. We have in the report evidence that we must act even more firmly on the issue. The Government is acting, and will continue to act, on the issue, and the report indicates that.

I want to ask the cabinet secretary a question about regulations that are made under emergency legislation. Members cannot amend regulations; they must simply vote for or against them. Therefore, even though members might have concerns about one aspect of the regulations—for example, the introduction of a travel ban—if they support the other measures that have been introduced, they have a simple choice either to vote for or against them in their entirety. Will the cabinet secretary consider whether issues can be separated out in distinct regulations, rather than aggregating them together?

There is an important point here. We endeavour to ensure that the regulations and the legislation are comprehensive but clear. I will reflect on the need to separate out regulations more fully, although I am a bit reluctant to increase the number of regulations.

On the specific issue of the travel ban, I think that the publication of the information today should give the member and others pause for thought. There is clear scientific evidence that travel is a major issue in the communication and spread of the virus. We see that from the evidence that is published today; we see that in relation to inter-island travel and external travel. We should be very conscious of that when talking about opposing a travel ban.

I am aware that, at last week’s COVID-19 Committee, there was opposition to the travel regulations; indeed, Monica Lennon moved against them. The travel regulations are an essential part of the measures. If the member doubts that, I seriously commend to him the exposition that the chief medical officer gave on the matter at that committee meeting. I thought that that was one of the best expositions that I have heard—I am sure that it reads well, too—about why the travel issue is so important and why it should be treated seriously. The travel ban is a difficulty for people, but it is an effective tool in trying to suppress and eliminate the virus.

The cabinet secretary will be aware of the importance of making as clear as possible any new arrangements for restrictions or relaxations for our small businesses, especially the many owners of barber shops and hair salons in my constituency, and across Scotland, who were delighted to hear that they can open from 6 am on Friday. Will he ensure that, as far as possible, any announcements on changes in arrangements that take place during the coming weeks include clear timescales, so that our small businesses can prepare as early as possible and let their customers know exactly when they will be open for business?

That is exactly what was done, and it is also exactly what will be done in future. It was quite clear that that was what the First Minister announced, and it has been warmly welcomed. We should be absolutely sure that when a change of that nature is made it is both clear and welcomed in that way. I hope that the member will join me in welcoming that.

The Welsh Government recently updated its travel regulations to allow travel between Wales and tier 1 or 2 areas of England, reflecting the fact that England is now out of lockdown. Why has the Scottish Government not done likewise? For example, a constituent of mine can travel from Dumfries and Galloway to meet a family member in Aberdeenshire, but they cannot travel a few miles to Cumbria, where the prevalence of Covid cases is lower than that in Aberdeenshire. Will the cabinet secretary explain the logic behind that? To use his term, why is such a regulation “appropriate”?

Because the travel vector remains significant. I saw that the First Minister was asked that specific question about Cumbria this morning. The person who asked it—I do not know who it was—quoted an unnamed member of the Scottish Parliament. The First Minister’s answer was very clear: the regulation concerns the effective nature of the actions that we take to suppress the virus. Travel restrictions are an important part of that approach. As they are relaxed or removed, we must factor into our calculation the likely effect of such relaxation or removal.

At the present moment, the view is—[Interruption.] It will not make any difference if people shout about that; it is far too important an issue for the type of political argy-bargy that I hear taking place in parts of the chamber. It is extremely important that we understand—[Interruption.] Again, I draw members’ attention to the exposition given to the COVID-19 Committee last week by the chief medical officer—a man who is well qualified on the matter—who explained why travel is a hugely difficult issue. I also go back to the report that has been published today, which proves the point.

No one wishes to see travel restrictions being put in place. However, if there is a view that such restrictions are unnecessary, that will not help—in fact, it will directly hinder the work that needs to be undertaken to suppress and contain the virus. No amount of shaking of heads will make any difference to that, because

“facts are chiels that winna ding”.

It is self-evident that the work undertaken to review emergency legislation must be done at pace and within tight timescales. Will the cabinet secretary therefore confirm that there has been on-going stakeholder engagement and consultation on whether these emergency provisions continue to be necessary?

There is on-going stakeholder consultation, which is regular and, indeed, constant.

If I might bring myself back to the report that I am tabling today, it makes it clear that we take every opportunity to discuss with stakeholders the issues arising from the legislation and the regulations. There is a regular relationship between ministers, officials and stakeholders right across the board. Stakeholders are very much listened to in that exchange of information. I know the extent of the effort that goes into, for example, talking to local authorities about such issues. It is absolutely untrue to suggest that that is not being done with the widest consultation and the deepest thought.

I appreciate that the Scottish Government has regularly considered levels of public protection during the pandemic, but how robust does the cabinet secretary believe the reporting mechanism is for instances of domestic abuse? How robust has the corresponding flow of information been during the current pandemic?

I will deal with that in two parts. Of course, there is always a question about the robustness of data, but our figures indicate a year-on-year rise, which is of considerable concern. I do not know whether that rise might be slightly smaller or larger in different data collection systems, but it points to the fact that domestic abuse has increased during the period, so we should act accordingly.

On wider aspects of the robustness of data, and on a matter that will be close to home for Maurice Corry, we have seen reports of the recent incident at Faslane. We also know that there has been a considerable number of similar cases. The robustness of that data feeds through into the decisions that are made, for example, about the status of Argyll and Bute. We heard that point raised in the chamber yesterday and we heard the First Minister’s response to it. My own preference would be that Argyll and Bute was not in level 2, but the robustness of the data and the issues that it raises mean that a cautious approach is required.

We should have confidence in the data; we should have confidence in how the data is reported; and we should have confidence in the criteria that are selected and in the judgment that is then applied to them. It is that final issue that the debate in this chamber is often about: the judgment that is applied to that data. That is a matter for each one of us, but I think that the judgment that is applied as a result of the scientific and professional advice we get from clinicians is exceptionally important, and we should be very cautious before we gainsay it.

Thank you. Stuart McMillan is next. [Interruption.] Mr McMillan, your sound is not working. I will see whether we can bring your microphone up. Can you try again, Mr McMillan? [Interruption.] No, it is still not working. I will take James Dornan and then come back to you, Mr McMillan.

—[Inaudible.]—until March 2021, but could the cabinet secretary outline what additional interventions the Government has made to protect renters during this difficult time?

I heard only the second part of the question; I will presume that the question is about arrangements on rental up until March 2021. If that was the question, I point out that the report deals with retrospective issues, not prospective issues. However, as I have indicated to Andy Wightman, there are arrangements in place in relation to evictions that take us up to January. There are still prohibitions on evictions and I made a clear commitment on behalf of the housing minister that he would continue to consult on the issue and to discuss with members what further protections are required.

I should stress that we cannot supplement the protections in relation to the acts on which I am reporting—that legislation and the regulations exist. However, as we have seen with the prohibition on eviction over Christmas and the new year, additional actions can be taken outwith the coronavirus acts and the reporting on them to deal with these matters. I know that the issues are kept under constant review.

Thank you—we will try Stuart McMillan again. [Interruption.] Apologies, Mr McMillan, but there is still a problem with your sound. If Mr McMillan submits a written question, perhaps the cabinet secretary could give a written reply—the cabinet secretary is nodding his agreement. Thank you. On that note, we conclude the ministerial statement.