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Chamber and committees

Meeting date: Thursday, March 19, 2020

Meeting of the Parliament 19 March 2020

Agenda: General Question Time, First Minister’s Question Time, Portfolio Question Time, Covid-19 (Education), United Kingdom Coronavirus Legislation, Business Motion, Female Genital Mutilation (Protection and Guidance) (Scotland) Bill: Stage 3, Female Genital Mutilation (Protection and Guidance) (Scotland) Bill, Point of Order, Business Motions, Decision Time


United Kingdom Coronavirus Legislation

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


I echo the words and sentiments of the First Minister and the Cabinet Secretary for Health and Sport earlier this week .We are, as a country and across the globe, facing an unprecedented set of challenges. None of us has experienced those challenges before. We can only meet and defeat them if we work collectively to protect, sustain, support, nurture and help each other.

Addressing the challenges will mean change—profound and sometimes difficult change—for us all. Every life will change. Nothing will be nor can be the same from now on. We need to change with hope in our hearts. We need to change with a determination to look after ourselves, our loved ones, our communities and our future.

The First Minister, the Cabinet Secretary for Health and Sport, the Deputy First Minister, and other cabinet secretaries have already outlined to the Parliament the steps that are being taken. Today, I will talk about the necessary legislative changes that we need to bring about quickly in order for our nation to change and respond in the most effective manner.

The first tranche of those changes comes in the UK Coronavirus Bill, for which the Scottish Government will recommend granting legislative consent.

The four nations coronavirus action plan, published earlier this month, set out measures to respond to the Covid-19 outbreak and information on the four-stage strategy: contain, delay, research and mitigate. The action plan outlines a collective approach, reflecting the closely integrated planning process that has been established to help prevent the spread of the outbreak and to combat its impact and consequences. That includes reference to legislation that might be necessary in order to ensure that public bodies across the UK have the tools and powers that they need to carry out an effective response.

The bill introduced today at Westminster underpins the action plan. It is the result of a great deal of intensive work between the UK Government and the devolved Administrations—work that is unique and extraordinary given the virtual standoff on other legislation that has been the norm for the past three years—and it is required because of the extraordinary public health and economic challenges posed by the coronavirus pandemic. We are grateful to everyone who has been part of that process and particularly to the officials across all the Governments and many departments who have worked tirelessly to make sure that the bill is now available for scrutiny and passage.

Of course the Scottish Government has made it clear that, although we acknowledge the benefits of alignment across all four UK nations, it is also important that devolved matters can be fully analysed and considered against the emerging situation here in Scotland and the specific measures and actions that we and others need to put in place to respond to that. It is good to know that that position has been respected, just as we have respected the need for specific measures and actions in the other three nations of the UK.

It is clear that the bill cannot be scrutinised in the way that we would all normally wish. The immediacy of the unprecedented challenges that Scotland and the UK face at this time do not permit that. However, we must also be conscious of the fact that with any legislative urgency—no matter how extreme—must also come a parallel and urgent recognition of the concomitant need to be vigilant in the protection of human rights, particularly the rights of those who are least able to protect themselves.

I hope that those at Westminster and more widely who are rightly concerned that the two-year sunset period for the bill needs to be looked at very carefully and that safeguards should be put in place for regular reporting, review and renewal if required, will be heeded in their concerned and constructive criticism.

The intention in this Parliament is for a legislative consent memorandum to be considered in committee on Tuesday morning and for a motion to be debated in the chamber on Tuesday afternoon, subject to the Parliament’s agreement.

The legislative consent motion does not require renewal, nor is there a statutory reporting function in the legislation for this Parliament and the Scottish Government, although there is such a function for the UK Government. However, I make a commitment today that we will institute, after discussion across the Parliament, appropriate reporting on how and when the powers in the bill have been used by the Scottish Government and in our own further emergency coronavirus legislation, which we hope to bring forward before Easter in order to put on the statute book other urgent legislative changes specifically for our own competences. We will embed such reporting and renewal—including on our use of provisions in the UK bill—in law.

The measures in the bill cover a range of topics and sectors, and include bespoke provisions for Scotland to reflect our different legal systems in devolved areas. Combined with measures that are already being taken by the Scottish Government and our partners, they will assist in ensuring that our health and social care services remain effectively resourced, protect people and assist in slowing the spread of coronavirus.

There is one very important point that I want stress here, and on which I anticipate that assurances will be sought as the bill undertakes its passage across the UK and devolved Parliaments, which is that creating these additional powers does not automatically mean that we will be required to use them, or that all the powers available to us will be implemented at the same as the bill gains royal assent.

Of course, we recognise the seriousness of the current situation, and the further risks that we now face if, as the scientific advice indicates, we are now on the cusp of a rapid escalation in the spread of the virus. The next few weeks—possibly months—will be a uniquely difficult time, when the people of Scotland will be asked to take unprecedented action as part of our collective efforts to protect our citizens and, as the First Minister said, to save lives.

In using the powers that we have and will gain, we will always be guided by the principle that decisions will be made at the appropriate time on actions and measures to be taken, based on the situation here in Scotland and other parts of the UK. Moreover, we will use those powers in the appropriate way, informed always by our own response planning and by on-going joint work with the UK Government and other devolved Governments.

I will briefly outline some of the measures in the bill in a little more detail, although there is a great deal of detail in the bill. The bill’s areas of action can be broadly categorised as follows. It includes additional public health measures to assist with containment or to mitigate the spread of the disease, including powers relating to events and the ability to effect screening for potentially infected persons. It includes measures to allow for increased numbers of health and social care workers to join the workforce, for example by removing barriers to allow recently retired national health service staff and social workers to return to work. Here in Scotland, in addition to retired persons, that will include those who are on a career break or are social work students who can become temporary social workers. The bill also provides for the relaxation of certain regulatory requirements in existing legislation, in order to ease the burden of staff who are on the front line of our response, and enable a reduction in administrative tasks and the prioritisation of care towards those with the most significant and urgent needs. It includes measures to ensure management of deceased persons with respect and dignity, in acknowledgement that we have already seen tragic loss of life due to the pandemic. Finally, it includes measures to support the economy, including provisions on statutory sick pay, which are aimed at ensuring that the coronavirus impact on small businesses and individuals is lessened.

The bill contains a range of powers that can enhance our response and ensure that action taken can be enforced. One example is the powers in the bill to require information to be provided by those within or closely connected to a food supply chain, where a failure to comply with a request or the provision of false or misleading information will attract a financial penalty. Of course, a route of appeal is set out in the legislation for many of the enforcement actions.

The bill contains a range of other items of importance, and the accompanying information from the UK Government is now available online. I would be happy to talk to my opposite numbers in other parties about the detail and have suggested that we get together by phone later tonight or tomorrow in order for us to do so. I am also happy to provide information to other members if they have questions.

I have used the word “unprecedented” several times in the statement, but, of course, the situation is unprecedented in our time, not in all time before it. As a nation, as a generation and as a civilisation we have been here before. The experience of pandemics is not a modern one, but a very ancient one. Again and again, humanity has had to face this challenge.

It has been recorded and commented on by countless individuals and it has led to great reflections on what it is to be human and to be part of a society under threat. The common thread in all those works has been not just fear and worry for oneself and one’s loved ones. It has also been a thread of community solidarity, concern for all of those around us, generosity of spirit and action and hope for the future. It is a thread that emphasises a shared belief in human creativity, ingenuity and survival. Just before the second world war, Bertolt Brecht asked,

“In the dark times
will there also be singing?”

He answered himself by saying:

“Yes, there will also be singing.
About the dark times”.

On the wall outside the Parliament, there is a quote from Andrew Fletcher of Saltoun, about the relationship between the songs of a country and its laws. We will need both to see us through. I reluctantly leave the singing to others, but as to the laws I will do all that I can, with my colleagues and with the chamber, to put in place what we need to get through. We must do the right thing for everyone. We must take action to protect, enhance and strengthen not only our response but ourselves. As part of that effort, I look forward to engaging further with colleagues across the chamber in the coming days on this vitally important piece of legislation and the further legislation that we will be required to bring.

I will finish as I started, with the sentiments that were expressed by the First Minister. We should all thank the people of Scotland, now and going forward, for all their effort, concern and understanding. It will still be needed in the weeks ahead, but together we can and we will win through.

I thank the cabinet secretary for his statement, and for advance sight of it. As he said, we are dealing with an unprecedented set of challenges, and that requires an unprecedented approach.

I warmly welcome all that the cabinet secretary said about the level of engagement between the Scottish Government, the UK Government and the other devolved Administrations, and I join him in thanking all of those who are involved in a process that has required rapid and diligent action. I pledge the support of the Scottish Conservatives for the proposed legislation, and our co-operation in taking it through Parliament as expeditiously as possible in these circumstances.

In normal times, there would be concerns about the human rights aspect of some of what is proposed. However, we are not in normal times; we are dealing with a crisis, and that requires a different approach. We accept that some freedoms will have to be curtailed, albeit in a measured and time-limited fashion.

I have two questions for the cabinet secretary on his statement. First, by what date does he expect the legislation to be enacted, should it complete its parliamentary passage at Westminster? Secondly, the cabinet secretary referred to further emergency coronavirus legislation that is to be passed in Scotland. Can he say more about what that legislation is likely to cover?

I thank Murdo Fraser for his remarks and for the indication of the support that he and his party will give. I am very grateful for it, and we will need to work closely together. I repeat the offer that, if I can give more information to Mr Fraser on the phone—we do not often talk on the phone, but I am sure that we can find a way of doing so this weekend—I will speak with him and talk through the detail. I stress that the detail exists. This is a complex bill that covers all four nations of the UK, and there is much in it that we need to absorb.

My first point is on the human rights aspect of what Murdo Fraser said. I appreciate the points that he made in that regard. However, as I indicated in my statement, we have to strike a balance. We are required to act with urgency, but with a continued concern for human rights. At lunch time, I had a conversation with the chair and staff of the Scottish Human Rights Commission, and I am committed to speaking to them again as we develop our own legislation.

I indicated that I want to ensure that we put in place a reporting function. That is not in the bill, but we need to do it so that we are accountable to this chamber. I have also indicated that I have sympathy with those who wish to query the provision in the bill with regard to the period of two years. It is possible to envisage a different set of processes that might come into place.

It is likely that the House of Commons will consider the bill on Monday—all of this is still completely unconfirmed. We intend to finish our entire process on Tuesday, as I indicated. That will begin with my committee appearance on Tuesday morning and will continue in the chamber on Tuesday afternoon—subject to the Parliamentary Bureau accepting that. It is likely that the House of Lords will consider the bill on Wednesday and Thursday, although, again, that is not confirmed. The bill should then receive royal assent by 31 March, when it will come into effect.

Commencement is on 31 March for some provisions in the bill, so there is the need for regulations for others. There are some triggers in the bill—for example, we would have to declare certain things to allow parts of the legislation to take place. That all needs to follow on, but our aim is to have it through on 31 March.

The First Minister has been open with members and I, too, am happy to do that in regard to our own legislation. This morning, I circulated a note to cabinet secretary colleagues that asked them to bring forward their legislative proposals. We already knew about proposals from the justice side and, yesterday, Aileen Campbell indicated a requirement for a legislative change in her area. There might be others. I aim to have the information early next week on what cabinet secretaries require with regard to, for example, ways of expending money and other matters that might require legislative approval.

I hope that we will be able to introduce an emergency bill to the Parliament. Again, that is subject to the agreement of the Parliamentary Bureau, and my colleague Graeme Dey will be speaking or has spoken to members of the bureau about how that will work. I would aim for the Parliament to consider that emergency legislation in the week before the Easter recess, which is an extremely urgent timetable and will require a lot of co-operation and discussion about what should be in that bill. I am committed to that discussion.

These are indeed unprecedented times, and there is a need for the legislation that we are discussing. However, we should always be vigilant about protecting human rights—that should remain our principal position.

Such legislation should be renewed every six months in order to be accountable to Parliament. I welcome what the cabinet secretary said and I look forward to emergency legislation being introduced. His statement that we will embed such reporting and renewal, including in our use of the provisions of the UK bill, is particularly welcome. Will he consider a six-month rule for bringing the legislation back to Parliament?

This issue has not been mentioned, but there are people out there who are using the opportunity to cash in on the crisis. We have seen that with significant rises in prices for hand-wash products and with some people buying up stock to cash in. Will the legislation that the cabinet secretary seeks to introduce protect people and deal with those who are being unscrupulous during this difficult time?

I welcome Alex Rowley’s positive contribution and I look forward to working with him on the matter.

On the issue of human rights, I am open to considering what the appropriate period is in our bill. That clearly must relate to scrutiny and to the likely length of time during which we will need regulation. I am happy to look at that, but six months seems to be the maximum period that we would go for. There might be arguments to have reporting during that time.

I think that, with this bill, formal reporting has to be more regular. There is a commitment in the bill for the UK Government to report every two months. I would have thought that, given this Parliament’s committee structure, we would want to ensure that the committees were engaged in that as well.

The focus of our work in the chamber for the foreseeable future will be on issues related to the coronavirus pandemic and how Scotland responds to it. Therefore, committees and the Parliament will want to ensure that the work that is being done through the bill, and other work, is scrutinised and that there is an opportunity to discuss and debate it.

Alex Rowley raises an interesting point. Earlier in the week, Kenny Gibson raised an issue about a particular product, and our constituents will tell members about circumstances where they notice price rises. There are some powers in the bill to do with the food supply chain and, in particular, information. I suspect that those powers are limited and could perhaps be used to get information, but not to do much more. We have the normal criminal law, but if there is a requirement to take additional powers for such circumstances and we are able to do so—certain powers such as trading and trading standards lie outside this Parliament—be assured that we will take them. It is vitally important that people realise that we are a community. We must treat each other with respect and we must not profit from this situation.

Understandably, the first questions and answers have been lengthy. However, I ask for brevity from now on, because a lot of members want to ask questions.

): I am grateful for the statement. Greens, too, will be constructive in bringing what scrutiny is possible to the bill over the coming days.

From my initial reading, what strikes me is not so much what is in the bill as what is not in the bill. For example, there is nothing to mandate an increase in statutory sick pay. The measures on compensation for emergency volunteers cover only loss of earnings, which will rule out people who have already lost their jobs from becoming emergency volunteers. Indeed, there is nothing, beyond information provision on food supply, that will allow public authorities to acquire stocks of food, household essentials and hygiene supplies, to prevent price gouging.

Does the cabinet secretary agree that changes to the bill in that regard would be welcome? Will he join me in urging the UK Government to consider them?

Despite the short notice, I certainly think that the debate at Westminster on Monday needs to be comprehensive. The member raised precisely the sort of issue that needs to be discussed. The bill is the first piece of legislation on this matter but I suspect that it will not be the last; we will also have our legislation. In all circumstances, there should be vigorous debate.

I am sympathetic to the points that Patrick Harvie made. If we can find a way to influence people at Westminster, fine. If we can find a way to do things ourselves, fine. The work that has been done together on the bill is hugely significant and important, but we will all have freedom of action in our own areas—that is protected in the bill—and if we can do something that needs to be done, we will do it.

The powers in the bill are inevitable in these extreme circumstances. Nevertheless, I am sure that the cabinet secretary will understand my nervousness that, under clause 76(2), they will last for more than two years. Does the cabinet secretary consider it appropriate that there should be parliamentary renewal after perhaps 90 days, with periodic renewal thereafter, to maintain public confidence?

The powers to enforce the health protection regulations will require debate, under the affirmative procedure, which is provided for under clause 81. When does the minister think that it will be appropriate to do that?

On the second point, when the regulations come forward. That will require a decision to be made—which will require to be scrutinised by this Parliament—on the trigger event, as the member will know from the bill. That is the type of issue that we will need to discuss.

I have indicated that I think that the two-year period requires careful reconsideration by the House of Commons. We cannot alter that under the legislative consent motion and there is no procedure for renewing a legislative consent motion.

Therefore, we have to be imaginative in the use of powers, as I said. The first piece of imagination in that regard is to ensure that when we introduce our bill and any subsequent legislation, we build in best practice: the period will not be two years; it must be shorter than that. The second is that we voluntarily indicate that we will come back to this Parliament for scrutiny of everything that we do under this legislation and, when we can build that in as a legal requirement in our next bill, as I hope that we will be able to do, we make that legal requirement retrospective so that we do so in relation to the provisions of this bill, too. I think that that is the right way to take the matter forward.

What engagement has there been with relevant stakeholders? In his response to Murdo Fraser, the cabinet secretary mentioned the Scottish Human Rights Commission.

I am so surprised that a short question has been asked. Thank you, Ms Harper.

I shall try a short answer. Work on the bill has been undertaken by officials up to now—this week—who have talked to the stakeholders with whom they normally deal. I have been involved in the bill for slightly more than 48 hours. I spoke to the Scottish Human Rights Commission today and will speak to others. I wanted to speak to the Scottish Human Rights Commission particularly, to express my concern and hear the commission’s concerns about the bill, and to establish connections so that we can try to get the next piece of legislation into a position with which we are more comfortable.

For example, the member, who I know is still a nurse, will know that some of the mental health provisions in the bill are very concerning. I am not saying that they should not happen, but we need to be very alert to the issues that they will raise for very vulnerable people.

The measures to bring forward sick pay entitlement to day 1 are welcome. Can the cabinet secretary say whether Scottish patients will be able to obtain the so-called isolation note, and if so, whether they will do so through NHS 111 online or Given the implications that the school closures will have on the pay sector, what conversations have taken place with payroll companies, to ensure that they can carry on and their staff can ensure that people are paid on time?

The member may forgive me for not being able to answer his questions—he has the expertise that comes with being a health spokesperson; I do not. I will make sure that he gets answers to them, if there are answers.

The bill has changed quite a lot in the past 48 hours. Some of the sick pay provisions were not in it two days ago. In those circumstances, I suspect that a lot of work is being done to work out how those will operate but, of course, we will try to secure that information so that people have it.

The emergency legislation that has been laid at Westminster removes the requirement to carry out social care needs assessments. Can the cabinet secretary confirm whether the intention is to remove bureaucratic processes only? Can he give assurance that everyone who needs care will still be able to request and access it, especially those who may be discharged early from hospital?

The bill does not remove the obligation on local authorities to provide care; it removes the obligation to undertake a full assessment, if that assessment cannot be undertaken in such a way that will expedite the delivery of social care. If there is a difficulty in the bureaucratic system, the provision will reduce that. There is concern about the provision, because some local authorities may have difficulty in getting assessments under way. However, the bill is careful in how it does that.

The provision needs to be examined closely at Westminster. If we then have things to do—this falls under a power that we have—we can look at refining the process. We are aware of the issue, but it is important that we progress the legislation quickly.

In light of the on-going concerns, can the cabinet secretary confirm that the Scottish Government and the UK Government will maintain regular, on-going dialogue to discuss whether and when each Government plans to use the powers set out in the bill?

As I understand it, the secretary of state’s reporting powers at Westminster will include the reporting of items that we and the other devolved Governments have undertaken. I also intend to make sure that there is reporting here.

Given that we have got to this stage—I am very heartened that we have got to where we have in relation to the content of the bill and, as I said in my statement, the approach between the Administrations has been far more integrated than anything that I have seen in the past three and a half years—we will commit to working together to ensure that we know what each of us is doing.

On managing the deceased with respect and dignity, the bill intends to remove the need for a second confirmatory medical certificate for a cremation. Does the cabinet secretary have any thoughts on how appropriate safeguards can be put in place given that there will not be a second certificate?

It is a difficult issue. There are a number of procedures, ideas and proposals in the bill that will simplify the registration of death process and change some of the obligations on crematoria and local authorities. They have obligations—for example, on the storage of ashes—that would require a lot of action to trace families, which could not be undertaken if there was pressure on the system. We really need to make sure that any period of suspension, which is not automatic, is very short lived. We are aware of the difficulties that the proposal may cause in the area that Mr Kerr indicates.

There are other areas in the bill where we would look for a period that is as short as possible, because of the removal of a second, or confirmatory, signature. There is a process of review of death certificates—a random process is undertaken—that we would not be able to undertake if there was pressure on staff, but we would still want to make sure that there was some random checking, which is a very important safeguard. The delicacy with which we apply the provision is important.

Some of the bill contains—in the education areas relating to the portfolio of the Deputy First Minister, for example—precise targeting powers, so that measures can be targeted to the level of individual establishments. We need to make sure that we can do that as carefully as possible.

The cabinet secretary has been stressing the integrated approach to the bill by the four countries. Will commencement happen at the same time across the four countries? What about suspension and the use of the powers?

The bill is clear that, where the powers lie in devolved competence, the decision on suspension lies with the Scottish ministers. Provisions in the bill can be operated, suspended and reimposed. Where they are in reserved areas, the decision will lie with UK ministers. There are also areas in which consultation with the Scottish ministers will have to take place.

As I have said, we would not intend to implement all the bill immediately—that would be utterly inappropriate. If members read the bill, they will discover that there are areas in which we can take action where we consider it to be appropriate. In those cases, we will get to trigger points and then address the issues.

Due to the importance of this issue, I have decided to give another five minutes for questions.

I thank the cabinet secretary for his statement. Will the bill add any new powers that will be needed by local authorities to act over the next few weeks and months?

An issue that has been raised with me relates to powers around the cancellation of by-elections. Is it possible to have an additional note about that? Is the cabinet secretary involved in discussions with the Convention of Scottish Local Authorities on those issues?

There are a variety of powers for local authorities. We have mentioned social care assessments. The powers on by-elections are clear. There has been complex discussion between the Administrations. The bill will give to returning officers the power to cancel a local authority by-election, and to the Presiding Officer the power to cancel Scottish Parliament by-elections, should there be any—consulting, in both cases, the Electoral Registration Board and the Scottish ministers.

A by-election that had been due to take place in Clackmannanshire East today was cancelled at very short notice. I apologise for that; it was to do with a change in policy in the UK Cabinet Office, which we were late to hear about yesterday. From now on, cancellation will be a decision for returning officers. However, I find it highly unlikely that there will be any local government by-elections between now and the summer. A number of them are due to take place in May, and I think that they will not happen.

There are no by-elections to the Scottish Parliament pending, but were there any, the decision would be for consultation.

I put on the record that there are no proposals in terms of the Scottish Parliament election next year. There is already a legislative process for that; one hopes that it will not be required, but we will keep everything under review.

What role has the Scottish Government had in ensuring that the policy paper that outlines the legislation accurately reflects the areas of the legislation that fall within devolved competence?

I cannot vouch for every single word, but I believe that it does. We are making clear our position in the Parliament, and there will be other material that we can publish if we choose to do so.

In his statement, the cabinet secretary mentioned human rights. Under the Human Rights Act 1998, and the European convention on human rights, countries can derogate from human rights

“In time of war or other public emergency threatening the life of the nation”.

Is it the Scottish Government’s view that the coronavirus crisis is, or might become, a

“public emergency threatening the life of the nation”,

within the meaning of article 15 of the ECHR? If so, does the Scottish Government anticipate that it might in due course become necessary to take powers that derogate from certain of our human rights protections?

I do not want to give a definitive answer to that, and it is probably not for me to do so in any case. I recognise it; it was the subject of a discussion that I had today, briefly, with the Scottish Human Rights Commission.

There is no doubt that there is a balancing act to be had but also that the power to derogate exists. I hope that we are always conscious of the need to respect human rights, and to do so in the best way possible, commensurate with the emergency that we face.

Adam Tomkins and I do not differ about the extraordinarily grave nature of that emergency. We will work together, as best we can, to face it. Whether to use those words, in the way that Mr Tomkins used them, is for others, not for me.

Given the unprecedented nature of the emergency that we face, does the cabinet secretary agree that it might be inevitable that some mistakes will be made with the bill but that what is more important is the speed with which we get it through Parliament, to protect the people of Scotland? Can he confirm that the LCM will come to the Finance and Constitution Committee? With regard to the Scottish Government’s bill, has further consideration been given to using a committee of the whole Parliament to consider it, rather than allocating it to any particular committee? That might not be a bad way forward.

Both those points are well made.

Using a committee of the whole Parliament would be for the Parliamentary Bureau to decide, but it seems to me an interesting proposal. If that is the mood of the Parliament, we will certainly be willing to do that.

I accept that there will be mistakes. This legislation has to go through. I am amazed at the speed with which officials have been able to bring it to a fully formed state, but we have a lot of work still to do. The bill will not be perfect. No bill that the chamber has ever received has been perfect, but it is essential that we do this now.

That concludes the statement by and questions to the cabinet secretary. I apologise to Neil Findlay and Andy Wightman that they were not able to ask their questions.