Meeting date: Tuesday, March 24, 2020
Meeting of the Parliament 24 March 2020
Agenda: Time for Reflection, Business Motions, Covid-19, Covid-19 (Justice), Coronavirus Bill, Local Government Finance (Scotland) Order 2020 [Draft], Air Traffic Management and Unmanned Aircraft Bill, Scottish Parliamentary Corporate Body Motion, Business Motions, Parliamentary Bureau Motions, Decision Time
- Time for Reflection
- Business Motions
- Covid-19 (Justice)
- Coronavirus Bill
- Local Government Finance (Scotland) Order 2020 [Draft]
- Air Traffic Management and Unmanned Aircraft Bill
- Scottish Parliamentary Corporate Body Motion
- Business Motions
- Parliamentary Bureau Motions
- Decision Time
The next item of business is a debate on legislative consent motion S5M-21322, in the name of Michael Russell, on the United Kingdom Coronavirus Bill.15:49
Less than a week ago, I updated members in the chamber on the introduction by the United Kingdom Government of the Coronavirus Bill and set out the measures contained in the bill and how it will assist and support our responses to the current pandemic.
On Friday, the Scottish Government lodged a legislative consent motion in respect of the bill with the Parliament, and, this afternoon, members will debate the motion and will be asked to give consent to the bill on the recommendation of the Scottish Government.
In my statement last week, I acknowledged that the timings around the development, introduction and scrutiny of the bill had been, and will continue to be, extremely challenging. The UK Government’s stated ambition was to have the bill receive royal assent by the end of this month. That has now been accelerated in view of the current scenario, and the intention is that all stages of the bill will be completed by tomorrow, when royal assent will hopefully be given.
Last week, I gave a commitment to the Scottish Government that, after discussion across the Parliament, we will institute appropriate reporting on how and when the powers in the bill have been used by the Scottish Parliament. In addition, for our own further emergency coronavirus legislation next week, I intend to embed in law such reporting and renewal every six months, including our use of UK provisions in the UK bill. Since our discussions last week, I am glad to say that the UK Government has heeded the concerns that have been widely raised on the six months issue, and I understand that it is implementing such a provision in its bill.
The bill is the result of a great deal of intensive work between the UK Government and the devolved Administrations. We must continue that mutual co-operation as we work collectively, as part of our four-nations approach, to confront the extraordinary public health and economic challenges that are posed by the coronavirus pandemic. Nevertheless, we will also take the actions that we regard as necessary for the special circumstances in Scotland. It is to those actions that I now turn.
As the First Minister has made clear, in creating the additional powers in this bill, we did not—and do not—mean to use them automatically. We will be guided by decisions at the appropriate time, and any enforcement action that we take will be taken as a result of the situation that pertains here, in Scotland. Of course, since I gave the statement last Thursday, the Prime Minister and the First Minister have, as part of our response to the virus, set out further social distancing measures, the latest to have been implemented with immediate effect from midnight last night. The restrictions that are now in place will be difficult, sometimes distressing, and they will always be strange to us. However, the new measures are for the protection of us all and they are essential if we are to slow down the spread of the virus.
From today, the message to all our citizens is clear: people must now stay at home. The more people who comply, the less impact there will be on the national health service, and fewer people will die. We are now clearly telling citizens those facts, and there is a very restricted list of permitted activities. Leaving the house is permitted in order to go shopping and for one form of exercise a day, but the exercise must be severely restricted and is expected to be undertaken alone or with a person’s household.
Leaving the house is permitted for any medical need, to provide care or to help a vulnerable person, and for travelling to and from work if it is absolutely necessary—I stress that it must be absolutely necessary—and the work cannot be done from home. We have been explicitly clear that, beyond those permitted activities, heavy restrictions now apply. All non-essential retail outlets will no longer be allowed to open; all social events, weddings, baptisms and other ceremonies are no longer permitted; and communal places such as libraries, playgrounds and places of worship will close. Funerals must be restricted to immediate family.
We will shortly issue a list of premises that are covered by the new measures, but we urge everyone to do the right thing now. Most have, but—I stress this again—we are committed to using the powers that are available to us, and we will do so. Therefore, as part of our response, we have taken the decision to commence, upon royal assent, the powers in the bill that will ensure that all necessary enforcement action can be taken to implement social distancing and restrictions on gatherings, events and operation of business activity without further delay. To do so, following the point at which the bill completes the parliamentary process and receives royal assent, which is likely to be tomorrow, we will immediately make regulations under the emergency procedure of the Parliament.
The regulations will be made under what is now schedule 19 of the bill, which confers the same powers on the Scottish Government that the UK Government already has under section 45C of the Public Health (Control of Disease) Act 1984. Those powers allow us to make emergency regulations if we believe that there is an urgent need for them. We believe that there is an urgent need, and we will make those regulations now. That means that the regulations will come into force immediately and will remain in force provided that they are approved by Parliament within 28 days of being made. We will therefore seek parliamentary approval for that timetable as soon as possible.
We will, of course, keep the regulations under constant review, in line with our scientific advice, and we will ensure that Parliament is kept informed of our legislative approach as things progress. I think that I am meeting Opposition spokespeople later this afternoon to talk about the next bill that we intend to introduce.
When I addressed members last week, I said that we must put in place what we need to
“do the right thing for everyone. We must take action to protect, enhance and strengthen not only our response but ourselves.”—[Official Report, 19 March 2020; c 62.]
The measures that we are taking are proportionate and essential.
Last week, I also drew attention to the fact that pandemics have been experienced before. Each time, there is fear, there is dread, there are difficult decisions, and—yes—there is death. However, there is also courage, hope and determination. We learn from those who have gone before us, because they made it through and they told the tale. We intend to do the same.
That the Parliament agrees that the relevant provisions of the Coronavirus Bill, introduced in the House of Commons on 19 March 2020, so far as they fall within the legislative competence of the Scottish Parliament or alter the executive competence of the Scottish Ministers, should be considered by the UK Parliament.
I call Bruce Crawford to speak on behalf of the Finance and Constitution Committee for up to five minutes, please.15:56
We find ourselves in exceptional circumstances. We are considering a bill and a legislative consent memorandum that seek extraordinary powers in an effort to keep our communities and families—all of us—safe.
We all know that Governments would normally seek such powers only in times of war. We also know that, right now, we are in a war against an unseen and deadly enemy. As a result, MSPs and MPs are, understandably, being inundated by emails and calls from constituents who are anxious, concerned and scared about the impact that Covid-19 might have on their health, their families, their friends and their livelihoods.
The bill and its accompanying LCM aim to help Governments to support and protect us at this time of great need by increasing the available health and social care workforce; easing the burden on front-line staff; containing and slowing the virus; managing the deceased with respect and dignity; supporting people; and maintaining the food chain.
In view of the wide range of powers in the LCM, the Finance and Constitution Committee was designated as the lead committee. We considered the Coronavirus Bill LCM this morning, and I can confirm that the committee has recommended to Parliament that it should agree the draft motion as it is set out in the LCM. We have written to the Scottish Government to confirm our decision.
The LCM covers a wide range of policy areas including health, social care, justice and business, and it identifies that the powers will become operational in a variety of ways. In some areas, existing legislation will be amended so that powers will come into force upon enactment; in other areas, the powers will become operational only once certain conditions are met. For example, the Scottish ministers will be able to give directions to impose restrictions in relation to events, gatherings and premises. On areas in which the powers may be more reactive to changing circumstances, I would welcome information on how the Scottish Government is working with others, such as local government and the police, to inform its decisions on when to implement the powers.
In the committee this morning, the cabinet secretary dealt with a significant range of issues and was able to respond concisely and with clarity on matters ranging from who a key worker is to the security of food supplies, and from the impact on the vulnerable to the need for employers to act responsibly.
As the cabinet secretary explained last week, creating these powers does not automatically mean that they will be used—he repeated that today—or that all the powers will be implemented at the same time as the bill gains royal assent. The bill treads a fine line between allowing a flexible public health response and ensuring that human rights and civil liberties are not unnecessarily infringed upon. The transparency with which these additional powers are exercised in practice will be key to ensuring that that balance remains appropriate. As the cabinet secretary said in our meeting earlier, now is the time for democratic process to be stepped up.
The LCM seeks to enable the Government and to allow it to react quickly to protect us, particularly those who are most vulnerable to this terrible virus. It seeks a wide range of powers, but these are unprecedented times. I urge members to support the motion. Let us give our Governments the powers to win the war against this unseen and deadly enemy.
I say to the people of Scotland: stay safe, keep well, let our marvellous NHS staff do all in their power to save us and, please, stay at home when you can.16:01
I speak as the convener of the Delegated Powers and Law Reform Committee. We discussed the bill at our meeting this morning, although, given the urgency of the situation, our consideration was limited.
The committee is interested in the bill in relation to the powers that are being delegated to Scottish ministers to make legislation. Of those, the power that the committee considered to be the most significant is the one that allows
“Scottish ministers to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence of, or spread of, infection or contamination”.
That power is necessarily broad given the wide range of responses that may be required to control an outbreak. However, the bill puts in place important and appropriate restrictions on the use of that power.
The committee is also reassured that the affirmative procedure, or the made affirmative procedure in urgent cases, will apply. We think that that strikes the right balance between allowing the Government to act quickly and allowing the Parliament to scrutinise those actions.
The bill also delegates significant direction-making powers to the Scottish ministers. Although that is not something that the committee must consider in relation to LCMs, it is something that the committee would have liked to explore more under ordinary circumstances. We are, however, mindful of the extreme circumstances in which we are operating and of the need for the Government to act swiftly.
The committee notes that the substantial powers—both legislative and direction making—that are being delivered by the bill are appropriately time limited to a specified emergency period. That will allow the Government to act to address this unprecedented situation but not allow the powers to be retained indefinitely. The committee considers that to be an appropriate balance.
These are unprecedented times, and we hope that these powers can help the Government in addressing the pandemic.16:03
I will make a brief contribution on behalf of the Scottish Conservatives and say at the outset that we will support the legislative consent motion at decision time.
It is essential that both the UK and Scottish Governments have the emergency powers that they need to tackle the unprecedented national crisis that we are facing. The UK Parliament bill that the LCM relates to aims to protect the nation’s public health and to ensure that NHS and social care staff are supported to deal with significant extra pressure. It also contains a number of measures to ensure that the public are protected.
As Bruce Crawford said, in normal times there would be concerns about the reach of some of the measures before us. There would be perfectly legitimate concerns about civil liberties; I fully recognise and understand those concerns. Under normal circumstances, many of the powers contained in the legislation would not be deemed acceptable. However, we are not dealing with normal circumstances. We are dealing with exceptional circumstances, and it is right for Governments to have the powers contained in the bill—powers that, in a liberal democracy, we would normally believe go too far in the balance between individual freedom and the power of Government.
A good example of that is what the cabinet secretary just signalled in terms of the emergency powers that he intends to take to restrict public gatherings to avoid the spread of infection. In normal times, we would regard that as overreach by Government; in these times it is a necessary step to take to protect the public.
The measures in the bill fall into five categories: containing and stopping the virus; easing legislative and regulatory requirements; enhancing capacity across essential services; managing the deceased in a dignified way; and supporting and protecting the public.
It is important to state that there are many powers that Government already has to deal with the situation that we are now in, where legislation is not required. It is also important to state that the bill is time limited. Initially, it was proposed that there would be a two-year time limit, and there were quite legitimate concerns about whether that period was appropriate. Like the cabinet secretary, I am pleased that the UK Government has now agreed that that period should be reduced to six months, with a provision that that should be extended if possible. That is a welcome approach that shows that the Government has been listening to the concerns that were raised.
Crucially, the bill respects the devolution settlement, and it has been drawn up with the full agreement of and in consultation with the Scottish Government and the other devolved Administrations.
There is a great deal that I could say about the detail of the bill, but what we have already heard in this debate from the speakers before me gives us a flavour of the measures that are required. They are, in my view, appropriate and proportionate and are only to be used when strictly necessary. Those principles should also underline our legislation in this Parliament, which the cabinet secretary will introduce next week. It needs to be proportionate, evidenced based, as tightly drawn as possible and time limited. That is important, given the lack of opportunity that there will be for detailed parliamentary scrutiny and for external consultation about the impact of the measures that are being proposed.
A priority in the bill is the protection of life and ensuring that NHS and social care staff are supported to deal with the significant extra pressure that they are under. We need to remove the bureaucratic hurdles that stand in the way of bringing new people into the NHS, including those who are recently retired, and ensure that hospital space is freed up and front-line staff are given the space to focus on caring for the sick.
I said at the outset that we are living in unprecedented times. They require an unprecedented response, with the whole of the United Kingdom working together to tackle the crisis before us. It is essential that the peak of the virus is delayed, preferably until the summer months, when the NHS is typically under less pressure. The measures in the bill today will help to achieve that outcome. For all those reasons, I believe that Parliament should unanimously pass the legislative consent motion that is before us.16:07
Labour, too, will support the Government today. I put on record my thanks to the cabinet secretary for the cross-party dialogue that has taken place today regarding the bill. It is important that, as he brings forward the Scottish Government’s bill, that approach continues. I know that that is his intention.
As the First Minister said earlier, given the type of legislation that we are dealing with and the speed at which we are doing that, scrutiny will now be more important than ever. That is why, although we are not calling for additional meetings to take place in this Parliament, Richard Leonard is right to say that the idea that this Parliament would go off on a two-week recess in the middle of this crisis would not be viewed well by the public. We should be able to hold the Government to account, in whatever form or shape that might need to take. For the powers that be, that is an important message that we need to send.
I believe that there is still a lot of uncertainty out there with regard to who is designated as a key worker. It is important that we continue to monitor that issue. I accept that everything that is happening is happening with the best intentions, in order to tackle the crisis. That said, we need to be able to keep on top of things and quickly address things that are not working.
This morning, I said to the cabinet secretary that I have been contacted by the joint trade unions in Fife, which are very concerned that their members on the front line of health and social care do not have the proper protection and resources to be able to do their job. As the trade unions pointed out, that is a risk for their members, the vulnerable people they care for and all their families, so that issue needs to be addressed.
We also need to understand the issues relating to the supply chain and to know who is ensuring that there is co-ordination. It is right that every elected member in the chamber is able to ask those questions and to raise concerns directly when such issues come up.
I was pleased that, this morning, the cabinet secretary said that the Cabinet Secretary for Health and Sport has already reached a deal with the private sector and private hospitals in Scotland. If that is the case, that is good, because all of Scotland’s resources need to be pulled together.
The bill includes powers, such as those relating to the food chain emergency liaison group, that we need to keep an eye on. In the past few weeks, people have been panic buying. If that does not stop, we need to be clear that we are willing to take whatever action is necessary to put a stop to it.
We need to have a good relationship with the supermarkets. A number of elderly people have emailed me to say that they are having difficulty in accessing food. A priority delivery scheme could be introduced with supermarkets, and further resources could, if necessary, be provided by councils to make that happen. That would mean that most people who are self-isolating would be able to access food. It is not that lots of those people do not have the money to buy food; they just cannot access it. Practical measures can be taken to address such issues if we sit down with the supermarkets, push them and work with them.
I am pleased with the cross-party working that is taking place, so let us keep it up. Let us get the message out to people that we should act collectively and sensibly.16:12
The Greens will also support the legislative consent motion. I say that as someone who has a long-standing grievance—I know that that word is sometimes used pejoratively—with the legislative consent process, which has been made relatively meaningless in recent years. However, in these circumstances, we have a responsibility to take the legislation seriously, and we will agree to the legislative consent motion. I do not think that any of us should be happy about doing so. The bill is not the kind that any of us would wish to be consenting to, but it is necessary.
I do not pretend that the bill is ideal, even in these circumstances. When I saw it for the first time, I found that much of what I had been looking for was not there. I wanted not just an expansion in the eligibility for statutory sick pay but an increase in the level of pay to that which is closer to being liveable and which a lot of our neighbouring countries already have. Better still would have been the introduction of a universal basic income, which would be the clearest and simplest way to give everybody a basic safety net in these emergency circumstances. Such provision is not included, and I urge anyone who has colleagues at Westminster—I have one colleague in the House of Commons—to make the case for improvements to the bill on this and other matters.
I was surprised to see that, on food supplies, there are provisions only in relation to providing information. I do not know whether, in the coming weeks, public authorities will need to have the power to acquire stocks of food or other emergency supplies, such as hygiene supplies, so that they can distribute them to the public. However, it is possible that we might need such powers. There is certainly a need for measures to prevent those who control such supplies from taking part in price gouging and exploitation. At the moment, I do not think that that applies to the big retailers, but we have all seen examples of prices for critical supplies being hiked up in some places.
Previously, I have referred to the emergency volunteer provisions in the bill. There is a commitment that there will be remuneration for loss of earnings for those who sign up as emergency volunteers. However, we know that there are people who have already lost their jobs and who will be available and willing—they will potentially have the skills and talents—to be emergency volunteers. Nothing in the bill allows for their remuneration. Providing that would meet their economic need, and the social need for those volunteers to be available.
I know that this is not part of the devolved aspects that are covered in the LCM, but I encourage the Scottish Government, in its discussions with the UK Government, to make the case to ensure that our asylum seekers in Scotland, and elsewhere, are protected. Detention and deportation are, frankly, intolerable in the current circumstances. Doing that would be deeply dangerous. It would also be intolerable for anyone in asylum accommodation to be faced—as they have been in recent months—with the prospect of lock-change evictions.
I agree that there are welcome changes to the renewal period, but there are other potential unintended consequences of that. Members will know that the Children and Young People’s Commissioner Scotland, many disability and care organisations and others have talked about the fears that are being generated. None of us knows how long the emergency powers will last for. Those people, including many disabled people, whose quality of life is directly dependent on how the law deals with those issues, have genuine fears about what is to come, and the Scottish Government must address and allay those fears.
I warmly welcome Aileen Campbell’s announcement earlier today that the devolved emergency legislation will include provisions to ensure that evictions in the private rented sector and elsewhere do not take place. We will work with the Scottish Government to improve those provisions, if we can. This is not just about the accrual of arrears. We do not want people coming out of the process with unpayable debts. We want to make sure that people are protected in relation to their rents and that they have a secure home to live in in these dangerous times.16:16
Bruce Crawford summed up the situation well when he said that
“we are in a war against an unseen and deadly enemy”,
and that we need to work in partnership to defeat it. The slogan “Stay at home. Protect the NHS. Save lives” will become part of our daily language during the next few months.
We need proportionate powers, and we agree that the powers in the bill are proportionate, considering the crisis. As a liberal, I am nervous about the extent of powers in normal times but, considering the challenge, the powers in the bill are necessary. It is not about wielding a big stick to the population; it is about ensuring that life is possible and that the reckless few cannot threaten the lives of the many.
It is therefore reassuring that the cabinet secretary will seek the six-month renewal process and that the Scottish Government will use the powers only when it determines that it is absolutely necessary to do so in Scotland’s circumstances. That is reassuring, as is the fact that the cabinet secretary will come back regularly to report on how the powers are being exercised. I welcome the UK Government’s announcement yesterday to go for the six-month renewal, too. That was a sensible compromise, and an indication of the partnership approach that we have among the parties and Parliaments across the United Kingdom to address the crisis.
In addition to the measures to protect us from the reckless few, the legislation is about adopting more flexibility in how government works and about improving standards. I ask the cabinet secretary to address the concerns of organisations such as Inclusion Scotland, which is anxious about care assessments. I know that support packages can proceed without care assessments, but those take place for a purpose—they provide a comprehensive assessment of all the individual needs of vulnerable people. I hope that the cabinet secretary will encourage those who normally apply care assessments to continue to do so if possible. We understand that those people will be under inordinate pressure during the next few months, but everybody would benefit from that process taking place.
The Scotland-specific bill will come next week. I appreciate the minister’s engagement and the discussion that we had last week about what will be in it. Does the minister think that that bill will provide a process to address any emerging flaws in the UK legislation? I understand that other legislation may be introduced in future weeks. If we adopt a learning approach and we discover that improvements can be made, we can perhaps include those in future legislation.
I look forward to the day when we can repeal the legislation so that we can return to the freedoms that we all enjoy. During this oppressive period, it is important to understand that we have enjoyed those freedoms for a long time and that, the sooner we get back to them, the better.16:20
To anyone who has any doubts that the bill is necessary, I would just say one word: Italy. Italy has an excellent health service—not unlike our NHS—and, at the latest tally, the country reported a total of 6,078 deaths from 63,928 infections. However, the headline figures do not tell the whole story. The people who die in Italy die alone, among strangers, without the comfort of their loving families, as they will do here if our NHS is overwhelmed. For some people, dying alone is a prospect more frightening than death itself, but that is the inevitable consequence of our not taking action. We must stay at home and those who do not should be compelled to do so.
The bill is extensive and I cannot address each part of it, so I will quickly touch on three areas. I commend the measures to enable the registration of doctors and other health professionals. I draw attention to the British Medical Association’s briefing on that part of the bill. The BMA wrote to 15,000 doctors to let them know that it expects the Government to use its powers to ask the BMA to temporarily register them, and 1,500 of those doctors have a registered address in Scotland.
We need to look at that in the context of Italy, where 14 doctors have already died and 3,700 doctors and nurses have already been infected while on duty. I want to say one thing to the doctors and nurses who are going to register again and to those who are already in our NHS: thank you so much. The cabinet secretary said that we will not necessarily use all the powers that the bill enables, but ministers need to use the powers that protect those workers and the Parliament must support them.
I want to touch on the powers related to food security, which I think focus on the sharing of information. I welcome that but, as I said in my earlier question to the First Minister, there is a real concern about getting food to elderly and vulnerable people, particularly through home deliveries. If we need to use powers to enable ministers to intervene in that area—if indeed such powers are in the bill—I would support their use, as would other members, judging from their comments, to ensure that the food goes to the people who need it.
One aspect of the bill that concerns me and other members who have mentioned the issue relates to the care of the most vulnerable. Clauses 15 and 16 of the bill as introduced are intended to increase flexibility for social care decision making during the period in which the provision is in force by allowing local authorities not to comply with particular assessment duties where complying would not be practical. The briefing from Inclusion Scotland, which represents people with disabilities, warns that, in reality, the removal of those duties may result in many disabled people receiving social care support that is inadequate to meet their needs; receiving care that is inappropriate or in inappropriate settings; or maybe even receiving no social care at all. We are already hearing anecdotal evidence about the knock-on effects of the current crisis on social care packages. I implore ministers to keep a close eye on those and on other unintended consequences that could affect the most vulnerable.
There are human rights implications, but the European convention on human rights allows exceptions when those are proportionate. I am pleased that the amendment proposing that the legislation should be revised in six months went through. I do not underestimate the profound implications for our human rights, but the bill is necessary at a time of national emergency, and this is such a time. Bruce Crawford compared the current situation to a time of war, and I agree with that. The bill is designed to protect our front-line troops in that war, which is why I support it.16:24
For me, this debate on the bill and the legislative consent motion is about one thing only: trust. It is about trusting the UK and Scottish Governments to make decisions on our behalf. Further, it is about handing unprecedented power to the current inhabitants of Bute House and number 10 and trusting them to wield it wisely. It is about trusting our police, when handed enormous powers of shut-down, penalty and arrest at a time of reduced scrutiny, to wield those powers virtuously, and it is about trusting individual officers to practise self-restraint when far fewer external checks are placed on them.
We are asking the public to trust their politicians at a time when, pre-Covid-19, trust was a vanishing commodity, and when the Ipsos MORI veracity index recorded politicians as the least trusted profession of all, behind bankers, journalists and estate agents. It is about recognising that, behind the job title, politicians are people who are every bit as worried for their families, concerned for the nation and desperate to keep the death toll to a minimum. Further, it is about recognising that the trust that the public puts in politicians does not exist in a vacuum.
In turn, those politicians are having to trust one another. Boris Johnson, Nicola Sturgeon, Mark Drakeford, Arlene Foster and Michelle O’Neill: five people from five parties and five conflicting political heritages who have put old enmities aside to ensure that we pull together with a four-nation strategy to have the best chance of getting through the situation. Their trust in the decisions that they are having to make is reinforced by the trust that they have in the people who are advising them: the chief medical officers, Chris Whitty and Catherine Calderwood; the chief scientific adviser, Sir Patrick Vallance; and the national clinical director, Jason Leitch.
The measures that we are trusting Governments to take go far beyond what, in normal times, we believe are appropriate for western liberal democracies to take and still be called such. However, these are not normal times. One reason why I am a Conservative is that I believe in the agency of individuals and that, in a democracy, sentient adults should enjoy the freedom to make the decisions that they feel are best for themselves and their families, as long as they accept responsibility for those decisions. I do not accept the creeping hand of state bureaucracy into every area of my life, stifling and suffocating free expression. In a world of competing philosophies, I find myself closer in personality, belief and conviction to Mill’s harm principle, whereby the state should not intervene except to prevent harm to others.
However, all that is suspended as we turn to face the enormous invisible wave that is about to wash over us all. It is no longer a time to argue for the exercise of individual freedoms; it is a time to accept that the best route to the greatest freedom of all—life—is utilitarianism. The only moral position that we can have is that decisions that are taken in the weeks to come can be made only on the basis of what will produce the greatest good for the greatest number of people. When a threat is so great and overwhelming, the state is the only actor that is big enough to co-opt, co-ordinate, compel and direct all the multicoloured strands of our response. We have to purposefully and willingly give over to the Government our freedoms and trust it to keep us safe. After the great wave has receded, we have to trust the Government to hand back those freedoms.
I thank the ministers of both Governments for the work that they are doing on our behalf. I trust them to exercise the power and agency that I judiciously hand them as a citizen of this country. I ask them to please do their best work and to keep our families and communities safe.16:29
I begin with my heartfelt thanks to the committee, the First Minister, all Scottish Government ministers and Aileen Campbell, in particular, who made the right decision on evictions.
As Joan McAlpine said earlier, we live in the starkest of times, so we need the fullest extent of our powers, our resources and our joint working. As we have heard, some people are still going to work and disobeying the guidance. The message must get through loud and clear: they can no longer do that.
If I could add one power to prevent further chaos, it would be to prevent traders from escalating the prices of basic goods such as hand sanitiser and toilet rolls, as a small number of traders are doing during an unprecedented crisis. Would it be possible to consider that? State intervention would be justified, in my view.
As Ruth Davidson says, the legislation must be clear and reviewed constantly, because we live in difficult times. The minister rightly says that we are acting as four nations working together across parties. The public expects clarity. It expects to understand why there is a three-week lockdown. We need emergency powers, and new powers, to ensure that we can function in these difficult times.
Despite all the pressures and burdens on ministers and officials, we need regular updates and reports on a number of things, including some of the legislation that has been talked about—mental health orders, for example. Transparency in planning and in contingency decisions are paramount to retaining public trust. The third sector has put out a particular plea, as it is very concerned about resources, and the Health and Social Care Alliance Scotland has put out an important briefing. Let us not forget the important work that our third sector does.
The bill contains powers to close schools, to apply quarantine to school boarding accommodation, and to prohibit access to educational establishments for public health protection. It confers powers on constables and immigration officers, who can be enlisted to remove potentially infected persons to a suitable place for screening. There can be a period of detention for up to 24 hours, and the person must be informed of the reason for their detention. That can apply to a child, in which case the requirement rests on a responsible adult. A person commits an offence if they fail without reasonable excuse to comply with any of the directions or reasonable instructions, and they can be forced to do so.
Scottish ministers may give directions relating to events, gatherings and premises, as we have heard, but it is important to get across to the public that those powers can only be used in this public health crisis. Ruth Davidson made a really important point: we must reassure the public that it is a temporary measure until we are over this, and that, at the end of it, normal society will continue.
Clause 34 of the bill as introduced modifies section 40 of the National Health Service (Scotland) Act 1978, replacing the requirement for vaccinations and immunisations to be administered by medical practitioners or persons under their direction with a reference to the Scottish ministers. The purpose of that provision is to broaden the arrangements that Scottish ministers can make, if necessary, to decide who can immunise and vaccinate people.
As Bruce Crawford says, the bill treads a fine line between protecting lives and normal freedoms and human rights. We hope and believe that that will be temporary, and that normal life will resume if we all work together, believe together, stay at home, and support our medical services in doing amazing work during the crisis.16:33
Time is short, so I will be brief. I want to raise some concerns with the minister.
Labour members support the legislation. However, it should be subject to a full review after three months—we should not wait until the end of six months.
Secondly, the minister will have seen that concerns were raised, particularly in England and Wales, about the proposal on forced cremations. I am glad that there has been an amendment to that. Will he give a commitment—a guarantee—that in Scotland there will be no circumstances under which any deceased person will be cremated against their family’s will? Such reassurance would be welcome.
Thirdly, I welcome the food chain emergency liaison group that is part of the legislation, although, as Patrick Harvey has pointed out, it is about communication rather than forcing supply chains to stay open. Will the Scottish Government and Scottish associations be part of that food chain emergency liaison group, to make sure that there is a free flow of supply to Scotland?
Fourthly, there are issues around human rights in relation to the sectioning of individuals; the Mental Health (Care and Treatment) (Scotland) Act 2003; what is reported to the procurator fiscal when there is a death in an NHS setting; the emergency registration of health workers; and the fast-tracking of Disclosure Scotland applications—and the load that might be put on to all of that. What work is being done to make sure that we safeguard and maintain human rights when we are asking people to do so much more with a smaller workforce? If there is a real increase in the number of applications to Disclosure Scotland, what backup measures have been put in place to make sure that there is enough of a workforce to do that important work so that we can get people on to the front line as quickly as possible?
I note again that we do not want this legislation and that we wish that we did not have to introduce it. However, it is nonetheless important legislation to make sure that we have the right response to this crisis. I hope that—as has been the case until now—we continue to have active dialogue between members of this Parliament and the Scottish Government, and between the Scottish Government and the UK Government, so that if any unintended consequences were to result from the legislation, they could be addressed appropriately.16:35
The cabinet secretary opened the debate by saying that the restrictions that came into effect at midnight last night will feel difficult and strange to many of us. Nonetheless, I agree with him that those measures and the powers in the bill are essential to slow down the virus. Responding for Scottish Labour, Alex Rowley made clear that the Government has our full support in the battle against Covid-19.
In recent weeks, I know that many of us in the public eye have talked about possible draconian measures and lockdown as something scary. However, Willie Rennie expressed it really well on behalf of the Liberal Democrats when he said that it is not about wielding a big stick, but about making sure that life is possible.
I thank Bruce Crawford and the committee for their work. Bruce Crawford was right to say that these are extraordinary powers, and that our democratic processes need to be stepped up at this time. He is also right that the bill treads a fine line between public health and our civil liberties not being infringed upon. Other members have talked about trust, transparency and scrutiny to make sure that we get this right. Ruth Davidson was right to say that these are unprecedented powers, but that we all understand why and support the Government’s endeavours. Murdo Fraser was right when said that the bill is about supporting the NHS and our social care staff by making sure that they can deal with the significant additional pressures that are coming their way.
I agree with other members that, in normal times, the bill would be overreach, but these are not normal times. In addition, there are safeguards; the bill is time limited and will be renewed every six months. Colleagues talked about their willingness to uphold our democracy and to be involved in that important scrutiny work, and we will continue to ask questions. A number of colleagues touched on the questions and concerns that have been raised outside the chamber, including by the Health and Social Care Alliance Scotland, Scottish Care, and many mental health charities. We know that we cannot take our eye off the ball.
The emergency legislation covers a range of areas, because the health service alone cannot solve this crisis. The purpose of the legislation is to relieve pressure on our health service so that as many lives as possible can be saved. However, although that is the driving force of the bill, it is clear that we need a collective approach to the crisis that will require every part of Government to work together, and all of us to support that work.
I know that time is short, Presiding Officer. I note that many colleagues touched on really important issues. For example, just a moment ago, Anas Sarwar sought clarity and reassurance for some people in our community who are concerned about the provisions in the bill that change burials and funerals as we know them. The bill and the measures that are being taken will change life as we know it, from cradle to grave. Baptisms are on hold, weddings are being postponed, and attendance at funerals and those final farewells will be restricted to a few loved ones. These are extraordinary powers and unprecedented times, but our job here is to do everything that we can to support our NHS, to uphold democracy, and to provide that on-going scrutiny. Our NHS needs us like never before, we need our NHS like never before, and we all need one another like never before. My appeal to my constituents, and to my friends and family, is this: please stay at home to protect your loved ones and help save lives.16:39
I will reflect in my remarks on the nature of emergency power and human rights.
Ruth Davidson spoke about John Stuart Mill; I will go even further back and start with Cicero. In times of emergency, necessity becomes the only test against which we judge the laws. Our usual standards of reasonableness or proportionality do not apply. If there really is an emergency, we do what is necessary to defeat its causes and to manage its consequences. When I say “we”, I do not mean only the Government; I mean all of us. Every citizen has a duty to do what is needed—in the old language, in defence of the realm. In short, all of us do what we need to do for the public good.
All that applies only if there is a genuine emergency. Unfortunately, we are all too familiar with Governments claiming the need for emergency powers when there is no emergency at all, but just an opportunity. That is emphatically not the case now. There is no doubt that we face the gravest threat to public health, and to our economic health and wellbeing, that we have seen in our lifetimes.
There is, of course, concern about the scope of the extraordinary powers in the bill. Powers to ban events and public gatherings will impede our freedom of movement, and powers to detain people who are suspected of being infectious represent significant interference with our right to liberty. Freedom of movement, freedom of public assembly and the right to liberty are modern human rights.
Are our ancient conventions that come from Cicero, about necessity and emergency powers, negated by modern human rights law? No, they are not; they are accommodated in our modern human rights law. If they are properly understood, there need be no conflict between emergency powers and human rights.
For example, one of our most fundamental human rights is the right to life. It is in article 2 of the European convention on human rights, and it is enshrined in the United Kingdom’s Human Rights Act 1998. It is a powerful right, because it imposes broad-ranging and wide-sweeping duties on Governments and public authorities—duties to protect life. In an emergency such as we are in, if it is necessary to detain infectious persons in order to protect life, so be it. Likewise, if it is necessary to ban events or public gatherings in order to protect life, so be it. In a public health emergency, those are best understood not as interferences with human rights, but as steps that are necessary in order to preserve the fundamental right to life itself.
None of that means that there is no more rule of law or that we should throw our critical faculties out the window and stop scrutinising Government. None of it means that ministers, or anyone else, have licence to act arbitrarily. However, it does mean that the standard against which we must judge the legality, the prudence or the propriety of Government actions and decisions changes. In a crisis—in an emergency such as this—that standard is strict necessity. The questions is not whether this is a reasonable thing for a Government ordinarily to do. The question is this: does the Government need this power?
Seen in that light, the issue of how long the extraordinary powers should last becomes somewhat axiomatic. They will last for as long as they are needed. If they are necessary, they will persist, but as soon as they cease to be necessary, they must lapse and be repealed. None of us knows how long the coronavirus crisis will last, so let us not get overly fixated on sunset provisions or arbitrary time limits on the statutory powers. The powers are necessary now, and they are necessary for the time being. They will continue to be necessary for as long as the crisis endures. For all those reasons, we should all back the bill today.
Before I call the cabinet secretary, I say that I should have said earlier that members should note that decision time has been delayed; you might have noticed already. It should be at about 5 o’clock. I call Michael Russell to wind up the debate.16:44
Thank you, Presiding Officer. I also thank members for the very constructive nature of the debate. I will try to get through a number of the points that have been raised, if members will bear with me.
I thank Bruce Crawford and the Finance and Constitution Committee for taking evidence this morning. I am sure that all of us, as members, were faced this weekend with a tidal wave of concern from the constituents whom we represent. There will have been different concerns for each of us according to our constituency. For me, it was access by ferry to the 23 islands that I represent. I know that others have been dealing with issues to do with mobile homes, staff accommodation and protective gear. Our job is to provide information, so we will continue to do that in the weeks and months ahead.
However, our real job is to give leadership; it is to ensure that we are leaders in this situation and that people are not merely comforted or reassured, but are given what they need by those whom they have elected.
I was struck by the speeches by Ruth Davidson, Adam Tomkins and Willie Rennie. I rarely speak of being struck by their contributions, except in a negative sense, but on this occasion I will be very positive about them. They talked about trust, which Ruth Davidson spoke about extensively. They talked about the appropriate responses that we will make. Adam Tomkins talked about the necessity of the job that we are undertaking and how we must undertake it.
I think that Willie Rennie had the last word on that—I know that he loves to have the last word, so he will be very pleased—when he said that he looks forward to the time when we do not need the legislation. It is important that, as leaders and as a Government, we say very clearly that we wish to let go of the legislation at the very first appropriate moment, but not a moment too soon. Therefore, “necessity” has to be the watchword. We must have the legislation for the period for which we need it. We will all have to live up to the trust that the people of Scotland and our individual constituents will put in us, and are putting in us now by watching and listening to what we are saying.
I will respond to some detailed points that have been raised. There were a huge number, so I will not get through them all. If members have more points to make, they should get in touch with me by email. All Government ministers are willing to respond; Jeane Freeman, for example, has said that she will be happy to respond to Alex Rowley on the detailed points that he raised.
On Bruce Crawford’s point about switching on and off of the powers, schedule 22, for example, clearly says that the switching on of the power occurs with the declaration that
“the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health”.
That is the trigger. The trigger for switching it off will be when the threat no longer exists, advice on which must come from the chief medical officer. Throughout the bill the triggers and switches are mentioned. We need to be aware of them.
With regard to parliamentary scrutiny, we need to ensure that it is built in to the new bill and will be done retrospectively on the legislation. I am not in favour of a three-month reporting period.
Will the cabinet secretary give way?
No. I am sorry, but I do not have time. I have to get through this.
I am in favour of a two-month reporting period, and I commit myself to that and will put it in the bill. I have already said to officials—who have been working incredibly hard on the bill, as has Jenny Gilruth—that we must ensure that we have a reporting schedule such that people understand what we are reporting, why we are reporting it and what it means.
With respect to the food-stock matters that were raised by Patrick Harvie and Pauline McNeill, I wish we had the power to deal with price gouging. However, I am pretty certain that that power is reserved to Westminster, as part of trading standards. However, we have the power—as Mr Harvie pointed out in committee this morning—to purchase food if we require it. We already do so for food banks. I will check that, but I hope that that power already exists. If there are such powers already in statute, we should tell people that they exist and are available if we need them.
On Willie Rennie’s point about care assessments, I reassure him that the provision in the bill is not an excuse for local authorities not to act. It enables them to act more quickly than they might otherwise do under existing legislation. That is a power that we need to keep an eye on, because no authority should use it as an opportunity not to act.
I have dealt with escalating prices, on which Anas Sarwar raised not one point, but five—or six; I probably missed one. I acknowledge his industry as well as his inquiring mind. The reporting period will be two months. The legislation on cremation already requires that the people who are involved in a cremation must take account of the faith or belief of the person who is to be cremated. The bill emphasises that point and does not change it. I heard Mr Sarwar’s earlier question to the Cabinet Secretary for Justice on the issue. I think that we can give reassurance on that.
We will be involved in the UK action on supply chains—I heard the Scottish Grocers Federation make that point on Radio Scotland this morning.
We must act very sparingly in relation to mental health legislation. The provisions are extensive and many of us are uncomfortable with them. I know that Angela Constance, with her experience in the mental health profession, raised that issue in the Finance and Constitution Committee today. We will ensure that the powers are used sparingly and we will make sure that we report on their use, so that people know about them.
We have spoken with the Scottish Human Rights Commission and we are continuing to listen to it as we discuss best practice in drafting the new bill, which we will discuss with Opposition spokespeople this evening—and we will continue to discuss the bill with them as it progresses. We will also keep the protection of vulnerable groups scheme under review. That is a sensitive issue and, as the former Cabinet Secretary for Education, I am aware that the scheme is a vital service that keeps children safe. There is no intention to weaken the service, but we mighty have to streamline it; that could eventually be where we end up.
The Coronavirus Bill is a difficult bill; it is full of detail and it is required now. I will go back to where I started. I look forward very much to the day when the legislation is no longer necessary and we can put it behind us, but necessity will drive us. In the circumstances, I hope that everybody will support it.
I hope, moreover, that parties will continue to work with the Scottish Government—because the offer exists, as Alex Rowley acknowledged—to make sure not only that we get the emergency bill that we are already working on, and which we hope to bring to the chamber for a single day next week, through Parliament, but that we can progress other legislation, as gaps occur.
This will be the third time that I have referred warmly to Willie Rennie, so I think that this will be the end of it, for today, but I want to make the point that he made. We need to look at the legislation and its operation to see whether there are things that we did not get right, or that we need to build on. We will try to do that in further legislation, as required.