Meeting of the Parliament

Meeting date: Tuesday, April 28, 2020

Official Report 904KB pdf

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Covid-19 Legislation

The next item is a statement by the Cabinet Secretary for the Constitution, Europe and External Affairs, Michael Russell, on coronavirus legislation update. The cabinet secretary will take questions at the end.

14:04  

I am pleased to be able to update the chamber on coronavirus legislation and related matters.

Last Friday, I gave evidence at the first meeting of the new COVID-19 Committee. The committee will play a key role in ensuring that the legislative powers that have been granted to the Government in response to Covid-19 and the unprecedented circumstances in which we find ourselves, are properly scrutinised. The Scottish Government welcomes that scrutiny and my ministerial colleagues and I are committed to engaging with the committee.

I would like to update the chamber on four main strands of legislative and related activity: first, on the management of the overall legislative programme; secondly, on the development and management of further potential Covid-19 bills; thirdly, on the oversight of the public health regulations—the so-called “lockdown” regulations; and finally, on the co-ordination of reporting on the implementation of Covid-19 legislation and regulations.

The statement to Parliament by the Minister for Parliamentary Business and Veterans on 1 April set out the Scottish Government’s approach to the management of the legislative programme during this difficult period. As I indicated to the committee on Friday, that approach not only supersedes any plans that have been previously published but confirms Mr Dey’s intention to keep the programme under constant review.

The priority is to ensure the passage of essential legislation—Covid-19 and non-Covid-19. However, we should note that the resources that are necessary to do that are likely to be under considerable pressure, given the demands of the current situation. Those resources would be further stretched—perilously so—should the United Kingdom Government not seek an extension to the Brexit timetable.

With those caveats in mind, I turn to the need for further Covid-19 primary legislation. Such legislation—here, at Westminster and in the other devolved Parliaments—addresses the disruption to national life, public services and the public sector that dealing with the virus is causing.

Of course, the priority is to save lives. All of us will be more than aware of the individual and collective tragedies that have been, and are being, played out every day, as well as of the individual and collective heroism that our front-line services are displaying.

The legislative measures that we are able to take to support our fellow citizens are temporary; they are about getting us through the current situation to a time when we can undertake the renewal of our country and ourselves. How we collectively choose to do that was the subject of the framework that the First Minister published last Thursday—I will say more about that later. For now, we need to continue to temporarily alter our laws and regulations in order to operate as effectively, efficiently and supportively as we can during this period.

The UK Coronavirus Act 2020 and the first Coronavirus (Scotland) Act 2020 were immediate reactions. I now intend to introduce the second Scottish coronavirus bill, which will cover similar issues, as well as items that are required to overcome some problems with statutory deadlines—which cannot now be met—and items that reflect the fact that the disruption that the pandemic has caused will be with us for some time yet. I have asked the Opposition parties for details of what they might want to see in the bill, and I hope to give them more granular details of content later this week.

I will indicate some of the issues that I already know will be covered: registered social landlords will be given more time to lodge their accounts with the Scottish Housing Regulator; and the timetable for holding the citizens assembly on climate change will be relaxed, although I assure the Parliament—especially the Green Party, which was responsible for the relevant amendment to the Climate Change (Emissions Reduction Targets) (Scotland) Act 2019—that that will not diminish our commitment to the project.

In order to reflect the realities of our housing market, for those who had paid the land and buildings transaction tax’s additional dwelling supplement prior to a particular date, the bill will extend the time period during which a previous main residence must be sold in order for them to claim a repayment from Revenue Scotland. The bill will remove requirements to serve or intimate documents on the walls of court. It will also amend the UEFA European Championship (Scotland) Act 2020 to reflect the postponement of the Euro 2020 championships to 2021.

In addition to the Scottish bills and the UK bill, an increasing number of Scottish statutory instruments that are part of the legislative response to the coronavirus outbreak, are being prepared by Scottish ministers. Those SSIs are in train and will be subject to scrutiny by the committees as appropriate. All those matters are technical, but they are also a necessary part of our national response; we will try our best to ensure that they are consensual. I commit to continuing my cross-party work in that regard.

I turn to the lockdown regulations. As members will be aware, the First Minister announced the outcome of the first review of the regulations on 16 April and the Scottish Government made amending regulations on 21 April. The next three-week review period for those regulations ends on 7 May. Last week, the First Minister published a paper that set out the criteria, the factors and the framework on which future decisions might be based, which is clearly a key focus for the Government now.

The document was intended to start, and has started, a conversation not just about the current issues but about what we will have learnt about ourselves during this time and how we will apply those lessons to the future of our communities, our society and our nation, as good neighbours on these islands, as upholders of the values that we share with our European friends, and as global citizens.

The Bible reminds us that there is a time for everything:

“a time to cast away stones and a time to gather stones together, a time to embrace and a time to refrain from embracing”.

It is not yet the time for renewal, but it is the time to think about renewal. Although it is the time to start to talk about how we might move on from lockdown, it is absolutely not yet the time to relax for a second our vigilance and our vital obligation to stay at home, protect the national health service and, by so doing, save lives. I emphasise that last point particularly.

There is still a very high level of observance of the lockdown regulations. Yesterday, I took part in a conference call with the other Governments of the UK that touched on that subject, and it is clear that there remains very strong public support for what is being done.

The police are working with diligence, but also with discretion, underlining the four Es: engage, explain, encourage, and only thereafter, enforce. Of course, there is a temptation to blur the edges of the rules, particularly in better weather. For example, on Saturday, there were 766 compliant dispersals, whereby people were asked— and they agreed—to move on and change what they were doing, compared with an overall total of just over 6,000 between 28 March and 26 April.

As political leaders, we need to follow the four Es, too. We need to engage with our constituents on these issues and explain why it is essential for the measures to stay in force. The reason is simple: we must save lives. We need to encourage continued observance, support the police when enforcement becomes necessary, and we need to go on doing so until we are all confident, and have incontrovertible evidence, that the virus has been permanently suppressed.

I will talk about the issue of reporting. The Coronavirus (Scotland) Act 2020 places a duty on ministers to report on implementation to the Scottish Parliament every two months, with the first report being due when the first reporting period under the legislation ends on 31 May. As members will recall, I have also given a commitment to report in the same way to Parliament on actions that are taken under the UK act, and it is my intention to combine both those reports into a single report.

As I noted in my opening remarks to the COVID-19 Committee on Friday, the content of the report and our approach require careful consideration. When we combine the provisions in the legislative consent memorandum and those in the Coronavirus (Scotland) Act 2020, more than 40 separate items will require some measure of reporting, and that is before we add in the items that will require to be reported under the next Scottish bill.

Of course, our aim is to be as transparent and as helpful as we can to the Parliament and the people of Scotland. Where powers are being used, we must be able to demonstrate that they are being used properly and proportionally to implement measures that we consider to be essential, that such powers are not being used if they are no longer needed, and, if they are being used, the reasons why.

Reporting must reflect not only the need to avoid placing undue pressures on those who are at the heart of our response, but the fact that the measures in the legislation are of varying degrees of significance in terms of their impacts and the level of interest in their operation. Some measures are of particular and significant interest to members, for example, because of their potential impact on vulnerable groups or their implications for particular rights or protected characteristics. Other measures may emerge as such over time, and our approach must be sufficiently flexible to respond to that.

We are therefore considering a matrix approach by which we would prioritise measures that are of most significance and in whose reporting there is the greatest interest, and give most detail on the operation of powers for such measures. The criteria by which we judge significance and impact are very important. The issue of whether there are particular areas on which we may wish to direct our focus in the reporting process is germane, and I am happy to hear views on that and other issues this afternoon.

I am aware that there are areas of interest in respect of which members will wish to seek information on specific decisions or matters relating to the implementation or operationalising of measures that are contained in the legislation. In such cases, if the information is requested in advance of the formal report, I will be happy to follow it up with my ministerial colleagues who have portfolio responsibility for the relevant area and are therefore best placed to respond.

I hope that this update has been helpful to members, and I underline again the Scottish Government’s on-going commitment to engaging with Parliament and colleagues across the chamber as we take forward our collective legislative response to Covid-19 over the next month. I am happy to take any questions.

I encourage members who wish to ask a question to press their request-to-speak buttons, if they have not already done so.

I thank the cabinet secretary for the open and consensual way in which he has approached the proposed legislation. We Conservative members have tried to reciprocate by working in a positive fashion, and I intend that that approach will continue.

I would echo the comments that the cabinet secretary made about the lockdown. There is a lot of media chatter about how and when the lockdown might be eased, which builds public expectation. There were pictures on the lunch-time television news of beaches in Australia that have been reopened. That has an impact on people here, which is significant, because the lockdown is largely self-policing. It is important that any relaxation is not only driven by the science but is clearly communicated to the public and the business community, whom we have to bring along with us.

I welcome the proposed legislation that will give registered social landlords more time to lodge their accounts—an issue that my colleague Graham Simpson has raised—and will provide an extension to time limits for the additional dwelling supplement, which is a matter that has been raised with me.

We have also raised other issues that might be considered in the bill—for example, changes to tenancy law to incentivise landlords of properties that are currently available for short-term lets to bring them into use for longer-term tenancies, and a relaxation of the licensing laws to allow purchase of alcohol by vulnerable groups and NHS staff before 10 o’clock in the morning. Will those changes be considered for the forthcoming bill?

I thank Murdo Fraser for the positive way in which he has approached the matter as party spokesperson and, latterly, as convener of the COVID-19 Committee. I am grateful for that and I hope that we will continue to make progress.

As I explained in my statement, and as I said to Murdo Fraser earlier, the process of selecting and deciding on the final elements of the bill is on-going. I hope to be able, by the end of the week, to speak to the relevant party spokespeople about the final contents of the bill, but I do not want to commit myself to particular items, at this stage.

Some issues that have been raised by Opposition parties and others can be dealt with by regulations or secondary legislation. The bill is designed to be for items that cannot be dealt with in that way, which is what we will bring to Parliament.

I hope that we can find agreement on most of the issues. With a couple of exceptions, we managed that for the first bill. I would like us to get exceptions out of the way, which will require a collaborative approach not just from me but from others. If we can do that, we will have in the bill a range of items that are agreed on.

However, bills can always be improved. I often say in the chamber that my attitude to bills is that a bill is not fully finished when it comes to the chamber and can be improved by amendment and discussion. If that is possible for the forthcoming bill, we will certainly do it.

I note the point that Murdo Fraser made about licensing, which he has raised with me on a number of occasions. I am still in discussion with colleagues about that, but I know that it is a suggestion that would have support from a range of people.

I acknowledge the cabinet secretary’s engagement with the other political parties, which has been, and will continue to be, important. When the cabinet secretary introduces and makes the case for emergency legislation to deal with the Covid-19 crisis, Labour will support it. We will work with the Government through this difficult period.

I return to the framework document that the cabinet secretary talked about. Does not he agree that there needs to be further discussion and debate in Parliament about the document? There are contradictions. If we are to move forward and get out of the current situation in a safe way, as the First Minister has outlined, we need to do testing. The World Health Organization has said, “Test, test, test”. Indeed, in interviews over the weekend, the Cabinet Secretary for Health and Sport talked repeatedly about the test, trace and isolate approach. Where are we with testing? If we are to take the public with us, clarity is needed.

There also needs to be clarity around workers. Last weekend, a number of workers contacted me to say that their employers want them to start back at work. What rights do those workers have, including rights to protection? We are certainly protected in the Scottish Parliament, but what are the rights of workers who are being told that they have to go back to work?

Does the cabinet secretary agree that there needs to be proper discussion and debate in Parliament about the framework document, so that we can all understand better how to proceed and move ourselves out of the current situation? Will the Government timetable a parliamentary debate on Covid-19 over a couple of days, so that we can have such discussions?

I repeat what I said to Murdo Fraser: I am grateful to Alex Rowley for his co-operation and for the discussions that we have had, and will continue to have, about the bill.

Alex Rowley has made important points. I can tell him—this is hot off the press—that there will be exactly the debates that he is seeking on the framework document and how we move forward on suppression of the virus. Suppression of the virus, and the action that we take to do so, is the issue. That debate will take place two weeks from today, I think; I hope that the Labour Party representative on the Parliamentary Bureau will support the suggestion, because that will make it easier to have the debate.

In that debate, we will be able to look at the strategies that the Government is pursuing—as, I am sure, we will do this afternoon. We will look at the test, trace and isolate strategy. We will also consider the need for a wider debate in Scotland about how we move forward together. Some of the issues that have been raised in the press, which Mr Fraser mentioned, are not things that any of us would treat seriously in the context of what will happen next.

I expect that all our constituents are interested in these matters—indeed, it is impressive how interested they are. I note that, as at 12 o’clock today, 397,000 people had viewed the paper on the Scottish Government’s website. That is not the usual reaction to a Government document. That shows the type of discussion that we need to have, inside and outside Parliament, so that we can find a common strategy. Let us see whether we can agree a strategy together, rather than taking a confrontational approach.

I am grateful to the cabinet secretary for advance sight of his statement.

The Greens acknowledge the need to adjust the timetable for the citizens assembly on climate change. However, the need for the assembly is greater than we could ever have imagined it would be. The pandemic will cause the greatest global economic collapse of our lifetimes. After it, we will be tasked not with rebuilding the global economy but with building one anew. It is therefore essential that economic recovery from the health crisis does not double down on the systems and approaches that have caused the continuing climate crisis.

Will the Scottish Government confirm that it will use the citizens assembly on climate change to help to shape the economic recovery that will be required over the coming months and years, and to provide an essential counterweight to the economic elites who are already lobbying, from their private islands, for bail-outs?

I am glad that Mr Greer has accepted the reasoning behind the postponement of the citizens assembly. I assure him that it is a postponement, and not a refusal to go ahead with the assembly.

Roseanna Cunningham was listening to what Mr Greer said: I am sure that she will have been influenced by it. [Laughter.] In my experience, Roseanna Cunningham is a generous and open-minded person, and she will undoubtedly have been influenced by what he said. She will be leading on the matter and will want to take forward in Scotland a green recovery of exactly the type that, I hope, Ross Greer is talking about. That will require compromise and debate across Parliament. Who better to lead the debate and to secure consensus than Roseanna Cunningham? I think that that will be a positive step forward.

I am sure that not every member reads my column in the Sunday National, although it would be edifying for them if they did. That is members’ loss, not mine. [Interruption.] If Mr Rumbles had read my column this week, he would know that I started with an observation about a television clip that I saw last week about a jellyfish swimming in a Venetian canal, and how the environment, in its small way—[Interruption.] I do not know why Mr Simpson finds the idea of a jellyfish and Venice together so funny; there is clearly a joke there that I do not get. The reality is that the environment—slowly and not consistently—is beginning to heal. Our recovery must ensure that we accelerate that healing and keep it at the forefront of our minds.

The cabinet secretary said in his statement that the Government’s aim is to be transparent. However, tomorrow’s meeting of the Scottish Police Authority, which will include a report on use of the police powers that have just been agreed, will take place behind closed doors. Parliaments and councils across the country have managed to conduct virtual meetings. Does the cabinet secretary wonder why the Scottish Police Authority cannot do so?

I see no reference in the statement to potential use of the contact tracing app for smartphones. There are issues about the information that the app gathers, how that information is shared and what access the Government would have to the information. Under what legislative powers would the phone app be used?

On the question about the Scottish Police Authority, that is not a matter for me, but for the Scottish Police Authority, which will, I am sure, have heard what Willie Rennie said.

I am familiar with the debate that is taking place about how data from the smartphone app should be handled, and whether it should be localised or centralised. Both approaches have been approved as legitimate by the European Commission, but both present issues in terms of regulation. The Scottish Parliament is not directly responsible for that regulation, but Willie Rennie is right to raise it as an issue that needs to be discussed. I will take the matter away to see whether there are implications for our legislation that we should consider.

However, the issue is, I believe, a reserved matter. Although I am always encouraged when Mr Rennie wants us to move into reserved matters—it is, at least, a small start—I am just not in a position to give him an assurance on that, now.

It will remain important to ensure that, despite the short timescales that are available to us, we do all that we can to get emergency legislation right. What steps will the Scottish Government take to ensure that the forthcoming coronavirus bill is subjected to due scrutiny by Parliament?

That is a very good question, which I discussed with the COVID-19 Committee on Friday. I am happy to repeat what I said then, and perhaps I can add a bit of detail to it.

The intention is to treat the bill as an expedited bill—a very expedited bill, I have to say—rather than as an emergency bill, but not to do so in a single day. At present, we hope to introduce the bill in such a way that a committee—I presume, the COVID-19 Committee, although it is up to the Parliamentary Bureau to allocate the bill—could consider it at stage 1 in a single sitting and make a recommendation to Parliament for a stage 1 debate, which is provisionally set for three weeks today, in the afternoon. The committee would consider the bill at stage 2 the next morning—that would be the Wednesday morning, three weeks tomorrow—and stage 3 would take place that afternoon. That is subject to the Parliamentary Bureau’s decision, of course, and to final timetabling, but it would mean that the bill would get longer and more varied scrutiny than the first Coronavirus (Scotland) Bill.

The provisions for the new bill are items that we require to have on the statute book quickly. We would also wish to see expedited royal assent in the programme, so that the bill would be on the statute book before the end of the month. However, that suggested legislation programme provides a better opportunity for debate and discussion than we had with the first Coronavirus (Scotland) Bill.

The cabinet secretary has talked about the importance of transparency in reporting, and has spoken of the number of dispersals by police on a single day and over one month. I think that people will be interested to know how that, and other enforcement, breaks down in terms of matters such as geographical location, numbers of cases that are taken forward to prosecution, and repeat presentations. Will detail such as that form part of the reporting to Parliament?

I made it clear in my statement that we want proportionate reporting. The matrix that I talked about is about taking the key issues that are dealt with and ensuring that they are reported on as fully as possible, then across the spectrum to reporting of issues that will not have such a great deal of detail attached.

There is very legitimate interest in how regulations are being enforced. I cannot speak entirely for my colleague the Cabinet Secretary for Justice, but it seems to me that this is an area that we would want to report on in more detail than we would for some other areas. If Liam Kerr will accept that assurance, I hope that the Cabinet Secretary for Justice will flesh that out, as we move forward.

It is important that essential legislation is prioritised, particularly in relation to the coronavirus. Does the cabinet secretary agree that the UK Government should seek an extension to the Brexit timetable as a priority, to reduce pressures on the legislative process both here in Scotland and across the UK?

I can only say yes. There is not the bandwidth to deal with Brexit at present. Two factors could be added to the present problems. First, if additional legislation, including primary and secondary legislation, arose out of the Brexit process, which is a real possibility, it would be the straw that broke the camel’s back for the work of this Parliament.

The second issue is economic damage. We know that there will be economic damage from the Brexit process—that is even admitted by those who support Brexit—but if that is added to the economic damage that the Covid-19 pandemic will cause, which is projected to be immensely severe, and at the same time we ask companies to change their methods of operation and activities, that is a recipe for even further disaster.

There is no question—virtually everybody I speak to says that there should be a delay. The assertion that has been made by the UK Government’s chief Brexit negotiator, David Frost, that businesses are telling him that they want an end to uncertainty is simply not what businesses are telling me, his colleagues, their trade associations or even the world at large. That is not what is being said. Businesses want a delay or pause to look at this, as it cannot happen in the way that Mr Frost appears to think it should happen.

The cabinet secretary made a welcome commitment in his statement to publish information in advance of the formal report, should MSPs request specific details on implementation or operational matters that are in the emergency legislation. He knows that I raised the issue of social work needs assessments at the COVID-19 Committee last week. Since that meeting, there has been growing concern that people are not receiving care packages and that assessments are not being carried out. Does the cabinet secretary agree that reports of the number of care assessments that are being carried out should be published weekly so that we get maximum transparency and to ensure that the needs and rights of older and disabled people are being fully met?

I will be clear about what I actually said. When information is requested in advance of the formal report, it is not another process of reporting. I said that if the information is requested in advance of the formal report, I will be happy to follow it up with my ministerial colleagues.

There is not a case for putting yet another reporting cycle into the tough reporting cycle that we have, but if there are concerns—the member expressed concerns at the COVID-19 Committee last Friday—it is open to any member to seek information. That is of course what our primary job is, and if those questions are asked, they need to be answered.

The member was right to say at the committee that it is important that there is an understanding of how the powers that were enacted on 5 April are being used. If there is concern about how they are being used, it is important that that concern is discussed and rectified, but I stress that I do not think that we should be tying ourselves into schedules of reporting over and above what we have. I accept that, when there are concerns, they need to be examined. Monica Lennon has raised a concern and, if she asks questions in the right way—there is no doubt that she knows how to ask questions in the right way—they will have to be answered. If you ask a question, you get an answer—that is the normal situation.

We have set up a whole range of ways in which information can be found. Those exist and I am happy to support the member trying to secure an answer on the issue that she raises if the information is available, because she has raised it twice. Information cannot be conjured out of nowhere and if the information is not available, there is an issue of proportionality when it comes to how much time would be spent to get it. I accept the member’s concern; I have heard it and I will endeavour to take it forward.

There are nine more questioners, but we will not get through anything like that in a couple of minutes, I am afraid.

The Scottish Government has been actively working to engage the public about the complex decisions that lie ahead of us as we look beyond the lockdown. The cabinet secretary mentioned the significant number of people who are accessing the guidance and the framework. What more can the Scottish Government do to encourage the public to feed into that conversation to keep them engaged and help us to ensure that decisions taken have their support and consent?

That is a very important question. When the First Minister published the paper last week, she indicated that it is an iterative process. It is not the final word by any manner of means; it is the start of the conversation. I expect that conversation to grow and develop on both sides, as this is not a static situation.

Murdo Fraser again referenced the press interest in the issue. There is a great deal of discussion about what should happen next, and that is feeding into the process. As a constituency MSP, I have received quite a number of suggestions about what we can do and how that information can flow both ways. That will influence the iterations of this paper and the policy as it develops. However, we must be aware that what we do must be guided by science and by the absolute necessity to suppress this virus now and for the future—that is the objective. Of course, what is happening must be supported by the public, who must be persuaded of the need to do what must be done.

The cabinet secretary knows only too well that there are many health risks that are directly affected by the lockdown, not least the risks to mental health. Can he give an assurance that those mental health risks are being fully taken into account as the Scottish Government considers when to ease lockdown?

Yes, I can. In every discussion that I have been involved in in recent days, the issue of mental health has been mentioned and, on every occasion, there has been an acceptance that it must be prominent in our discussions.

We all know, having lived through this event together, that we have all felt pressures in the present situation. I am sure that we will all want to say that in different ways. We also know that some people have reacted adversely to those pressures and that some people are in considerable distress and are suffering illness as a result of those pressures. Everything is being done at a national and a local level to help and support them. I am extremely impressed by the way in which local resilience groups and other local groups are working to ensure that they are supporting people who are isolated and on their own and who sometimes feel very vulnerable indeed.

Liz Smith makes an excellent point. The issue is at the heart of our thinking. We should all recognise that there is absolutely nothing wrong in our saying to our friends, neighbours, colleagues or workmates that we are finding the situation difficult, too, because sharing that information is part of the way forward.

I am afraid that we have not made much progress through the questions today, but that is all—

Presiding Officer, I seek to raise a point of order in relation to the conduct of this afternoon’s business.

I have serious concerns that the Parliament is being sidelined and that we are not being given ample opportunity to discuss important issues such as the exit from lockdown, testing and the provision of personal protective equipment. What is the point in members coming through to Edinburgh for these sessions if we are not able to raise the concerns that people are raising with us in our constituencies and regions? I ask that you and the Parliamentary Bureau examine the programme of business seriously to ensure that we have ample time to debate the issues and to represent our constituents fully.

I thank Mr Kelly for that point of order. I recognise the frustration that he refers to. On a couple of recent occasions, I have not been able to allow Mr Kelly to ask a question, and today is another example that.

I am afraid that the Parliamentary Bureau agreed the allocated time. We have a couple of other statements to deal with today, as well as First Minister’s question time, and we have allocated a certain amount of time for each of those items. Sometimes, the questions and answers take longer than anticipated.

I suggest that it is up to the member, through his business manager, to propose new business to the Parliamentary Bureau, which will consider any suggestions. I also encourage any members who did not get in just now—namely, Joan McAlpine, Rona Mackay, Graham Simpson, James Kelly, Neil Findlay and Andy Wightman—to press their request-to-speak buttons after a later statement today or during First Minister’s question time, and it will be noted that they did not get in with an earlier question.