Meeting of the Parliament (Hybrid)

Meeting date: Wednesday, September 23, 2020

Official Report 1055KB pdf

---

Parliamentary Bureau Motions

The next item of business is consideration of Parliamentary Bureau motion S5M-22805, on approval of a Scottish statutory instrument.

Motion moved,

That the Parliament agrees that the Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 [draft] be approved.—[Graeme Dey]

I believe that Andy Wightman wishes to speak against the motion.

17:41  

For the avoidance of doubt, I am speaking on the rent arrears pre-action protocol SSI, but we will be voting for that SSI. We will oppose the next SSI, which is on international organisations’ immunities and privileges, but not speaking to it.

This SSI introduces a pre-action protocol for rent arrears eviction cases that come before the housing tribunal during the period that is covered by the coronavirus emergency legislation. The report from the Local Government and Communities Committee to Parliament recommending approval of the SSI states that, during evidence on 4 September 2020, the minister, Kevin Stewart, confirmed that

“representatives of private rented sector tenants had been consulted on the regulations”.

However, as I understand matters, no representatives of private sector tenants have been consulted on the instrument.

The SSI will be of some utility, but that is undermined by the fact that, although representatives of landlords have had their say on the drafting of it, no representatives of Scotland’s private renters have had that opportunity. Parliament should be aware of that important qualification.

17:42  

I find it a bit bizarre that Mr Wightman has chosen to speak against an SSI that he will be supporting, and not to speak on an SSI that he will be opposing, but there you go.

The past few months have been extremely challenging across society. The coronavirus pandemic has had significant implications for everyone, including the many people in Scotland who live in private rented accommodation. In responding to the pandemic, we have been clear that taking eviction action against a tenant because they have suffered financial hardship due to coronavirus should be a last resort. Instead, we want landlords to be flexible with their tenants, by signposting them to the range of financial support that is available and working with them to manage any arrears that occur.

We took swift action in March to introduce legislation to protect renters from eviction until the end of September. We have made most grounds for evictions discretionary, so that tribunals can take all individual circumstances into account in their deliberations. We have already said that those protections will be extended to the end of March 2021, subject to parliamentary agreement.

Beyond that, we want to ensure that, where tenants find themselves in difficulties, private landlords must work with them to help them manage any arrears before they seek eviction. The regulations under consideration do that by clearly setting out the steps that landlords must take to help tenants.

We have introduced those requirements through regulations to establish them on a statutory basis, making sure that the steps that private landlords must take are absolutely clear and in line with the social sector, where appropriate. By temporarily making most grounds for eviction discretionary, we are ensuring that the tribunals can consider the impact of the pandemic on individuals before an eviction order is granted. Adding compliance with the pre-action requirements as part of the discretionary consideration strengthens that power further and is the best way of making sure that the independent judicial process takes into account the actions of the landlord.

The regulations have been drafted with input from stakeholders, representing the interests of tenants, landlords, and local authorities through the PRS resilience group that we set up to help us to respond to the pandemic. They agreed that the introduction of the regulations will help to sustain tenancies and create a level playing field for tenants. The benefits go beyond the response to the pandemic and we will be looking at what is needed to make the pre-action requirements permanent. We will take every opportunity to learn from the implementation of the temporary regulations and will continue to work with stakeholders across the sector to identify any lessons learned.

In summary, the regulations represent strength and protection for tenants in the private rented sector who are facing difficulty with rent payments as a result of the pandemic. They are proportionate, and they strike a careful balance between protecting tenants and still allowing landlords to deal with issues of non-payment of rent. I ask Parliament to support the introduction of the regulations.

The question on the motion will be put at decision time.

The next item is consideration of Parliamentary Bureau motion S5M-22800, on approval of an SSI.

Motion moved,

That the Parliament agrees that the Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020 (SSI 2020/262) be approved.—[Graeme Dey.]

Mike Rumbles wishes to speak against the motion.

17:47  

I am conscious that we are often asked to vote through secondary legislation on the nod and I am sure that, if I had not objected to this particular piece of secondary legislation, that would also have happened this time. Emergency legislation is too important to operate in this way. In my view, we cannot do our duty as MSPs if we simply leave such important scrutiny of secondary legislation to the COVID-19 Committee alone, no matter how well it fulfils its role.

When Mike Russell gave evidence to the COVID-19 Committee on 16 September, he said:

“The regulations are not perfect, but they are necessary and proportionate, which is why they need to be supported.”—[Official Report, COVID-19 Committee, 16 September 2020; c 30.]

I make it clear that I fully support the purpose of these regulations, which is to

“make provision for a local authority to give directions relating to specified premises, events and public outdoor places in its area”

for the purpose of preventing, protecting against, controlling and providing a public health response to the incidence or spread of infection by coronavirus in the local authority’s area. Those directions can include closing down premises and/or restricting access to them and must be proportionate to addressing the public health problem.

I have no problem with any of that, because it is putting control of the measures into the hands of our local authorities, which are obviously in the best place to decide on these issues. However, regulation 4 also states that the Scottish ministers have the power to overrule those decisions of local authorities. In the policy note, the Scottish Government makes it clear that the regulations apply only to “specified premises” and do not affect other regulations giving emergency powers to the Scottish Government to implement wide restrictions. Why, therefore, is it that the Scottish Government still seems to think that it knows best over local authorities when it comes to specific premises in a local authority area?

I return to what Mike Russell said in evidence to the COVID-19 Committee on the regulations—they are not perfect. They are not perfect because the Scottish Government still wishes to be able to direct local authorities to take action on specific premises—I see that the cabinet secretary is nodding his head, but it is true. The Scottish Government wishes to have the ability to micro-manage the issue, which is another example of how its management of the health emergency is so wrong. Mr Russell is laughing—it is not good enough to laugh.

I do not mind so much if I am the only MSP to vote against that particular regulation. I will vote against any regulation that is as wrong as that one is. When it comes to review the regulations—as is required before 9 October—I urge the Scottish Government to think again and to amend them, to reflect the trust that we should have in our local authorities to do the right thing about restrictions on specific premises in their own areas.

17:50  

These regulations are a key part of the effort to control and suppress coronavirus, to protect health and to save lives in Scotland. They give local authorities the powers to make directions in respect of premises, events and public outdoor places. Directions can close premises or prohibit events from taking place, or can impose public health conditions on them.

Local authorities can give directions only when strict conditions are met. A direction needs to be necessary for the purpose of prevention of, protection against, control of, or provision of a public health response to the incidence or spread of infection by coronavirus, needs to achieve those through proportionate means, and needs to be reviewed at least every seven days.

Directions that are made about premises or public outdoor places can last only for a maximum of 21 days, and local authorities must take all reasonable steps to give advance notice of a direction to those it affects. The Scottish ministers must be notified of every direction that is given and can revoke it if they do not consider that the conditions have been met. Those whom the directions affect can appeal them to the sheriff. We consider that the scheme is rigorous, balanced and fair, with a range of safeguards in it to protect those who are affected.

As well as the safeguards in the regulations, the Scottish ministers have now issued statutory guidance about how those powers should be used. The regulations require local authorities to have regard to that guidance, which makes absolutely clear that the direction should be issued only as a last resort, and that reasonable effort should be made first to resolve any issues by agreement between the local authority and business owner or event organiser.

The guidance requires the use of the four Es model—engage, explain, encourage and, only then, enforce—which ministers produced in conjunction with local authorities. We are committed to keeping the guidance updated and to learning from how the powers are, and are not, used on the ground.

The regulations are necessary, and the powers in them can be used only when necessary. The Scottish ministers who work with local authorities have given them those powers and we have also allocated further funding of up to £2.9 million over the next two financial years to support that process and allow local authorities to step up inspection and enforcement. We are working with the Convention of Scottish Local Authorities on the allocation of that funding to local authorities, which want and need those powers to protect those who live in their areas against the greatest threat to public health in any of our lifetimes. Parliament should support those new powers and those regulations.

The question on the motion will be taken at decision time. The next item of business is consideration of Parliamentary Bureau motion S5M-22803, on the approval of an SSI.

Motion moved,

That the Parliament agrees that the International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2020 [draft] be approved.—[Graeme Dey]

The next item is consideration of five Parliamentary Bureau motions. I call Graeme Dey to move motions S5M-22798, S5M-22799, S5M-22801, S5M-22802 and S5M-22804 on approval of SSIs.

Motions moved,

That the Parliament agrees that the Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2020 [draft] be approved.

That the Parliament agrees that the Equality Act 2010 (Specification of Public Authorities) (Scotland) Order 2020 [draft] be approved.

That the Parliament agrees that the Health Protection (Coronavirus) (International Travel) (Scotland) Amendment (No. 11) Regulations 2020 (SSI 2020/263) be approved.

That the Parliament agrees that the Health Protection (Coronavirus) (International Travel) (Scotland) Amendment (No. 12) Regulations 2020 (SSI 2020/271) be approved.

That the Parliament agrees that the Management of Offenders (Scotland) Act 2019 (Consequential Amendments) Regulations 2020 [draft] be approved.—[Graeme Dey]