Meeting of the Parliament

Meeting date: Tuesday, November 24, 2020

Official Report 1010KB pdf

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Period Products (Free Provision) (Scotland) Bill: Stage 3

The next item is stage 3 proceedings on the Period Products (Free Provision) (Scotland) Bill. In dealing with the amendments, members should have with them the marshalled list and the groupings of amendments, as well as the bill as amended at stage 2. I remind members that the division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for each division will be up to one minute.

Section 5—Education providers to ensure period products obtainable free of charge by pupils and students

Group 1 is on “Duties on education providers—buildings where provision of period products mandatory, and consultation”. Amendment 1, in the name of Monica Lennon, is grouped with amendments 2 to 6.

I am pleased to speak to the first of my stage 3 amendments.

Amendment 1 and the other amendments in the group that are in my name relate to section 5, which deals with period product provision in education settings, and specifically to the number of locations on student campuses where products should be available. At stage 2, the cabinet secretary initially proposed a statutory minimum of only one location on each student campus, but, after further discussions, I lodged an amendment that provided for a stronger minimum requirement of one location in each building that is normally used by pupils or students. I was pleased that that amendment was agreed to at stage 2 and is now section 5(3) of the amended bill.

At stage 2, concerns were raised that the amendment could make it necessary to provide period products in inappropriate buildings, such as farm buildings in an agricultural college or buildings in rural areas that are not frequently used. I acknowledged those concerns and gave a commitment to lodge amendments at stage 3 to try to improve the drafting.

Amendments 1 to 3 are minor drafting amendments that adjust section 5(3) to make it clear that the requirement to provide period products in a building that is normally used by pupils or students applies even if that is the institution’s only building.

The main amendment in the group is amendment 4, which makes it clear that products do not have to be provided in a building, even if it is normally used by pupils or students, if that building is not suitable. For example, that might be because there are no toilets or changing facilities in the building. Amendment 4 also makes it clear that education providers must consult on the question of what makes a building suitable or unsuitable before a decision is taken, so that the views of students are paramount.

Amendments 5 and 6, which are in the name of the cabinet secretary and which I support, are consequential amendments to section 6D as a result of the consultation requirement in amendment 4.

I move amendment 1.

I would first like to say that it is testament to good and positive co-operation and the level of agreement that we have reached on the bill that there are so few amendments to consider today.

The amendments in the first group relate to section 5. Stage 3 gives us the chance to further fine tune provisions following amendment at stage 2. In order to create the best possible legislation, further improvement to drafting is sometimes required, even when the original intent is agreed. That is why the Scottish Government agrees with and supports amendments 1 to 3, in the name of Monica Lennon, which make the provision in section 5(3) clearer and simpler. As Monica Lennon said, the wording of section 5(3) was debated during stage 2, as concerns had been raised by stakeholders that, as drafted, the requirement was too restrictive. During stage 2, Ms Lennon and I committed to considering that further. Our teams have worked together to better understand stakeholders’ concerns, and I believe that amendment 4 addresses them proportionately.

The Scottish Government strongly agrees that any exception to section 5(3) must be acceptable to pupils and students rather than education providers being able to unilaterally decide that the building is not suitable for the provision of free products. I am pleased that amendment 4 ensures that that is the case, and so we support it.

Ensuring that local voices are heard during the development of local arrangements to make period products obtainable free of charge is a cornerstone of the bill. The essential element of the consultation that is required by section 6D is consultation on where period products should be made obtainable free of charge. The changes to section 5 that are brought about by the addition of section 5(3) at stage 2 and the qualification of that by amendment 4 mean that a consequential amendment to section 6D is required. Taken together, amendments 5 and 6 in my name will do that.

Amendment 5 is a technical amendment that amends section 6D(3)(b), which will now refer to the new subsection 6D(3A) that will be inserted by amendment 6. The new subsection contains all the provisions relating to consultation about which premises and where in those premises period products should be obtainable. Amendment 6 sets out revised consultation requirements in relation to buildings that are normally used by pupils or students, mandating that consultation covers the locations within those buildings where free period products should be provided.

Consultation under new section 6D(3A) is also required before building can be deemed to be unsuitable, as referred to in amendment 4. It also requires education providers to consult on whether free period products should be provided in any additional locations in the premises.

Finally, amendment 6 sets out separately in sections 6D(3A)(a) and 6D(3A)(c) the consultation requirements for local authorities and specified public service bodies with regard to the premises from which free period products should be obtainable. They are largely unchanged from the requirements that were originally set out.

Taken together, amendments 5 and 6 bring the consultation requirements for education providers into line with the amendments to the main duties under section 5, and I urge members to support them.

No other member has indicated that they wish to speak on the group. I encourage all members who are joining us online to make sure that they type an R into the chat box if they wish to contribute on a group.

I invite Monica Lennon to wind up the group if she has anything further to say.

I am grateful to the cabinet secretary and her team for working closely with me and my team, and I am happy that we have made progress with the amendments.

Amendment 1 agreed to.

Amendments 2 to 4 moved—[Monica Lennon]—and agreed to.

Section 6A—Arrangements under sections 1, 5 and 6: particular requirements

Group 2 is on additional requirements as to arrangements under sections 1, 5 and 6. Amendment 8, in the name of Sarah Boyack, is grouped with amendment 9. I call Sarah Boyack to move amendment 8 and speak to the other amendments in the group.

Thank you, Presiding Officer, and I apologise that I was not in for the earlier amendments.

Amendment 8 is all about protecting privacy. In a letter to the Local Government and Communities Committee, the cabinet secretary argued that amendment 8 would be detrimental to the aim of reducing stigma around periods. That is in no way my intention. With amendment 8, we are trying to make sure that there is “reasonable privacy”, which are the words that I put in my amendment. To me, that ensures that a person who needs products can get some privately if that is how they would prefer to get them. The lack of stigma does not need to override a personal preference for privacy.

From what the cabinet secretary has said, my understanding is that she believes that that would be covered under the dignity principle that is already in the bill, so I am keen for her to put on the record this afternoon how she thinks that would be ensured so that, when people are accessing period products, they do not need to be concerned about it.

The intention of amendment 9 is to ensure that at no point will receiving products free of charge be linked to receiving other benefits, both because that undermines the principle of the bill and because doing so would put additional burdens on people by requiring them to prove that they are entitled.

In her letter, the cabinet secretary explained that the wording of the amendment may hamper existing schemes that are linked to other services but not contingent on them, such as health visitor visits. I get that, but I want reassurance that people who need the products will not need to be concerned about it—that they will not have to prove their need or miss out on getting the products. I hope that the cabinet secretary will come back to me on that.

These are key issues and I am keen that the guidance for the public authorities that will implement the legislation encourages them to consult women who need the products, whether they are students—as previously discussed for the earlier amendments—or women more generally. It is critical that getting that feedback is built into the system and encouraged in the guidance, which we will be able to change over the years in the light of experience.

With those comments I will move amendment 8. However, I am keen to hear what the cabinet secretary says and I may not press my amendment, if she gives me the right answers—no pressure!

I move amendment 8.

I understand the thinking behind both of Sarah Boyack’s amendments, but we cannot support them. I will set out why and hope that it is the right answer for Sarah Boyack.

In relation to amendment 8, the requirement that was introduced to the bill at section 6A(a)(ii) for the arrangements that are put in place by responsible bodies to respect dignity already introduces protection in relation to privacy. That requirement will ensure that, if privacy is essential to ensuring dignity in certain circumstances, the need for it will have to be met. Therefore, a separate requirement for privacy is not necessary.

In response to the points that Sarah Boyack raised, we will make sure that we cover some of the issues around privacy in guidance and make it part and parcel of our approach in terms of hearing people’s voices to shape and hone the approach that we take going forward. I hope that that gives some reassurance. Although we will not support the amendment, the points that Sarah Boyack raised will be critical to the practical implementation of the provisions.

Including privacy in the bill also risks stifling potential delivery models that may not meet a requirement for privacy. For example, having a stand in a student union or a stall in a community centre may not be considered to meet the requirement for “reasonable privacy” but would, nonetheless, probably be considered acceptable by most people. It is the unintended consequence of hindering the development of the policy that we are particularly concerned about, but we hope that we can give some reassurance in terms of the guidance that I mentioned.

More fundamentally, I believe that a requirement for privacy may inadvertently perpetuate the belief that periods and period products are something to be embarrassed by or ashamed of. My hope is that the work that we are doing to reduce the stigma means that accessing free period products becomes normality, so privacy would be unnecessary in every situation. We understand that that may be some time off, so I hope that the reassurance that we have given to Sarah Boyack is understood.

Turning to amendment 9, I understand that Sarah Boyack is seeking to ensure that the universality that underpins the bill is protected. We agree with that intent. Protecting universality was at the heart of the Scottish Government approach to amending the bill. However, we do not agree with this specific amendment.

Sections 1, 5 and 6 all clearly state that the duties on responsible bodies are to make period products obtainable by anyone who needs them, with “need” defined in section 9A as the need

“arising from menstruation by the person”.

Therefore, the bill already makes it clear that anyone who menstruates must be able to obtain products. Trying to impose additional qualifying requirements, such as being in receipt of a benefit or accessing a service, would be in breach of those duties.

Amendment 9 could, unfortunately, have unintended consequences by stating that in no way can access to free period products be linked to entitlement for a service, goods or benefits. There is a real risk that local authorities could be prevented from making period products obtainable via services that are limited by eligibility—for example, services for homeless people—and we believe that that would be a backward step. I am sure that that is not what Sarah Boyack wants to see, regardless of how well intentioned the amendment is.

We therefore do not support amendments 8 and 9, but I hope that Sarah Boyack will accept our reassurance that we want to ensure that the universality principle is protected and that voices shape and hone the approach that we take regarding the dignity principle, which is so fundamental to the successful implementation of the bill.

17:00  

I am grateful to Sarah Boyack for her amendments, and to Engender, which has worked with her to lodge them.

Amendment 8 provides that all responsible bodies should ensure that products are made obtainable not only “reasonably easily”, as the bill now states, but “with reasonable privacy”. Section 4 as introduced required products to be made available

“reasonably easily and with reasonable privacy”,

so I understand why Sarah Boyack has lodged her amendment. However, the bill has already been amended to ensure that products are obtainable

“in a way that respects the dignity of persons obtaining them”.

The reference to dignity was proposed by the cabinet secretary, on the basis that it not only covered the issue of privacy but applied more widely. I supported that approach at stage 2. I am confident that the aspirations behind amendment 8 can be achieved in the statutory guidance.

Amendment 9 partly replicates an amendment that Sarah Boyack lodged at stage 2. I fully support the intent behind the amendment but, having consulted the Convention of Scottish Local Authorities, I understand that using the language of “linked ... to” rather than “contingent on”, for example, may create some unnecessary barriers, which I do not think was intended in drafting the amendment. As the bill already allows any person to obtain products free of charge if they need them, there is no longer any reason to ask people who need products to go through any sort of prior process to establish their eligibility.

With these amendments, I was attempting to test the wording in the bill. That is important work for us to do as legislators who are given this responsibility.

I wanted to pick up the issues that Engender had raised with me, as Monica Lennon highlighted. I also wanted to be sure that different approaches in different parts of the country, for example, would still be possible and that the guidance would enable different types of delivery while at all times ensuring dignity. I wanted to test the bill on the issue of privacy, and I am reassured by the cabinet secretary’s comments this afternoon. With her assurance on the record that the issues that I have raised will be dealt with in guidance, I am minded not to press amendment 8.

I also welcome the comments from Monica Lennon. The bill is hugely aspirational, and it is important that people feel that it will deliver for them. That is what I was trying to test with amendment 9. People do not have to prove that they need these products—they merely need to turn up, and the organisations mandated by the bill will have those in place for them.

We would want to encourage feedback from, and consultation of, those who use the facilities. Like Monica Lennon, I welcome the fact that local authorities have been trying different ways to ensure that products are available. That is great, and they can learn from each other.

With those reassurances on the record, I seek to withdraw amendment 8, and I will not move amendment 9.

Amendment 8, by agreement, withdrawn.

Amendment 9 not moved.

Section 6B—Guidance

Group 3 is on guidance on delivery models. Amendment 10, in the name of Alexander Stewart, is the only amendment in the group.

I acknowledge the work that Monica Lennon has done on the bill and congratulate her on the achievements that she has secured so far. I look forward to the bill progressing further.

My amendment at stage 2 looked at the role of guidance, and my amendment at stage 3 seeks to require the first guidance that is issued to clarify the delivery model that local authorities could use for period products under the duties in section 1(3)(b).

I am aware that, once again, the cabinet secretary is not minded, and does not intend, to support my amendment, as she feels that it could and would be difficult to predict the uptake and costs associated with the option of postage. However, I acknowledge her support and her commitment to work with COSLA and councils on the implementation costs of the bill, and I note the reassurances that have been sought and discussed during the process. I also welcome the cabinet secretary’s commitment to ensuring that the guidance is as helpful as possible for all the responsible bodies involved in the process.

I move amendment 10.

Amendment 10 is very similar to the amendment that Mr Stewart lodged but did not move at stage 2. It seeks to mandate that the guidance that will be issued to local authorities under section 6B must specifically

“include guidance on delivery models that could be used by local authorities in relation to their functions under section 1(3)(b)”.

That permissive paragraph (b) was included in section 1(3) to cover the eventuality that local authorities choose to include postal delivery as part of their arrangements as, otherwise, authorities would be legally obliged to bear the costs of packaging and delivery of products in all cases. Following consultation, local authorities will have the flexibility to decide to include an option for postal delivery of products among their arrangements to fulfil their functions.

Section 1(3)(b) allows local authorities in law—if they choose to include this option in their arrangements—to charge for the packaging and delivery of products. However, if postal delivery is the only way in which an individual might be able to access the free products through the arrangements that have been put in place, posting and packaging should be free. In both those instances, the products themselves must still be free of charge.

The effect of amendment 10 would be to mandate Scottish ministers to issue guidance in a manner that is disproportionate in relation to the existing guidance requirements, which cover all duties under section 1.

Although I sincerely appreciate Alexander Stewart’s amendments and his interest in the bill, we do not support amendment 10. However, we can give him reassurance that we will continue to work with COSLA and local authorities on the issues that he has raised today.

I am grateful to Alexander Stewart for his support and his interest in the bill, and for allowing the issues covered by amendment 10 to be debated, but I am of the view that those issues can be addressed in the statutory guidance, rather than being required to appear in the bill.

Amendment 10 replicates the amendment lodged by Alexander Stewart at stage 2, whereby the guidance to local authorities would include specific guidance on the delivery of period products. At stage 2, I did not support his amendment, and I continue to be of the view that the issue should be adequately covered in the guidance that will be issued to local authorities. Indeed, it will be for local authorities to decide where postal or other types of delivery are appropriate and included in their arrangements.

On that basis, I ask Alexander Stewart not to press amendment 10.

I acknowledge the responses from the cabinet secretary and from Monica Lennon. It was my intention to clarify the situation, and I have been assured that the matter will be looked into at council level and that COSLA will be involved in the process. That gives me the reassurance that I need in order to withdraw my amendment.

Amendment 10, by agreement, withdrawn.

Section 6D—Consultation

Amendments 5 and 6 moved—[Aileen Campbell]—and agreed to.

After section 7

Group 4 concerns reports on exercise of functions. Amendment 11, in the name of Annie Wells, is the only amendment in the group.

I am extremely supportive of the aims of this landmark bill. Having said that, I have sought reassurances since the beginning of the process that the programme will be adequately funded, fully costed and supported by a robust reporting mechanism to ensure that the bill fulfils its objectives. That is important to ensure the bill’s success, which is something that all parties across the chamber want to see. I believe that it would also be welcomed by many stakeholders who have been involved in the creation of the bill.

In collaboration with stakeholders, I lodged amendments at stages 2 and 3 on the issue. Local authorities and other providers must have confidence that costings have been fully considered. That is necessary, as they require assurances that they can fulfil their duties to support individuals who need access to period products.

I move amendment 11.

Amendment 11 seeks to place a duty on responsible bodies to publish a report on the total cost of meeting their duties under sections 1, 5, 6 and 7 in the first three years following commencement of those duties.

Although we absolutely agree that financial reporting is important, we do not consider that amendment 11 is necessary. That is because the Government has already reached an agreement with COSLA that local authorities will provide, for a period of three years following commencement, data on the costs arising from implementation of the legislation to ensure that they can be appropriately resourced based on the evidence as far as possible. There will also be a review 10 years after implementation. We will seek to reach a similar agreement with colleges and universities. We would expect the data to go into an agreed level of detail on the costs—for example, it should be split into how much was spent on products and how much was spent on administration and delivery of the duties.

There is a risk that, if the amendment were agreed to, local authorities will comply only with the minimum of what is legally asked, which would not allow the Government to fully assess the suitability or otherwise of the funding that they provide and the allocation method for that. More important, it would not enable future improvement of the policy.

Amendment 11 risks undermining our agreement with COSLA, which is practical and proportionate. Therefore, we do not support the amendment.

I am grateful to Annie Wells for her contribution and for her explanation behind amendment 11. Although I am sympathetic with the intention behind it, I am satisfied that the arrangement reached with COSLA to publish data will be more satisfactory than what is proposed in the amendment.

The key point for COSLA is that there must be transparent funding and sufficient flexibility to allow the great work that is already happening in many local authorities to continue and to allow the opportunity for good practice to be embedded across the country.

I am content with the commitments given by COSLA and the Scottish ministers on funding and on reporting costs. Like Annie Wells, I want the legislation to be successful in the long term and for the policy to be sustainable. I welcome her scrutiny and her support, but I am not in favour of amendment 11.

As I said, I lodged a similar amendment at stage 2, and I worked with COSLA to try to ensure that we could get the right wording to allow the amendment to be supported. However, I am absolutely content with the cabinet secretary and Monica Lennon’s remarks that what I am proposing will be done through work with COSLA. Therefore, I will not press my amendment.

Amendment 11, by agreement, withdrawn.

Section 11—Commencement

Group 5 is on commencement. Amendment 7, in the name of the cabinet secretary, is the only amendment in the group.

Amendment 7 is a minor amendment to correct an inconsistency arising from the insertion of section 9A by amendment at stage 2.

As drafted, section 11 provides that section 9A, on “Key definitions”, and section 10, on “Interpretation”, will come into force on different days. It will be preferable for all sections that contain definitions to come into force at the same time. Amendment 7 corrects that inconsistency and will ensure that section 9A will come into force along with section 10 on the day after the bill receives royal assent.

I move amendment 7.

Does Ms Lennon want to add anything?

I have nothing to add on that technical amendment.

Amendment 7 agreed to.

That ends consideration of the amendments.

As members may be aware, at this point in proceedings, I am required under standing orders to decide whether, in my view, any provision of the bill relates to a protected subject matter; that is, whether it would modify the electoral system or franchise for Scottish parliamentary elections. In my view, no provision of the Period Products (Free Provision) (Scotland) Bill relates to a protected subject matter; therefore, it does not require a supermajority to be passed at stage 3.