Coronavirus Acts Report

– in the Scottish Parliament on 11th February 2021.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is a statement by Michael Russell on a coronavirus legislation update. The cabinet secretary will take questions at the end of his statement.

Photo of Michael Russell Michael Russell Scottish National Party

The “Coronavirus Acts: fifth report to Scottish Parliament” covers provisions in both the Scottish Covid acts—the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No 2) Act 2020—as well as the United Kingdom Coronavirus Act 2020. As required in the legislation, the report covers the reporting period for the two months up to the end of January.

The measures in the UK act and the two Scottish acts continue to be an important part of our response to the significant public health risk and economic challenges posed by the pandemic.

It is getting close to a year since we introduced the first Scottish emergency Covid act and created the structure for reporting to the Parliament on how its provisions—and those of the second Scottish Covid act—would be used. I am sure that I speak for all of us when I say that it has been a much longer journey than any of us would have hoped when we debated that legislation in the chamber.

The Scottish Government takes very seriously the need to account for how these exceptional provisions have been and are being used. In that regard, and mindful of the detail that is included in each report, I thought that it would be helpful if I took a few moments to take a wider view and reflect on the ways in which the Covid acts continue to enable us to respond to the pandemic.

The acts have helped us to ensure that local authorities have been able to support children and young people who live in foster or kinship care, while prioritising their resources to help the most vulnerable children in Scotland. They have created flexibility in how child protection orders operate, which has had a positive impact on the capacity of social workers, panel members and education staff, and has assisted children and families in crisis.

The acts have supported the operation of the criminal justice system through steps such as the creation of remote jury centres, digital sharing of case information and the introduction of virtual trials for summary criminal cases. They have enabled parole hearings to continue and avoid postponements, ensuring that, for the period from 23 March 2020 to 1 January 2021, more than 99 per cent of scheduled tribunals and oral hearings were heard successfully.

The acts have added an additional amount to the carers allowance supplement, meaning that 83,000 carers received a special one-off payment to help them deal with the unprecedented circumstances of the virus and lockdown.

The acts established a social care staff support fund, which helps to prevent social care staff from experiencing financial hardship when, because of the virus, they face restricted ability to work and loss of income.

The acts have extended the existing moratorium on diligence and bankruptcy from six weeks to six months, and they have protected from eviction those who, as a result of Covid, have fallen into rent arrears.

Those are just a few examples of provisions in the Covid acts that have helped our fellow citizens.

When the Parliament agreed to pass the two acts, the Government made it clear that it would retain and use the powers in them only for as long as they were necessary. Consequently, when it has been possible to do so, we have suspended or expired provisions either because they have fulfilled their purpose or because we have listened to compelling views that support change.

For example, we have expired, without commencing, provisions relating to adults with incapacity that removed the requirement on a local authority to consult the adult and interested parties in certain defined and exceptional circumstances. From 30 September, we have suspended stop-the-clock provisions for guardianship orders and certificates for medical treatment of adults lacking capacity. We have responded to changing circumstances by suspending the muirburn provision to allow the muirburn season to commence from October 2020. We have also expired the provision extending the maximum timescales for which children could be kept in secure accommodation without the authority of a children’s hearing or a sheriff when it became clear that it had been used hardly at all.

As required by the Parliament, the report not only covers the provisions of the Covid acts, but, as required under the second Covid act, reports on a total of 79 Scottish statutory instruments whose main purpose relates to coronavirus. Those include the vital international travel regulations that were made under the Public Health etc (Scotland) Act 2008 and the regulations that relax the rules on breaks in caring, so that they do not affect entitlement to carers allowance.

Today’s fifth report also explains again that some provisions of the acts have not yet been commenced as there has not been a need to do so, or have commenced but have not been required to be used in practice. However, in some cases, we remain of the view that those provisions could still be an important tool in supporting the lives and health of people living in Scotland, the economy, the public sector and the third sector. In other cases, the judgment is that the provisions continue to be necessary because they might be required to respond to possible future circumstances that result from Covid.

We know only too well that the importance of the legislation is, alas, now more apparent than ever. Since our previous report was published, the new, more transmissible variant of the virus has become the dominant strain in Scotland. From 26 December, the Government applied level 4 measures to all of the mainland, and it tightened those measures on 5 January. Although at that point the island areas remained in level 3, from 20 January level 4 restrictions were applied to the Isle of Barra and the Isle of Vatersay, and from 30 January, Na h-Eileanan Siar as a whole moved to level 4. No Government would wish to impose such restrictions on citizens without a clear and obvious need to do so. It is essential for the safety and wellbeing of all Scotland’s people that we are never slow to take decisive action when necessary.

From the outset, in shaping our response to the Covid pandemic, the Government has placed particular emphasis on the needs of the most vulnerable individuals and communities. Therefore, in the development of today’s report, we have continued to reflect on the views of stakeholders whose focus is on human rights, children’s rights and equality. We also recognise the views of the Parliament’s Equalities and Human Rights Committee, which is inquiring into the impact of the pandemic. We are grateful for the work that is being undertaken by the Parliament, stakeholders and others in scrutinising the Scottish Government’s actions on those matters.

The requirement to consider information on domestic abuse also continues to be an essential part of the reporting process. We know that domestic abuse is an underreported crime, and data on reported incidents does not provide the full picture of the impact of the pandemic. The Scottish Government remains committed to ensuring a regular exchange of information about domestic abuse. We are working with our partners, including organisations that focus on violence against women and girls, to further inform our understanding.

As the Parliament will know, the provisions in part 1 of each of the two Scottish Covid acts are time limited. Those provisions have been extended once already, from 30 September 2020 to 31 March 2021. Regrettably, we must shortly consider whether they need to be extended beyond that point for the final period of six months that is permitted by the legislation. I acknowledge the work that is being done by the Parliament’s COVID-19 Committee to seek views on such an extension. The Scottish Government is considering very carefully the provisions in the acts with regard to such a renewal. Where it is desirable to expire or suspend further specific provisions, we will seek to do so, but it seems unavoidable that many of the provisions of the acts will be required after 31 March, to enable us to deal with the on-going effects of the pandemic. The decision on whether to extend part 1 of each act is, of course, for the Parliament to make. We look forward to hearing the outcome of the COVID-19 Committee’s consideration of those matters. Once all the processes are complete, the Government will bring forward the necessary regulations for the Parliament’s consideration, along with a statement of reasons.

Although the majority of the provisions of the United Kingdom Coronavirus Act 2020 that apply to Scotland are not due to expire until March 2022, I believe that it would be appropriate to consider the on-going necessity of those provisions alongside consideration of the Scottish acts. Therefore, the Scottish Government is also considering whether any of those provisions should be suspended or expired at 31 March 2021.

Covid-19 is no respecter of national boundaries. We are continuing to engage and work with the UK Government and the other devolved Administrations on the implementation and operation of the UK act. In addition, all Governments are working together to help ensure that their respective reporting arrangements operate successfully and appropriately alongside each other.

The Government also remains committed to ensuring that the Scottish Parliament has continued oversight of the provisions and can hold Scottish ministers to account for their use. Jason Leitch and I have been almost as much a fixture at meetings of the COVID-19 Committee as its members, and such scrutiny continues to be central to our work.

As is required by section 15 of the Coronavirus (Scotland) Act 2020 and section 12 of the Coronavirus (Scotland) (No 2) Act 2020, Scottish ministers have conducted a review of the provisions in part 1 of each of those acts and have prepared the report. We are satisfied that the status of the provisions that are set out in part 1 of each of the acts remain appropriate as at 31 January.

We have also undertaken a review of the SSIs to which section 14 of the Coronavirus (Scotland) (No 2) Act 2020 applies. Scottish ministers are also satisfied that the status of those SSIs at the end of the reporting period is appropriate.

A review has also been conducted of the provisions of the UK act to which the Scottish Parliament gave consent, and we are satisfied that the status of those provisions is also appropriate.

All the efforts made by the people of Scotland to combat and cope with the effects of Covid represent a truly extraordinary effort. I am sure that members will acknowledge that, despite our differences in other areas, we are united in our resolve to work together for the good of the people we represent as Scotland works through, and past, this unprecedented crisis. The provisions that we report on today are part of Scotland’s on-going response. The Government will continue to do our duty to report to and be held accountable to the Parliament for the use of those powers.

We welcome the opportunity of engagement with the Parliament as it considers the fifth report.

The Presiding Officer:

The cabinet secretary will take questions for around 20 minutes. I call Donald Cameron to be followed by Anas Sarwar.

Photo of Donald Cameron Donald Cameron Conservative

I thank the cabinet secretary for prior sight of his statement. On behalf of the Scottish Conservatives, I welcome the fifth report on the coronavirus acts, which has been published today. I also emphasise the importance of the Government reporting regularly under the legislation, given the many important issues that arise.

As convener of the COVID-19 Committee, I acknowledge the cabinet secretary’s regular appearances at that committee. They are appreciated.

Scrutiny is critical, so I want to ask specifically about the potential extension of the emergency legislation beyond 31 March. If the legislation is extended, that period will, of course, cover a time at which the Parliament is in recess and many MSPs will be campaigning in an election, assuming that the election happens on 6 May. After 6 May, as we all know, MSPs will need to be sworn in, a new Government will require to form, a First Minister to be appointed and parliamentary committees to be constituted. All that takes time. There will thus be a significant period of time during which parliamentary scrutiny of emergency legislation will be difficult, if not impossible. Does the cabinet secretary share my significant anxiety about that? What measures can be taken to remedy the problem?

Photo of Michael Russell Michael Russell Scottish National Party

The committee convener raises an important point and I would very much welcome the input of the committee and the Parliament to jointly decide how we might resolve those issues. I am absolutely certain that, during that period, there will require to be scrutiny of regulations as they change, because I suspect that they will change. There will also be an obligation for further reporting on the emergency legislation at the end of March, and that report would normally require to be laid before the Parliament during the first fortnight of April.

Ultimately, the Presiding Officer has the power to recall the Parliament, should he deem it to be necessary, to discuss either a report or new regulations. If there are arrangements that the Parliament can put in place that would require the continued presence of ministers, for example, they should be considered. I stress that we are very open to suggestions and proposals from the Parliament, and we will do our best to ensure that we can meet those. I agree with Donald Cameron that continued scrutiny of the legislation and regulations as they evolve is of vital importance.

Photo of Anas Sarwar Anas Sarwar Labour

I thank the cabinet secretary for advance sight of his statement. Like me, he will not like the restrictions but we both understand why we need them, and I support the Government when it gets things right.

The cabinet secretary said that the Government has never been slow to react and respond so, although I welcome the action that has been taken on airports, I think that waiting for 11 months was a mistake and I hope that we can now rectify that urgently.

I also pay tribute to the public, who have been going above and beyond to follow the restrictions, but that is clearly only one part of how we can suppress the virus. There are still challenges in areas for which the Government is responsible, such as our testing and tracing system, of which we are still not using full capacity. Can the cabinet secretary reassure us that, although we are focusing on eliminating the virus through the roll-out of the vaccine, we will not forget about virus suppression and that we will use this period of lockdown to get the parts of the process for which the Government is responsible, such as our testing and tracing system, fit for purpose?

Photo of Michael Russell Michael Russell Scottish National Party

I maintain that those processes are not only fit for purpose but producing the results that they are meant to produce. I am certain that the on-going work in vaccination, in test and trace and at the airports and borders will continue. It is all of vital importance. I am grateful for Mr Sarwar’s acknowledgement that we need to work together on those things and to support the people of Scotland, who have put up with a great deal and continue to do so in what are the hardest of times. We will go on doing the things that we need to do, improving the things that need to be improved and focusing on the suppression and we hope, ultimately, the elimination of the virus using all the tools that we have.

Photo of Annabelle Ewing Annabelle Ewing Scottish National Party

With the publication of the international travel quarantine regulations imminent, will the cabinet secretary provide an update on the Scottish Government’s latest engagement with the UK Government to ensure that a comprehensive approach is taken to preventing the importation of the virus, recalling that international travel contributed to a rise in coronavirus cases in Scotland last summer?

Photo of Michael Russell Michael Russell Scottish National Party

The member raises an important issue about last summer and the importation of virus; that remains in all our minds. Today has seen another occasion on which the First Minister has made it clear at her briefing that we believe that the restrictions need to be firmer and more comprehensive than is presently proposed by the UK Government. There is an on-going dialogue, as the First Minister also indicated, and it is interesting that there has been some support for her position south of the border—I notice that Keir Starmer made that point earlier.

I hope that the dialogue will continue and that we will be able to persuade and influence the UK Government to accept that point. We acknowledge the difficulty of closing the borders even to only those countries that are listed, but we think that, regrettably—nobody is happy about it—a wider and broader definition is required that will reduce the risk of the virus being imported. I hope that we will be able to agree that. That dialogue continues.

Photo of Brian Whittle Brian Whittle Conservative

The cabinet secretary highlights the issues arising from the implementation of the coronavirus acts and it is fair to say that no part of society remains unaffected. He also talked about extending the acts from 31 March, for more than the currently permitted six months. The public are looking to the Scottish Government for a glimpse of the light at the end of the tunnel as we roll out the vaccine, and six months seems an awfully long time away. What plans are being considered for emerging from the pandemic, as the vaccine is rolled out, so that we can get back to an integrated society and a working economy?

Photo of Michael Russell Michael Russell Scottish National Party

I did not hear the last part of the question, but I think that I got the gist. Mr Whittle should understand that the legislation can be renewed only for six-month periods. That was the intention at the start of the process. It has been renewed once, it can be renewed again and then that would be it. Of course, the whole thing can be abandoned at any stage; if we no longer require it we can get rid of it.

Although we would be sticking to what the legislation anticipates by renewing it for six months, it will be up to the Parliament to decide what it does. I made no reference beyond that six months and, indeed, I shall not be a member of the Parliament after the election. That is not a prediction; it is my intention. However, I can assure the member that there would be no absolute requirement to stick to the six months if the legislation was no longer required. Indeed, we would all be very happy if it was not required.

Photo of Gil Paterson Gil Paterson Scottish National Party

The coronavirus legislation introduced important measures to enable our justice system to continue to function while taking account of the public health challenges presented by the pandemic. Will the cabinet secretary provide an update as to how those measures have helped our justice system to continue to function safely and, most importantly, effectively?

Photo of Michael Russell Michael Russell Scottish National Party

Yes; as I indicated in my statement, the creation of remote jury centres has been important, as has the digital sharing of case information, documentation and evidence, and the introduction of virtual trials for summary and criminal cases. We have also extended custody proceedings by allowing them to be heard by any sheriff court in Scotland, and by a sheriff of any sheriffdom, no matter where the alleged offence took place. We have enabled virtual appearances from custody, and there has been an increase in remote hearings for civil and criminal business. All those things have allowed the justice system to continue to operate in a way that it might not have been able to do without the coronavirus acts.

Of course, more could be done; I seem to remember that we debated other important issues during the passage of the first coronavirus act. However, those have been the crucial changes—I believe that they have been effective, and they have been assessed as such.

Photo of Pauline McNeill Pauline McNeill Labour

Will the cabinet secretary consider the next steps to take when the no-evictions policy—which I have welcomed—ends, in order to avoid a cliff edge that might mean many people falling into arrears immediately and, therefore, needing additional help?

In addition, when will the Scottish Government publish a list of those who are exempt from the £1,700 fee for quarantine? I am thinking in particular of lone children who are travelling to Scotland on family reunion visas and who certainly cannot afford that fee. Many other families will be worried, too.

Photo of Michael Russell Michael Russell Scottish National Party

My sound broke up a bit there. I think that Pauline McNeill was asking about fees for compulsory quarantine. There are arrangements; there will be a fund for people who are required to quarantine but cannot meet the cost of so doing.

It is a matter of developing the regulations and the system to ensure that there is no undue hardship in what will already be very difficult and stressful situations. I have already been approached by a constituent who has concerns about that. I think that all constituency MSPs will hear such concerns, and we will want to make sure that there is an answer that protects people who are in need and who will find the situation onerous and difficult—and, sometimes, impossible.

The Presiding Officer:

Cabinet secretary, you might not have heard Pauline McNeill begin by asking what will happen following the end of the no-evictions policy.

Photo of Michael Russell Michael Russell Scottish National Party

That question would properly be addressed to the Minister for Local Government, Housing and Planning. I make the commitment that he will respond to it.

I am dealing with the legislation that we have in place, and with how we will take it forward and renew it. The longer-term questions of policy in individual areas must lie with the portfolio ministers and with the committees of the Parliament.

Some of the innovations that the coronavirus acts have introduced have been useful when important issues arise. For example, non-physical signing of documents in certain circumstances has turned out to be, perhaps, long overdue, and is very useful indeed.

However, we made a strong commitment at the start of the process that these—[

Inaudible

.]—temporary legislation was not introduced. If permanent changes are needed—Pauline McNeill is right to raise the question of evictions in that regard; the same is true for homelessness—questions have to be addressed by the portfolio ministers, with MSPs, to ensure that we get longer-term change. I do not see why that process should be delayed or onerous. If we know which aspects of the coronavirus acts have worked, we can perhaps bring them back to the Parliament in a different form to ensure that they become permanent.

The Presiding Officer:

Thank you, cabinet secretary. I can see that you are having difficulty with your connection, at points.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

The coronavirus acts that were passed by Parliament underpin many of the regulations that govern who we can and cannot see, and the limitations of social distancing. The cabinet secretary will have heard my question to the First Minister yesterday, which was about expanding the extended-household policy to allow new parents to bubble up with other new parents or family members who are not currently covered by the policy. That would vastly improve the condition of people’s mental health. Does the cabinet secretary agree that it is time to review the regulations, and to change them to allow that to happen?

Photo of Michael Russell Michael Russell Scottish National Party

I agree that it is always necessary to examine the outcomes of regulations with regard to their intention, in order to ensure that that intention can be met. The intention behind keeping households separate is to ensure that there is no transmission of the virus.

If the intention behind the change to the rule elsewhere is to provide mental health support, I am glad to say that that support already exists in the Scottish system, in recognition of the role that early attachment plays. We recognise the difficulties that new parents will meet, particularly in developing and forming relationships, but there are measures in place to ensure that the most vulnerable people have access to support, through peer support for mental health, for example.

People will continue to have access to universal services, such as maternity services and health visiting, and will have access to local community support. Those are all allowed for. That support is already built into the Scottish system through exemptions and through other work that is being done.

I entirely appreciate the question and it is entirely legitimate to explore the matter, but what was asked for is already possible and happens in Scotland. The extended-household rules were developed in order to allow that to happen.

Photo of Alison Johnstone Alison Johnstone Green

Today’s report on the legislation notes that

“the mental health impacts of this epidemic ... may not be fully felt or understood for some months to come.”

Given that we are facing an impending mental health crisis, can the cabinet secretary advise us how likely it is that schedule 9 to the UK Coronavirus Act 2020 will be commenced? If it is commenced, will he consider reporting more frequently on how its provisions are being used, given their potential impact on human rights?

Photo of Michael Russell Michael Russell Scottish National Party

That is an important question. Modification of mental health legislation was, and remains, a contentious issue. I am happy to give that commitment, but I hope that the provisions will not be required.

I want to strongly agree with Alison Johnstone that the mental health impacts of the pandemic are quite clear and are likely to be far ranging. A focus will be required within society on those—[

Inaudible

.]—can make a commitment that, were schedule 9 to the 2020 act to be utilised and brought into effect, it would require a particularly strong focus on reporting. I would want to discuss with the COVID-19 Committee whether reporting should be more regular or more intensive, but I do not disagree with the thrust of Alison Johnstone’s argument.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

I apologise to the cabinet secretary, because my question is very similar to Alex Cole-Hamilton’s.

My question concerns babies. We all understand the pivotal role that early attachments play in the first year of a child’s development, including attachment to grandparents, aunts, uncles and others. We also understand the pressure on new parents, often mums, in that period. Is the Scottish Government giving any consideration to adapting legislation to allow families who have a child under the age of one to form a supportive bubble with one other household, in circumstances in which they are not currently able to do so? I believe that that would be a similar policy to that which has been put in place in other countries, as has been said.

Photo of Michael Russell Michael Russell Scottish National Party

As I said to Alex Cole-Hamilton, I understand the concerns that have been expressed on the matter. We believe that the arrangements that are in place to support families are comprehensive, and that they meet people’s requirements.

I am happy, given the concern about the matter, to take the matter away again, to ask the relevant ministers about it and to respond to Mr MacGregor and Mr Cole-Hamilton when ministers have considered the points that have been made today.

Photo of Maurice Corry Maurice Corry Conservative

Instances of domestic abuse have been on the rise during the pandemic, unfortunately. The minister stated that the Scottish Government is working with various women’s and girls’ organisations. What regulation is being considered by the Scottish Government to prevent the increase in domestic abuse during the pandemic?

Photo of Michael Russell Michael Russell Scottish National Party

Proposed legislation on that is before Parliament at the moment. I am sure that the debate on, and the development of, that legislation have been informed by what we have learned during the pandemic.

I do not think that it is so simple as to say that the statistics have led to clear resolution of what requires to be done next. However, it has indicated a need to intensify the work that is being done at present to ensure that the legislation is fully fit for purpose and that the climate for consideration of the matter is very rigorous, such that there is not only no tolerance for domestic violence and abuse, but a—[

Inaudible

.]—stronger and stronger understanding of the causes and of the ways in which we can influence its elimination.

We have been able to do more as a result of amendments that Pauline McNeill lodged in the passage of the legislation. I wish that there was an instant solution, but we are working towards better legislation and better practice and effect.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

I understand that Police Scotland data suggests that accommodation-rental websites are increasingly being used to book properties for illegal parties. Is the cabinet secretary concerned by that trend, and can he provide further information on how the coronavirus legislation equips our police to address that issue?

Photo of Michael Russell Michael Russell Scottish National Party

I can. There is concern about that issue, of course. Whenever an illegal party is held, police resources have to be used to stop it and to ensure that those who are involved are informed and warned, and, if necessary, have legal action taken against them—not just the instant fine but, perhaps, further legal action.

The second level in the issue is in relation to the people who own the properties, who are committing an offence. If the properties are registered, the local authority can de-register them and take effective action against owners who are behaving illegally and criminally by advertising property for let when they know that it will be improperly used. No holiday lets should now be available in Scotland for any such purposes. If they are so used, the people who use them and those who offer them are committing offences, so all relevant authorities should take action against them.

The Presiding Officer:

I thank the cabinet secretary and my colleagues. I apologise to David Stewart and John Mason. I am afraid that we have to end because we are running out of time.