The Convener (Alison Johnstone):
In dealing with the amendments, members should have the marshalled list and the groupings of amendments. The division bill 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. Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons or type R in the chat as soon as possible after I call the group. Members should now refer to the marshalled list of amendments.
Thank you very much, Presiding Officer. I am not sure whether I should call you “Convener” now—I will stick with “Presiding Officer”.
Amendment 1 is my legislative attempt to be just a little bit cheeky. The Government and members will be aware of my frustration with the narrow scope of the bill—a deliberate choice made by the Scottish Government—that has inhibited members lodging amendments of substance to fill policy gaps. Most such amendments have, unfortunately, been ruled inadmissible by the Presiding Officer on the basis of the narrow scope of the bill.
Amendment 1 sets out the purpose of the act to increase its scope, and thus the amendments that could be accepted for debate. The delicious irony is that amendment 1 has been accepted but the other amendments of substance have not. I continue to live in hope, but my experience with the Government is, as Dr Johnson would have said,
“a triumph of hope over experience.”
I move amendment 1.
I remind members of my entry in the register of members’ interests. I am a member of the Law Society of Scotland, and I own a property from which I derive rental income.
In the stage 1 debate yesterday, I set out our concerns about the fact that the bill has been too rushed. There has been no time for consultation or detailed scrutiny. Unlike Jackie Baillie’s criticism of the bill, ours is not that it does too little but that it does too much too quickly. What Jackie Baillie is trying to do would exacerbate an existing problem, because she is trying to broaden the scope of the bill to allow more amendments to be lodged on which there has been no consultation and for which there will be no time for detailed parliamentary scrutiny.
For those reasons, I cannot support amendment 1, which would make the problem worse rather than better.
This is getting us off to an absolutely fabulous start. It is refreshing to be reminded that Jackie Baillie is, if nothing else, up front in what she does. Murdo Fraser’s contribution contrasted with Jackie Baillie’s makes me feel that I am between the devil and the deep blue sea in arguing that the provisions of the bill are designed to follow a very narrow purpose, which is to ensure that a number of practical operational factors and provisions that are in place to help us to manage the challenges of Covid are either maintained in statute or expired as a consequence of the bill. Who knows, perhaps more of them will be expired as a consequence of amendments.
I am grateful to Jackie Baillie for her explanation of the purpose of amendment 1, but it is an unnecessary and potentially confusing amendment. The Government’s general approach to the drafting of bills is to avoid including purpose sections. We avoid them because they have a legal effect by virtue of their inclusion in a bill, which means that they are open to legal interpretation, and that interpretation may have unintended consequences for other provisions in the bill.
The long title of the bill already makes it crystal clear to the reader what the bill does. I do not think that the addition of a purpose section adds anything. Instead, it introduces an element of uncertainty that I think that it is important that we avoid. For those reasons, I invite Jackie Baillie to not press amendment 1. If she does, I encourage the Parliament to vote against the amendment.
T he cabinet secretary made the right choice in this instance.
I would like to rebut Murdo Fraser’s argument. I entirely accept that we are in the middle of a pandemic. We might be seeing light at the end of the tunnel, but we are still in an emergency situation and this is about policy gaps. We are talking about ensuring that people who most need protection are covered by the legislation and that we do not create any policy gaps. I do not agree with the cabinet secretary—he will be surprised to know—that there are consequences of my proposal or that it creates uncertainty. However, in the interests of time and because this is not a point of substance, I am happy to withdraw my amendment 1.
Amendment 1, by agreement, withdrawn.
I rise to speak to amendments 2, 3, 15 and 19 in my name, which are grouped with Murdo Fraser’s amendments 20 and 21, which we will support, too. I will address each of them in turn, briefly.
Amendments 2 and 3 would remove the power to extend the provisions to September 2022. Emergency legislation is just that—it is for emergencies. I believe that we have come through the worst of the pandemic. The First Minister believes so, too, given her upbeat statement yesterday. I think that that is something that we all hope is now happening. The vaccine programme is now being rolled out at pace, and restrictions are slowly but surely being lifted. Even pubs are now allowed to open late, if the Euros go to extra time or penalties. Although that is unbelievably inconsistent with the other restrictions that are in place, it is a sign that normality is returning. However, that action is not consistent with an emergency. As it stands, the bill will be extended by six months to April 2022. I do not believe that it is necessary to go beyond that. If there is another emergency, there is time to bring forward legislation at speed to cope with it.
Does Jackie Bailie agree that, all the way through the pandemic, we have kept hoping that things would be finished quicker than they were, and that problems such as new variants or shortages of vaccine have arisen? Is it not wiser to leave the other six-month period in place?
I genuinely do not think so, because, certainly in the discussions that it had with me, the Government was prepared to consider a shorter extension period. The principle is the thing that applies. At the moment, the extension would be for six months beyond September. I think that that is enough, but it also allows the Parliament time, should there be a need, to bring forward urgent legislation, and it allows this Parliament to scrutinise provisions that give sweeping powers to the Scottish Government and ministers rather than simply rolling them over.
Amendment 15 is about improving scrutiny. It seeks to expire rather than extend the power to use the made affirmative procedure for Scottish statutory instruments in urgent situations. As I said yesterday, I think that the context has changed. Restrictions are lifting, Parliament is sitting and committees are constituted. There is absolutely no reason why regulations should not come before this chamber or before the Parliament. I note that even the United Kingdom Government has agreed to bring changes to be voted on in the House of Commons. If the Conservatives can concede that in an effort to be open and transparent, why is the SNP setting itself a lower standard to meet? Parliamentary scrutiny, openness and transparency are essential for a flourishing democracy. It is time for this Parliament to do its job on behalf of the people who elected us.
Finally, I will not move amendment 19, and will work with the Scottish Government to bring it back at stage 3. Again, the amendment is about improving scrutiny. I want a statement to be made to Parliament before changes are made to measures that are in place to respond to the virus. I entirely accept that 14 days is just a little too long to wait for that and a much shorter timescale is needed to allow for a speed of response.
However, the principle of the amendment is important. Statements must be made to this chamber by ministers. I am not going to speak at length about recent events, in which decisions were made that appear to lack consistency and simply do not make sense. Members will have an opportunity to scrutinise, and that will benefit the Government and our democracy.
I move amendment 2.
I will speak to amendments 20 and 21, in my name, and comment on the amendments in the name of Jackie Baillie. Unlike in the previous group, I am happy to support Jackie Baillie’s amendments in this group.
I start with Jackie Baillie’s amendments 2 and 3, which she just explained. They remove ministers’ power to extend provisions beyond the initial six months for a further six-month period. If that extension were to go ahead, it would mean that the powers contained in the coronavirus acts that we passed in spring last year will be in place for two and a half years from when they were originally introduced. To put that into context, yesterday the First Minister told Parliament that we were hoping to be in a situation where the great majority of restrictions affecting us would be lifted by the middle of August. I accept that that was a caveated statement, as it was dependent on a number of things, including the data continuing to improve. However, if it proves to be correct, it will mean that the various provisions of the bills that we passed 15 months ago will continue until the end of March next year—about eight months from now. If there were an extension of a further six months, the provisions would extend for a year and one month after the point at which the First Minister has told us that we should be getting back to a degree of normality. I find it really hard to understand why we should be in that situation.
Indeed, if we get to the new year and there is still an argument for the restrictions, the proper way to deal with that would be to bring forward new legislation, instead of just rolling over something that has been rushed through and passed in a desperate hurry. Therefore, I support Jackie Baillie’s amendments 2 and 3.
If they are not successful, I intend to move amendments 20 and 21, which are a further safeguard in relation to the additional extension of time. Those amendments require ministers, should they wish to extend for that further six-month period, to give at least 45 days’ notice of that intention. Why? That would give us the opportunity to have detailed consultation and debate on the impact of rolling those powers over for a further six-month period. That would be very welcome, in stark contrast to the situation that we have been in over the past few days, where we have had to deal with this bill in a dreadful rush, without having the opportunity for external input and consultation and without time for detailed parliamentary scrutiny.
I am grateful to the Covid-19 review observatory at the University of Birmingham law school, which has input ideas in relation to the bill; I read its submission with great interest.
That is why I have lodged amendments 20 and 21. I am happy to support the other amendments in the group.
The outcome of the vote on amendments 2 and 3 will be very important to the Liberal Democrats when it comes to deciding whether to support the bill at stage 3, because they seek to support the fundamental principle that these are emergency powers— they exist only in the context of an emergency.
We simply do not know what the context or the landscape of the pandemic will look like in 2022. As we all know, coronavirus is unpredictable and it can lead to unimaginable change, but the weathervanes all point to the fact that we might finally be emerging from it, and the roll-out of the vaccine is going well. We have to hope that there will be some version of normality in the near future without the necessity for draconian Government powers hanging over us all.
The bill will allow ministers to extend those powers in a wholesale way to September 2022, by regulation. As I have said before, the existing coronavirus legislation contains powers that are far reaching and, indeed, illiberal. They are necessary only because of the clear and urgent need brought about by the pandemic.
There is no need to extend such powers. As we speak, ministers are showing their ability to legislate quickly. If the Government insists that three days is enough time for scrutiny of a new piece of legislation on this occasion, why could that time not be found again in the new year? I reiterate our support for amendments 20 and 21, in the name of Murdo Fraser, on the same basis.
I am gratified to hear that Jackie Baillie has chosen not to move amendment 19. I look forward to working with her on that at stage 3 because I have a lot of sympathy with her intentions. The amendment would require that a statement be laid before Parliament 14 days before any proposed changes came into force. My party has expressed frustrations with late changes, some of which have been poorly consulted on. There have been times when businesses have spent serious amounts of money preparing for one scenario, only to find themselves plunged into an entirely different situation at the last minute.
However, I share the concern that a requirement for 14 days’ notice would not give the Government the flexibility to respond to urgent health threats. If such a rule were to apply to adding countries to the red list, would we be able to respond with the speed required in the event of a new variant emerging? We know that a delay in making such decisions can have serious and far-reaching consequences. The Government has stretched and, at times, overstepped the boundaries in making announcements to Parliament and doing so in good time, but I recognise the need to afford ministers flexibility so that they can respond to serious and fast-moving situations. I am grateful to Jackie Baillie for not moving amendment 19 and I look forward to working with her at stage 3.
I am grateful to Jackie Baillie for her explanation of her amendments, starting with amendments 2 and 3. Although I understand the rationale behind those amendments, the Government intends to resist them, because they attempt to remove important flexibility from the bill.
As was commented on several times yesterday, we cannot predict the path of the pandemic or how long we may need some of the important measures that are contained in the acts.
Will the Deputy First Minister explain what he means by “flexibility”? When they presented their arguments, Jackie Baillie and Murdo Fraser said that, should there still be a need for emergency powers, we would work co-operatively across the Parliament in order to give the Government the powers that it would need in such an emergency. Why is the Government resistant to that? It does not make any sense to someone like me who is listening to this kind of debate for the first time.
We recognise that we are in a very uncertain situation. We are optimistic about the situation—that is obvious—but there are still anxieties. The case numbers today cause me further anxiety. We are not absolutely certain about the course that the pandemic will take and we are therefore not certain of the implications over the coming winter. There may be a requirement for us to use some of the powers over a longer period of time.
I will come on to explain the rationale about the situation that we could face, which could see us having to return to more emergency legislation. I am trying to minimise the recourse to emergency legislation by having sufficient flexibility in the legislation that Parliament passes this week to enable us to address any circumstances that we may face in due course.
It makes no sense to remove a safety net that we may well need, especially because any further extension would require Parliament to scrutinise and approve affirmative regulations. I want to be clear on that point. The bill only enables the Government to ask for Parliament’s approval for an extension. It is for Parliament to determine any decision about whether such an extension should be granted.
The Scottish Government remains committed to retaining powers only for as long as they are necessary and appropriate. I remind members that Parliament will, on a bimonthly basis, scrutinise the decisions of this Government in relation to the continued need for measures in the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No 2) Act 2020, which this bill proposes to extend. There will therefore be numerous opportunities for Parliament to scrutinise the continued necessity for the provisions.
The removal of flexibility would also have an impact on the timing of a permanence bill, which we will soon consult on. Without that flexibility, the permanence bill would have to be in force by the end of March 2022 to ensure that there is no legislative gap. Parliament would therefore be deliberately choosing to put a deadline on the date by which the bill placing measures on a permanent basis must be enacted.
That does not appear to be consistent with the mood in Parliament, and is likely to have the effect of reducing the amount of time that Parliament will have to scrutinise the bill.
In addition, if it is necessary to extend the measures further, it could result in another emergency measure, without this power. Parliament will still be able to consider and debate any extension, and the necessity for that, through debate on the regulations. I do not consider an emergency bill designed to achieve the same aim would be an appropriate and effective use of Parliament’s time. I therefore ask members not to support amendments 2 and 3, which seek to remove important flexibility, have wider implications for legislative planning, and may necessitate further emergency legislation in six months’ time.
I am sure that Jackie Baillie will be glad to hear that the Government is content to support amendment 15, which will expire on 30 September 2021 the provisions relating to scrutiny of subordinate legislation in the Coronavirus (Scotland) Act 2020. The provisions in that amendment relate to allowing regulations to be progressed under the main affirmative procedure rather than the draft affirmative procedure, and therefore enable regulations to be brought into force immediately where necessary, but to remain in force only if parliamentary approval is secured.
As a result of Parliament’s willingness to accelerate timetabling of the scrutiny of relevant draft affirmative regulations, it has not been necessary to use those so far. Therefore, although it would be helpful to retain those provisions in case accelerated timetabling of necessary draft affirmative regulations is not always possible, the Government is willing to accept Parliament’s view on that matter. For those reasons, I lend my support to amendment 15. However, I wish to make Jackie Baillie aware that, if the amendment is agreed to by Parliament, technical tidying-up amendments will be lodged by the Government at stage 3 to make small consequential amendments.
Although I appreciate the sentiments behind amendment 19, it is, in my view, unworkable, and much more widely drawn than Jackie Baillie suggests. Obviously, Jackie Baillie has indicated that she will not move that amendment. The effect of that amendment could be to require ministers to lay a statement before Parliament on any change to any measure in response to Covid proposed by any person or authority. I do not think that that is deliverable, or what Parliament would want—nor would it be feasible for ministers to lay such statements 14 days before they are intended to have effect. By its very nature, the pandemic has necessitated urgent action in response to its changing impact. I wish that that were not so, but that is the reality that the Government must deal with, and which is likely to be the case for the foreseeable future.
At every stage during the pandemic, the Government has fully committed to being accountable to Parliament and its committees. We have agreed specific arrangements with the Parliament for the detailed scrutiny of ministerial statements and accompanying regulations. We stand ready to act on any further measures that the Presiding Officer or Parliament consider would assist scrutiny. However, ministers must retain the ability to move at pace where the public health and clinical advice indicates the need for immediate action. On that basis, the Government cannot support amendment 19. However, I am happy to commit to Jackie Baillie and other members that the Government will continue to have dialogue about how best to keep Parliament informed about any significant changes to measures that we consider necessary.
The Government also intends to resist amendments 20 and 21, as they attempt to remove important flexibility from the bill. It has been the Government’s view that a fine balance needs to be struck between making available as up-to-date evidence as possible and allowing sufficient time for scrutiny and implementation in order that stakeholders and public bodies can prepare for any changes. Indeed, we have been discussing that matter over the past couple of days. In my view, it is unhelpful for the Government to be unnecessarily constrained by having an arbitrary 45-day deadline imposed. It would instead be more helpful to maintain a balance and necessary flexibility. I therefore suggest that amendments 20 and 21 are unnecessary and invite members not to support them.
I intend to press amendment 2. I will make a couple of comments in closing. I recall that, at Westminster, MPs kicked up such a fuss when the UK act was first extended in September 2020 that the UK Government agreed that, wherever possible, it would bring a debate and vote on new regulations to Westminster before they came into force. It has done that. For example, the UK Government decided to delay the lifting of lockdown on Monday of last week; MPs voted on the regulations on Thursday, three days later.
In contrast, on 11 June, the Scottish Government made regulations about the social distancing that is required in the fan zone and at Hampden, which MSPs are not voting on until today, after the events have basically happened. We cannot continue to operate in such a way.
I am pleased that the Government will accept amendment 15 on the basis that the provision has not been used at all. That proves that there needs to be better scrutiny by this Parliament, because the Government was simply going to extend an emergency measure that has never been used.
On amendments 2 and 3, I think that scrutiny is important. In my view, there is no need to extend, and no sensible justification for extending, emergency legislation with such sweeping powers for more than six months. As I said to John Mason, in discussion with the Government, a compromise of an extra three months was suggested. That tells me that the Government was prepared to negotiate on whether the extension would be six, nine or 12 months, which does not appear to be based on any scientific approach.
There is no logic to the cabinet secretary’s argument when he says that he does not want any more emergency legislation, but that the Government wants the option to extend emergency legislation. If we are coming out of the pandemic, we should not have emergency legislation in place for any longer than is necessary.
We need accountability to the Parliament; therefore, I will press amendment 2 in my name.
There will be a division. Proceedings will be suspended for the first division of the afternoon.
16:06 Meeting suspended.
16:17 On resuming—
Members should cast their votes now.
The vote is closed.
I will speak to amendments 4, 7, 8 and 27, which are in my name, and I will move amendment 4. I begin by asking the Deputy First Minister to acknowledge that, in a rather rushed process, we have all done our best. I thank the legislation team for ensuring that we could draft and lodge our amendments in time.
Amendment 4 seeks to address the welfare of prisoners by hooking in the provision to regulate for early release so that Government would have a far-reaching power to do that. It also seeks to enable discussion of the wider implications of prisoners spending long periods in cells because of coronavirus and concerns about the lack of fresh air for prisoners who cannot get outdoors. The amendment would require the Government to report every two months on the welfare provisions.
Organisations including Amnesty International have already expressed concerns about the length of time that prisoners have spent in prison. Given the human rights responsibilities of the Parliament, some supervision of the conditions in which prisoners are held, particularly when the virus is present in the prison, would be a helpful provision.
Amendments 6 and 7 relate to expiration of the increase to £500 in the value of fiscal fines, and to the extension of time limits. The fine of £500 would, I imagine, be for high-tariff crimes. I would be concerned if that increase were to be permanent, so I wish to probe the issue in debate, and to probe expiration of the extension of time limits for criminal proceedings, which should not be extended.
Before coronavirus, there were already significant delays in the courts, particularly the High Court, with cases going well beyond the 140-day limit that is set out in the Criminal Procedure (Scotland) Act 1995. The first coronavirus legislation suspended certain time limits and had the effect of increasing the maximum time period for an accused person to be held on remand prior to trial. The current bill seeks to extend that period again. I realise that all those time limits are slightly shorter than those for summary cases. I have expressed extreme concern at the number of people who are held on remand in Scotland, which almost doubled during the pandemic, from 982 to 1,753 between April 2020 in April 2021. Even before the pandemic, we therefore had an issue with the number of people being held on remand.
The Scottish Government acknowledged that point in January 2020, noting that Scotland has the highest prison population per head in western Europe and that approximately one in five prisoners in Scottish jails were held on remand. Howard League Scotland published a report last month titled “The Scandal of Remand in Scotland” and noted that 57 per cent of people who are held on remand do not go on to be given a prison sentence. There were reports this week as well on women in remand that are concerning.
Amendments 6 and 7 are probing amendments. I realise why the Government would want to extend the time limits, but I ask it to acknowledge that the numbers on remand were a serious issue before the pandemic and that we should be careful about using those powers. I understand why the Government wants to extend those provisions, but it would be welcome if it would note that point.
I have more concerns about amendment 8, which relates to hearsay evidence. I question whether we need the provision on hearsay evidence now, given that there are more opportunities for people to attend court. When we passed the first coronavirus legislation, the Scottish Law Commission noted that the provision would be used only in a narrow set of circumstances. Amendment 8 seeks to expire rather than extend the option for hearsay evidence to be accepted. The rationale for the original coronavirus legislation allowing the use of hearsay evidence was that it would allow evidence by statement where there would be a particular risk to a person’s wellbeing from the coronavirus or a particular risk of transmitting the coronavirus to others. However, a statement cannot be cross-examined by the defence and, further, the legislation does not specify whether it would be a witness diagnosed with coronavirus who would use the provision concerned. More important, though, I am not clear whether the provision would be used for the complainer in a trial or for a witness. I hope that the Government can see that, if that provision was more widely used, it would not serve the interests of justice if a complainer provided a statement that could not be cross-examined. I am looking for the Government to say in what circumstances it would be happy for hearsay evidence, which is hardly ever allowed in the courts, to be used.
Amendment 27 seeks more information on how fiscal fines are used. For example, it is unclear what sort of crimes would incur fines of £400 and £500. I want the Government to be clear about that. I would like to see some transparency by the Crown Office and Procurator Fiscal Service about how the powers would be used and for what types of crime. That transparency would be in the interests of justice and fairness.
I am sympathetic to the concerns behind Jamie Greene’s amendments 9 and 23, which I am sure I will hear him express in the debate. It would be helpful if the Government could confirm that, when the provisions on the early release of prisoners are used, the prisoners would be near the end of their sentence, the release would be related to a coronavirus outbreak and there would be no intention to use those powers for general prisoner management. The same confirmation would be helpful for payback orders too.
I move amendment 4.
This is the only set of amendments that I will deal with, so I hope that members will bear with me, as there is a lot of them and there is a lot in them. This is the only opportunity that we will get to talk about the justice-related issues of these emergency powers, so I hope that we give them a good airing accordingly.
I thank members for lodging amendments that I, too, tried to lodge but could not. I thank the parliamentary chamber desk and the legislation team, who have been superb over the past few days and have gone beyond the extra mile to turn what were just concepts into meaningful and workable amendments.
The problem that we identified, as is the case with Pauline McNeill’s amendments in this group, is that the only way in which we could bring some of these issues to the table is through the process of revoking or expiring the provisions that the Government seeks to extend. That is far from ideal. We will hear from the Deputy First Minister about some of the unintended consequences of full revocation or expiration of the measures, and I understand why he will make that case—indeed, he probably has a case on some of them.
I caveat my comments by saying that some of the measures were necessary for an emergency footing and some of them may still be necessary as we live through the pandemic. Some of the measures may even have long-term benefits, and I would be the first to admit that, but emergency measures by their very nature cause us to do things differently, and that is most apparent in relation to our judiciary. That has consequences, and we know from some of the briefings and feedback that we have had from stakeholders that some of the measures have caused concern. It is important that we get those concerns on the table.
We had to make a judgment call about submitting these amendments. The problem was that not submitting them would have meant that there would be no debate on them—then no one gets their voice heard in the
Official Report or by ministers. In many ways, I would rather have approached the amendments very differently, and I appreciate that they create some technical difficulties.
That is by the by, and I will now address the amendments, starting with amendment 6. Initially, we supported the raising of the fiscal fine limit from £300 to £500, because the case was rightly made at the time that we could deal with a far greater number of cases in that way rather than through formal court proceedings that put more pressure on courts with burgeoning backlogs. This is an important question: what impact has that had on the serving of justice? How many cases that would have been met with harsher measures have been dealt with by administering fines? Has that provision watered down the dispensing of justice in relation to certain types of crimes? The problem is that we do not know—we do not have the data and we have not heard evidence to the contrary. I am minded to support amendment 6 if it is pressed.
Amendments 7 deals with the extension of time limits for prisoners on remand, which is a much bigger issue. I tried to submit an amendment of a similar nature, but it was deemed inadmissible. We took the approach of extending the total number of days that a prisoner can be kept in custody, which was a difficult decision at the time, but the maximum of 140 days was clearly not going to be enough in a number of cases. It is clear that we could not allow a situation in which some prisoners who are accused of very dangerous crimes could be allowed back on to the street before the trial comes to pass.
Like many areas of public service, the justice sector has been hit hard by coronavirus. Howard League Scotland warned us of the problem that the number of Scottish prisoners on remand has grown immensely over the course of the pandemic due to those delays. However, the way to tackle the problem is not simply to let people out of prison but to speed up the processing of those backlogs. I know that the cabinet secretary will tell us what the Government is doing on that, but there are thousands of people who are awaiting trial.
There is an issue with the remand population that I tried to raise at topical questions the other day, and it relates to the shocking suicide statistics of those on remand. Almost half of all deaths of remand prisoners are suicide; the figure for the general prison population is a third. That is shocking. Howard League Scotland has described that as the scandal of the Scottish Prison Service. Given that Scotland’s remand population is double that of England and Wales, how can this endless extension of keeping people on remand deal with the number of people on remand or the nature of remand.
We are faced with an impossible conundrum: nobody wants the automatic release of potentially dangerous criminals on to our streets due to forced expiration of the measures but, equally, we do not want—and should not countenance—endless and limitless remand caused by backlogs of court cases, which is not acceptable or humane.
I turn to amendment 8 and the hearsay provision. It is an important amendment; we have had much feedback on it and it was much debated in the original legislation. The latest briefing from the Law Society of Scotland, which I thank for its information, raised a particular concern about the changes to the Criminal Procedure (Scotland) Act 1995 and the continued changes to hearsay requirements. Under the current emergency measures that the Government plans to extend, a witness in a trial can give evidence but not necessarily be required to give evidence under oath or be subject to cross-examination to test that evidence. That is the key point. The use of untested evidence in criminal trials is extremely problematic and muddies our entire criminal justice process.
As members will have heard, I share Jamie Greene’s concerns about that provision. Even the appeal court has been conducted in a virtual setting so, if the Government wants to provide flexibility to allow courts to proceed, it could do so in other ways. Does the member agree that the big question is whether it serves the interests of justice if someone who is accused of a serious crime cannot cross-examine a witness or complainer when an accusation has been made, because a statement cannot be cross-examined?
Exactly. On Friday, one lawyer described the situation to me by saying,
“You cannot cross-examine a piece of paper”, and he is absolutely right.
We need to consider where there is a necessity to tolerate the practice on a long-term basis. This is not simply a short-term extension—it is for six or 12 months and potentially even longer, given that we have seen the powers being rolled on and on. The legal profession is saying to us that the practice cannot become the norm and should not be acceptable to us as the norm.
In response to the original proposals, the Faculty of Advocates warned about what the interpretation of the term “reasonably practicable” might be, and the faculty’s briefing at the time said:
“Abandoning the hope of sworn oral testimony is only done as a last resort, knowing that it is at the expense of the quality of that evidence. It is not a step taken lightly.”
We do not know how much the power is being used in practice, because we have not taken evidence on it, which is another by-product of this rushed affair.
I move on to my amendments. To save time, I will cover amendments 9, 10 and 23 together. We need a much wider conversation about the use of community orders, but we will not have that today, as it is a complex matter. However, we need to stimulate proper debate on the issue. The problem that we are faced with today is that we can either approve or revoke the emergency procedures, and in this case neither would be ideal.
In the early stages of the virus, we all got behind the need to reduce face-to-face contact. That made sense, no matter how difficult it was, so the community order provisions made sense at that time. However, we are now 18 months on and we are in a completely different situation. The stay-at-home message has been rescinded, people are mingling outside, seemingly more than ever, and 80 per cent of Scots have received their first dose of the vaccine. Therefore, I argue that there is no excuse for writing off or rescinding community orders and that people should be carrying them out. Unless the cabinet secretary can give clear evidence to the contrary, it seems that there is simply no need for the power to be extended. I believe that community service can be carried out safely if the scientific evidence allows it.
The consequence of the emergency powers is that 300,000 hours of community service have been written off—they are just gone. That will raise eyebrows, not least among those who have been the victims of crime. Social Work Scotland has warned that there is a backlog of 700,000 hours of community service yet to be served within the designated timescale, which it says is impossible. We do not know, but up to 450,000 hours of that might be written off. I ask the cabinet secretary to think carefully about extending the powers. My amendments seek to revoke the powers. No doubt, we will hear that there are issues with that but, nonetheless, I want to probe the Government on the issue, because the measures cannot proceed without debate.
My final points, which are important, are about my amendments 11 and 12 and amendment 4 in the name of Pauline McNeill—we tried to lodge a similar amendment. The amendments are about the early release of prisoners, which is perhaps one of the more contentious issues and one that my predecessor, Liam Kerr, spoke about in detail. I know that the issue is a concern for the Criminal Justice Committee.
We will support amendment 4, which includes useful and important reporting metrics that would at least give us an indication of the situation. We are again being made to decide on a complex policy matter with a simple yes or no, or keep or do not keep. It does a disservice to the Scottish Prison Service when we execute policy decisions in that manner.
The provision on the early release of prisoners was originally intended to mitigate a health crisis and an emergency in our prisons and I understand the reasons: it allowed the Scottish ministers effectively to grant prisoners early release if they were serving less than 18 months and had fewer than 90 days left in custody on 4 May last year. Members should think about the date and what was going on at the time, especially if the prisoners were at high risk of catching Covid in prison. We supported that provision, perhaps reluctantly, in March 2020, but we had no idea what was facing us.
Today, we are in a very different situation. We have a tremendous vaccination programme, which is also taking place within the prison population, and the decision to vaccinate prisoners, in line with the Joint Committee on Vaccination and Immunisation recommendations, was valid, although it is unclear how many prisoners have been vaccinated. The average age of a prisoner in Scotland is in the 30s, and more than 70 per cent of those who are in the 30 to 39 population group have had their first jab. Although I think that prisoners pose a far lower infection risk to each other than they did before, any risk that still exists must be addressed and the way to address that is not simply to release prisoners but to deal with prisons on a one-to-one basis and work with the staff and protect them. Again, we will object to the on-going extension of those powers, unless the cabinet secretary can justify them.
With all those measures, I revert to my opening comments. The process is already rushed, and we should not be doing it that way. We should be taking evidence on those important matters that affect our justice system, but we are not able to. Therefore, it is with regret that the Parliament has voted to navigate those complex matters in the way that we are doing, in the few short hours that we have.
The Scottish Liberal Democrats worked hard to highlight the crisis in our prisons, which were unsafe and overcrowded well before the pandemic struck, because the Scottish Government has repeatedly failed to get a grip on the instinct to imprison. I have long supported evidence-based proposals for reducing the prison population by stopping the overreliance on remand and giving confidence to community sentencing options that do not rely on extra bunks in Barlinnie.
The release power was a mechanism that was put in place as part of extraordinary measures, at an extraordinary time, in the interests of health and safety. Fifteen months into the pandemic, with the vaccine roll-out well under way, that threat to health and safety is not what it was and the Government should not get comfortable with the power of executive release, because it is not a sustainable option for the long term. Likewise, options for automatic rebates on community orders do nothing to give confidence in those orders. If there are resource or deliverability issues, as opposed to health and safety issues, they need to be dealt with through proper funding, so that people can be supported to meet the terms of the orders. The legislation cannot be used as a get-out-of-jail-free card for the Scottish Government’s failure to properly support Scotland’s justice system.
I close with a word in support of amendment 7, in the name of Pauline McNeill, which would disapply the extension of time limits to criminal proceedings. Yesterday, I spoke in the stage 1 debate about the issues of remand that Jamie Greene has eloquently pointed to this afternoon—in particular, the rising population on remand. A rising number of people are going for a plea of convenience by pleading guilty to a crime that they perhaps did not commit, because they know that, otherwise, they will spend longer on remand when waiting for their case to come to trial. We support amendment 7, because we believe that the extension of time limits has caused a drift in the criminal justice system that is no longer acceptable.
A mendment 4 would duplicate reporting that is already undertaken on conditions in prisons. On its website, the Scottish Prison Service already regularly provides updated information on the effects of Covid, including a regular update on the numbers of prisoners who are infected or self-isolating, the number of prison staff who are absent from work due to Covid, and updates on prison operations and policies in response to Covid. There is also already regular reporting to Parliament on the legislation’s provisions.
I also fear that amendment 4 would not have the intended effect of requiring Scottish ministers to produce a report on conditions within prisons every two months. As drafted, the trigger for the report seems to be the use of the release power, so it would not happen unless that power was used again, and there are no current plans to use it. If the power were used, it does not seem proportionate to initiate an on-going reporting requirement that might end up continuing well beyond the period of release, when the context might have significantly changed.
I do not think that it will carry systematic volume data, but there will be information on the way in which prisons are able to operate within the context of the current situation. I am happy to write to Pauline McNeill with further detail on that issue.
If ministers considered it necessary in future to make use of the early release power, specific regulations would have to be presented to Parliament on the proposed process, which would have to demonstrate why the action was considered necessary and proportionate and how it would support the effective operation of prisons and protect the health of prison staff and prisoners. I therefore urge members to reject amendment 4.
Amendment 6 seeks to expire on 30 September 2021 paragraph 7 of schedule 4 to the Coronavirus (Scotland) Act 2020. That provision increased the maximum available fiscal fine from £300 to £500 and introduced a new scale of fixed penalties to give practical effect to that measure. The measure, which has been in force since 7 April 2020, represents a small but important part of the wider response to the on-going recovery of the justice system from the significant impacts of coronavirus, which is expected to last for a number of years, and certainly beyond 30 September.
The increase of the available upper limit of fiscal fines from £300 to £500 has allowed a greater number of cases to be diverted from summary court proceedings without the need for court procedure and associated appearance at court. That has, crucially, freed up the courts and prosecutors to deal with more serious cases and eased the burden on the courts during a time of significant resource pressure as a result of coronavirus.
As members are aware, there remains a significant backlog of cases in the court system as a result of the coronavirus outbreak, and retaining the Crown Office and Procurator Fiscal Service’s ability to divert a greater number of cases from the courts through the measure is an important and proportionate part of the wider approach to enabling the justice system to recover from the impact of coronavirus.
Therein lies the issue. We are using emergency legislation to extend what are extraordinary measures. I am not saying that I do not support what has been achieved through the measure; the problem is that, as the cabinet secretary said, the backlog could take a number of years to clear, far beyond even the longest extension of the legislation. Would it not be proper and prudent for the Government to produce fuller proposals and for Parliament to debate the matter properly so that such measures become long term with the overt approval of Parliament rather than through emergency legislation?
I think that we are in danger of repeating ourselves. Of course, Mr Greene is perfectly entitled to repeat points that have already been aired in debates, including yesterday, on the approach that the Government has taken. Through the bill, the Government is trying to take forward a number of practical measures that are necessary to cope with the disruptive impact of Covid on public services.
Mr Greene and I can agree that there is a backlog of court business—that is beyond dispute. With the benefit of legislation that the Parliament has already passed—and had reports on—over the past 15 months, the Government is trying to continue the practical, mitigating approaches that are in place, which Parliament has already agreed to, where that is justifiable.
The justification here is that there remains a significant backlog of court cases. The provision contains sufficient flexibility to deal with that, and it could exist for a further 12 months after 30 September if Parliament agrees first to the bill and then to a renewal after six months. However, if there needs to be consideration of longer-term provisions beyond that time, the permanence bill, which we will consult on over the summer and take forward in the normal parliamentary sequence, as I assured Mr Fraser yesterday, could be a place for that to be undertaken.
I agree with Mr Greene, in that I do not think that this is a desirable long-term provision, but we need it now because of the backlog in the courts. The reassurance for Mr Greene is that, in accordance with guidance issued by the Lord Advocate, the measure will be used only where independent prosecutors consider such action to be appropriate in the public interest, having regard to the facts and circumstances of each case.
Safeguards are built into the operation of fiscal fines, which are not mandatory penalties. Anyone who is offered a fiscal fine as an alternative to prosecution may refuse such an offer by giving notice to the court to that effect. In such an event, the refusal is treated as a request by the alleged offender to be prosecuted for the offence, in which case the procurator fiscal decides what action to take in the public interest.
The measure allows, where appropriate, for a greater range of cases to be dealt with outwith the court setting. It remains an important part of the on-going recovery of our justice system from the impacts of coronavirus. I therefore invite Pauline McNeill not to move amendment 6.
Amendment 7 seeks to expire the provisions suspending certain time limits that are contained in the Criminal Procedure (Scotland) Act 1995. It might be helpful if I explain to members why the suspension of the time limits will continue to be important in enabling the justice system to recover from the effects of the pandemic, even after the immediate impact of coronavirus has abated.
The purpose of the provisions is to preserve scarce court resource from having to be used to extend time limits in individual cases. Expiring the provisions will not, in itself, provide any additional court capacity or result in anyone’s case being heard any more quickly than is currently the case; indeed, it could have the opposite effect. As members may be aware, almost all the time limits in question can be extended, case by case, on application to the Crown Office. The changes were made following discussion with justice agencies, which noted that, at a time of significant pressure on court resources, it would not have been an efficient use of court time to have to hold individual case hearings in potentially hundreds, if not thousands, of cases. That reasoning is the basis on which an extension to the effect of the changes is being sought in the bill.
It is anticipated that the resource pressures caused by the backlog will last for a number of years. Retaining the suspension periods as part of the operation of time limits is a policy that is designed to adapt to a changing environment. Over time, as steps are taken to reduce backlogs in the criminal justice process, it is expected that the suspension periods will not be needed to be used as extensively when someone is subject to court proceedings, and that when they are needed, they should not need to be used to their maximum extent. The numbers involved should reduce each year, but it is crucial that flexibility is retained to allow for effective and efficient prioritisation throughout the recovery and renewal period for the processing of court cases. I therefore invite Pauline McNeill not to move amendment 7.
Amendment 8 seeks to expire the provision that allows the court to admit evidence by statement when a witness is unable to attend the trial because of a risk attributable to coronavirus, for example because they are self-isolating or shielding, and when it is not reasonably practicable for them to give evidence in any other competent manner. That legislative change helps to minimise the impact of the outbreak on the ability of courts to proceed with trials, and so ensure that the justice system continues to operate as effectively as possible. It is especially important at a time when a number of people are required to self-isolate.
It should be remembered that section 259 of the Criminal Procedure (Scotland) Act 1995 already permits statements to be used in evidence in court when a person is, among other things, unfit to give evidence. However, that provision does not cover people who are unable to attend court because they are self-isolating for public health reasons. The measure should be considered along with the provisions that allow witnesses to give evidence remotely.
Evidence by statement would only ever be admissible where the witness could not give evidence in a competent manner. Someone who is self-isolating cannot easily be in contact with others, which includes when giving evidence remotely, as the courts would not generally permit evidence to be given remotely without safeguards through the presence of others to ensure that evidence was being given in a fair manner.
My concern is that the provision does not seem to apply exclusively to a witness or a complainer who is isolating. I can understand why the cabinet secretary might want the provision, but can he confirm that the power would not generally be used when someone was not fit to attend? Some of the lawyers I have spoken to say that the provision is not specific in its drafting. That is only part of the concern, but it is a concern.
I will reflect on that point and take some further advice. The body of the argument that I am putting forward is that the provision would be utilised only where it was impossible for evidence to be given in a competent manner. I think that that is the crucial test. Our court system operates on the assumption and presumption that evidence is given in a competent manner. Therefore, the provision would not be utilised unless there were very limited circumstances that surrounded the giving of evidence in a particular case.
To complete the point that I was making before I accepted the intervention, it is not the case that a person could simply give evidence from their home, because safeguards would have to be in place to ensure that evidence was being given in a fair manner.
Judges will assess the weight to be attached to evidence introduced by statement and may be expected to take into account the fact that it has not been given on oath or subject to cross-examination. Where evidence in the form of a statement is introduced in a jury trial, the judge is obliged to give a warning to the jury that the evidence was not given on oath and was not tested by cross-examination. In appropriate cases, a judge may disregard such evidence or direct a jury to disregard it. Nothing in the provision detracts from the duty of the court to consider the fairness of the trial and to keep the fairness of the trial under review, which I think is the significant reassurance that Pauline McNeill requires. On the basis of that assurance, I invite her not to move amendment 8.
I am sorry to prolong the debate, but it is an important matter. The cabinet secretary’s statement might offer reassurance to members in the chamber but it does not offer reassurance to the Law Society of Scotland, which stated explicitly:
“We cannot ... support the extension of hearsay provisions” as detailed by the Government. What does the cabinet secretary say to the Law Society of Scotland?
Obviously, there are many issues on which we find common ground with the Law Society of Scotland, which is an important commentator on these questions. What we are trying to do is to put in place measures as part of a number of steps to try to address the substantive court backlog problem that we must address for all the legitimate reasons that Mr Greene and Pauline McNeill have raised about the remand situation, which is of concern to all of us, regardless of our perspective in this debate.
Amendments 9 and 10 would expire the provisions in the bill relating to community orders. Although all powers relating to community orders in the 2020 act are exceptional, significant risk and uncertainty remain, and the provisions are necessary to ensure that justice social work services do not become overwhelmed, especially as new orders from courts increase as the backlog is addressed.
A number of provisions relating to community orders are being expired, and those that are being retained are necessary at this time. We are seeking to retain the provisions that extend the time limit for the completion of unpaid work or other activity requirements in community payback orders to 12 months from the date when the order was imposed, or such longer period that the court specifies in the order. If amendment 9 were agreed to, the time periods would revert to three months for level 1 unpaid work or other activity requirement and six months for level 2 unpaid work or other activity requirement. That would put additional strain on the system at a time when significant pressures remain. It would also require lower-level orders to be prioritised, as they would have shorter timescales. We are also seeking to retain a power to allow for regulations to be made by Scottish ministers to vary or revoke requirements imposed on community payback orders. Amendment 10 would expire that power.
Regulations to reduce unpaid work requirements in existing community payback orders by 35 per cent, with exceptions for domestic abuse, sexual offending and stalking, were scrutinised and approved by Parliament. All existing orders imposed up to and including 15 March were reduced. The regulations did not affect orders made after 15 March.
Amendment 23 seeks to revoke those regulations, which is surprising given that they were approved by Parliament so recently and have already taken effect. The regulations are a proportionate measure that has helped to address the unavoidable build-up of unpaid work resulting from essential public health restrictions while ensuring that those on community orders still serve the majority of their sentence.
Amendment 10 would prevent the Government from implementing a similar measure up to March 2022, if it considered it necessary and proportionate to ease the pressure on the system.
To aid Covid-19 recovery work in 2021-22, approximately £11.8 million has been allocated for use by justice social work services to directly address the impact of the pandemic. Although the regulations and the funding mitigated risks to the system, there remains a risk of community justice services being overwhelmed, as unpaid work simply cannot be delivered in reasonable timescales due to necessary public health restrictions and increasing demand.
Current advice from justice partners suggests that such a scenario of court disposal capacity exceeding community justice capacity in the months ahead is a realistic prospect, and it therefore presents an on-going risk. Although the Scottish Government is working with national and justice partners to mitigate the risk as far as possible, it is important to extend the provisions as set out in the bill to ensure that there is flexibility in the system in case it is required. I assure members that there are no current plans to use those powers.
Social Work Scotland states that it supports the extension of the proposals as outlined in the bill, noting that justice social work continues to face a significant challenge due to the pandemic and that the extension will ensure that, should there be a resurgence of Covid-19, action can be taken swiftly to mitigate any further impact.
I urge members to reject amendments 9, 10 and 23, which are in Mr Greene’s name.
I thank Pauline McNeill for her amendment 27, which would introduce a statutory requirement for a one-off report on the use of fiscal fine powers. I accept in principle the policy that lies behind the amendment, but I ask her not to move it, and I commit to developing a revised amendment that takes account of the following concern.
As drafted, the amendment would require the Scottish ministers to comment on the appropriateness of the use of fiscal fine powers by the Lord Advocate. As members will know, the Lord Advocate carries out prosecutorial functions entirely independently of any other person, and it would not be appropriate for such comments to be made by Scottish ministers.
However, I accept the rest of the amendment in principle. It would provide a useful one-off report on the usage of fiscal fine powers, to complement the reporting that the Lord Advocate gave directly to the Justice Committee. I understand that the Lord Advocate agrees with the approach and I hope that Pauline McNeill is also content with it. I will develop a revised amendment for consideration at stage 3 tomorrow.
I urge members to reject amendments 11 and 22. Amendment 11 would remove the only power of emergency release from prison that exists, and would do so during an on-going pandemic. That power has been needed once and, although we have no plans to use it again, expiring it would be an imprudent action, given the uncertainty about the on-going impact of coronavirus.
Amendment 22 would revoke two existing regulations that have been laid under that power. Revoking the Release of Prisoners (Coronavirus) (Scotland) Regulations 2020 would have absolutely no impact, given that the time periods that were set in them are long past. Revoking the Criminal Justice (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020, would remove the changes that were made to extend victim notification to cover release arrangements. Therefore, I urge members to reject amendment 22.
I offer my apologies, Presiding Officer, for detaining Parliament for so long on this important and detailed grouping.
I begin by agreeing with Alex Cole-Hamilton and Jamie Greene that this has been a very rushed process. In some ways, what we are trying to do is impossible, because on the one hand we are trying to defend the interests of justice, and on the other we understand some of the issues facing the Government in relation to managing the courts.
I will first address amendment 6, on fiscal fines. The cabinet secretary says that fiscal fines enable a greater number of cases to be diverted. We do not know what kinds of crime those cases would involve, but the use of fiscal fines would be based on recovery from coronavirus.
I note that the cabinet secretary said that retaining the provision would not be desirable in the longer term. That is an important statement to me.
I do not support the general increase of fiscal fines to £500. If I can be so bold as to differ with the Lord Advocate, I imagine that fiscal fines of £500 would be used to deal with fairly high-tariff crime. The Parliament would have a legitimate interest if fiscals were issuing fiscal fines for what we regard as serious crime. Members may say that that might never happen, but I would say that it is quite legitimate for the Parliament to have an interest in that for the reason that I have given. However, if the cabinet secretary is indicating that the provision will be used primarily in Covid times, I am less concerned about it.
Amendment 7 relates to time limits. I think that Jamie Greene said that we are in an impossible position, and I agree with him.
On the one hand, I am very exercised about long delays to court proceedings, not just for the accused but for victims, and I am generally not happy about extending time limits. However, I appreciate that there are difficulties finding court venues across the country that are suitable for to social distancing. I have some sympathy with that, but I remind Parliament that the law says that someone in custody awaiting trial should wait no longer than 140 days. Shortly after our discussion of the bill, we will need to think about how we can return to that provision, which, after all, is the current law.
In relation to reporting procedures, I seek to withdraw amendment 4, on the basis that the cabinet secretary will write to me on that specific issue. He said that the amendment duplicates existing reporting mechanisms in Scottish prisons. I would like to hear from him about whether prisoners are getting out of their cells and outdoors, particularly in light of coronavirus.
I will move amendment 8, on hearsay. I listened to what was said about the hearsay principle helping to minimise disruption. Given that section 259 of the Criminal Procedure (Scotland) Act 1995 already permits hearsay evidence on application to the court when a person is not fit to give evidence, the provision that amendment 8 seeks to expire is not needed. I know that the cabinet secretary will return to the point, but it does not seem, from the wording in the legislation, that that provision is to be used for exclusively for evidence from those who are isolating due to coronavirus.
Hearsay evidence is seldom used in the courts, and section 259 is not used often, but the provision is dangerous and, for the reasons outlined by Jamie Greene, we must be very careful about its use. In the interests of justice, and to be absolutely fair to the accused, any statement can be cross-examined. I realise that the provision is intended only for extreme circumstances, but given that relevant provisions already exist, I will move amendment 8.
Amendment 4, by agreement, withdrawn.
I draw members’ attention to my entry in the register of interests, which shows that I am an owner of a rental property in North Lanarkshire.
In the stage 1 debate yesterday, I highlighted guidance issued by the United Nations special rapporteur on the right to adequate housing, which states:
“Housing has become the front line defence against the coronavirus.”
At all points of the pandemic, the key public health advice to people has been to isolate at home, no matter whether they have symptoms, have been in close contact with a confirmed case or have Covid 19. With that in mind, I lodged amendments that would have extended the eviction ban to level 1 and 2 areas to protect those threatened with eviction, through no fault of their own, due to a global pandemic, and to protect their ability to isolate at home under any of those circumstances. However, because of the way that the Government has drafted the bill, those amendments have been deemed out of scope. Since Jackie Baillie’s amendment 1 has been withdrawn and the Deputy First Minister talked yesterday about supporting policies raised by Opposition members that can be taken forward without the need for legislation, I hope that the eviction ban is at the top of his list.
In the absence of an ability to amend the bill to include a ban, I lodged amendment 5, which would require ministers, for as long as the legislation is in force, to report on the efficacy of measures to protect tenants in Scotland from eviction. The amendment would hold the Scottish ministers accountable for their policy decisions in that area and place the reporting requirement on a statutory footing that would ensure that the Parliament was fully aware of the effect of the Government’s decisions on some of the people made most vulnerable by the effects of the pandemic.
I turn to the other amendments in the group. The Scottish Government’s £10 million tenant hardship loan fund was supposed to help people to avoid the risk of losing their home because of pandemic-related financial pressures. However, so far, only £490,000 has been paid out. Putting people into more and more debt is also not a viable solution to their housing debt. We have repeatedly called for the loan fund to be converted into a grant fund, and we welcome yesterday’s Government announcement to do just that.
Amendments 16 and 24 should be considered together as a package. If amendment 16 is agreed to but amendment 24 is disagreed to, tenants will be in a weaker position and I want to avoid that. Amendment 16 would expire all the pre-action checks that landlords must complete, under the current legislation, before raising a notification of proceedings against a tenant. However, amendment 24 would replace those provisions with a requirement that notices of proceedings against tenants cannot be raised until they have received a grant from the Government to pay off their rent arrears. The amendment would also give a statutory basis to the tenant hardship grant fund that the Government announced yesterday.
The amendments have been lodged with the intention of supporting tenancies and ensuring that individuals and families are able to comply with one of the most important pieces of public health advice during the pandemic: isolate at home. I ask members to support all the amendments in the group.
I move amendment 5.
The question of tenants’ rights and the evictions ban was subject to significant debate during stage 1 consideration of the bill yesterday. We have been clear that we support the provisions in the legislation that was passed last year to protect tenants, including the requirement of a six-month notice period prior to a landlord commencing proceedings for eviction, because it is right that tenants who are in financial difficulty get additional support while the Covid pandemic is impacting on the economy and people’s incomes. We would support the continuation of that six-month notice period for as long as that was appropriate.
However, we recognise that concerns have been expressed by many groups about the long-term impact of an evictions ban being in place. We have had representations from registered social landlords, including the Glasgow and West of Scotland Forum of Housing Associations, which have pointed out the unintended consequences of a long-term ban. Those voices are right to point out that an evictions ban is not a solution to the problem; it simply postpones the problem. The solution to the problem is to provide better financial support for tenants so that they are able to reach an agreement with their landlord about paying rent arrears. In that respect, I agree with Mark Griffin about the inadequacy of the loan fund, and I welcome yesterday’s announcement from the Deputy First Minister about the new grant scheme, although we do not yet have any details of how it will work.
I turn to Mark Griffin’s amendments. Amendment 5, on additional reporting, seems reasonable, but I will listen to the Deputy First Minister’s response to it. As it stands, amendment 16 would remove protections from tenants, although I hear what Mark Griffin said about that amendment being tied in with amendment 24.
However, amendment 24 seems very prescriptive in its terms. It refers to a grant scheme that has not yet been established. We do not know what the terms of the grant scheme will be. We do not know how generous it will be. We do not know whether it is realistic, as amendment 24 suggests, for every tenant to receive a grant that is equal to the full amount of the rent arrears that have been accrued. I do not know whether any assessment has been done on the amount of money that would be involved in that. It seems premature, at best, to tie the question of evictions to access to a fund of which we have no details.
Although I welcome Mark Griffin’s approach and the debate, we would struggle to support amendments 16 and 24 as they are drafted.
I am grateful for the opportunity to speak in support of amendments 5, 16 and 24, in the name of Mark Griffin. An evictions ban that applies to all levels of Covid restrictions has been a central ask of the Scottish Labour Party for many weeks now.
It is disappointing that the amendment to give effect to it has been ruled inadmissible, largely because the Scottish Government has quite deliberately made the legislation very narrow in its intent, such that many of the amendments that we and others sought to lodge were out of scope.
The cabinet secretary points to a permanence bill, but the timescale for it is not altogether clear, and there will be a legislative gap in protection. Eviction orders are before the courts now, and people could be in danger of losing the roofs over their heads, all because the protection applies only in levels 3 and 4, when it should apply in all levels while the restrictions continue, the economy is still struggling and people are about to come off furlough without knowing whether they have a job to return to.
Things are financially precarious and, on that basis, I welcome John Swinney’s response to Labour’s demands to turn the tenant hardship fund from a loan fund to a grant fund. We know that the loan fund was not fit for purpose, given that it disbursed less than 5 per cent of the money that was available, and it rejected double the number of applications that it approved. When the Government does the right thing, praise is deserved, but the cabinet secretary needs to urgently tell members what the criteria for the fund will be, when it will be operational, whether it will convert the small number of loans that have already been made into grants, and whether, in the interim, it will defer loan repayments.
It is important that people who are in debt and who are struggling are not saddled with more debt. If we are to prevent people from losing their homes, there is no time to waste in setting up the fund, and no barriers should be put in the way of people’s access to it
Amendment 5 asks the Government to report on evictions. It is a much weaker amendment than we wanted, but it is the only version that would be considered admissible. I say to the Government that amendment 5 is critical, because we need to work harder to understand what is happening with evictions, and use the fund to prevent evictions when they are matter of hardship due to Covid.
I urge members to support amendments 5, 16 and 24 in Mark Griffin’s name.
Amendment 5 seeks to amend the Coronavirus (Scotland) Act 2020 by placing an additional reporting requirement on the Scottish ministers in relation to the operation of schedule 1 to the act, on eviction from dwelling houses. Subsection (1) of the section that amendment 5 would introduce is drawn widely, and it is unclear whether it refers to adequate “protection for tenants” on social, economic or health grounds.
Subsection (1) would also require the Scottish ministers to set out any
“limitations in protection for tenants” that are encountered—which provision is also widely drawn—together with the reasons why such limitations exist. That would make the reporting requirement cumbersome and, in some cases, potentially impossible to comply with.
In addition, much of the information is already publicly available and is included in the bimonthly reports that are and will continue to be produced for the schedule 1 provisions. For example, the bimonthly reports set out how many orders to evict have been issued by the First-tier Tribunal for Scotland housing and property chamber, as well as levels of rent arrears in the social rented sector. However, we are always seeking to improve the data that we collect, and the Scottish Government is working with local authorities and the Society of Messengers-at-Arms and Sheriff Officers in order to collect new data to better understand what evictions are taking place across the country and for what reasons.
As we develop new sources of data, they will be reflected in bimonthly reports and I would be happy to discuss some of the issues and how we can enhance the reporting with Mr Griffin and other interested members to ensure that the reports that we supply to the Parliament for scrutiny meet the legitimate aspirations for information that Mr Griffin has highlighted today.
In its dashboard report, the Scottish Housing Regulator already reports on the number of notices and proceedings that have been issued to tenants in social housing, and on the total value of rent arrears in the social housing sector that have accumulated during the reporting period. For those reasons, I do not think that it is necessary to proceed with amendment 5 and I urge members not to support it.
I am surprised that Mr Griffin has lodged amendment 16, which would expire the pre-action requirements for rent arrears on the one hand but, through amendment 24, seek to preserve them until such time as all tenants who are applying for or receiving a loan under the tenant hardship loan fund have received a grant for their rent arrears. Amendment 24 appears to be designed to enable the continuation of pre-action requirements until such time as all tenants in Scotland have all their rent arrears paid by the grant from the Scottish Government or another body. In any event, amendment 24 would be time limited because the Coronavirus (Scotland) (No 2) Act 2020 will, by virtue of the current bill, expire either in March 2022 or September 2022.
We will make sure that everyone who is in receipt of a loan through our tenant hardship loan fund is made aware of the £10 million tenant grant fund that I announced yesterday. If people who are in receipt of a loan are eligible for a grant, they will be able to take that up.
Mr Fraser made the fair point that, in relation to the details of the tenant hardship loan fund, amendment 24 is rather premature. We intend to consult stakeholders over the summer and introduce the grant fund later in the year. Again, I would be prepared to engage with members—as would the Cabinet Secretary for Social Justice, Housing and Local Government—about the approach to the tenant hardship loan fund.
The pre-action requirements formalise the steps that all landlords should be taking to support tenants who have accrued rent arrears, which is why we committed in “Housing to 2040”, our long-term national strategy for housing, that we would take steps to place pre-action requirements on a permanent footing. The move to introduce pre-action requirements permanently has been broadly welcomed by tenant and landlord representatives alike. I confirm that our consultation on a permanence bill will seek views on making the pre-action requirements permanent, to prevent any gap until that bill is superseded by any future housing bill. Jackie Baillie raised the issue of the timescale on the permanence bill. We are consulting on the bill over the summer and the Parliament will then scrutinise it after the summer recess.
Mr Griffin’s amendments to expire the pre-action requirements on the one hand and to continue them, in effect, on the other are therefore unnecessary. In addition, they would introduce complexity for tenants and landlords as to when the pre-action requirements actually apply. That complexity does not currently exist, so I ask members to reject amendments 16 and 24.
I take on board members’ comments about this group of amendments and I concede that they are not ideal. We are left in this situation because of how the bill has been drafted. We would like to have lodged amendments that extended the ban on evictions to level 1 and 2 restriction areas, but that has not been possible.
I take on board the points that the Deputy First Minister makes about amendment 5 and the range of support mechanisms that are already in place. I will seek to withdraw amendment 5, and I will consider the Deputy First Minister’s points and have discussions between now and the deadline for lodging stage 3 amendments to consider whether it would be appropriate to lodge amendment 5 again.
On amendments 16 and 24, as I said earlier, I would not want amendment 16 to pass if amendment 24 failed. The intention of the amendments is to ensure, as much as possible, that while the emergency powers are still in place, no evictions can be carried out until the grant fund is put in place. Again, I have listened closely to the Deputy First Minister’s points and will review the amendments overnight, with a view to potentially lodging them again, so I will not move amendments 16 and 24.
The result of the division is: For 33, Against 88, Abstentions 0.
Amendment 11 disagreed to.
I will suspend the meeting for a short comfort break.
17:38 Meeting suspended.
17:49 On resuming—
The next group of amendments is on admission of public to meetings. Amendment 12, in the name of Graham Simpson, is grouped with amendment 13.
There are two amendments in the group—my amendment 12, which relates to licensing boards, and amendment 13, in the name of Alex Cole-Hamilton, which relates to meetings of councils, and which I support.
Yesterday, the First Minister gave an unusually upbeat statement to Parliament, albeit with her usual caveats. If we are to take her at her word, life should return to something like normal in the next few weeks. Social distancing should be coming to an end by August: we will be able to go to the theatre and return to watching football in numbers next to our mates, and office staff will get back to work with colleagues and not just chat to them using Teams. You never know—MSPs might be able to occupy all the seats in the chamber by September, which would be a good thing.
If all that happens by September—it should, if we believe the First Minister—and if we judge by the figures that she has announced, there is simply no reason at all left for why licensing boards and councils should be able to exclude the public from their meetings. The public health reasons for having the restrictions were good, because they allowed licensing boards and councils to continue, but those reasons do not now exist. By the end of September, physical distancing will not be a thing, so licensing boards and councils should be meeting in public—not virtually—by that point.
Public access to such meetings is an essential part of our democracy, so to allow the restrictions to go on longer—it could be up to a year longer, when the public would not be allowed into the meetings—would be beyond the pale. There is no reason to allow it.
I move amendment 12.
Paragraph 13 of schedule 6 to the Coronavirus (Scotland) Act 2020 has modified section 50A of the Local Government (Scotland) Act 1973 to read:
“The public are to be excluded from a meeting of a local authority whenever it is likely that, if members of the public were present, there would be a real and substantial risk to public health due to infection or contamination with coronavirus.”
There has remained a requirement on authorities to publish an agenda and minutes of all meetings, but that was the extent of the reach of the requirements of publication.
When we passed the first coronavirus act in spring last year, we were in the first wave of the pandemic. Those weeks of high infection required that Parliament second guess the causes and mitigation of community transmission. As it stood then, paragraph 13 made absolute sense; we had banned all public gatherings, closed all hospitality, prevented people from being together in enclosed spaces and asked them to stay at home. It was self-evident that should people attend in-person meetings of a local authority, they would pose a substantial risk to public health and could spread infection. Paragraph 13 gave local authorities the option to exclude the public from in-person meetings based on a subjective assessment. It was the best that we could do at the time, but those times have changed.
By the end of September, cinemas and theatres will, likely, be operating almost normally. We might even have dispensed with any form of social distancing and face coverings, because our citizens no longer represent the real and substantial risk to public health that they did in March last year.
It is crucial to remember that the end of September would come just six months before the start of the local authority election campaign. To allow the provision to continue could allow local authorities to proceed with unpopular decisions away from the scrutiny of the electorate, by whom they will be held accountable in just a few months’ time.
I understand that we are not clear of the pandemic and that new surges and variants might once again create a heightened risk to health, but the bill will continue ministers’ powers to take measures that are sufficient to mitigate the risk of any activity, up to and including a stay-at-home order.
In short, paragraph 13 of schedule 6 of the first 2020 coronavirus act is no longer needed, and its use in such close proximity to a local authority election would undermine the democratic accountability of our councils and councillors. Removing it would not compel local authorities that are still meeting virtually to broadcast their proceedings if they do not have the technology or resources to do so, but it is our hope and expectation that, when the first two coronavirus acts expire and fall away, our local authorities will be able to meet in person once again.
Some of the biggest decisions that affect my constituents and those of other members take place in our local councils—on planning, on education or even on the local recovery from the pandemic. People at the business end of those decisions need a line of sight to how they came about. Paragraph 13—well intentioned though it was at the time—no longer has a place in the pages of the legislation or, indeed, in our democracy.
Amendment 12 would expire the provisions relating to the ability of licensing boards to exercise their discretion as to whether to hold meetings in public due to coronavirus. Although we are making good progress with the vaccine roll-out, the recent rise in cases indicates that new variants, such as the delta variant, might come to the fore and create further challenges and difficulties. Mr Simpson is, however, right to have characterised our assessment as being more optimistic than it has been for some time.
Licensing stakeholders have welcomed the flexibility that has been provided by the provision since its introduction in the first coronavirus act, and are broadly content for the provision to be extended beyond 30 September, on the ground that we cannot say with any certainty that new variants will not arise. Licensing stakeholders support the holding of meetings in person, but we and they agree that the added flexibility is important to ensure that the alcohol licensing regime can function, should there be a requirement to reimpose restrictions throughout Scotland or on a local authority basis.
The effect of amendment 12 could be that users of the alcohol licensing system would be unable to receive an effective service from licensing boards, including being unable to sell alcohol. That would be unfortunate and counterproductive at a time when we are all keen to do all that we can to support the hospitality sector. My officials engage regularly with licensing stakeholders and have been made aware of examples of good practice that has enabled members of the public to view proceedings online. Of course, if anyone is participating formally during proceedings as an objector, necessary arrangements are put in place by the licensing board to ensure their participation in meetings. For those reasons, I oppose amendment 12, and I ask members to oppose it, too.
I turn to amendment 13, which is in the name of Alex Cole-Hamilton. Scotland’s local authorities have responded extremely well in order to keep essential services available during the pandemic. Crucial to ensuring that that has been possible has been allowing governance structures in councils to continue to operate so that decisions about services can continue to be scrutinised and made.
The provision in question was never about universally excluding the public from local authority meetings; it was only ever to be applied at physical meetings where there was a risk of transmitting Covid. At all times, the Scottish Government, in the interests of openness, democracy and transparency, strongly encourages councils to make every effort to live stream their meetings to the public. We believe that the provision has enabled local authorities to continue to function and conduct committee business while simultaneously taking action to reduce and suppress the spread of the virus.
Councils have reacted well to the changing environment and have acted quickly to implement new governance arrangements that are safe and flexible. For example, all 32 councils now have arrangements in place to support remote meetings. In light of that, and recognising that the provision was being used only in limited situations by some councils, we recommend that Parliament supports amendment 13, which is in the name of Alex Cole-Hamilton.
I will press amendment 12. I am slightly confused by the Deputy First Minister’s response. On one hand, I am encouraged that he agrees with Alex Cole-Hamilton’s amendment 13, but on the other I am utterly baffled as to why he would agree that councils should meet in public but not agree that licensing boards should do so.
Licensing boards are made up of councillors, so they are, essentially, the same thing—a meeting of councillors, who are just dealing with different matters. Therefore, there is no logic to what the Deputy First Minister has said. I encourage members to back both amendments in the group, because they would do the same thing. They are about democratic accountability.
I used to be on a licensing board. I therefore know that licensing matters can be contentious, so it is important that the public are allowed to sit in on those meetings. In my earlier comments, I accepted that the restrictions were necessary at the time and that they have allowed licensing boards to continue, but there is no reason for the restrictions to persist.
Amendment 12 disagreed to.
In relation to amendment 14 on irritancy measures in the Coronavirus (Scotland) Act 2020, the Government has listened to the views of stakeholders and has lodged the amendment in order for those provisions to be extended beyond 30 September 2021.
Although initial discussions with stakeholders indicated that there was general support for the expiry of those measures from 30 September, we have since listened to further representations, including from the Federation of Small Businesses, and given the uncertainty that exists regarding when coronavirus restrictions in Scotland can be removed completely, we have reconsidered expiring the provisions.
As other Government support initiatives, such as the furlough scheme, begin to wind down, it is likely that some viable small businesses might face short-term cash-flow difficulties over the summer, into the autumn and beyond. In those circumstances, we would want landlords to grant their tenants some further flexibility. We believe that retaining the increased notice period beyond 30 September makes that more likely. The extensions that have been afforded under the provision to date have helped landlords and tenants by giving them time to come to revised rental arrangements on an agreed basis without the need to seek eviction.
As eviction has always been possible under the Scottish provisions, it is considered that these would largely have already taken place in the 18 months from the commencement of the Coronavirus (Scotland) Act 2020, and this proportionate response will now continue, hopefully without the need for evictions, as our aim is to keep businesses afloat and retain employment. The Scottish Government is therefore happy to listen to the views of stakeholders and proposes this change to the bill. I urge members to support my amendment 14.
I turn to amendment 26. Since March last year, business support has been offered through the existing powers of local authorities, the enterprise networks and a range of other public bodies, rather than under specific provisions of the coronavirus legislation. Further, decisions on business support have been taken in response to emerging pressures and there is no allocated budget for future financial support. Future funding options will be contingent to a large extent on funding decisions that are made by the United Kingdom Government.
As restrictions are brought to an end, decisions on any further support will be made to support recovery and economic transformation in the longer term. That may continue to change substantially over a longer timescale than the two months within which amendment 26 would require a report to be made to Parliament. The Transport (Scotland) Act 2019 includes a range of improved tools for local transport authorities to improve bus services in their areas, recognising that buses are a local service and should be tailored to meet local communities’ needs.
However, I am sympathetic to what Mr Sweeney proposes and the Government will lodge a stage 3 amendment tomorrow to reflect some of the issues that are raised by his proposal. I look forward to hearing his remarks.
I move amendment 14.
While Covid-19 continues to disrupt livelihoods, we must have measures in place to support people and adequately protect them from the fallout of the pandemic. Businesses have required financial support from the Government, which has been paid in millions to mitigate the adverse impacts of Covid-19. However, we could be doing more to conditionalise that business support with a view to achieving better economic and social outcomes—for example, fairer work obligations and enhancement of our public transport system.
My amendment 26 would require the Scottish ministers to lay before Parliament, as soon as reasonably practical and within two months of royal assent, a report on the implications for business support of the extension or expiry of provisions in the act. The report would have to include, in particular, consideration of further support that businesses required. The key thing would be whether business support had been adequate over the period—we know that it has often not been adequate.
The Government should be required to consider, in particular, whether those who have felt the impacts of the pandemic disproportionately—such as wedding businesses, entertainment establishments, nightlife businesses, taxi drivers and the self-employed—have been adequately supported. We should also consider whether any limitations or conditionality should be placed on the provision of further support, including whether conditions related to fair work practices should be placed on businesses of a certain size that receive support. The Welsh Government has been seeking to explore that. In particular, I would like to explore the idea of introducing an element of compulsion when it comes to the provision of further support to a large business with at least 250 employees that does not recognise a trade union. In fair work terms, all large companies should be open to trade union organisation in their workplaces.
The rise in precarious work that we have seen since the financial crisis in 2008 has been compounded by the pandemic. Some 35 per cent of Scottish workers say that they often get less than a week’s notice of shifts. Pre-pandemic, four in 10 of those who worked in retail and wholesale were paid less than the living wage, according to the Resolution Foundation. Fair work practices are even more pertinent than they were before, especially as we look towards the longer term and recovery.
I also want ministers to consider the suitability of taking equity shares in private bus companies instead of simply providing grant-based support with few strings attached. In the year of COP26, we should be investing in a green, publicly owned public transport system. Last year, the Government gave £191 million of no-strings subsidies to private bus company owners and underspent the transport budget by £343 million. Indeed, the total allocated budget for bus firms between the start of the pandemic and October this year is £288 million. We could be doing so much more with that investment to effect meaningful change and reforms in our public transport system.
As the grant terms are currently conditionalised, they only oblige bus companies to continue to deliver around 30 per cent of bus service levels for the period of the scheme, in order to maintain core services, and to continue engagement with relevant local authorities and health boards to determine what bus services should be operated when and on what routes. I would like the benefit from that money to be used to buy shares in those companies, with a long-term view to increasing public ownership. Single fares on privatised First Glasgow services are now £2.50, compared with £1.80 on Edinburgh’s publicly owned Lothian Buses services. In Glasgow, we need our regional transport authority, Strathclyde partnership for transport, to use the powers in the Transport (Scotland) Act 2019 to re-regulate our region’s entire bus network through franchising. That would allow us to plan routes, cap fares and ensure the same standards of accessibility, emissions, staff training, staff conditions and much more across the whole region. Everyone in Scotland is entitled to a world-class integrated public transport service.
I hope that the measures that I have proposed meet with the approval of members.
Paul Sweeney has raised a number of significant points in amendment 26 and his comments on it, and I am happy to consider how that and a variety of other requests for additional reporting requirements in the various amendments that we have heard today can be considered further in tomorrow’s discussions. Amendments 4, 5, 18, 25, 27, 28, 29 and 30 all seek additional reporting requirements, and I would like the opportunity to reflect on the issues and to formulate amendments to be lodged for stage 3. I want to ensure that the legitimate request for further reporting can be integrated into the already significant reporting requirements that the Government fulfils—and is happy to fulfil—to Parliament in this respect.
I urge Paul Sweeney not to move his amendment and to give us the opportunity to formulate proposals that can be considered in tomorrow’s session.
Amendment 14 agreed to.
Amendment 16 not moved.
As members will know, I am a bit new to this, so I thank the chamber desk team, my staff, the Labour support unit and colleagues across the chamber for all their help. I ask members to be patient with me as I talk to the amendments in an odd order, taking amendments 17 and 29 together and providing a bit of explanation, and coming back later to amendment 28.
Scottish Labour is clear that, had the scope of the bill been wider, we would have sought to do more to ensure that people were protected for a while longer, and we would have sought to add provisions that are needed to meet the challenges that lie ahead. For example, had the scope of the bill been wider, I would have been moving an amendment today to continue and extend the provisions that were put in place to support carers and disabled people. Specifically, we would have wanted to double the carers allowance supplement again this year, as was done in 2020, and to continue doing so until the end of the pandemic, which would make a huge difference to the thousands of unpaid carers in Scotland.
Recognising that disabled people faced additional costs before the pandemic and that we have not begun to assess the impact that the pandemic has had on that group of people, we would have sought to use the opportunity to discuss a Covid payment to disabled people and to implement a £5 uplift to the Scottish child payment for families that include a disabled person. Introducing such a supplement now and increasing it to £10 by 2022-23 would lift approximately 10,000 children out of poverty. As we heard earlier from the Cabinet Secretary for Social Justice, Housing and Local Government, we are—sadly—on track to miss our child poverty targets by 4 per cent, which makes it even more frustrating that we have not been able to do that today.
Navigating the bill—any bill, I imagine—is tricky, especially for the first time. Had all our amendments been in scope, the first thing that we would have needed to do was extend the powers in the act that provide for the double payment of the carers supplement, rather than expire them. That is what amendment 17 sought to do. That amendment was ruled in scope but, sadly, the amendments to double the supplement and make the payments were ruled out of scope. Therefore, amendment 17 is somewhat null. However, I hope that the chamber will appreciate that that was perhaps an imperfect situation and will understand and be patient with the first-time attempts to bring scrutiny and impactful change to an issue of this gravity, with meaningful discussion in the chamber. I do not intend to press amendment 17.
Here is where the other amendments come in. As we are not able to call for those policies as we would have liked to in this debate on the bill, we are instead seeking a commitment, through amendment 29, that, within one month of the bill receiving royal assent, the Government will produce a report on the expiry of the current provisions that are intended to protect carers and families with disabled people in them and on whether further measures, including those that we have set out, and a Covid payment for disabled people, are required.
Had we been able to, Scottish Labour would also have sought to take the opportunity that is presented by this bill to introduce self-isolation payments for all adults who are forced to self-isolate. The chamber will be aware that some self-isolation grants are available at the moment, but they are available only to specific people and are subject to very specific eligibility requirements. However, as we know, Covid-19 does not pick and choose its effects, which is why it is clear that we must do more to offer support to those who are not able to access it, so that anyone who is asked to self-isolate does not see themselves out of pocket. As we have not been able to make that call directly, Scottish Labour is instead proposing, in amendment 28, that the Government publish a report on the effect of the provisions in the bill on the support that is available to people who are forced to self-isolate. Again, we would like to see that report no more than one month after the bill has received royal assent.
I thank the chamber and the Presiding Officer for their patience. The amendments that I have lodged seek to draw attention to those serious issues, apply as much scrutiny as possible in the time that we have and encourage meaningful and impactful discussion, decision making and action on the part of members at this time.
I move amendment 17.
I feel that there is absolutely no need for Pam Duncan-Glancy to apologise for detaining the chamber, given the length of time that I have gone on this afternoon. I am sure that that observation has attracted wide support from the Labour Party, despite the generosity of spirit that I have demonstrated today.
Amendment 17 will prevent the expiry of the provisions relating to the carers allowance supplement in the 2020 act. The majority of increased payments of the carers allowance supplement were made in June 2020, and around 83,000 carers received an extra £230.10 to help them deal with the unprecedented circumstances of coronavirus and the additional pressures that were brought by lockdown. The provision is being expired as it is no longer necessary, because it relates only to the period from 1 April 2020 to 30 September 2020, and backdated payments in respect of that period can still be made notwithstanding expiry.
We absolutely value the support that is provided by unpaid carers and we have brought forward the Carer’s Allowance Supplement (Scotland) Bill to support unpaid carers with an additional coronavirus carers allowance supplement payment. That will be paid with the December carers allowance supplement, as we did in June 2020. We proposed to do that through a stand-alone bill, as that allowed us to bring forward proposals for greater flexibility to make future payments to carers in receipt of carers allowance supplement, should they be required.
Pam Duncan-Glancy has indicated that she will not press amendment 17, and I hope that what I have said provides the necessary reassurance to her of the Government’s intent in this area of activity. I acknowledge the significance of the points that she raises in relation to support for carers.
The purpose of amendment 28 is to require ministers to produce a report assessing the effect that the expiry of provisions by the act is likely to have on the social security support that is available for carers. The report must consider whether, due to coronavirus, further measures are required to support carers, and whether a further coronavirus carers allowance supplement should be paid. The report must also consider whether a Scottish child payment supplement of £5 should be made, where the payment is made in respect of a dependent child who has a disability. Where no further support is being provided, the report must set out the reasons for that.
The Government absolutely values the role of unpaid carers and we have brought forward the bill to which I have referred to support unpaid carers with an additional coronavirus carers allowance supplement payment. The bill also seeks enabling powers to allow greater flexibility in making any future increases to the carers allowance supplement. I would like to reassure Parliament that there will be no impact on the support for unpaid carers through the expiry of the provisions. I have placed on record the Government’s commitment in that respect.
The reporting requirements in amendment 28 fall into the category of reporting requirements that I referred to in my earlier contribution. The Government will reflect on those issues as a consequence of the debate today, and I ask Pam Duncan-Glancy not to press the amendment, because the Government will bring back enhanced reporting requirements in a stage 3 amendment tomorrow.
The Government is resisting amendment 29, which will mandate the publication of a report on the effect that the extension and expiry of provisions by the act will have on the support that is available for people who are self-isolating. The same issues apply as with amendment 28—we will consider the reporting requirements and bring forward tomorrow a consolidated proposition that Parliament can consider. Therefore, I ask Parliament not to agree to any of the amendments in the group, on the understanding that the Government will bring forward enhancements to the reporting arrangements in stage 3 amendments tomorrow.
On the point about the Carer’s Allowance Supplement (Scotland) Bill, which has come to the Social Justice and Social Security Committee, I think that we missed an opportunity by not doing some of that in the bill that is before us today. Then the bill that has gone to committee could have been on less of a tight timescale, which would have allowed us to consider issues such as bereavement payments. However, specifically on amendment 17, I understand that the reason to have the amendment is no longer there, because the amendment that we needed it for was considered out of scope. On that basis, I will not press amendment 17.
Amendment 17, by agreement, withdrawn.
In the interests of time, I will speak just to amendment 18, and will do so briefly.
Care homes were at the epicentre of the pandemic. Some 3,774 people died in our care homes of Covid-19. That affected their families and it affected staff, and many more suffered from the virus but, thankfully, pulled through.
At the start of the pandemic, there were issues with personal protective equipment, a lack of testing, and inconsistent and ever-changing guidance. Care homes across all sectors were crying out for support. Having an overview of what is happening in our care homes across Scotland is essential while the virus remains. I appreciate that the Care Inspectorate has resumed reporting on individual care homes, but that does not provide an overview of what is happening in care homes across Scotland.
We are debating the extension of emergency powers, because we think that there is a continuing issue or a potential problem in the future. I say to the cabinet secretary that, if vulnerable people in care homes were the worst affected during the pandemic, anything that monitors what is going on in care homes across Scotland is therefore critical and should be kept. Thank you.
I move amendment 18.
Thank you, convener. I was pleased to have an extra moment or two to consider what I was going to say about the amendment.
I am sure that we have made it clear by now that Scottish Labour would have looked to do a bit more with the bill had we been able to, including calling on local authorities to recommence care packages and respite care. With amendment 30, we have once again opted to lodge a reporting amendment to place a duty on Scottish ministers to lay a report before Parliament no more than one month after the bill receives royal assent, in this case so that we can understand the impact that ending or extending provisions in the act will have on social care services.
A report by the Scottish Human Rights Commission shows that the removal of care packages during the pandemic has had a direct and detrimental effect on disabled people’s human rights. It recommended that social care be reinstated to at least pre-pandemic levels.
Many of us will have heard stories over the past year of individual people going through the pandemic and being left in degrading and inhumane situations as a result of losing their care. That is why we need to have a clear focus on this area. Testimony gathered for the report was incredibly distressing reading: disabled people unable to wash or get out of bed, being left asleep in their wheelchairs, and having to leave their homes and move in with family. None of that is ever okay.
The protection of social care services is vital—it is an investment that we need to make. We must ensure that disabled people get the care that they need and we must provide essential care and support for them to participate in society and lead an ordinary life. In the past year, due to the pandemic, that has not been the case. It is incredibly important that we continue to consider the impact that that has had on that group of people, which is why Labour lodged an amendment requiring the Government to report on it.
For the second time, I draw members’ attention to my entry in the register of interests in relation to rental properties in my name.
I will briefly address the amendments relating to social care. I welcome the Government’s intention to allow provisions relating to reporting by the Care Inspectorate contained in paragraph 22 of schedule 1 to the act to expire on 30 September. I recognise that, during the eye of the Covid storm, there was a huge focus on the activities in care homes—and rightly so. Families, residents and care home staff were literally living in fear, and the regular reports addressed those legitimate concerns. However, we must remember that the root cause of the problem of transmission and deaths in our care homes often related to Covid-positive patients being discharged from a hospital setting into a social care setting. With vaccines now providing extensive safeguards, and care homes having put in place advanced infection control mechanisms, those reporting rules can now be relaxed.
The system of fortnightly reporting by the Care Inspectorate to Parliament has put undue pressure on the Care Inspectorate to deliver those reports, which has removed it from its much-needed inspection and improvement work. It has prevented the normal relationships being restored and does not give care homes time to reflect on and respond to the reports before they are released publicly.
Jackie Baillie’s amendment 18 has the effect of extending the provision for fortnightly reporting. Given that that is the case, the Scottish Conservatives will not support it. However, we welcome amendment 30, in the name of Pam Duncan-Glancy. Although I have spoken out against the fortnightly reporting regime, amendment 30 seeks a one-off report by ministers to Parliament on issues that include exploring the effect of the extension and expiry of the act’s provisions on social and respite care, and identifies further measures that may be required to restore social care support packages and respite services to pre-pandemic levels. I believe that such a report, especially if it comes forward within one month of royal assent, will provide Parliament and our care providers with timely information that will assist in the restoration of vital social care services. The Scottish Conservatives support that objective and are content to support amendment 30.
In relation to amendment 18, I have engaged with Scottish Care, which has serious concerns about the impact of the continuation of the reporting provisions on the Care Inspectorate’s ability to carry out its other obligations and provide support to care services. I absolutely agree with Jackie Baillie that, given the situation that we have had during the pandemic, we have to have some form of overarching reporting and accountability. I would be grateful, therefore, if the cabinet secretary could commit to working with the Care Inspectorate and perhaps other parliamentary colleagues to bring something back at stage 3 that would not only reflect both sides of the issue but ensure that the Care Inspectorate has the ability to discharge its duties effectively and continue to improve standards of care.
The Scottish Greens will support amendment 30.
I have said before that when the history of Scotland’s pandemic is written, there will be no more tragic a story than what occurred in our care homes. They were missed out of pandemic exercise planning and then received more than 3,000 untested patients from hospital.
Many families did not learn for months and months what really happened in the homes of their loved ones. They deserved to have all the facts all along. The repercussions of the failure to protect care homes and their residents will continue to be sorely felt, which is why we need a public inquiry to start without delay.
I am very grateful to Jackie Baillie for lodging amendment 18. Scottish Liberal Democrats also considered whether there is a need to retain the additional care home reporting on inspections and deaths that was introduced at the start of the pandemic. The policy memorandum discusses that in some detail. Before the powers are expired, I would like to hear further assurances from the Deputy First Minister and his Government that that will not have an impact on the quality of reporting on care homes. The policy memorandum says:
“inspection reports are published usually within 10 days of the inspection.”
I want to know what proportion take longer than that and whether there is a hard time limit for the publication of the reports. How will the Government ensure that there is still timely access to care home inspection reports? Are there any parts of the weekly reporting of deaths under the emergency powers that are not now covered by National Records of Scotland? Before the powers are expired, I would like the Deputy First Minister to guarantee that that will not have a negative impact on the quality of reporting on our care homes, because it has been hard enough over the past 15 months for families to acquire that important information.
Jackie Baillie’s amendment 18 raises very difficult issues. Her fundamental concern is about ensuring that appropriate arrangements are in place in care homes and that they are applied effectively. That is an absolutely legitimate subject of inquiry. The question is not whether there should be scrutiny, reporting and gathering of information about performance in care homes; the question is how it can best be undertaken.
Gillian Mackay raised legitimate points—they are at the heart of the arguments on the matter. They were about whether all that would best be served by enabling the Care Inspectorate to carry out the long-standing previously agreed and legislated for scrutiny of individual care homes, or whether some resource has been distracted by the overarching reporting and analysis that were envisaged for the circumstances.
The fortnightly reports on inspections—the 28th such report will be published this week—have been helpful in getting information into the public domain and in providing assurance to Parliament and the public, at a time when the level of anxiety about the safety and wellbeing of care home residents and staff has, understandably, been high. However, preparing the fortnightly reports has reduced the Care Inspectorate’s capacity to carry out wider scrutiny activity, because inspectors are involved in preparation of additional reports. As we move into recovery and remobilisation, it is important that inspectors can refocus their attention on scrutinising and supporting all care services and not focus only on care homes that are at the highest risk from Covid-19.
There is unnecessary duplication of effort. There has been a return to a near-normal pre-Covid process in which full inspection reports are published by the Care Inspectorate, usually within 10 days of an inspection. The result is that, in many cases, full reports are published at about the same time as the associated less-detailed parliamentary reports.
Gillian Mackay asked me to consider whether, should Parliament not agree to amendment 18, wider synchronisation of reporting could be don. I undertake to examine that in advance of stage 3 tomorrow.
On Alex Cole-Hamilton’s point, the weekly reporting of deaths in care homes has been heavily reliant on accurate reporting by care homes. The official statistics that are published by National Records of Scotland are now well established and include data on care homes. I therefore urge members not to support amendment 18, but I give an assurance that I will explore the point that Gillian Mackay raised.
I would like Parliament not to proceed with amendment 30, so that the Government can reflect on the matter and on wider scrutiny of the reporting requirements that can be included in the bill to enhance the existing reporting arrangements. There have been a number of requests that we enhance reporting requirements. I would like the opportunity to consolidate those requests to allow reporting requirements to be put into the bill at stage 3, in order to ensure that Parliament is properly updated on and advised of performance against the requirements of the legislation. I urge Pam Duncan-Glancy not to move amendment 30, on the basis that I will introduce reporting requirements at stage 3 tomorrow.
I am sure that it was not his intention, but I thought that Craig Hoy’s contribution perhaps suggested a degree of complacency. There is nothing normal about the pandemic. Care homes suffered the very worst of deaths, and Parliament put in place reporting mechanisms because we believed that they were needed. There is the possibility of new surges and new variants, and care homes are vulnerable in that context.
I understand that there might be capacity issues. I favour Gillian Mackay’s suggestion and, on the basis that the cabinet secretary does too, I am happy not to press amendment 18. I hope that the cabinet secretary will consider the matter and bring back an amendment tomorrow.
Amendment 18, by agreement, withdrawn.
Section 2, as amended, agreed to.
Amendment 25 is on a procedure to produce a report on
“(a) social distancing requirements that remain in place,
(b) the permissibility of live music,” and
(c) limitations on indoor household gatherings”.
Today there was a Government-inspired question, which Jackie Baillie referred to, on extended opening times for hospitality during Euro 2020, which have caused distress for parts of the hospitality sector that are not able to benefit from those provisions.
Amendment 25 asks for a report detailing the progress made towards ending restrictions in relation to weddings, permissibility of live music and limitations on indoor gatherings.
The Scottish Wedding Industry Alliance said:
“Yesterday’s announcement will not be the guidance everyone wanted, we’re also disappointed regarding dancing (something we campaigned for). We are continuing conversations to ask for the new guidance to go live on the Friday dates and we will carry on fighting for everyone.”
Only yesterday, a constituent who is due to get married very soon wrote to me—they are not the first one—and said:
“Some leeway would certainly make sense, all things considered. Especially seeing as most of the wedding party will be fully vaccinated already. Surely that should count for something. We have a DJ hired which is costing almost £3000. A large deposit already paid when we thought the end of June would be the reopening date. It’s not even as if it’s going to be a rave, just some cringey dancing for a couple of hours”—
I am only quoting here. [
] We are all thinking of weddings that we have been at where there has been “cringey dancing” but also a lot of enjoyment.
My constituent continued:
“Also with indoor social distancing being reduced to 1 metre, you’d be closer to a stranger on a bus than you would be up having a dance.”
He knows that I was going to read that out to give you all a laugh—he was definitely okay with that.
It is a serious question. Many couples, along with people in the wedding and events sectors, are asking why people cannot dance until 19 July. Will dancing really be such a high-risk activity? I hope that the cabinet secretary will give us some indication of what the clinicians are saying the risk really is.
For the sake of nine days in my constituent’s case, there will be a big difference to that couple’s wedding. I ask the Government to focus on that, which is why I seek the reporting procedure in amendment 25.
There is also a lack of clarity on some of the issues, and a report before Parliament might provide such clarity. Some announcements yesterday were very welcome—for example, the lifting of restrictions on bands from 28 June is very much welcomed by the live music sector—but there is a need for clarity on some of that.
Today, Hireaband told me that it had reports of cancellations of ceilidh bands—such cancellations are obvious, because people cannot dance, and dancing is the purpose of a ceilidh band. However, confusion is being caused: bands do not know whether to take the cancellation fee or to take another date. It seems a little arbitrary.
Wedding receptions are of course the main thing, but pubs and clubs that rely on live entertainment are also keen to have that back. A mechanism for reporting after 9 August would give some clarity, because the Government would be required to say what restrictions, if any, were left in place.
Finally, nothing has been said about what the provisions will mean for nightclubs after 9 August. I hope that that issue can be included in the reporting procedure. England, Northern Ireland and Wales have mentioned nightclubs in their statements, but Scotland has not. What do the restrictions mean for live music venues and promoters?
I believe that reporting on the restrictions will give some clarity to the live music sector, which it really needs. It would focus the Government’s mind on some things that it has perhaps not thought about and which are important to the sector.
I move amendment 25.
Thousands of couples across Scotland have had the best day of their lives deferred or cancelled—in some cases more than once, and often at a cost of tens of thousands of pounds—because of decisions by the Parliament and the Government. It is only fair to adopt a reporting duty, as Pauline McNeill’s amendment prescribes. If we do that, not only will we send a very important signal, but it will concentrate the minds of the ministers who are responsible for coming to those decisions. In that way, in situations such as we had last week, when much of Scotland expected to go down to level 1 but was kept in level 2 and, at a stroke, we had to halve the number of wedding guests at many weddings around the country, such things will be considered and there will be reporting to the Parliament.
Scottish Liberal Democrat members are therefore happy to support Pauline McNeill’s amendment.
I accept that the issues that Pauline McNeill raised, whether on weddings or on the impact on the live music sector or venues as a whole, are of significance.
This morning, I had a very helpful conversation with representatives of the Glasgow city centre task force, on which many live music venues are represented. A number of the points that Pauline McNeill made were raised during that discussion. The concern that somehow those issues are not on the Government’s agenda is not, I assure Pauline McNeill, valid. The Government has wrestled with those questions, because none of us wants to have to disrupt or delay the life plans of individuals at such important moments in their lives.
However, clinical advice and guidance inform our decisions. Yesterday, the First Minister set out our hope, subject to continued progress and the meeting of the caveats that we have set out, that the current requirements for 1m physical distancing will end once the country goes into level 0. Beyond that, we will remove all restrictions. There is therefore a clear pathway for the sector, so that it can understand the changes that are going to be made.
We are allowing live entertainment at weddings from 28 June. On the type of specific additional circumstance that Pauline McNeill raised, if she writes to me I will happily consider what can be done in such circumstances.
I am trying to get as much clarity as possible, and I appreciate that there is a lot to consider.
Does what the cabinet secretary said mean that, after 9 August, live music can be played without restrictions in pub venues, for example, as well as at weddings? It looks like that to me. It would be good to get the clarity that we did not get yesterday.
The short answer to Pauline McNeill is yes, but there will be other considerations: mitigating measures such as ventilation and wider hygiene requirements might well go with such an approach.
I do not want to give a signal that we are going back to a pre-Covid situation, with absolutely no wider considerations; there will be conditions that have to apply. I discussed such issues at length with the Glasgow city centre task force this morning.
Over the next few weeks, we must go through some detailed dialogue with the live music sector and the wedding industry, to make sure that we cover off all the issues that need to be covered off. I assure Pauline McNeill that that will be done in dialogue with the sector.
On that basis, I ask Pauline McNeill not to press amendment 25. I will reflect on her proposal—amendment 25 is one of the amendments on reporting requirements on which I have agreed to reflect. I do not think that the issues that she wants resolved need legislation; what is needed is for us to respond constructively to the legitimate issues that she has raised. I undertake to do that in preparation for the stage 3 debate tomorrow.
There will be on-going dialogue with the sector, and I confirm that the Government will engage constructively in that dialogue in the weeks to come.
I welcome what the cabinet secretary has said. As I said, I am trying to get some clarity. The cabinet secretary knows, because there was a meeting with the wedding sector yesterday, that that sector and the wider night-time economy and hospitality sector have felt that engagement could have been a lot better
. Perhaps we are making important progress.
I ask the cabinet secretary to reflect on what I have been trying to achieve. There would be no harm in allowing some reporting.
Mitigation measures make sense and would be expected.
Let me reiterate two points. First, the Government is actively engaging with the wider sector. My colleagues have done a lot of work to engage with sectors over the Covid period and I, with my new responsibilities, give an absolute assurance that that will be the case across all the areas that we are talking about.
Secondly, the reporting requirements on which I will reflect in preparation for stage 3 are designed to ensure that Parliament receives proper and full reports on all aspects of the application of the legislation, and Pauline McNeill’s proposal can feature in that regard.
I acknowledge that, but I again ask the cabinet secretary to acknowledge that the sector has been critical, albeit at a time when the issues were outwith his responsibilities. I just want to push the Government to engage with the wider hospitality sector—it is a diverse sector and includes live music, with all the risks that are attached to that—to ensure that we have the closest engagement and the greatest clarity as we ease restrictions.
On that basis, I will not press amendment 25.
Amendment 25, by agreement, withdrawn.
Schedule agreed to.
Section 5 agreed to.
Amendment 28 not moved.
Similarly, I will not move amendment 29.
Amendment 29 not moved.
I will not move amendment 30. I thank members for their support for that amendment.
Amendment 30 not moved.
Sections 6 and 7 agreed to.
Long title agreed to.