The result of the division is: For 48, Against 64, Abstentions 0.
Amendment 1 disagreed to.
Group 2 is on regulation-making powers in the bill: impact assessments. I draw members’ attention to the procedural information that relates to this group, as set out in the groupings. Amendment 96 in group 2 is pre-empted by amendment 92 in group 13; therefore, if amendment 92 is agreed to, I will not be able to call amendment 96.
I have lodged amendments 29, 54 and 96 on behalf of the Delegated Powers and Law Reform Committee. They are probing amendments, in the first instance.
As members will know, the committee recently held an inquiry into the use during the pandemic of the made affirmative procedure, which led to our recommending a set of principles that might provide the basis for considering the delegated powers, in bills, that can be exercised subject to the made affirmative procedure. Reflecting those principles, our stage 1 report on the bill recommended that the Scottish Government lodge amendments for each of the five powers that can be exercised subject to the made affirmative procedure.
Those statutory requirements are threefold. First, each Scottish statutory instrument should be accompanied by a written statement explaining, and providing evidence on, why the regulations need to be made urgently. Secondly, the Government should
“include an assessment of the impact of the instrument” on all those who are likely to be affected. Thirdly, such SSIs should be subject to a sunset provision so that changes to the law do not continue to be in force indefinitely.
In considering the bill as amended at stage 2, the committee welcomed the Scottish Government’s amendments that require a statement of urgency to be provided and a sunset provision to be included when the made affirmative procedure is used. However, the Government did not lodge any amendments to require an impact assessment. Instead, it stated in response to the committee’s stage 1 report
“that current scrutiny frameworks ... are fit for purpose and that there is no need for such an amendment.”
The committee agreed to lodge the amendments in this group because it considers that it is important that those who will be affected by changes to the law understand the impact of the regulations. That information should be assessable, clear and published in a timely manner.
I know from our evidence session at stage 1 that the Deputy First Minister accepts “the sentiment” of the committee’s position “unreservedly”. Therefore, I look forward to hearing his views.
I move amendment 29.
I am a member of the Delegated Powers and Law Reform Committee. As the convener said, we carried out an inquiry into the use of the made affirmative procedure. Our unanimous view was that the procedure has been overused and that checks and balances should be put in place. That was our approach when we considered the bill.
At stage 2, I lodged a number of amendments, none of which were agreed to, based on the casting vote of the convener of the COVID-19 Recovery Committee. Therefore, I welcome Stuart McMillan’s amendments on behalf of the DPLR Committee. It is important that we provide checks and balances when the made affirmative procedure is used. To be frank, during the pandemic, the Government went somewhat haywire with its use of that procedure.
The amendments in the group are sensible. If Mr McMillan chooses not to press amendment 29 and not to move the other amendments in the group, I will.
Following amendments to the bill at stage 2 to provide for an explanation of urgency if the made affirmative procedure needs to be used in urgent circumstances and for a sunsetting provision to be included when appropriate, a supplementary delegated powers memorandum was considered by the Delegated Powers and Law Reform Committee.
In its report of 24 June, the DPLRC welcomed amendments that had been made at stage 2. The committee also recommended, as it had done in its stage 1 report, that if made affirmative powers were used, an assessment of the impact of the regulations should be provided. This group of amendments follows on from paragraph 10 of the DPLRC’s report.
The Government made it clear in its response at stage 1 that processes that are currently in place already provide the required scrutiny. Policy notes are prepared and, when appropriate, impact assessments are carried out for any SSI, not just for those that are urgent. We do not wish to add complication or delay when there is a need for urgent action.
I am simply making the point that the Government has made those commitments, and I have just set out and reflected the Government’s routine practice. Indeed, when the Minister for Parliamentary Business gave evidence to the DPLRC last week, he made it clear that the Government already carries out impact assessments and that the Government can continue to engage with the Parliament on this question.
Therefore, I do not think that there is a need for amendments 29, 54 and 96, so I invite Mr McMillan not to press amendment 29 and not to move amendments 54 and 96.
I thank the Deputy First Minister for that reply. We discussed potential amendments with the Minister for Parliamentary Business in committee last week during the private session. The committee considered that any amendments that it would lodge would be probing amendments, in order to establish any further information from the Government. Given the points that the Deputy First Minister has raised, I am content not to press amendment 29.
The result of the division is: For 49, Against 64, Abstentions 0.
Amendment 2 disagreed to.
Group 3 is on educational regulations: use of powers and safeguards. Amendment 30, in the name of Oliver Mundell, is grouped with amendments 31 to 43, 9, 45, 10, 47, 49 to 52, 55 to 61, 11, 62, 63 and 65.
The majority of the amendments in this group were debated during stage 2. I have brought back my amendments not to debate them again in full or to reheat the arguments that were had at committee, but to give the Government an opportunity to change its mind. There have been only two areas in which I have been able to work with the Government to bring back amendments that we agree on. It is welcome that I have been able to do that, but the amendments are very small, given the scale of the challenges that arose in education during the pandemic, and they provide quite modest protection for our young people in the future.
There are three key things behind the amendments in my name in this group. First, the bar should be very high when it comes to closing schools. Denying our children the right to in-person education is not something that should be done lightly. We therefore have to balance the power that ministers want to take on by putting in place additional protections. The same is true in other areas of our education system beyond schools. It is right that, with that power come criteria that have to be met, and it is important that some of those are put in the bill.
Secondly, during the committee debates, we heard a lot about what I termed the John Mason principle, which is that the people who are in government now might not be in government in the future. That cuts both ways, of course. There is a chance that we could have something better, but there is a fear among those of us on these benches that it could be the same people making the same mistakes.
That takes me to the third point behind many of my amendments: they address some of the lessons that we learned during the pandemic. They seek to push the Government a bit harder to get on with meeting some of the promises that it made to young people. That particularly applies to amendment 41—which, I have to admit, is a redrafted version of a stage 2 amendment by Stephen Kerr. It makes an important change.
Does the member agree that one of the challenges that we face is that, even before the Covid investigation has taken place, assumptions are being made by the Government about what is and is not needed following Covid?
That is true, although there are some lessons that we definitely learned. There is the fact that we were so slow, in so many parts of the country, to get the appropriate electronic devices. The amendments change that— expanding the appropriate electronic devices to laptops, which addresses one of the Government’s concerns.
Most young people and families whom I speak to would be happy with any device, frankly. A laptop would be an improvement on nothing. In other parts of the country, it has been possible to get devices out very quickly. My amendments put into the bill a challenge to ministers to get on with it and make available the resources to deliver those laptops before they consider shutting schools in the future.
Amendment 38 makes a similar point about consulting local authorities, rather than ministers just taking decisions all by themselves. There is also amendment 49, which it should not be hard for the Government to support, as it encourages a greater role for the Children and Young People’s Commissioner Scotland in ensuring that the wider rights of children are explored when the powers are used.
There are also balancing provisions that ask Government ministers and key decision makers to look beyond the narrow health focus. One of the mistakes that we made is that, certainly in the early stages of the pandemic, we focused narrowly on one aspect of health and did not fully understand—or, in the Government’s case, recognise even when told—the considerable strain that was being put on our children or the long-term consequences of that. We must be more balanced in future.
I am interested to hear what the Government has to say on the amendments and whether it feels able to support any of them.
I move amendment 30.
This is a large group of amendments, many of which are the same or similar to those that were debated at stage 2, as Mr Mundell just put on the record.
First, I will speak to amendments 9 to 11 in my name. At stage 2, I set out that the Government had worked closely throughout the pandemic with the Covid-19 education recovery group and that we would expect to do similarly in future. I agreed with the principle behind the amendments on consulting stakeholders during a public health emergency and committed to look further at an amendment on that for stage 3.
Therefore, amendment 11 in my name provides that ministers must seek views about educational continuity regulations, and any regulations under sections 9 or 10 that may be in force at the time, at least every 28 days while those regulations are in force. Ministers must seek views from representatives of education establishments and from users of those establishments—including, importantly, representatives of children and young people—along with staff and any other stakeholders that are considered appropriate.
Amendments 9 and 10 are technical amendments that bring sections 9 and 10 into line with section 8 by requiring that all regulations under those two powers are limited to “a specified period”.
I now turn to the other amendments in the group.
At stage 2, the Government introduced amendments that further strengthened the safeguards that were already in the bill and established a process by which the education powers could be used only with parliamentary approval of a public health declaration by ministers. That ensured that those powers could be used only with parliamentary authorisation in the event of a future threat to public health. Amendments 57 and 58 would remove that gateway vote mechanism. I cannot understand that. Why remove a significant safeguard to the use of the powers to which Parliament has already agreed? I urge members to keep the gateway provisions in the bill and reject those amendments.
Amendments 30, 33, 35, 43, 45, 47, 52, 55, 61 and 65 would leave out sections 5 to 14 of the bill. Throughout the progress of the bill through Parliament, we have made clear the importance of those powers in the bill.
Amendment 56 would provide that education regulations could be in place only when public health protection regulations are in place. It may not necessarily have that effect, as some regulations made under the public health provision may be permanent preparedness regulations, in which case the amendment would not achieve its purpose.
Amendment 49 is similar to amendment 130 that was lodged at stage 2. We remain concerned about how the children’s commissioner could provide a view on whether regulations were proportionate or necessary without access to the full information and advice on public health that ministers would have. My amendment 11 now also ensures that the views of children and young people will be sought when education continuity regulations are in place.
Amendment 41 is similar to amendment 119 that was lodged at stage 2. It requires ministers to provide an electronic device and an internet connection where regulations under section 8 have been made. The Government is already committed to ensuring that every child has access to a device by the end of this parliamentary session and, indeed, made a significant investment to that effect during the pandemic.
I am grateful for the Deputy First Minister’s comment and am cognisant of the commitment that he made on behalf of his party to provide every child at school in Scotland with a device and an internet connection.
However, given the feedback that he gave when the issue was considered at stage 2, I am completely at a loss to understand why the Government is now not minded to put it into law. It would surely be an underscoring of the commitment that he has already made to the young people of Scotland—this way, no child would get left behind. It must surely be our objective that, in such an emergency that the bill envisages, everything possible is done to ensure that no child is left behind. The Government is honour bound by its manifesto commitment to put it into the bill.
We do not put all policy commitments into legislation. That is a statement of representative fact on the approach to legislation.
The Government has made the commitment that I have set out. We are working through the commitment with our local authority partners. We are working in partnership with local authorities in the best means possible at local level to implement schemes—many local authorities are taking them forward—and we are supporting them on the effort to deliver on that commitment.
I do not want to be unreasonable, but I have not heard a reason why that precaution cannot be part of the bill. There is no reason at all; in fact, as I said earlier, it is a way of underscoring our commitment that no child gets left behind. That is a commitment that the Deputy First Minister has already made, so why can it not be in the bill?
With the greatest respect to Mr Kerr, I gave an answer to the question why it is not in the bill: it is because we do not legislate for all policy commitments. If I could give Mr Kerr some advice, I note that a way of supporting the implementation of the policy commitment—about which I acknowledge that he cares deeply—would be to vote for the Government’s budget that gives effect to those provisions. However, he did not do that earlier this year.
Amendment 38 would, in effect, give local authorities a veto over the closure of local authority-run schools in their area, which is undesirable in terms of managing a future public health emergency that requires a co-ordinated, national response. The same goes for amendments 39 and 36.
Amendments 37 and 51 are identical to those that were debated at stage 2, and I remain of the view that they would prevent regulations swiftly and effectively addressing a public health emergency.
Amendment 40 was also debated at stage 2, and I remain of the view that it is unnecessary, because any regulations would be expected to include provision relating to ensuring continuity of educational provision and to be accompanied by guidance. Similarly, amendment 42 ignores the existing guidance and regulation-making powers in the bill, which we could use to make clear that pupil-school contact should be facilitated and to give operators appropriate flexibility for different stages of education or needs.
Amendment 50 would put in statute a requirement on ministers to seek voluntary arrangements with education providers before making any regulations. The amendment would significantly delay bringing forward any regulations. Where appropriate, ministers would expect to use voluntary arrangements where possible, but that might not always be the case.
Amendments 59 and 60 were debated at stage 2. They would add an additional requirement to review any regulations within seven days of a new member of the Scottish Government or a junior minister assuming responsibility for the regulations. That would undermine the principle of collective responsibility under the Scotland Act 1998.
Amendment 62, regarding relevant authorities using their professional judgment, could give them significant scope to make different decisions for their establishment despite national advice, guidance or regulations.
I am not making the argument that the Government knows best. I am saying that, in the case of a pandemic that has national effect, the Government is required to put in place guidance that will have to be reflected and followed at local level. In those circumstances, we as a Government have a duty of care to the country, in general, to ensure that guidance is clear and accessible to professionals at local level, so that they can use their judgment in the context of the guidance. That is an important factor in establishing the framework that is envisaged in the bill provisions that are before the Parliament.
There is already scope for deviation from guidance or advice, where necessary, in line with the legal responsibilities that are exercised at the local level. Nothing in the bill is intended to undermine the professional judgement and knowledge of those in educational establishments. A provision such as the one contained in amendment 62 does not provide clarity on the action that providers need to take, and it would hinder swift and decisive national action.
Similarly, amendment 63 would place another unacceptable delay on ministers when they are, in effect, responding to a national emergency.
For the reasons that I have given, I invite Parliament not to vote in favour of any of the amendments in this group, with the exception of my amendments 9, 10 and 11.
We have heard the Government’s approach: it is its way or no way at all. That is sad, because there was an opportunity to work together and make sure that the principle of professional judgment was built into the legislation. That is the least that our hard-working educational professionals deserve. Yes, it is right that we have national measures, but there has to be a recognition that, if broad and blunt approaches are to be taken quickly in an emergency in an effort to get things right across the country, there needs to be room, at a local level, for people to take pragmatic and sensible decisions that are in the best interests of our young people.
To say that Government ministers can make rules nationally that fit all scenarios is wrong, and it does not speak to many of the challenges that we saw during the pandemic, when things that were announced here or on television did not work out so well when it came to their implementation. There needs to be more discretion and flexibility.
On amendments 57 and 58, I reassure members who are worried about the provisions that those amendments seek to take out that I intend to press them only if we manage to get the rest of the education sections removed. That is my preference. The legislation is not fit for purpose, and it is not right for such issues to be grouped in a catch-all bill. As we will argue in the closing debate, and as we have said throughout, the preparation work should have been done and the legislation should have been on the shelf, ready to go. We should not be putting some of the proposed sections on to the statute book and handing broad powers to ministers.
The result of the division is: For 49, Against 63, Abstentions 0.
Amendment 43 disagreed to.
Like the previous group, many of these amendments—in this case, all but one—were presented at stage 2. We then had a lengthy debate and discussion, and the Government went to great lengths to explain why we did not need a catch-up plan for young people, why it was not necessary to ensure that historic data would not be reused when determining future exam grades, and that we did not need to worry about the financial impact of some of the decision-making powers that were being used, because any future Government would, of course, go out of its way to ensure that students were well supported.
I do not believe that we can take anyone at their word on those things, partly because of the John Mason principle and partly because we have lived through a recent pandemic in which students and those who were sitting exams were treated exceptionally poorly. At times, the way that some of the decisions were handled bordered on heartlessness.
Without being unkind, I think that the Deputy First Minister’s biggest mistake during the pandemic was to allow the chaos around the first set of examinations. Young people have gone on, whether to further study or into the world of work, feeling scarred and let down by that process.
Does the member agree that, if we are genuinely to see a recovery from the pandemic, we need a proper analysis of what has happened in our schools and of the impact on young people? Does he agree that that should be accompanied by a proper recovery plan and not just a restatement of previous policies, with people being told that they can now address the even greater needs that are presenting themselves post-pandemic?
The member is absolutely right. As we have seen, the response, the resource and the general commitment from the Government towards education do not match the scale of the challenges that are faced by our young people. This is obviously not something for this debate, but the past 15 years have not been Scotland’s greatest in terms of education. In the past period, the SNP Scottish Government has been found wanting. At times, it has treated teachers and young people themselves with disdain, dismissing their concerns and saying that existing resources are enough. It has told us how fantastic it is that it has brought in new teachers, but, every time it restates that, it fails to mention that they are just replacing the teachers that it cut—the teachers who were missing during the pandemic, which put our schools under such pressure.
It is important that the bill speaks to those challenges. The very least that our young people deserve is a commitment in the bill, which will be enshrined in law, that they will not be treated badly or disadvantaged by the use of the powers.
I am not expecting an awful lot here. There is one amendment in the group on which I have been able to work with the Government. Amendment 12 proposes a very modest reporting mechanism whereby we will at least know in 12 months’ time how the Government is getting on with delivering electronic devices. I am hopeful that it will be well ahead of target on that. There are many parts of the country where local authorities and others have managed to get devices out to young people, but the fact that we are now two years on from the start of the pandemic and there are young people who still cannot properly access remote learning is a disgrace.
I move amendment 44.
The measures that are set out in amendment 44 would cut across the statutory obligations of the Scottish Qualifications Authority. As I noted at stage 2, the SQA worked closely with partners during the pandemic to ensure that young people were able to achieve fair and credible grades in spite of the disruption caused by Covid. That included informing them of decisions on the timing of the return to an examination diet, with appropriate notice of such decisions taking into account public health advice at the time.
I have been absolutely candid with Parliament about the mistakes that were made in the SQA exam diet in 2020. If Mr Mundell wants to use the opportunity of the bill going through Parliament to revisit that, I am quite happy to do that, because, in all honesty, I took the best decisions that I thought were available to me on the evidence that was in front of me. I respected an independent examination authority that was undertaking the assessment and adjudicating that process.
I did not think that it was right for ministers to circumvent the law and take away an independent exams body’s responsibility; that was the judgment that I arrived at. I point out that that was the judgment that the secretary of state in England, the minister in Wales and the minister in the north of Ireland arrived at. I did not take a unique decision—I just respected the law. I am a great believer in respecting the law, which is what we have been talking about for a large part of this afternoon.
If Mr Mundell wants to use today as an opportunity to poke away at me about 2020, I have been completely candid with Parliament about the difficulties that I faced in 2020, and I faced up to the challenge that came from his colleagues. Thanks to consideration in Parliament, those challenges were addressed by the way that we responded to the challenges that young people faced, and we addressed them into the bargain.
Does the Deputy First Minister recognise the impact of the decisions that he took and that part of the purpose of the amendments in this group is to talk about that impact and make sure that there is appropriate resource and redress for young people, to ensure that they can recover from the situation, instead of just a restated set of SNP policies that predated the pandemic?
That is where Mr Marra and Mr Mundell are joined at the hip in making the same argument by, in essence, running down Scottish education. [
.] I am sorry, but here we are—the joint runners-down of Scottish education are at it again, and I will not have that this afternoon. There is enormous strength in Scottish education, but the Labour Party and the Conservatives are totally belittling it on a constant basis, and they do no service to young people or educators.
Mr O’Kane is wagging his finger at me, so let me wag my finger back at him. He was involved in a local authority that presided over a good record on education, so why is he ashamed of East Renfrewshire Council’s record when he makes his contributions here, in Parliament?
The reality is that the figures for Fife have gone backwards, the attainment gap has got wider and the number of children who are accessing the sciences has gone down. When I speak to the leader of Fife Council, he tells me that all of that is a direct result of Covid and that progress was being made up until then.
We need to look at the figures in more detail, but the point is that I am more interested in what the recovery plan for education will be, and tackling those issues and problems. It is not about blame; it is about asking what we will do to recover from what was undoubtedly a severe impact on children’s education.
Mr Rowley expresses the challenge in a fundamentally different way from how Mr Mundell and Mr Marra expressed it. Mr Rowley puts his finger on the point that is at the heart of the Government’s Covid recovery strategy, which is that inequality existed at the start of Covid and was exacerbated by Covid. The Government’s Covid recovery strategy, of which the educational strategy is an integral part, is all about addressing the challenges that existed for people as a consequence of Covid.
That does not address the central point that Mr Marra made, which is that if there is a new strategy to deal with the exacerbated effects of the pandemic, why is there no new SNP policy?
The SNP policy is about closing the poverty-related attainment gap. I have just addressed that point in response to Mr Rowley. He made the point that inequalities existed pre-Covid, and the attainment challenge is all about addressing that inequality.
Obviously, if we had a greater range of powers to enable us to tackle poverty more effectively in Scotland—beyond the measures that we are already taking, such as the Scottish child payment, which of course the Conservatives, the Labour Party and the Liberal Democrats all voted against in the most recent budget—our task might be made slightly easier as a consequence.
I ask Mr Kerr to forgive me; I have given way a number of times.
The measures that are set out in amendment 44 cut across the collaborative approach that was implicit in the work of the SQA and, at this stage, we do not want to pre-empt future legislation on the SQA’s successor or any outcomes from Professor Hayward’s review of the future qualifications system for Scotland.
Yes, I do want to make a point—without the personal abuse from members on the Deputy First Minister’s benches.
On what the Deputy First Minister said earlier about Conservative and, indeed, Labour members running down Scotland’s education, is he mindful of the fact, in the context of what he has said, that the Ken Muir report called for a national conversation and debate about Scottish education? If, every time someone in the chamber stands up to make a cogent point in relation to that national conversation, they are accused of running down education, we will not get very far.
Of course, I am all for a debate about Scottish education, but let us recognise the strength of Scottish education. A record number of young people are going into work, further education, higher education, training or voluntary placements as a consequence of the strength of our education system. Why cannot people such as Mr Kerr celebrate that achievement? Why cannot they come here and say something positive about Scottish education for one minute rather than—whether it is Mr Kerr, Mr Mundell or any of the others among them—belittling the achievements of Scottish education? That is an insult to the teaching staff of Scotland and to the fine young people in our schools.
In my view, amendment 46 would frustrate the effective implementation of regulations in a public health emergency. The implementation of any regulations cannot be contingent on the actions of relevant managers of student accommodation, who will be required to comply with such regulations. The regulations themselves can make provision to ensure that students are to be provided with necessary support.
Throughout the pandemic, we worked in partnership with stakeholders to produce guidance for the safe operation of student accommodation and the support of students staying in that accommodation. That would be our preferred approach in any future public health emergency.
Amendment 48 would require ministers to set out plans for providing additional financial support to students. During the Covid pandemic, we provided substantial support to students, including more than £96 million via hardship funding, digital access support and mental health support, and for student associations. We also worked with stakeholders, including student representatives, to ensure the continued welfare and safety of students. By taking that non-legislative and broader approach, we can ensure that any additional support for students is appropriate to the circumstances at the time and includes non-financial support where appropriate.
On amendment 53, there is already flexibility for individual applications to be made to the education authority for pupils to repeat a year, and those applications are assessed on their merits.
In a completely uncharitable comment, Mr Mundell said, in speaking to the previous group of amendments, that it had to be the Government’s way or no way at all. Amendment 12 proposes reporting on readiness for remote learning. I have further considered that proposal following stage 2. The amendment now places a more proportionate requirement on ministers to publish a report as soon as practicable after 31 July 2023 on the readiness for remote learning, and thereafter as ministers consider it appropriate. I agree with Oliver Mundell that that would give greater assurance across the education sector. On that basis, the Government is happy to support amendment 12. That demonstrates that we are prepared to listen to arguments from the Opposition when they are decent arguments.
Amendment 64 does not take into account the efforts that educators are making to aid pupils and students as we deal with the effects of the pandemic. It would not help to provide any further legal certainty, and it would place additional burdens on educators across all types of educational institution.
For the reasons that I have given, I invite members not to vote in favour of any of the amendments in the group, with the exception of amendment 12, in the name of Oliver Mundell, on remote learning.
That debate ended up being a bit more heated than I expected. Maybe some of the poking and prodding touched a raw nerve.
I do not need to come to the chamber and run down Scottish education; the cabinet secretary has been doing that, along with his colleagues, for 15 years. When they get started on that, they try to suggest that Opposition parties are criticising teachers and young people.
I want to be very clear: I am criticising the Scottish National Party Government, its poor policy approach, the damage that that has done to young people, and the very difficult job that it makes for teachers trying to deliver good-quality education in every part of the country. The amendments in my name are important because the SNP Government cannot be fully trusted to deliver on those things in a future pandemic—it looks at the actions that it took during the Covid pandemic and pats itself on the back. That does not match up with the experience of young people and their families, who found that the support offered was often just not good enough.
The two amendments in the group relate to an issue that arose during the COVID-19 Recovery Committee’s scrutiny of the bill. The background is that the Mental Health (Care and Treatment) (Scotland) Act 2003 provides for a named person to be appointed to support someone who is subject to compulsory powers—for example, someone who is detained in hospital or is subject to a compulsory treatment order. As the law stands, the signature of the named person accepting the appointment must be witnessed by a suitably qualified professional, with the intention that the responsibilities of being a named person should be explained to that person.
Section 28 of the bill removes that requirement. That is a welcome change that is supported by stakeholders and all those from whom the committee took evidence. However, the committee also heard in evidence a concern that a named person could be appointed under the new procedure without having a full understanding of the role and the responsibilities that are involved. When we took evidence, Dr Arun Chopra, from the Mental Welfare Commission for Scotland, and Dr Roger Smyth, from the Royal College of Psychiatrists in Scotland, agreed that a named person should have to declare that they understand their role. Amendment 3 would require a named person to declare that they understand the role, duties, rights and responsibilities of being a named person.
Amendment 4 is a complementary amendment that requires the Scottish Government to issue guidance to named persons so that they are aware of their responsibilities. The fact that there will not be a person witnessing a named person’s signature leaves a lacuna, which is why it is important that the matter be addressed. When we discussed the issue in the committee, there was a unanimous view from committee members that it should be addressed in the bill, and a unanimous recommendation in our stage 1 report. Accordingly, I hope that these very reasonable amendments will have members’ support.
I move amendment 3.
Amendment 3 proposes that a nominee should declare that
“they understand the role, duties, rights and responsibilities” that are associated with becoming
“a named person”.
However, mental health legislation does not provide specific duties for named persons, as they vary in each case.
Current legislation already places duties on mental health officers that direct them to seek out, and talk to, a named person, so the potential for a person not to understand the role is minimal. In addition, the statutory code of practice is clear that it would be best practice for the mental health officer, or any other practitioner, to ensure that the nominee is provided with information about the role in a form that is helpful to them. That role will not change.
Legislation only places a statutory duty on a “prescribed person” to act as a witness to the nominee’s signature—nothing else. They are not required to explain the role to the nominee. The checking that a person understands that they have been nominated and that they wish to accept the role is a separate process, which a range of professionals can undertake. The change that amendment 3 proposes would extend the reach of that provision and be difficult to verify, and it offers no new safeguard.
Amendment 4 would require the Scottish ministers to publish guidance on named persons. That guidance is already available and we are revising its content, in partnership with key stakeholders including the Mental Welfare Commission for Scotland.
Given the position that I have just set out, the suggested stage 3 amendments are not required and could actually be unhelpful, as they would introduce more procedure before a role supporting a patient takes effect.
Our intent is to remove a requirement that is currently experienced as disproportionately bureaucratic and might even be a disincentive to taking up the role. I believe that amendments 3 and 4 would take us backwards and so, although I understand the motivations behind them, I ask Murdo Fraser to accept the assurances that I have placed on the record, and not to press the amendments in section 28.
I thank the Deputy First Minister for his explanation. I listened with great interest to the points that he made. The committee sat in evidence sessions and heard compelling evidence from the experts that came before us as to why amendments such as these would be advantageous. Therefore, I am minded to press amendment 3.
The committee was unanimous in its view that these amendments were required. I was very surprised therefore, that, when it came to discussing the point at stage 2, the three SNP members of the committee decided to vote against their own recommendation at stage 1—some would call that behaviour flip-flopping. Those members now have the opportunity to flip-flop back into the right place. I urge them at least to support amendments 3 and 4.
I press amendment 3.
I remind the Parliament at the outset of my entry in the register of members’ interests. For clarity, I state that my family farming business includes rental properties. The rental income from those properties is critical to the financial security of the core agriculture business. I also remind members that I spent 20 years as a qualified rural surveyor, working in the housing sector, which gave me an in-depth knowledge of the
Housing (Scotland) Act 1988, the Rent (Scotland) Act 1984 and the Private Housing (Tenancies) (Scotland) Act 2016.
Over the years, there has been a move towards increasing protection of the tenant, which I believe should be broadly welcome. The difficulty, of course, lies in finding the balance between the owner of the house and the tenant, ensuring that the legislation is equitable for both.
The 2016 act changed the balance in favour of the tenant, whose rights have become more defined, with their position given further protection. Not all private landlords welcomed the 2016 act but those who welcomed it did so on the basis that it retained some mandatory grounds and discretionary grounds for ending a tenancy. That would be changed under the bill.
We need to remember that there are 360,000 rented properties in Scotland, which is about 14 per cent of the total housing stock. We all recognise that housing is in short supply and that we need to keep as many houses as we can available for long-term occupancy. It should worry us that research published by Propertymark shows a 50 per cent reduction in the number of rental properties between 2019 and 2022. It attributes that decline to the 2016 act. Members should be under no illusion: fewer rental properties results in increased rents and increased pressures on social housing, both of which I would like to be avoided.
The pandemic rightly resulted in short-term changes to the way in which we lived our lives. It was right that those included the suspension of the mandatory grounds for landlords to regain possession of rental properties. However, we are past that now, and careful consideration needs to be given to determining what changes should remain.
At stage 2, I challenged the Government’s approach to each of the mandatory grounds for ending a tenancy in the 2016, 1988 and 1984 acts respectively. I thank Mr Swinney and Mr Harvie for engaging with me since then. Members will be happy to know that I do not intend to repeat that process, as it would have led to 40-plus amendments rather than the three that I have lodged in this group. However, I will consider briefly each of the key mandatory grounds that will be changed from the 2016 act.
The main grounds for house owners to take back possession of their houses are: to live in the house themselves; to allow a family member to live in the house; to sell the house with vacant possession; to allow the lender to sell the property if it is foreclosed on; to refurbish the property; to facilitate change of use; or to allow the property to be used for religious purposes. If the property is empty and not being used by the tenant, or if there are rent arrears of three months or more, the landlord can also get it back. Further reasons for that to happen are if the property was let as part of an employment contract and if there is a breach of the tenancy agreement.
I will pick up on the points that Mr Swinney and Mr Harvie deployed to counter my position at stage 2. Mr Swinney said that house owners have to apply to the First-tier Tribunal for Scotland to get possession of their houses. That is currently done on mandatory grounds and the tribunal has to grant possession. He states in his letter to me that the number of hearings at First-tier Tribunals are limited and that most cases are resolved outside the tribunal process. However, we know that 77 per cent of first-tier hearings relate to rent arrears, so all the other grounds of possession are relatively minor. Therefore, there is little or no need to change those mandatory grounds to discretionary ones.
Mr Harvie stated that he wanted to protect the right of the tenant to live in a home, but he was unable to explain at what cost to the home owner. In relation to cases in which the owner or a family member wants to live in the house, where tribunals have shown that there is not a major disagreement, Mr Swinney’s argument for making that a discretionary ground falls. Mr Harvie’s argument also stumbles, because putting the tenant’s rights before the owner’s right to live in the house that they have bought and that they look forward to living in is, perhaps, disingenuous.
That is also the case when the property is required for sale with vacant possession. As a surveyor, I can tell members—this is a fairly accurate generalisation—that, if properties sell without vacant possession, they achieve only about 50 per cent of their value. Therefore, Mr Harvie’s proposal to remove that mandatory ground adversely affects the owner’s ability to recoup the real value of the property.
The bill claims to be a Covid recovery bill but, in the case of tenancies, I do not believe that it is. How can a bill that prevents an employer from being able to house an employee be considered as recovery? Remote and rural businesses will be devastated if they cannot use the houses that they have purchased for their workers when previous employees refuse to move out of them.
What happens when the Government’s wish to achieve energy performance certification for all houses across Scotland is driven forward? I do not think that that is feasible, but, if home owners cannot get vacant possession of their properties to do the works that they can afford to do, the target will be wildly missed. In my mind, it is an example of Mr Harvie shooting himself in the foot and paying lip service to climate change.
Before I finish speaking on the grounds for ending tenancies, I will briefly consider rent arrears. Rents often fund other activities, including mortgages, so loss of rental income might result in a mortgage default and repossession. That will definitely happen if it takes nine months or more to resolve an issue and it has to go through a tribunal process, which, prior to the pandemic, was taking at least eight months.
The Government should also not forget how important rents are to Scotland and how they generate income for the Government. Rental income is added to all other income and tax is paid on it at the rate of the other income, so the Government misses out if rent is not paid and properties are not let. All that shows how wrong the proposals are and why my amendments should be agreed to.
The proposals to reform tenancies are opportunistic. If the Government was serious about addressing the issue, it would have dealt with it in a housing bill. Indeed, one has been promised, but no date is known. Only yesterday, Mr Harvie told me that it would be introduced early in the current parliamentary session, so where is it? If the Government had prioritised the issue, it would have started consulting tenants, home owners and landlords, but I do not believe that it has done that.
I must make clear that the bill retrospectively changes the law, which the Parliament should not do lightly. If agreements are reached and both parties have signed up to them, rewriting them and disadvantaging either side is not reasonable or fair.
I clarify that my amendments 66, 67 and 68 seek to remove the proposed changes to the Private Housing (Tenancies) (Scotland) Act 2016, the Housing (Scotland) Act 1988 and the Rent (Scotland) Act 1984. For aficionados of those acts, I should also clarify that I know that the grounds for getting vacant possession are slightly different under each act, but, as much as I would like to go into further detail on why it differs, I suspect that that would appeal to a niche audience only, and I do not see that in front of me.
I seek the support of the Parliament for my amendments. I ask it not to make bad legislation by changing law retrospectively, and to do the right thing by introducing new law in the form of a housing bill that is consulted on properly, which is not the case with the bill.
I move amendment 66.
I agree with the points that Edward Mountain has made about his amendments. When the committee considered the issues at stage 2, it received a joint submission from Scottish Land & Estates, NFU Scotland, the Scottish Association of Landlords and the National Trust for Scotland. All the organisations made significant points about the unintended consequences of the bill.
Scotland has and benefits from a vibrant private rented sector. That is important, because not everyone wants to purchase property and not everybody has access to or wants to live long term in social rented accommodation. Some people want to use the private rented sector because they are living in a location for a short period of time, perhaps due to a work contract. They might be young people who know that they are not going to live in a place for 10 or 20 years and want to flat share with others. We need to have private rented accommodation available, and we need to make that attractive for landlords, as well as to provide reasonable protections for tenants.
The concern, which we have heard from Edward Mountain and many stakeholders, is that what is proposed in the bill does not strike the right balance between the interests of landlords and the interests of tenants. If we shift the balance too far, landlords will simply remove themselves from the market, which will reduce the supply of private property that is available to let. The knock-on effect of that will be that people who want to access property in that market cannot find accommodation, which is a serious unintended consequence that we should be concerned about. I support Edward Mountain’s amendments.
My amendment 5 is a much more narrowly drawn amendment, which intends to tackle a specific issue in relation to rural communities. We know that housing in rural communities, particularly in remote areas, is often in short supply. It is important that rural businesses have access to suitable accommodation for those whom they employ.
The purpose of amendment 5 is to ensure that there is a mandatory eviction ground for a landlord who owns property as part of a rural business, such as a farm or a forestry business, and who might wish to recover possession of that property to provide accommodation for an employee who could otherwise struggle to find anywhere to stay.
We know from experience that, in many rural areas—particularly in remote areas—if accommodation is not offered alongside employment, it is simply not practical for people to take up the offer because there is no accommodation available and nowhere for them to stay.
Amendment 5 seeks to protect a rural business or employer who wants to create employment and provide accommodation to go along with it for their employee. My concern is that, if we do not put such a provision in the bill, there might be unintended consequences. For example, rural landlords who are looking ahead to expand their business, or to replace employees who may leave, might want to have a property available for a future employee. That landlord might decide that it is not worth taking the risk of letting that property if they cannot guarantee that possession will be recovered at the end of the tenancy. The consequence of that is that properties will lie empty, which is a negative unintended consequence for two reasons: the business loses a supply of income, and it cannot be in the interests of public policy that we have much-needed properties lying empty when they could be made available to accommodate families and others.
Amendment 5 is moderate and sensible, and it was supported at stage 2 by NFU Scotland and Scottish Land & Estates. To me, it provides a sensible balance in protecting the interests of rural communities, and I am pleased to put it forward.
I will first talk about Mr Mountain’s amendments 66 to 68. Like his amendments at stage 2, these amendments seek to remove the provisions that make all grounds for eviction discretionary. That would mean that the tribunal would be obligated to order eviction in certain circumstances. Where the eviction ground would be mandatory, the tribunal would not be able to assess whether eviction was reasonable, and it would be prevented from taking the circumstances of both the landlord and the tenant into account, including the circumstances that both Mr Fraser and Mr Mountain described in the examples that they mentioned.
Both members say that they want us to find the right balance between the interests and the rights of landlords and of tenants. As we set out at stage 2, the tribunal is the correct place to balance the rights of both parties when deciding whether an eviction is reasonable in the circumstances. The tribunal cannot arrive at a decision that is incompatible with the convention rights of either party in determining whether an eviction order should be granted. Our view, as fully endorsed by the Local Government, Housing and Planning Committee, is that the position under the temporary legislation should be continued so that all grounds for eviction remain discretionary.
Mr Fraser’s amendment 5 is essentially the same as his amendment on this topic at stage 2. The Government remains of the view that the amendment is not appropriate for a number of reasons. It seeks to create a further mandatory ground for eviction where a landlord seeks to recover possession of a property in order to rent it to an employee. There are already existing grounds to enable a landlord to evict a tenant from a property that is occupied for the purposes of employment where the tenant is no longer an employee. The eviction ground that is being proposed here is also open to abuse, particularly due to its mandatory nature—one employee could find themselves evicted in favour of another.
Is the minister going to address the issue of Covid? This is a Covid bill, but nowhere in his responses to any of the amendments so far have I heard that word.
Although important, those sound like wide-ranging issues that are relevant to the housing market. They should be dealt with in separate legislation, in order to give them due consultation and scrutiny, rather than trying to squeeze them into legislation that seeks only to extend temporary measures in a pandemic. We do not know when pandemics start and end in relation to the law.
As the Deputy First Minister has said on several occasions, the purpose of the bill includes looking at measures that were brought in on a temporary basis during the pandemic, in the emergency legislation, and determining which of them has longer-term value and should be made permanent. We have reached the view that those measures have proved their worth and should be made permanent.
As was said at stage 2, when the 2016 act was brought in, there was a commitment to a review of all the grounds for repossession after five years, and that period ends in December this year.
I have already confirmed that commitment, and we will ensure that key stakeholders are consulted in the development of that work. It is right for us to fully consider the grounds for eviction together in a coherent way.
For all the reasons that I have set out, I urge Mr Fraser not to press amendment 5, so that all grounds for eviction can be reviewed together in the months ahead. I also urge Mr Mountain not to press his amendments 66, 67 and 68, because tribunal discretion enables the circumstances of landlords and tenants to be taken into account. If those amendments are moved, I urge members to reject them.
There are a few points in those statements that I found really interesting. Mr Greene’s point that those issues are about housing and not Covid is particularly appropriate.
Perhaps the minister would like to address the issue that, during the pandemic, money was made available to cover tenancy rent shortfalls for both the tenant and the landlord. I assume that, as the Government is running the eviction measure forward, that money will continue to run forward. It would only be equitable to do that. I am happy to give way to the minister if he wants to answer that question.
I am happy to do so, but, like Mr Greene, Mr Mountain is perhaps conflating the measures that were necessary on an emergency basis during the pandemic with the separate question of which of the changes that were introduced in the emergency legislation have proved to be of on-going worth and should be made permanent.
Particularly in relation to housing policy, the Scottish Government has repeatedly said that we want to close the gap in outcomes between the social and private rented sectors. We believe that making permanent the measures that were brought in through emergency legislation is an appropriate decision to bring to Parliament. Those measures had already proved their worth for many years in the social rented sector and, in the past couple of years, have proved their worth in the private rented sector.
I am not sure that the minister answered the question about whether the Government is rolling forward a measure without rolling forward the funding for it. The Government is rolling it forward because of Covid but not saying that it is because of Covid.
Murdo Fraser was also right in his comment. It is about addressing the balance. I do not need to remind members in this chamber about the importance of rural housing and housing across Scotland. It is not good to see our housing stock being reduced. Members should not forget that the number of rented properties—360,000 homes or 14 per cent of our housing stock—has already been reduced as a direct result of the 2016 act.
Again, Mr Fraser made an interesting point on rural issues. The rural housing problem is well known to those of us in rural constituencies. It is really difficult to find a house. I do not need to give an example, but I will give one anyway. In the region that I represent, there is a business that would expand drastically, but it cannot do so, because it cannot find enough housing. Those are the issues that we need to address.
In addition, I do not understand the research that has been done to support the Government’s position. Let us talk about the 1984 act. When was the last tenancy from the 1984 act? It is a bit of a rhetorical question, but it would have been in 1988. Anyone can work out that the chances of 1984 act tenancies being around are very slim and almost nil, because they would have expired by this stage.
Finally, I think that the big mistake with this section is that we should instead have brought forward a housing bill. I support bringing forward a housing bill—I want to have that debate. However, to change things midway through, and say that you are going to review the grounds at the end of the year when you have changed them now, really is disingenuous.
I press amendment 66.
I will make sure that that is recorded.
As a general comment, though, it would be helpful if members were in the chamber slightly ahead of the end of the vote, which might ensure that they do connect to the app—but I will pass no judgment this time round.