The next item of business is a debate on motion S5M-21370, in the name of Michael Russell, on the Coronavirus (Scotland) Bill. We have a new format for this. Because of the wide-ranging nature of the bill, we will have four opening ministerial speeches. The Cabinet Secretary for the Constitution, Europe and External Affairs, Michael Russell, will begin.
09:37
Thank you, Presiding Officer. I assure you that the sum of the parts will be the same length as if there was only one speech. I hope that that relieves members.
Responding to a global and a national crisis is about people coming together to help one another through this most difficult of times. Today, as a Parliament, we are meeting to consider emergency legislation that is solely designed to help our country pull through.
We have all seen how those on the front line against the coronavirus—the hospital staff, those who are keeping social care going and the national services—have risen to the occasion, and the people of Scotland are rising to the occasion, too. They are now subject to restrictions that none of us could have imagined that the Government would have to impose in our lifetimes. I know that the people of Scotland recognise the necessity for those restrictions and that, by working together, following the rules and staying at home, they are slowing the spread of the virus, protecting Scotland’s national health service and saving lives. That is what it is about—saving lives.
In this Parliament, we have been working together, too, not as representatives of our parties, but as the men and women entrusted by the people of Scotland to make their laws. We are supported by all those with whom we work, and I pay particular tribute to the team that has worked on the bill; it has done an amazing job in less than a week.
Our laws need to change for a while in response to the coronavirus crisis. We took the first step last week, when the Parliament gave its consent to the United Kingdom bill that is now the Coronavirus Act 2020. We have further work to do today and we will have further work to do in the weeks ahead. The Coronavirus (Scotland) Bill will make changes to Scotland’s laws across a wide range of subject areas. It will, I imagine, be the only piece of legislation that any of us will consider that amends both the Anatomy Act 1984 and the Freedom of Information (Scotland) Act 2002.
The bill provides essential and practical help. It will help people who are in difficulty because of Covid-19 to keep a roof over their heads, and it will help people who are struggling with debt. However, the bill also makes dramatic changes to our laws that many of us will find uncomfortable and challenging. I do not shirk from that. I find them very difficult, too, but I am satisfied that they are necessary and proportionate given the scale of the challenge that we face.
The changes that the bill makes are far reaching, but they will not be for ever. Unless the Parliament’s approval is obtained for an extension, the provisions of the bill will expire on 30 September 2020. That date is written into the bill. Parliament can extend that period for two six-month periods if it chooses to do so, but the changes in the bill will not remain in place beyond 30 September 2021. Again, that date is written into the bill. [Interruption.] No, I am sorry, but I have a lot of ground to cover. I will try to take points later on.
The longest that the bill can last is 18 months, and that can happen only if the Parliament has positively approved it on three separate occasions. I commit the Scottish Government to keeping under review every change in the bill and to keeping those changes in force only for as long as they remain necessary and proportionate to deal with the coronavirus outbreak or its effects on our society. Because of that, the bill allows us to suspend any of its provisions at any time and even to repeal them completely earlier than in the six-month cycle that I have just described, and we will do so as soon as it becomes clear that any provision is no longer needed.
Such decisions will be made in conjunction with and informed by the Scottish Parliament—by all of us. Our unity on such matters is important. We need to work together if we are to defeat the greatest challenge that we have faced as a nation for many generations. Unity is worth working for, no matter how hard it is to achieve. It is to the credit of everyone here that we have already agreed a great deal between the parties, but there are still areas of the bill that need further work.
Accordingly, the Cabinet Secretary for Justice will confirm this morning that we are withdrawing part 5 of schedule 4 in order to allow an intensive and wide-ranging discussion by all interested parties, including victims whose voice has not yet been fully heard, about the right way to ensure that justice continues to be done in Scotland. We will come back to the chamber with a standalone bill on that issue, along with the regulations to implement it, on 21 April, which is anticipated to be the next sitting day. The courts must be allowed to function. By the end of this month, we must have the means to ensure that that can happen, but I stress that we want those means to command the widest support possible.
The bill requires the Government to report to the Parliament every two months on the continued necessity of all the measures in it and the use of the powers that it contains. As Mr Fraser knows, because he has raised the matter with me, I am open to having a discussion about how that process should take place. If the Parliamentary Bureau wishes to put in place special arrangements for that, I would be very happy to discuss such arrangements with it.
I commit the Government to involving the Parliament and its committees—and any special arrangements—as much as is humanly possible in the monitoring and scrutiny of the changes that are made by the bill. It is on the basis of that process of scrutiny, of constant review and of a commitment to unwind the changes when our public life returns to normal, and a commitment to the unity of this Parliament and the work across parties and between individuals, that I invite every member to pass the bill.
We have a national emergency. That is why, today, we are debating emergency legislation. All of us recognise the gravity of the challenge that we face and the scale of the response that is required. This is the greatest challenge that we have faced in this young Parliament’s history; it is one of the greatest challenges that our country has faced in modern times. We will get through it only by working together. It is in that spirit of solidarity that we can look forward to better times.
I will now pass over to my colleague the Minister for Local Government, Housing and Planning to address specific issues in the bill. He will be followed by the Cabinet Secretary for Justice and then the Minister for Europe and International Development.
I move,
That the Parliament agrees to the general principles of the Coronavirus (Scotland) Bill.
09:43
We have all been told to stay at home to save lives, and I am pleased that so many folk out there are doing just that. Our homes provide the very foundation of our health and wellbeing, and we can all imagine the impact if we did not have a safe and secure place to stay, particularly during these challenging and unprecedented times.
However, the inevitable economic challenges that are unfolding as a result of the steps to halt the pandemic mean that there are households that will face significant financial hardship, which in turn could impact on their ability to pay their rent. We do not want anyone to feel that they could lose their home because of an unparalleled public health emergency. That is why we are introducing provisions in the bill to prevent people from being evicted from their homes by temporarily extending the notice periods for eviction. That measure will apply across the private and social sectors regardless of the time that a tenant has spent in the property.
The extended notice periods will apply to all statutory tenancies that are currently in existence in the private and social rented sector, for six months. In cases where a landlord needs to move back into a property, or of serious antisocial or criminal behaviour, the extension will be three months. We have strongly advised anyone who is in hardship or facing financial problems to speak to their landlord and make arrangements. We want landlords to recognise the financial pressures and challenges that people might face. In turn, we encourage all landlords who are having difficulty to speak to their lenders about a mortgage break, and we have encouraged the UK Government and UK finance to increase that break to six months and to cover all mortgages. We have also encouraged anyone who needs to apply for universal credit—which has a housing element—to do so.
I welcome the commitment that has already been shown by many landlords around the country in response to the outbreak. We see great work being done to support tenants in the social sector. The Scottish Association of Landlords is asking its members to be proactive in helping tenants who expect to experience difficulty paying their rent. [Interruption.] I am sorry, but I really do not have time to take an intervention.
The Scottish Government will establish a fund that eligible private landlords will be able to apply to if they experience difficulty securing rent as a result of the Covid-19 crisis. They will be offered an interest-free loan with deferred payments. The intention is to take the pressure off landlords, in the short-term, if their tenants are having difficulty making rent payments. We expect to have that fund in place by the end of April, at the latest.
The measures that are being proposed in the bill seek to find the right balance between protecting tenants from eviction due to financial pressures arising from the pandemic, and ensuring that landlords across the private and social sector can continue to operate effectively. Crucially, the provisions are needed to ensure that we can keep people in their homes at a time when that stability and place of safety is more important than ever.
I will pass on to my colleague the Cabinet Secretary for Justice.
09:47
The most important duty of any Government is to keep its citizens safe and maintain public order. Therefore, we will do everything that we can to maintain a fair and effective justice system. However, we also need to respond to the realities of the current public health guidance.
Our current system relies heavily on physical attendance at court, and on physical evidence itself; our courts are extremely busy places. Where possible, moves have already been made to switch to digital systems. The use of the physical court estate has also been rationalised, and national custody hubs have been established. However, workforces across the justice system are being affected, and we must anticipate that that will continue. We must ensure that accused people, victims and witnesses are not disadvantaged or unable to access justice because they are sick or are following public health guidance that is designed to keep us all safe. It is essential that the justice system continues to function, and that public confidence is maintained at this time. We know the significant distress that delay and uncertainty causes for victims of crime. The impacts on people who are detained in custody and held in remand are also extremely profound.
We are already in a position in which a backlog of cases is building up. Our best efforts, including this legislation, can unfortunately only hope to mitigate that to a certain extent.
I will focus on two provisions that will be the most high-profile. They relate to solemn trials—my colleague the Cabinet Secretary for the Constitution, Europe and External Affairs has already mentioned that—and to provisions on prisons.
As I come to the provisions on solemn trials, I echo my colleagues who have spoken before me. All of us understand and bear the weight of responsibility for the times that we are in. This is not a time to be bullish, nor a time for egos or petty partisanship. All of us—Conservative, Labour, SNP, Liberal Democrat, Green or independent—are part of the national endeavour that is needed to help us overcome this virus.
If ever we needed a reminder of the gravity of the situation, we gather in the chamber the day after the youngest victim of coronavirus in the UK passed away. He was 13-year-old Ismail Mohamed Abdulwahab, from Brixton. As a parent and step-parent—my step-daughter is only a couple of years younger than Ismail—I cannot imagine the heartache and devastation that his family is facing. It is with Ismail’s death in mind—and the deaths of the many people who, sadly, have passed away in Scotland, across the UK and globally—that we work in a spirit of compromise and consensus to do the best that we can do collectively, not just to overcome the virus but to ensure that our rights are protected.
In that vein, we understand how vital the principle of trial by jury is, as the cabinet secretary indicated. The Lord President’s proposal acknowledged that but indicated the real threat to the delivery of justice that is posed by the pandemic. The solution in the bill is proportionate but, as we know, it has not secured the support of this Parliament. We are also aware of the concerns of the profession.
Accordingly, I intend to move an amendment at stage 2 that will remove those provisions from the bill. The Lord Advocate and I will immediately institute further discussions with the judiciary, the legal profession, the political parties here and—let us not forget them—the victims, many of whom would want the proposed change to take place now. We seek a practical, achievable solution that will meet the objectives that we all have, that is, to ensure that justice is done and not delayed, in so far as we can prevent delay, while of course upholding the vital human rights that we all treasure and enjoy.
The solution needs to be in place this month, so I make a firm commitment to the Parliament and to wider Scotland that we will bring emergency legislation for debate on the next due sitting day here, which is 21 April. We will also aim to bring forward draft regulations to implement the legislation at that time.
I ask all members to accept that offer, which seeks to take us forward together, as we must move at this incredibly difficult time. Whatever measure is brought forward, I reiterate that what is proposed will be temporary. After we get through the pandemic, we will of course return to trial by jury.
I will speak briefly to the other proposal in the bill that I think will gather a lot of attention, that is, the emergency release of prisoners. I have previously cautioned members that we cannot rule out releasing prisoners if doing so is in the best interests of public safety, keeping our establishments and those who work in them safe, and keeping those in our care safe.
The coronavirus outbreak is already causing a reduction in staff levels, as members are aware. That is being well managed but it means restrictions in the prison regime and to visits. To ensure that we have the ability to reduce the prison population rapidly if necessary, to ensure the safety of staff and those in our care, the bill contains provisions to allow the creation of a bespoke system for early release—what is proposed is similar to the emergency release powers that the UK Government has.
I stress that the power for which the bill provides does not in itself release prisoners; secondary legislation will be required for that, and much of the detail, including on which classes of prisoner might be released, will be addressed in regulations, which of course will be subject to parliamentary approval.
Although much of the detail will depend on the exact circumstances that we are seeking to address, I give an absolute assurance that public safety will always be a key consideration for us and that any release will be subject to an appropriate level of risk assessment. In that regard, members should note that the bill says explicitly that a prisoner cannot be released if they would pose an immediate risk of harm to an identified person. We have also included in the bill a number of categories of prisoner who would not be released, including, for example, those convicted of a sexual offence.
My colleague the Minister for Europe and International Development will now conclude on behalf of the Government.
09:53
Thank you. I will conclude on behalf of the Government by setting out to Parliament some of the other provisions in the bill.
Measures have been included in the bill only when strict criteria have been met. We required that they be necessary as part of the response to the coronavirus outbreak, and that they be urgently required, if they were to be included in the emergency legislation. Members will see that we have, for every measure in the bill, set out in the policy memorandum why, in the Government’s view, the measure is required as a result of the pandemic and why it is urgent.
Many measures are required to reflect the reality that our public services are struggling with levels of staff absence and workforce disruption that are much higher than normal, while they are reprioritising and refocusing in order to fight the coronavirus pandemic. That disruption can be expected to continue for some time. Therefore, the bill will give services additional flexibility in respect of compliance with, for example, statutory duties to reply to freedom of information requests, to lay reports in Parliament, and to publish documents in physical formats.
We have listened to concerns about the changes in respect of compliance with freedom of information requirements. I will lodge amendments at stage 2 that will adjust the provisions to reflect the Scottish Information Commissioner’s suggestion to extend the period for responding to requests.
The bill also introduces measures that respect the additional needs that many Scots will have as a result of the financial pressures that are caused by the effects of the virus. It will, for example, extend the current statutory moratorium on debt relief from six weeks to six months, and it will provide additional protection for commercial leaseholders by increasing the statutory period for payment after an irritancy notice from 14 days to 14 weeks.
The bill makes changes that are required because of the simple fact that we can no longer go about our daily lives or run our public services as we used to. Public health advice regarding social distancing and public health regulations that require people to stay at home mean that we must think differently about how to regulate ourselves and how to do business.
The bill contains dramatic and unprecedented measures for dramatic and unprecedented times. No aspect of our lives—public or private—has been left untouched by the virus and the measures that are necessary to control and limit its transmission. The seriousness of the measures reflects the seriousness of the mission: this is about saving lives. I look forward to hearing the views of other parties on the bill’s provisions, and to taking part in today’s debate.
I thank all the ministers.
09:56
I remind members of my entry in the register of interests—specifically, my interest in property and my membership of the Law Society of Scotland.
I join the Cabinet Secretary for the Constitution, Europe and External Affairs in paying tribute to the bill team for the remarkable work that they have done in producing such a complicated bill, with all the supporting documentation, in such a short time. The bill runs to 69 pages and includes a huge number of detailed provisions. In addition, the explanatory notes and policy memorandum have had to be produced, which has required a huge amount of effort from a small number of individuals. We should be grateful to them all.
I also thank the cabinet secretary for the co-operative way in which he has approached the bill, in working with the Opposition parties, which is particularly important given the limited time that is available for scrutiny of the bill. Most members will have seen the bill only yesterday afternoon, and we are now being asked to consider it, to lodge and vote on amendments, and to vote on the bill in its entirety within the space of a few hours. That is a challenge for us all.
We should acknowledge now that it is likely that we will not get everything right in the short time that is available to us. There will be aspects of the bill that, with the benefit of time and hindsight, we will realise are wrong or could have been better worded. However, we are in an emergency situation, which is why we must press ahead with legislation without the normal levels of safeguarding.
The bill will introduce for the Scottish ministers a wide range of new powers that would, in normal times, be deemed to be unacceptable. We will agree to those powers being granted, and for human rights and civil liberties to be curtailed on occasion, because of the challenge that we face in fighting the coronavirus.
That does not mean that the powers should be unfettered, nor does it mean that there should be suspension of the entirety of normal scrutiny, or of the need for reporting by ministers. Indeed, one area in which the bill could be strengthened is in respect of the need for regular reporting by ministers, and of how Parliament can hold the Government to account for the extraordinary powers that it is taking to itself. We believe that there is a case for forming a new committee of the Parliament to look specifically at the powers in the bill. That is especially important because the normal business of Parliament’s committees might not continue in the coming weeks. I am pleased that the cabinet secretary signalled earlier that the Government is open to that idea, and I look forward to its being discussed in the Parliamentary Bureau, as we go forward.
On specific measures, I will start by considering the provisions to protect people who rent property. We absolutely agree that new protections should be put in place in order to avoid people having to move home while the coronavirus pandemic is on-going. We need to recognise that many families are being put in a very difficult financial position because of economic disruption, perhaps because they have lost their normal employment. On that basis, the extension to six months of the notice period for eviction for non-payment of rent seems to be reasonable, although it is worth reiterating that that does not mean that rent should not be paid. Rent arrears that are built up during the period should be the subject of agreement between landlords and tenants, for repayment in due course.
There are two other important points to make in this respect. First, we do not want an end to evictions in all circumstances, and that is not what is proposed in the bill. There will still be cases in which tenants can be evicted for antisocial or criminal behaviour. That is important; I am sure that we have all heard about situations in which individuals’ lives have been made a misery by antisocial neighbours—in some cases, they might have been waiting years to get an eviction order. It is simply not right that people would have to suffer further misery for months more because of legislation that protects people who behave illegally.
Secondly, many landlords depend on income from private rent, which might be the primary source of income for some retired individuals and couples, in the absence of any form of private pension. Such people could face real hardship, given the current delays in the First-tier Tribunal for Scotland, because the bill will, in effect, extend to 12 months the period for which a tenant might avoid eviction for non-payment of rent. That could cause real financial difficulty for individuals—sometimes not very well-off people—whose primary source of income is one or more private rental properties. For that reason, we call for a hardship fund to be established for landlords who are in that situation. I was pleased to hear what the Minister for Local Government, Housing and Planning had to say about that a few moments ago, so we look forward to seeing detail on that in due course.
There is a great deal in the bill about the criminal justice system; my colleague Liam Kerr will comment on that in detail. Our main area of concern relates to the suspension of trial by jury for serious criminal cases. Article 6 of the European convention on human rights specifies the right to a fair trial, but it does not specify that it must be trial by jury. However, it is a long-established Scots legal tradition that jury trials be held in solemn cases. The removal of that right would be extremely prejudicial to people who have been accused of serious crimes. Therefore, Conservative members’ view—which is shared by the legal profession—is that removal of jury trials would be a retrograde step that is hard to justify, even in the extraordinary circumstances that we are now in. I welcome the cabinet secretary’s having said that the matter will be given further consideration.
Other solutions need to be properly considered. One would be simply to delay all solemn trials until we are through the current difficulty, but that would be prejudicial to accused persons, and it would be difficult for prisoners who are on remand and for victims of crime and witnesses. However, that might be a better outcome than simply to allow trials to proceed with one judge.
We could look more seriously at having juries via remote television link, although there are practical difficulties in that. We could consider holding trials in larger venues, where jurors could be spaced out to allow social distancing, or we could test all jurors for coronavirus at the start of proceedings and at the start of each day, in order to provide protection for people to whom they will be in proximity.
None of those solutions is ideal, but we believe that they all need to be properly examined because of the serious nature of the proposal to remove the right to a jury trial. We look forward to continuing discussions on that in the weeks ahead.
There is much more that I could say, but my time is up. I am pleased with progress, and this morning we are hearing from the Government on the issues that are of concern to us. We hope, assuming that the amendments that we expect are lodged at stage 2, to support the bill at decision time.
10:03
I am grateful for being able to speak in the debate on emergency legislation relating to the coronavirus pandemic. We are in a strange and unprecedented time. I pay tribute to everyone who has been working on the bill in such difficult circumstances so that we could receive it before Parliament sat today, and I acknowledge the joint working across Parliament.
It is important that all front-line workers—whether they are in our health and social care services, in the shops serving food, or lifting our refuse—know that the Scottish Parliament will work collectively in their best interests when they are all putting themselves and their families on the line.
We are facing something that none of us has faced in our lifetimes. It is still just as important, however, that legislation that is passed in this country, and which affects the lives of Scottish people, faces proper parliamentary scrutiny.
The bill tackles some difficult areas, and I can see that difficult decisions are having to be made, and will continue to have to be made. We are facing this crisis at a time when many of our public services are under massive pressure, after year upon year of austerity that has left some services with real difficulties in facing up to normal everyday life—never mind the current crisis.
Last night I heard someone say that today would be the blackest day in legal history if the bill were to proceed and jury trials were to be stopped in the short term. We believe that the Law Society of Scotland makes a fair point when it says that there is a need for more information, and that the issue requires
“fuller consideration and consultation in order to avoid unintended consequences.”
I am pleased that the cabinet secretary has picked up on that point this morning and proposes to address it and, after doing so, to bring another bill to Parliament on 21 April.
We are facing the blackest period in our history, and I feel that the blackest days are still to come. As parliamentarians, we must accept our collective responsibility to make the right and necessary choices. It is clear that what is required in these extreme circumstances is balance between competing interests. That said, the health of our country should always be considered to be of paramount concern; I hope that that is the intention behind many aspects of the bill.
The difficulty lies in those competing interests, particularly in relation to civil liberties and human rights. I agree with Amnesty International that
“Any restriction on the individual’s human rights must meet the criteria of necessity, proportionality, legitimacy, be time-limited and subject to regular review.”
I note that the cabinet secretary has proposed that the legislation be reviewed every six months, with Parliament having the power to continue it if necessary. I also note the proposal that there be a report back every two months. I believe that one of my colleagues is considering lodging an amendment that will propose monthly reporting, instead.
When legislation that gives the Government such unprecedented powers is introduced, having the confidence that Parliament will hold the Government to account through scrutiny will be important. That is why the point that Neil Findlay made earlier about accountability of the Government to Parliament is crucial.
I believe that emergency legislation is necessary, and I welcome the Government’s having brought forward the bill. I suspect that we will see more emergency legislation as we grapple with outcomes from the virus pandemic that are, at this stage, unknown to us. However, we must ensure that, even although the bill is well meaning, it will have as few unintended consequences as possible, especially given how quickly we are dealing with a fast-moving situation.
The economy is going to go through a time of major difficulty. Although we need to look at what further support will be needed, we need also to accept that the economy is not going to be the same as it was, and that the Government will have to play a far greater role in our economy and our society in the months that lie ahead.
10:09
I am sure that all members would have regarded the provisions in the bill and in the regulations that came into force last Thursday as an April fools’ day joke if they had been floated a few weeks or months ago. However, using the Parliament’s provisions for emergency legislation is appropriate in the circumstances, given that we face a major public health crisis. In such a situation, as other members have said, any bill’s provisions should be strictly necessary, specifically time limited and subject to review and reporting.
There is very little time for scrutiny of the bill. I join Murdo Fraser in commending the drafters, the Government officials who have been involved in the work and all the organisations that have turned round briefings in a very short space of time last night and this morning. I will make some brief observations for the record, principally on the justice provisions in schedule 4, the housing provisions and other provisions.
Our justice system is at the heart of our democratic institutions. It is designed to ensure a law-abiding society, the liberty of the individual from the power of the state and sanctions for those who transgress agreed norms of behaviour in the civil and criminal spheres. The bill, in focusing on the justice system and how it can operate in the weeks and months ahead, is practical and sensible. We welcome the removal of the provisions that would give the Executive powers to suspend jury trials, and we look forward to engaging in discussions on how the problem of how to conduct jury trials can be tackled with a view to ensuring the right balance between human rights, public health and the efficient administration of justice. It is incredibly important that the Parliament achieves consensus on that extremely sensitive question, so we look forward to taking part in discussions on that in the weeks ahead.
On housing, we welcome the provisions that ensure that all statutory tenants will be provided with extended notice periods to ensure that, as far as possible, no tenant will be evicted during the emergency period. However, welcome though that is in comparison with the Government’s original proposals, it is not sufficient. Many tenants will face unprecedented declines in their incomes and job prospects over the coming weeks and months, and, although it is some comfort for a person to know that they will be safe in their house during the relevant period, it will remain open to landlords to commence eviction proceedings at any time, and vulnerable tenants will have to live through the crisis knowing that they will be evicted in six months’ time. Therefore, we argue—and we will lodge amendments on this—that there should be no notices to quit and that no eviction proceedings at all should be initiated during the emergency. They can all wait.
Furthermore, we need provisions that deal with eviction applications that are already in the system—perhaps most crucially for those against whom eviction orders have already been granted but have not been enforced, who are the most vulnerable group of all. The proposals explicitly do not deal with those who have already had eviction proceedings initiated against them or orders to quit granted. Although some comfort is available from the de facto suspension of many court proceedings, our view is that all such proceedings should be suspended for the duration of the emergency period.
We welcome the provisions on land registration, which has been the subject of intense debate between the keeper of the registers of Scotland and the legal profession over the past few days. That highlights the fact that, despite our having the world’s oldest system of recording titles to property, we have still not managed to move into the digital age.
We welcome the debt arrangements. One of the most significant impacts of the pandemic will be the number of people who will face unsustainable debt not because of their own actions but because of the financial circumstances resulting from the pandemic.
We have serious concerns about the freedom of information proposals in the bill, as we are not persuaded that they are all strictly necessary. I heard what the Minister for Europe and International Development had to say earlier, and I look forward to engaging in discussions later today.
No legislator should take much pleasure in the bill’s enactment. It has a sunset clause, which is good, but it still contains extensive powers that enable ministers to legislate by regulation. We understand why that is the case, but no one should be under any illusion about the unprecedented powers that we are being asked to hand to the Executive. Over the coming months, it will be vital that the Parliament has the time and resources to ensure that the powers that are contained in the bill remain proportionate and necessary. In that context, the Greens will support the general principles of the bill.
10:13
We are living in exceptionally difficult times. We could not have imagined supporting the bill in virtually any other circumstances—but support it we will.
I thank the cabinet secretary for his engagement with my party over recent days and for his remarks on jury trials, which I will come on to later.
The bill was written in just a matter of hours, which was no mean feat. However, it is precisely because it was written in just a matter of hours and has not been consulted on that we must be robust in our scrutiny of it today.
Now that the cabinet secretary has confirmed the removal of part 5 of schedule 4, we will support the bill, with some minor amendments, not least because it contains vital and much-needed changes that will give comfort and security to the many people who would otherwise face destitution in the teeth of this crisis. As we have heard many times, the provisions on evictions are of great importance. I hope and expect landlords to be understanding in this emergency and to recognise the flexibility that is being afforded to them by the banks. Nobody should be made homeless during this crisis. Responsible private and social tenants need the extra protection against eviction.
The sense of national urgency is why we agree that the vast majority of the provisions in the bill are necessary, although we harbour some concerns, particularly on FOI deadlines. Above all, we could not have supported the introduction of the new powers that are contained in part 5 of schedule 4, which would give ministers the power to remove juries in trials on indictment for the duration of the emergency. I raised that issue at a cross-party meeting last week, when the bill was first mooted, and I issued drafting instructions to a clerk to remove those provisions. I am grateful to hear that the Government will respond to that.
Jury trials have been part of Scottish justice since the 13th century and have survived the bubonic plague, the Spanish flu and two world wars. They are a central pillar of our unwritten constitution and our social contract. In England, Her Majesty’s Courts and Tribunals Service is pausing all trials that would require a jury until such time as it can find a way of proceeding safely. The service recognises the challenge and the danger of asking juries to sit at this time of heightened infection risk. However, it has chosen not to abandon the jury system but instead to pause such trials while it seeks solutions. Indeed, it looks as though, across all democracies in the world, no other country is ending jury trials. Were we to have pressed ahead with the measure, we would have stood alone in that regard.
Only once before in the history of these islands have jury trials been replaced by judge-led hearings. The Diplock courts were created in Northern Ireland in 1973 so that terrorism offences could be tried in front of a judge because of risk to juries of reprisal or tampering. The focus of those provisions was on keeping jurors safe, but we are not trying to keep jurors safe from terrorists; we need only find a solution to keep them safe from infection. I look forward to working with the Government towards that end before we return, later in April. As Murdo Fraser said, the solution might be to use bigger venues such as theatres or cinemas; it might be about testing everyone who is on site for the virus every day; or it might involve computer link-ups. We also need to make it easier for witnesses to give testimony via computer link-ups, and I will lodge amendments to that end for stage 2.
However, there will be a solution and we need one, because the provisions have been met with a howl of outrage from the legal profession. The Faculty of Advocates, the Law Society of Scotland and solicitors the length and breadth of the country have all spoken in opposition to part 5 of schedule 4. It is a marker of the strange times that we live in that I find myself in an alliance with Joanna Cherry and Michael Gove in opposing the provisions. I am glad that the Government has heeded those calls, because juries matter. They matter because the burden should rest on the prosecution to take a group of everyday people through the evidence and the details of the law and to persuade them of guilt. Above all, to participate in a jury is to fulfil the social contract, and we cannot simply bypass that.
We are just one week into lockdown. Unamended, the bill would interrupt an unbroken tradition of Scottish justice that has endured for nearly 800 years. No other democracy has embraced the proposed measure, and it has been roundly condemned by the profession. We should listen to them. I am grateful that the Government intends to remove the provision, and I assure ministers of our support for the bill at decision time tonight.
We move to the open debate. We are already short of time, so it would be appreciated if members could come in under four minutes.
10:18
No one in the chamber will disagree when I say that none of us wants to propose this legislation and none of us imagined that we would have to do so; but, of course, we must. We must ensure that we can adapt to the extraordinary crisis that we face by following due legal process and providing clarity for organisations and the public. We are in uncharted territory, but I believe that the general principles of the bill are sound, justified and absolutely essential. We are in an emergency situation. As others have said, the positive all-party discussions that have allowed the bill to be drafted so quickly have been welcome. We are not in normal times, and party politics should be put aside.
The bill complements and supplements the Coronavirus Act 2020, which was passed by the UK Parliament and to which the Scottish Parliament gave its consent last week. There are several detailed aspects of the bill, focusing on justice, public health and the economy.
The majority of people are complying with the advice to stay at home in order to avoid spreading the virus and to ease the burden on our amazing front-line national health service workers. As Michael Russell said, it is vital that people have a roof over their head during this period, which is why legislation to protect from eviction for six months those who are having difficulty in paying their rent is most welcome and necessary. Outwith the bill, I hope that measures to provide the homeless with accommodation are rapid and successful.
In the short time that I have, I will focus on the provisions that relate to justice and policing. All the measures in the bill are practical and commonsense, and they will allow our justice system to continue to operate in these extraordinary times.
As we know, the provisions that would allow solemn trials without jury are controversial and serious: they will be amended and brought forward in emergency legislation on 21 April, as the cabinet secretary outlined. It is important to say that Rape Crisis Scotland, Victim Support Scotland and Women’s Aid support those provisions and believe them to be vital in helping to minimise the distress of delays for victims of sexual and serious crimes.
Through secondary legislation, ministers will have the powers to release certain classes of prisoners. That process is, of course, subject to a strict set of caveats and to a public risk assessment. Prisoners who are serving life sentences, terrorists, sex offenders and all those who are serving sentences for the most serious crimes, as well as untried prisoners, will not be covered by the legislation. The important details of the provisions are clearly set out in the bill that we are considering today.
Schedule 4 relates to children and vulnerable adults. Changes have been introduced to enable the children’s hearings system to function, such as a reduction in the required number of panel members and alterations to child protection and supervision orders, to prevent their lapsing. Those changes, too, are detailed in the bill. The rights of the child will be upheld during the implementation of these temporary measures.
The Equality and Human Rights Commission has stated that actions to protect people that complement or enhance equality and human rights
“will maximise consent and compliance, and ultimately best safeguard public health.”
That is what the bill proposes to do.
The initial time period for the legislation runs to the end of September, when it could be extended, if necessary, through the affirmative procedure. The Parliament will review the act after two months to ensure its effectiveness and proportionality.
In this emergency situation, I recommend supporting the general principles of the bill for all the reasons that I and other members have outlined.
10:22
Just a few weeks ago, none of us expected that we would be dealing with genuine emergency legislation with far-reaching consequences for the power of the state over individuals. The encroachment into human rights is unprecedented and has consequences.
I will concentrate my remarks on the proposals in the bill around evictions. There are around 340,000 households in the private rented sector and 550,000 in the social rented sector in Scotland. Some of those people—although not all—struggle financially and some will have lost their jobs as a result of the coronavirus outbreak. Some will have to socially isolate in the coming weeks or months. We are all being told to stay at home.
In cases where people have lost their income as a result of the restrictions that the Government has imposed, it will take time for the very generous packages that are on offer to kick in. It would be entirely wrong for people to lose their homes in those circumstances. Both of Scotland’s Governments are right to restrict the circumstances under which evictions can take place. They take slightly different approaches, but their aim is the same.
In Scotland, the bill before us temporarily extends the notice period for all evictions, except in certain limited cases. The extended notice periods are either for six months, in most cases, or for three months in cases of antisocial or criminal behaviour, or when a landlord or their family member needs to move into the property. As the Chartered Institute of Housing in Scotland pointed out, we need to ensure that victims of domestic abuse are not trapped in their homes with the perpetrators.
The bill relates to the notice period that the landlord has to give of their intention to start eviction proceedings; there is not, as Aileen Campbell first promised, a six-month ban on evictions. In reality, the bill provides a stop on evictions, which means that some landlords will not get rental income for over a year. Many private landlords are retired and many have one or two properties—not vast portfolios. Some rely on the rental income to pay their care home fees. Ninety-five per cent of landlords have between one and five properties.
By any measure, it is not sustainable to expect those people not to be paid for more than a year. We suggested to the Government that a hardship fund be put in place for those landlords who suffer loss of income as a result of the measures. I was pleased to hear the minister commit to that and I invite him—if he wants to intervene—to say whether that fund could be applied for to cover the whole period for which a landlord may be without money.
As I said earlier, we are looking at a landlord loan fund, which we will make available as soon as possible and for as long as it is needed. We hope that we can have all that in place by the end of April at the latest, as I said in my opening remarks. We are developing the detailed criteria around that. We will make such a loan available for as long as possible, for as long as it is needed. We envisage that that would be up to a year, and we will backdate it to 1 March.
Can Graham Simpson come to a close, please?
Certainly. That is very encouraging and good to hear, and on that basis we can support the provisions in the bill. The bill is proportionate; it is, unfortunately, necessary; and on the basis of what we have heard, we will support it.
10:26
I know first hand how worried and anxious people are right now at the changes that are happening to their lives. I have lost a friend to this virus and am acutely aware of the seriousness of what our communities face. We are in the midst of a national emergency: stringent steps are required to suppress the spread of the virus and save lives. Public bodies across the UK must have the tools and powers that they need to carry out an effective response to save lives.
Across the chamber we all understand that the bill cannot be scrutinised in the way that we would normally demand. It is a huge transfer of power to Scottish ministers and through them to local authorities. It is clear that the effect of some of those powers is to temporarily overturn and/or bypass some of the human rights protections established in law by the Scottish and UK Parliaments. That is a legitimate response to the emergency that we face.
That said, I am mindful that the legal test for derogation from human rights standards is rightly high and that—most importantly—hard-won human rights protections are most vital and most at risk at times of emergency and crisis. Extraordinary powers must come with proper limits; regular renewal is essential; and the burden of justifying restrictions must lie with Government and be open to proper and timely scrutiny and challenge from existing bodies outwith the Parliament and, of course, from the Parliament itself.
In giving over extraordinary powers to Government, our first question should be how we take them back. Significant powers will be provided to police, immigration officers and public health officials to arrest people deemed infectious, to place them in isolation and to take biological samples without their consent. Those actions may at some point be required to save lives. It would be helpful for the Scottish Government to confirm what additional safeguards will be put in place where the infectious person is a child or a vulnerable adult.
The people I represent will also want to know that the prompt action that is being taken against individuals who appear to be acting outwith the strict confines of the lifesaving advice and instructions will be taken just as vigorously against employers and businesses that put staff in harm’s way.
There has also been concern around the relaxation of child protection and safeguarding legislation, which would enable an individual barred from undertaking regulated work with children to continue to do so. Clarity from Scottish Government ministers on the circumstances in which that power might be exercised is crucial, including, importantly, on how children’s rights to protection from abuse and harm will be protected. I also seek assurance from ministers on how we ensure the protection of those whose rights are most at risk from the suspension of legal duties to assess the needs of children with additional support needs, those with disabilities, care-experienced children and young carers.
Four minutes gives us time to raise only a couple of points, so I will end on this one. Cross-party working and productive scrutiny coupled with the unprecedented reprioritisation of resources and powers shows what can be done when there is a will. Once we get through this crisis, let us demand that of ourselves again in tackling poverty, addiction and inequality: the other things that threaten the lives of the citizens we represent.
10:29
It would have been unimaginable, even a few weeks ago, that the Parliament would be passing in one day the sweeping powers that are embedded in the bill. However, the circumstances in which we live—in which we fear for those in our communities and for those who are close to us—mean that the Government is right to legislate in these emergency circumstances. We will support the general principles of the bill and, no doubt, the bill at stage 3.
I will touch on a number of matters, the first of which is the bill’s provisions relating to prisoner release. There is no doubt that the prison environment is very challenging. We have spoken many times in the chamber about overcrowding in the prison estate. It has been reported that there have been 111 cases of people displaying symptoms of Covid-19 in prisons, and they have had to be self-isolated. That is understandable, given the circumstances in which people in the prison estate live, but it is also very concerning. Therefore, the bill’s provisions relating to the release of prisoners who are coming towards the end of their sentence, when there is no threat to public safety, are correct.
I ask the justice secretary—or Mike Russell, if he is summing up—to address the issue of public safety. It is important that prisoners who are released are tested for Covid-19, because we have a duty of care to those prisoners and to those who will come into contact with them, such as those in their communities and their support workers, who are needed in order to give them proper support to ensure their smooth transition back into the community. I ask that that issue, which is not mentioned in the bill, be addressed.
I welcome the cabinet secretary’s announcement that the provisions on jury trials will be taken out of the bill through an amendment at stage 2. It seems to me that the Government moved too hastily on that proposal and failed to explain why it was required. The Government described the fact that there is a crisis and the need for a power, but it did not outline why such a power is necessary.
I welcome the fact that there will be a proper consultation between now and 21 April. The strength of the opposition that we have seen overnight, particularly from organisations such as the Law Society, shows that the Government had got it wrong and had moved far too quickly on the issue. As we move forward, it is important that we build consensus not only among organisations such as Victim Support Scotland and Rape Crisis Scotland but among key figures and organisations in the legal profession. At this time, it is important that legislation is built with consensus and support both within and outside the Parliament.
My final point relates to the review period. Never before have we seen such powers being passed in a day, so it is important that we look at not only the review timescale—we should perhaps reduce the timescale to once a month—but the process that underpins the reviews. It will be important to review the operation and implementation of the powers as time goes on.
10:33
I pay tribute to the bill team and others who have worked with ministers around the clock to deliver a robust bill under these difficult and volatile circumstances. As other members have indicated, these circumstances are unique in our lifetime. We have a common goal and, judging by the measured contributions so far, I am confident that this pivotal bill will pass today.
Much continues to be said about the devastating consequences of this outbreak on our economy and society, and we must do all that we can to help our constituencies and businesses through this time. No doubt like all colleagues across the chamber, I have been in constant communication with community organisations and individual constituents. It is a monumental task, with hard-pressed staff, reduced in number, trying to help millions almost from a standing start. Nevertheless, if possible, I hope that the UK Government will speed up the process of identifying and making payments to those who are self-employed.
June is still two months away, which is a long time to wait before beginning to make the first payments. Many will struggle to pay their bills, loans, credit card bills and overdrafts. Sadly, some banks have increased their interest rates from 9.9 to 39.9 per cent for unauthorised overdrafts, while they benefit from a base rate of 0.1 per cent. That is nothing short of daylight robbery, and it is kicking people when they are down.
Although the Scottish Government has no powers to stop those practices, I am pleased to see that it is using its limited powers to protect those who are getting into debt by including a temporary extension of moratoriums on diligence. The bill seeks to increase the length of the moratorium on diligence that is created by sections 195 to 198 of the Bankruptcy (Scotland) Act 2016 from six weeks to six months for moratoria that are established during the period that is covered by the emergency legislation.
The bill also removes the restriction that only one moratorium can be applied for in any one 12-month period, and contains a provision for trust deeds. Making it easier for individuals and families to apply for a moratorium may provide just the respite that they need while awaiting payments, or the respite that businesses need to pick up during these deeply uncertain times.
In addition, the temporary relaxation of some requirements in relation to legal aid applications is helpful and incredibly important to those who have been through trauma.
These on-going changes must keep Scotland a functioning country with a working justice system. The proposed adaptations—such as the extension of time limits in criminal proceedings—offer a workable solution to maintain that. Police Scotland is doing a magnificent job in co-ordinating responses and keeping everyone safe, and we must ensure that the legal framework continues to work.
As domestic abuse will continue—and, likely, increase—during this crisis, I hope that it is clear to survivors that, during the lockdown, they are encouraged to make their way to safety, if they can. To assist some of the most vulnerable people in our society, the bill extends guardianship for adults with incapacity, the period of existing certificates, and provision of services to expedite the release of adults with incapacity from hospital.
The majority of the measures in the bill will automatically expire six months after they come into force, which is—I believe—appropriate. Explicit action and agreement from the Scottish Parliament is required to extend those measures for another six months, and then—potentially—a third time, to a total of 18 months from when the bill is passed. In addition, the Scottish ministers will provide a report to Parliament every two months about the use of the emergency powers, which I welcome.
I thank all those who are working to save lives and to keep Scotland going, and I extend my condolences to those who have lost loved ones to the coronavirus, including at least one of my constituents. I also wish those who are currently suffering from it a speedy recovery. Let us all keep being responsible and doing what we are doing to make sure that we beat this pandemic together. I support the bill, and I ask all colleagues to vote in favour of it.
10:37
I remind the chamber that I am a practising solicitor and hold current practising certificates with the Law Society of Scotland and the Law Society of England and Wales.
The principles of the bill are to provide new powers to help the Government deal with the coronavirus outbreak effectively. The justice provisions in schedule 4 are, therefore, extensive and wide ranging. Although many of the powers are unprecedented, we can support many of them as drafted; indeed, some of the measures are welcome. However, we are not without doubts. We have particular disquiet about two justice areas, and the Cabinet Secretary for Justice was right to focus on both.
The proposal to release prisoners from sentences early is difficult. It is difficult for victims of crime and their families, who will—understandably—ask about the punishment element of prison and worry about whether the mechanism for assessing prisoner risk is sufficiently robust. It is difficult for the victims of domestic violence who fear that their attackers could be back to haunt them. Scottish Women’s Aid is right to demand robust safety arrangements, including appropriate notification of victims and intensive monitoring in that area in particular. It is also difficult for the public, who will worry about their safety, particularly in times of lockdown when already stretched support organisations and local authorities may be unavailable. To those who are concerned, I say simply that we are, too. By way of reassurance, I remind those who are watching of, and associate myself with, the cabinet secretary’s earlier comments in that regard.
The proposal arises from the unprecedented and grave situation that Scotland faces. There is no doubt that the prison environment poses a unique challenge, not least for the health of our dedicated prison staff, and I understand why we must think the previously unthinkable if we are to reduce the spread of the virus in prisons. However, we must be sure that there is no additional danger to officers, the public or victims by releasing criminals before they are ready. That means that, once they are released, any breach of home detention or any other condition must be detected and dealt with—the police must have the resources to monitor released offenders properly. In addition, if the measure has to happen, it must be for the shortest time possible. It would be helpful if, in closing, the Cabinet Secretary for the Constitution, Europe and External Affairs could give the public some idea of which type of prisoners, and how many, might be eligible for release.
With only four minutes, I cannot elaborate in depth on the proposal to suspend trial by jury. However, had the proposal proceeded today, it would have meant an extraordinary change to the present situation. Alex Cole-Hamilton spoke very well about that, and I respect his views. Trial by jury is a fundamental and important protection and a vital safeguard when it comes to the powers of the state, and it forms a cornerstone of human rights. Let us not forget that the proposal would substitute the decision of 15 people from normal society with that of a jury of one, who will often be male, one of society’s top earners, from a particular educational background and of a certain age.
Furthermore, I am not persuaded that such a proposal would prevent delays. Indeed, there is a suggestion that it could exacerbate backlogs in the system. In its briefing, the Law Society makes the most sobering point when it says that
“the interests of justice and the rule of law are not served by taking the proposed step at this time.”
That is correct, and I am pleased to hear the Cabinet Secretary for Justice’s assurance that he will amend the bill at stage 2 to seek further discussions on a practical and achievable solution that upholds human rights. Such solutions exist—Murdo Fraser listed some of them earlier.
Our support for the principles of the bill is a function of the situation, but it is also conditional and, in some cases, reluctant. Nevertheless, support it is.
10:41
First, I thank the Cabinet Secretary for the Constitution, Europe and External Affairs and the Scottish Government for introducing the legislation and for acting so swiftly. I cannot welcome the bill—I do not think that anyone can—but we are where we are with the coronavirus. The swift action that has been taken has, sadly, been necessary.
I put on record my thanks to everyone who is working on the front line to help our communities and save lives.
I will touch on a couple of points, the first of which relates to schedule 1 and housing. When the housing minister speaks later, I would be grateful if he could provide some clarity on one aspect. Yesterday, following the announcement about the extension periods, I received emails and phone calls from concerned constituents whose lives are made absolutely miserable because of antisocial neighbours. They are genuinely concerned. Like most people, they are staying at home, but so are their antisocial neighbours, who, I was told by those who spoke to me, are tenants of a private landlord. The housing minister stated earlier that antisocial tenants can still be evicted, although the process will be extended by three months. Can he provide further clarity on how that will proceed? Will the process remain the same as it is just now, but with a three-month extension period?
Secondly, I want to ask about private landlords. The Parliament regularly hears about bad and rogue landlords, and there are plenty of them across the country. However, there are also plenty of good and decent landlords. They are worried about their properties being trashed, the rent not being paid and the effect of such extensions on the neighbours of their properties. In his summing-up speech, can the minister give some assurance to those of my constituents who are blighted by antisocial neighbours that the extension period will not have too much of an adverse effect on them? Can he also give assurances that engagement will continue with local authorities and the private rented sector to ensure that antisocial tenants will not be free to continue to abuse their neighbours without censure?
I will not be summing up, so I will answer Mr McMillan now. As I said earlier, the exceptions are for antisocial behaviour or criminality. We will all have constituents who face difficulties and they might be exacerbated during the current situation, which is why we have made those exceptions.
I thank the minister for his clarification. Will further discussion take place with local authorities and the private rented sector, once the bill has been enacted, to reassure all tenants in my constituency and across Scotland? [Interruption.]
For the record, there was a yes from the minister in response to Stuart McMillan’s final question.
We move to the closing speeches. I call Alex Rowley. [Interruption.] Mr Rowley has metamorphosed into Pauline McNeill.
10:44
That is not an easy thing to do. [Laughter.]
I thank Scottish Government officials for the incredible drafting work that they have done in an incredibly short period of time. I whole-heartedly agree with the cabinet secretary, Mike Russell, that we must work together and unite where we can, taking the right steps to manage everyday issues in our society during this dreadful but, I hope, short period.
I am sure that the cabinet secretary agrees that we should still do our job as an Opposition party when we think that the Government can improve legislation. We did that last week with regard to Aileen Campbell’s announcement on the no-eviction policy, which we were delighted to welcome. No Government, whatever its complexion, can get everything right. We will be constructive and get behind the Government in managing the biggest-ever crisis that our country has faced.
We want to make this work effectively. I echo the points that Neil Findlay and Alex Rowley made: we do not want to overwhelm the Government with letters and questions. We want to scrutinise its work, so it would be helpful if ministers told us how we can do that. Humza Yousaf was absolutely right to say in his speech that this is not a time to be bullish or ego driven.
Transparency is essential, as Murdo Fraser eloquently said, and it is essential that there is on-going review. Engender has specifically asked that the Government looks at the impact of the coronavirus crisis on women, as it might be different from the impact on others; it also asked whether the Government would be willing to report on that.
I want to address the Government proposals on no evictions. I think that, sadly, the banking crisis of 2008 will seem like a walk in the park in comparison with what people might face during the upcoming period. I welcome everything that the Government has done, but there are some things that I would like it to consider doing in future.
I tend to agree with Andy Wightman that it is perhaps not right that the way in which the legislation is constructed means that eviction notices will hang over people’s heads. I want to discuss that further at stage 2.
The Government should consider going further to help tenants who, through no fault of their own, are not covered by a Government scheme or universal credit. I recognise that we cannot see the full picture at the moment. There are millions of people who are self-employed or who have lost their jobs and are not covered by the Government scheme or are getting only a percentage of their wages. We cannot yet see the full impact of that.
I whole-heartedly welcome the announcement on funds for landlords, which Graham Simpson raised. I would also like the Government to talk to us about whether, as a last resort, a system of rent breaks could be considered further down the line when we have a clearer picture. Perhaps it could consider a temporary fund attached to the Scottish welfare fund, which I appreciate does not cover rent at the moment, for those who might fall through the gap and might need some short-term help.
I would like the Government to specifically look at rent arrears debt.
Kevin Stewart rose—
I will give way to the minister in a minute if he still wishes to intervene.
I envisage that huge debt might arise and the Government might want to consider a specific scheme to help tenants avoid poor credit ratings and get back to an even position.
It is key to get the message across that tenants should talk to their landlords and that folk should be applying for universal credit when that is the right thing to do. Beyond that, Pauline McNeill will know that we have discretionary housing payments and other measures. The key thing for me is that folk should pay their rent if they can, but if they are having difficulties, they should immediately talk to their landlord, whether they are in the social rented sector or the private rented sector, so that we can bring about the flexibilities that are required.
There is nothing in that that I disagree with: people should continue to pay their rent. What I am trying to address are the cases of people who are not able to do so, through no fault of their own, if they have lost their job or other income.
I would like the Government to look at extending the time that someone can stay in temporary accommodation. That issue was raised by Shelter.
As other members have done, I recognise that the Cabinet Secretary for Justice is withdrawing what was probably the most controversial proposal, which was for judge-only trials in solemn procedure cases. It is helpful that he did that early in the process. I think that we all agree that we need to take more time to look at the issue of removing the fundamental right of an accused person to be tried in front of their peers and have comparative justice—that is, the same justice as everyone else.
I support the idea of a consultation. There are dangers to the public in proceeding with jury trials. I welcome what the Government has done. Labour members will take full part in the consultation. We could look at the wartime example, where juries were reduced to seven members. We will work with the Government to find a solution.
10:50
I start, as did the Cabinet Secretary for the Constitution, Europe and External Affairs, by saying that unity in this endeavour is essential. He said that it was important; it is essential. We need to work together, and I and my party and all members are grateful for the way in which the Government has tried to ensure that we can work together.
The bill, as published yesterday and as it currently stands, contains measures that, in my party’s view, go too far—at least at the moment—because the case for their necessity has not been made. I want to reflect a little more on that test, as I did last week.
We all accept that there is a public emergency that threatens the lives of our citizens and indeed the life of the nation. We all accept that that emergency requires an extraordinary response, and requires us as parliamentarians to confer on ministers powers that we would not ordinarily contemplate. We must vigorously and rigorously apply a test of necessity to the examination of whether those extraordinary powers are required. It is not about whether they are administratively expedient, or whether they would make our life easier, but whether they are strictly required. Jenny Gilruth referred to that in her opening remarks. Last week, when we discussed the matter in the context of the legislative consent motion for the UK Parliament’s Coronavirus Bill, the cabinet secretary indicated very strongly his agreement that that is indeed the test. We will co-operate to confer on ministers those powers that are necessary to meet the exigencies of the crisis.
I will say something about how we apply that test to the two most controversial sets of proposals in the Coronavirus (Scotland) Bill: those with regard to juries, and those with regard to freedom of information. I very much welcome this morning’s indication by the cabinet secretary and his colleagues that they will today withdraw from the bill the proposals about juries, albeit that that does not mean that we have solved the issue—the issue has absolutely not been solved, and we know that we will have to revisit it in a matter of weeks. If talks are held about that process, I commit myself and my party to take part in them constructively. We want to solve that aspect of the coronavirus crisis.
Courts must be able to function, but they must be able to do so in a way that uses means that command the widest possible support—that is what the cabinet secretary said in his opening remarks—and that do not unnecessarily trammel the rights and freedoms of the people involved in the criminal justice system. The cabinet secretary is right to say that that includes victims as well as defendants; however, the rights and freedoms of the accused are paramount in ensuring that we have a fair criminal justice system.
We need to think about measures that are much less restrictive on rights and freedoms, rather than simply abandoning all jury trials for the duration of the crisis. We can think about the consequences of delay; the logistics of testing empanelled jurors for coronavirus; remote juries; virtual trials; and larger venues. Every cinema and every theatre in Scotland is lying empty at the moment. Those are large spaces—larger than criminal courtrooms. If we in the Parliament can come together to debate legislation while maintaining social distancing, it should not be beyond our wit to conceive of ways in which the criminal justice system could function too.
It cannot be shown to be necessary to abandon criminal trial by jury in Scotland, if no other Commonwealth country in the world is contemplating it, given that we are dealing with a global pandemic. The Lord Chancellor is not contemplating such a measure in England and Wales.
I want to say something about the way in which the argument has been constructed. If we read carefully in the policy memorandum that accompanies the bill the view on why the Scottish Government wanted to take the step, we can see that it is not an argument of necessity—it is an argument of administrative convenience. If we do not do that, it says, there will be a backlog of cases. That is not a good enough reason; that is an argument of administrative convenience and not an argument of necessity.
The Law Society of Scotland is absolutely right to point out in blunt terms in its briefing for the debate that
“The potential for a case backlog ... would not, on its own, be sufficient reason”
for departing from the need for jury trials.
We will take part in the talks on a constructive basis, but we will vigorously and rigorously apply this single and simple test: we will support those extraordinary measures that are necessary and we will not support those that cannot be shown to be necessary.
On freedom of information, the proposals that Jenny Gilruth set out are welcome. I regret that they do not go as far as I would have wanted them to go. I am not convinced of the need to extend freedom of information deadlines for anybody other than those who are working on the front line. I completely understand that health boards, general practitioners and pharmacies—anybody who is working in the NHS—have much better, more important things to do right now than to respond to FOI requests, but I am not convinced that the same argument holds for all Government departments. It might hold for local authorities, but not all Government departments.
As I understand it, the proposal is that we will extend the deadline for dealing with FOI requests from 20 days to 60 days, but we will not thereafter allow the 60-day deadline to be further extended to 100 days. That is welcome, but as I understood what Jenny Gilruth said—she can correct me if I am wrong—the bill will continue to provide that
“The Scottish Ministers may by direction specify further circumstances in which a Scottish public authority may extend a relevant period”
beyond 60 days. There is still a substantial degree of flexibility there to avoid or evade ordinary FOI rules. We will need to look very carefully at that at stage 2 and, if necessary, at stage 3.
10:57
A great deal has been covered in this debate. I will deal with as much as I can, and I will be happy to address other issues outside the chamber as we go forward. I will explain that in a moment.
I want to say a couple of words about things that have not been mentioned. First, there is the extension of provisions under the Anatomy Act 1984, which is not a minor matter but requires to be done. Secondly, a very major matter relates to provisions under the Adults with Incapacity (Scotland) Act 2000. These are designed to try to assist in the present situation, but there are times when space within medical premises will have to be allocated to victims of the disease, and we will have to be able to take appropriate actions. I would be happy to answer specific questions on those matters.
Mr Rowley indicated that there may be an amendment from Labour on one-month reporting. That would be an entirely legitimate amendment, but I stress that, as I indicated, discussion is going on about a structure of reporting within Parliament. If a special committee is set up, reporting might be even more regular than that; I would not necessarily want to tie anybody’s hands on that matter. An effective protocol is in place to allow negotiations to take place quite quickly on secondary legislation for Brexit. I am sure that we can negotiate very quickly a protocol with Parliament that would allow a special committee to have a function in reporting.
In addition, I am about to start commissioning work on guidelines for reporting across the Government. That committee could feed into that, and that work could start almost instantly. I hope that, instead of amending the bill, we can take that forward as something that we need to do.
Under public safety, and Mr Kelly’s point about prisoner release, there will be robust criteria and assessment for release. Providing that power in the bill does not mean that it will happen. The regulations have to come into place and, clearly, those regulations are open to influencing. I know that the Cabinet Secretary for Justice will want to discuss those regulations. Certain categories of prisoner are already exempt in the bill.
On the issue that was raised by Liam Kerr, the first choice will be for people to go on home detention curfew. There would be no blanket release, but that would reduce the prison population in a way that would be effective. Again, the cabinet secretary is happy to discuss those matters.
Kenny Gibson and Pauline McNeill raised issues about the real hardship that people are experiencing. We are very aware of that. Every constituency MSP will be aware of the real hardship that exists: we are getting emails and being contacted about that not hourly, but almost minute by minute. That has been the situation for the past 10 days.
As Pauline McNeill indicated, there are people who fall between the gaps. That happens at every level, whether it is in relation to assistance for self-employed people, rent, or long-term debt. At present, we do not have all the answers to that. I stress that point, because it is quite unfair to criticise ministers or officials for not answering inquiries—sometimes the information is not there. Some of the support systems are being run by the United Kingdom Government and some by the Scottish Government, and it is difficult to keep up with some of it. We are doing our very best and will continue to do so.
The points that have been made about hardship need to be addressed and will be addressed. Mr Gibson made the point about the self-employed not receiving assistance until June and that is a very big issue. An equally big issue is those people who are already in debt and who will find themselves in further debt as a result of some of these actions. I know that my colleagues Fiona Hyslop and Kate Forbes are focused on the issues. We will continue to try to address them.
I want to make it clear, as did my colleague, that there is an open invitation for discussion on the issue of jury trials. The only thing that remains solidly on the table is the imperative to take action. That imperative is not an administrative issue—I will try to disagree reasonably gently with Adam Tomkins on that point—but is about the effect of the backlog on the accused and, most important, on the victims, who have a matter of great difficulty hanging over their heads for a long period of time. Victim Support Scotland wrote to every MSP to make that point. What is on the table is how we resolve that issue. If there are better ways to resolve it than those proposed by the Lord President, we would wish to see those ways. We have heard some ideas here today. The idea of taking over the cinemas of Scotland in order to hold trials in them, although slightly Kafkaesque, is probably something that we can consider very seriously. We need to get on and make a decision. That is why there is a commitment to bring a bill to Parliament on 21 April, along with draft regulations, so that we can get a solution in place.
Finally, as everybody here has reflected, we are engaged in highly unusual proceedings. Many people will be busily writing away and planning to lodge amendments. I will make two points. If the bill can be improved, let us improve it. That has been my position on every bill that I have introduced to the Scottish Parliament. For example, that was my position when we had the exceptional emergency legislation on the continuity bill, although the passing of that bill seems like a slow tortoise compared with what we are doing on this occasion. That approach was much criticised by Mr Tomkins, among others, so if we can improve it, we should. However, the best is the enemy of the good; our amendments need to focus on what we can do and what we need to do, otherwise we could sit here all night and into tomorrow and would still not have a better bill.
There has been much discussion this morning about our justice and legal systems—rightly so. Does the commitment to revise and revisit the bill apply to our very many vulnerable adults and elderly people who will be impacted by the considerable changes to the legislation on adults with incapacity?
It does not. I mentioned the legislation on adults with incapacity briefly, but I am happy to discuss that in more detail with the member. The purpose of those changes is very clear and they are very time limited. It is focused almost entirely on ensuring that those who are in very difficult circumstances continue to get the support and help that they need and that that is not affected, for example, by a shortage of staff. It also reflects the needs of the health service. I would be happy to discuss the matter with Ms Constance, but I note that there is no equivalent taking place here.
If there are amendments that could improve the bill, we want to see them and we need to see them quickly. The bill team is in a committee room on this floor of the building and will be happy to discuss amendments, as am I. If anyone thinks that a probing amendment would give them an opportunity to consider something, I ask them to come and probe me first [Laughter.] I may probe back very vigorously. Let us focus on what we need to achieve in the bill.
I commend the general principles of the bill to the Parliament. I hope that at stage 2 we can focus on what is really important so that we can pass the bill. The bill will be passed: it is designed to be passed and it must be passed in order to save lives.
That concludes our stage 1 debate on the Coronavirus (Scotland) Bill. Because this is emergency legislation, we move straight to the question on the motion. The question is, that motion S5M-21370, in the name of Michael Russell, on the Coronavirus (Scotland) Bill at stage 1, be agreed to.
Motion agreed to,
That the Parliament agrees to the general principles of the Coronavirus (Scotland) Bill.