Chamber and committees

I think that we all understand and that, regardless of our reflections on the pandemic and on regulations and restrictions, no member of Parliament suggests that there was no need for any restrictions whatsoever; all members of Parliament accept that point, and that is welcome.

There are varying degrees to which the extent of the regulations was judged to be appropriate, or whether all of them or as many of them had to be introduced with quite the pace with which they were introduced. I accept that there is no black and white position in all that. We need to approach this with some principles, which are that we have to move fast, but we also have to maximise parliamentary scrutiny. If we try to address a position between those two principles, I suspect that we will get somewhere. That is what I was trying to do with my interaction with the Delegated Powers and Law Reform Committee to signal that.

Amendment 37 provides that urgent regulations under sections 8 to 10 that only revoke any part of existing regulations would be made by a laid no-procedure SSI. That would enable the swift removal of education regulations that are no longer necessary and proportionate. The option would be available only when the new urgency test in section 12, that is proposed in amendment 36, is met.

Amendment 137 in Mr Mundell’s name is connected to those provisions in that it would provide that education regulations could be in place only when public health protection regulations are in place. It might not necessarily have that effect, as some regulations that are made under the public health provision might be permanent preparedness regulations, in which case amendment 137 would not achieve what it is trying to achieve. It is an unhelpful addition to the carefully crafted layers of safeguards that are in the bill to ensure that regulations are in place for no longer than necessary, as I have covered in amendments 38 and 39. Further, the amendment does not reflect that the nature of a public health emergency might lead to different considerations for health and education.

I will address each of the amendments in the group in turn.

The measures that are set out in amendment 127 are not, in the Government’s view, workable, as the Scottish Qualifications Authority has, since 2000, in line with its statutory obligations, been responsible for delivering the national diet of examinations in Scotland. During the Covid pandemic, the SQA has worked closely with partners through the national qualifications 2021 group to ensure that young people are able to achieve fair and credible grades in spite of experiencing the most challenging of school years. That has included informing 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.

The SQA and partners have made it clear that the awarding of qualifications must be based on demonstrated attainment. A range of measures, including adapted appeals processes that give learners a free and direct right of appeal, have been put in place to ensure that all our young people have the best chance to demonstrate their potential in order to receive the grades that they deserve.

Amendment 127 would introduce detailed statutory regulation of some aspects of examination and assessment—which are otherwise within the scope of broad functions that are, in general, exercised independently of the Scottish Government—in a way that is at odds with the existing legal framework. By taking a collaborative approach rather than the statutory approach that is proposed in the amendment, we can ensure that any assessment approach to the awarding of qualifications is appropriate to the circumstances at the time and does not pre-empt future legislation for the SQA’s successor or any outcomes of Professor Louise Hayward’s review of the future qualifications system for Scotland.

Amendment 129 would require ministers to set out plans for providing additional financial support to students if any regulations that are made in relation to the continued operation of educational establishments or student accommodation

“will, or are likely to, have a detrimental financial impact on students”.

During the Covid pandemic, we have provided substantial support to students, including more than £96 million through hardship funding, digital access support, mental health support and funding for student associations. We have also worked with the sectors and with student accommodation providers and student representatives to ensure the continued welfare and safety of students. That has included our on-going commitment to providing more than 80 additional counsellors in colleges and universities, which we have achieved.

In the event of a future public health emergency, we would set out any additional support for students, financial or otherwise, that we considered to be necessary, just as we would set out additional support for any other groups that we believed required support. We would do so in the context of the situation at the time and through consultation with stakeholders, including student representatives. By taking that broader, non-legislative approach, we can ensure that any additional support for students is appropriate to the circumstances at the time and that it includes non-financial support where appropriate. The Government cannot, therefore, support amendment 129.

With regard to amendment 135, there is already flexibility for individual applications to be made to an education authority for a pupil to repeat a year, and those applications are assessed on their individual merits. With regard to pupils who have additional support needs, the need for an extra year sometimes arises as the result of a deferral at an earlier point in their learning. A better approach would be for the young person to be considered under the Education (Additional Support for Learning) (Scotland) Act 2004 as having an additional support need, which may arise for whatever reason, and for appropriate catch-up support to be provided. During the years in which pupils take their formal exams, there is significant flexibility for young people to take qualifications when they reach a certain level, rather than in a single year. Finally, I note that amendment 135 is ambiguous in the terms that it uses and in relation to which types of educational institution it would apply to. As it is currently drafted, it would not deliver legal certainty.

Amendment 144 does not specify who may make a request or to whom a request for an education catch-up plan should be made, or whether there is any obligation on the institution to which the request is made to agree to it. In addition, the amendment gives no definition of content with regard to what such a plan should include. Again, that would not offer legal certainty.

I cannot support any of the amendments in the group, and I invite Mr Mundell not to press amendment 127 and not to move the other amendments.

The amendments in this group relate to remote registration of births and deaths and to a project named calling in the register pages, which is aimed at ensuring that the registers of births, deaths, marriages and civil partnerships can be held electronically rather than on paper. It also aims to remove requirements for signatures on the registers to be traditional wet signatures, in order to help with the move towards electronic registers. Amendments in the group emphasise the choice that is available to the informant and contain provisions to enable the registers to become electronic. The text that asserts the informant’s right to choose has to refer to the options that can be chosen.

Amendments 46 and 54 relate to remote registration of births and deaths. As the bill stands, informants may provide information about a birth in person at the registration office, or remotely if the local authority district registrar has issued a direction enabling remote registration in their area or the registrar general has issued an all-Scotland direction. Amendments 46 and 54 enable the birth and death registration forms to be attested—signed—in a way other than with a traditional wet signature. That paves the way towards making the registers electronic.

The amendments also make it clear that, when remote registration is available to an informant, the option of in-person registration remains even though the informant can choose remote registration if they so wish. That responds directly to points that were made in the stage 1 report on potential digital exclusion and the need to ensure that in-person services remain available. We always intended to preserve in-person service provision under the bill, and there is no compulsion to use the telephone or video call option. The amendments clarify the position and remove any doubt: in-person services must be maintained.

Amendments 47 and 55 relate to late registrations of births and deaths. There are legal obligations to register births and deaths, and if an informant fails to do so, local authority registrars have long-standing powers to require information to be provided. That involves requiring the informant to attend the registration office in person. Amendments 47 and 55 make remote registration possible in late cases when the district registrar has issued a direction enabling remote registration in the area or the registrar general has issued an all-Scotland direction. However, the amendments also provide that, when the option of remote registration or having the registration form attested remotely is available in late cases, the informant has the choice of doing it in that way or attending the registration office in person. Again, we are responding to the stage 1 report in that regard.

Amendments 47 and 55 also provide that one option for attesting a birth or death registration form that is provided late is for the registrar to do so on behalf of the informant. Again, that will pave the way for the registers to become electronic.

Amendments 48 and 56 are consequential amendments. Local authority registrars are under an obligation to register births and deaths when the required information has been provided. Amendments 48 and 56 reflect that that information may be given remotely in future.

Amendments 49 and 51 are further consequential amendments. They relate to birth registration by a father who is not married to or in a civil partnership with the child’s mother, and to birth registration by second female parents. They provide that, when attesting a birth registration form on behalf of such a father or second female parent, a registrar may ask for information generally and not just about the person’s usual signature. That might be useful when, for example, registrars ask fathers and second female parents exactly how they are to be referred to, such as by their first name and surname, by their middle name or by using initials. Proceeding in that way is another step towards helping the registers to become electronic.

Amendments 50 and 52 again relate to birth registration by a father who is not married to or in a civil partnership with the child’s mother, and birth registration by second female parents. They provide that, if the father or second female parent can attest a birth registration form in a way that does not require them to be in the presence of the registrar, it is for that person to choose whether to attest the form in that way. That reflects the point in the stage 1 report that some informants will wish to use in-person services rather than remote ones.

Amendments 53 and 57 provide new definitions of the birth registration form and the death registration form. The forms will be prescribed by the registrar general in regulations.

Amendment 58 ensures that regulations that are made by the registrar general under the Registration of Births, Deaths and Marriages (Scotland) Act 1965 may make different provision for different cases or circumstances. That is already the case for the marriage register. The ability to make different provision for different cases or circumstances will help to future proof the legislation. In the future, there may need to be different formats for birth registration forms and death registration forms, depending on whether the forms are electronic or are manually signed and scanned into the electronic register.

Amendment 59 provides that a civil partnership register may, if the registrar general so determines, be electronic rather than paper based. There is existing provision that registers of births, deaths, stillbirths and marriages and the register of corrections et cetera may, if the registrar general so determines, be electronic rather than paper based. Amendment 59 extends that provision to the civil partnership register.

I move amendment 46.

Amendment 46 agreed to.

Amendments 47 to 53 moved—[John Swinney]—and agreed to.

Section 18, as amended, agreed to.

Section 19 agreed to.

Section 20—Giving information of particulars of death remotely

Amendments 54 to 57 moved—[John Swinney]—and agreed to.

Section 20, as amended, agreed to.

After section 20

Amendments 58 and 59 moved—[John Swinney]—and agreed to.

Section 21—Civic licensing: how hearings may be held

That is not what is happening. It might have been a legitimate accusation in the stage 1 debate, but it is not a legitimate accusation now, because I have lodged an amendment that, in essence, says that Parliament must approve any changes that are exercised under the one line in the bill that Mr Rowley wants to remove.

Amendment 118 does not provide for what Mr Mundell just outlined to me, so I cannot support it.

The purpose of the discussion that we are having is to put in place precise wording for the law that we are making. Members of the Parliament will be very conscious of that. If amendment 118 is agreed to, ministers must “seek” and “have regard to” a report. I am afraid that, with that amendment, Mr Mundell is encouraging me to pass legislation that is far from clear. Therefore, on the basis of what is before us, it cannot be supported.

Ministers are committed to preparing and publishing a children’s rights and wellbeing impact assessment for regulations that are made under section 8. I expect similar mechanisms to the four harms assessment process and Covid education recovery group arrangements to be used to ensure that the impact on children and young people is fully understood and taken into account.

Amendment 119 fails to take into account how the provision of digital infrastructure and devices is organised, or would be organised in the future, in the education system, as well as the role and functions of operators rather than the Scottish Government.

The wording of the amendment is flawed. Are laptops to be “provided” irrespective of whether an establishment is to close or whether a young person already has a device? The amendment also does not take into account the point that the most appropriate device might not always be a laptop and it is prescriptive in the use of that term. As Mr Mason said in his intervention on Mr Kerr, it would present an unreasonable barrier to acting swiftly to address a public health emergency.

The Government is committed to ensuring that every child has access to a device by the end of this parliamentary session. Indeed, during the pandemic, significant investment from central Government ensured that more than 72,000 devices and 14,000 connections were provided to our most disadvantaged children and young people. We must and will continue to enhance young people’s access to technology, but introducing an open-ended requirement that must be fulfilled before ministers can take action that is necessary and proportionate to protect public health is not workable and could put children at a significant risk in future.

I will, but I am anxious to make more progress.

A balance is struck through existing legislation, which gives a local authority the ability to close a school when there is an immediate local public health issue. [Interruption.] If Mr Mundell will let me complete my answers, that might help us make some progress.

A director of public health can provide a report to a local authority about a public health situation that requires to be addressed. That is the existing law; nobody is challenging that. The purpose of the bill is to ensure that we as a country are equipped to handle wider threats. We have just gone through a pandemic, which is a much wider threat than, for example, a localised norovirus outbreak.

Obviously, there are matters for a church to weigh up as a landlord in those circumstances. We are happy to explore the matter with the Church of Scotland in due course, but I contend that there are strong grounds and foundations for churches to be optimistic in assessing the possibility of securing access to manse properties. That is, first, because most eviction cases do not end up anywhere near a tribunal and, secondly, because a tribunal has to do what is reasonable in the particular circumstances of the case.

However, I am not dismissing the issues. I am very happy for ministers and officials to engage further with the Church of Scotland. I give that assurance.

It is difficult to give a definitive prescription about timescales, because tribunals, by their nature, exercise their judgments independently. I dare say that I would get into hot water if I were to start setting out the timescales for tribunals.

My second point is about resourcing. We make the best judgments that we can about resourcing so that decisions can be made, the private rental sector can operate smoothly and the issues that Mr Mountain puts to me can be properly resolved through the tribunal process, if they need to go there. I return to the point that I made to Mr Fraser, which is that the overwhelming majority of such cases do not go anywhere near a tribunal.

I return to the point that I was making about the Private Housing (Tenancies) (Scotland) Act 2016 before I accepted Mr Fraser’s intervention. I reconfirm the Government’s commitment to review all grounds for repossession after five years. That period ends at the end of 2022, and it is right for us to fully consider all the grounds for eviction together. I hope that that gives Mr Fraser and Mr Mountain some reassurance.

On the basis of those points, I urge Mr Fraser and Mr Mountain not to move amendments 76, 146 and 147, so that all grounds for eviction can be reviewed together. Any necessary legislative changes could be introduced following that review.

For all the reasons that I have provided, I invite the committee to reject all the amendments in the group.