Seòmar agus comataidhean

The principal amendment in the group is amendment 67, which seeks to codify most aspects of commencement policy on the bill to ensure a seamless transfer from the existing temporary provisions, which will expire in September 2022, and to eliminate the need for commencement regulations immediately after summer recess.

The Government considers that, generally, where temporary provisions transition to replacement provisions under the bill on the dates that are given, no transitional or savings provisions are required.

I will speak to amendments for cases for which the Government considers that appropriate transitional and saving provisions are required in order to enable a smooth legislative transition. Amendments 64 and 65 will ensure that appropriate transitional and savings arrangements are in place in relation to part 4 of the bill, which is on tenancies.

Discretionary grounds of eviction and pre-action requirements were introduced via the emergency coronavirus legislation and mean that all eviction notices that were served on or after 7 April 2020, and all proceedings raised in relation to those notices, are subject to discretionary grounds of eviction and, for rent arrears cases, the pre-action requirements.

The new law in the bill will apply to all post-commencement eviction notices and all eviction proceedings that are raised in relation to those notices. In addition, for those post-commencement eviction notices and connected eviction proceedings, the Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 will be deemed to have been made under the powers in the bill in relation to the pre-action protocol.

The effect of amendments 64 and 65 will be that, where an eviction notice has been served on a tenant prior to 1 October 2022, the law, as framed by the Scottish coronavirus acts and the relevant regulations, will continue despite the expiry of the relevant provisions in those acts and regulations. If an eviction notice is served on or after 1 October 2022, the new law, as framed by the bill, will apply and the relevant regulations will continue in effect as if they were made under the new pre-action protocol powers that are created by the bill.

Those technical amendments are crucial to ensure a seamless transition from the emergency legislation that will end on 30 September to the proposed new law coming into force on 1 October 2022. They will ensure that the law remains stable for anyone who has already begun an eviction process, and they take account of the fact that there might not be enough time before 1 October 2022 to pass new regulations for the pre-action protocol. The seamless continuation of that important protection for renters will avoid any confusion or uncertainty for landlords and tenants, which would be caused if there was a short gap between the expiry of the emergency legislation and the making of new regulations under the bill.

Amendments 40 and 42, which are on bankruptcy provisions, are technical amendments to provide clarity on the specific subsections that are referred to in sections 15 and 16 of the bill, respectively.

Amendment 41 provides that amendments that are made by section 15 of the bill, which is on service of documents, apply in relation to documents that are sent or transmitted on or after 1 October 2022.

Amendment 43 provides a saving provision for the provision in section 16 of the bill. Section 16 sets at £5,000, on a permanent basis, the minimum debt level that a creditor must be owed in order to petition the court for bankruptcy of the debtor. Amendment 43 will ensure that any creditor petition for bankruptcy that is presented before 1 October 2022 is not impacted by the change to the creditor petition level.

Amendment 67A would bring into effect, on 1 November 2022, proposed changes to the protected minimum balance that is applied when someone is subject to a bank arrestment. That amendment is consequential to amendment 69, which was lodged by John Mason, and it will be considered more fully when we consider group 7. The Government supports those amendments, which together will introduce the change at an early opportunity in order to allow debtors to benefit from the revised figure.

I move amendment 40.

The Government is happy to support amendment 69, which seeks to increase the funds that can be retained in a bank account that has been subject to a bank arrestment. The Government also supports the creation of a power to amend the figure through regulations.

The Government is aware that the issue emerged during the stage 1 scrutiny of the bill. We are acutely aware that the cost of living pressures have compounded the financial uncertainty that arose during the coronavirus pandemic. Amendment 69 will provide some respite for people and households that are experiencing issues of problem debt, and it will improve financial resilience.

I understand that provisions already exist for bank arrestments to be challenged on hardship grounds, but I am aware that they can be quite arduous to effect and that they do not provide an immediate resolution for many when what they need is urgent and early help to better manage their situation.

I also understand that bank arrestments are used predominately by local authorities to recover unpaid debt, and I acknowledge that Mr Mason’s amendment will reduce the amount of funds that local authorities and other creditors can recover using such diligence. However, in the current climate in particular, the Scottish Government considers that the proposed reform achieves the right balance and that the revised arrangements to fix the protected sums will provide greater flexibility to respond to economic factors in the future.

We accept the need to do something immediately to protect individuals from unnecessary hardship. In the coming year, we will carry out further consultation to look at both the process and the thresholds and consider what longer-term improvements can be made to bank arrestments. Some of that might address the legitimate points that Murdo Fraser raised. However, for now, the Government agrees that amendment 69 is a necessary stopgap, and I welcome the fact that John Mason has lodged it. The Government encourages members to support it.

Oh, no. I think that that would be called interfering, convener.

Amendments 71 to 81 moved—[Edward Mountain].

In a sense, Mr Rowley has made my argument for me. We all accept the threat of another pandemic. Parliament had to legislate, in extremis, with primary legislation that was rushed through Parliament to try to address the situation. I am trying to learn early lessons from the pandemic and equip the statute book with the ability for us to respond, with necessary Parliamentary oversight, and to exercise the appropriate powers. Indeed, Fiona de Londras, whom Mr Rowley quoted, has welcomed the steps that I have taken to strengthen parliamentary oversight.

Mr Rowley is making comments that were relevant prior to and in the stage 1 debate but, in the light of the amendments that the Government proposes, I suggest that he is not adapting to the proposed changes in which parliamentary oversight is being given. As Mr Mason says, a veto is being given to Parliament on any changes that it does not believe to be appropriate. We are putting in place the means by which we can respond speedily in a situation that Parliament has thought about well in advance. That is what the 12-week consultation and the three-stage process of parliamentary scrutiny to make legislative change are all about.

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

I would expect the CMO to be involved intimately in that process, but as I have just recounted, it will not always be the CMO who is best placed to do that.

Evidence is gathered for ministers from a multitude of sources. Ultimately, ministers make judgments based on the advice that they are given, because ministers are accountable. The CMO is not accountable for decisions. Decisions are, properly, for ministers to take. Independently, ministers must assess the evidence that is put in front of them and come to a judgment.

I understand all the points that Mr Rowley makes, and the strength of his opinion on that point, and I would not question in any way his commendation of John Mason’s debating skills. Nonetheless, I ask him to reflect on the amendments that I have lodged to the specific powers that Mr Rowley mentions. I have conceded—I did so in the stage 1 debate, and I have brought forward changes this morning—that any exercise of these powers would have to be approved by Parliament. A parliamentary regulation would have to be brought forward.

That cannot be undertaken under the made affirmative process; it has to be done under the draft affirmative process. Parliament would have to actively approve any changes before they were brought into effect, and that could happen only if the gateway mechanism had been gone through, because we were dealing with a public health emergency.

Since the bill was published, the Government has proposed two very substantial additional safeguards in its amendments, in response to the concerns that have been expressed by commentators. Some of the commentators that Mr Rowley cited have since reflected publicly on the points that I made in the stage 1 debate, and they welcome the steps that the Government has taken to revise the proposals accordingly in the light of the comments that I made during the stage 1 debate.

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