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The Scottish Government has acted quickly and decisively in response to the coronavirus pandemic, recognising the unparalleled economic uncertainty that financially impacts on households. A range of measures were introduced through the Scottish coronavirus acts to mitigate the impact of that uncertainty. Among those was an extension to the moratorium period on diligence to provide a longer period of breathing space for those facing issues of unsustainable debt to fully consider their options.

A commitment was made to consider at stage 2 of the bill what would be appropriate for a permanent provision for the moratorium period. As with most provisions in the bill, consultation was undertaken on the issue and a number of options were considered, including reverting to the six-week period that is provided for in bankruptcy legislation, a 12-week moratorium period or retaining the longer protection period of six months.

The Scottish Government is acutely aware that the turmoil resulting from the pandemic has been quickly followed by the onset of additional extreme pressures on the cost of living. We also acknowledge that the committee recommended a moratorium period of 12 weeks at a minimum. Given those very real pressures, we believe that it is justified at present to make provision that continues the existing protection period of six months. All the main debt advice organisations have called for that. Amendments 44 and 45 also provide for a new specific power to revise the period of moratorium against diligence through regulations, subject to the affirmative procedure. That is considered appropriate for changes of that significance.

We have listened to the evidence that the committee heard, and there is little doubt that the current cost of living crisis will see an influx of demand on our excellent but already hard-pressed advice sector. It is very likely that many households that have previously been able to manage their budgets will come under increased pressure, resulting in their debt potentially becoming unsustainable. That is why we have retained the existing enhanced protection, but it comes with a commitment to review and introduce an amended timeframe when the current risks subside, as we hope they will. The regulation-making powers will enable flexible and rapid responses to changing economic circumstances.

For those reasons, I invite the committee to support the amendments in the group.

I move amendment 44.

Amendment 44 agreed to.

Amendment 45 moved—[John Swinney]—and agreed to.

Section 18—Giving information of particulars of birth remotely

Convener, I am afraid that I will detain the committee a little, because there is a large amount of material here on which committee members would expect me to comment. I must do so out of respect to members of Parliament. I have no plans for this evening. [Laughter.]

This is a large and important group of amendments. I will speak, first, to amendments 36 to 39 in my name. As with group 1, the key overarching amendments in the group are those that introduce the gateway vote mechanism, that is, amendments 38 and 39, which provide for the approach that the committee supported in the context of group 1; the amendments are substantively identical to amendment 23, which has just been agreed to, and the same rationale applies. They substantially address a number of concerns that members have about parliamentary scrutiny.

As I said in the debate on group 1, I have considered issues that the Delegated Powers and Law Reform Committee and this committee identified at stage 1, as we signalled in the Government response to the committees. Amendment 36 makes equivalent provision in part 2 of the bill, including by providing for an explanation of urgency if the made affirmative procedure needs to be used in urgent circumstances.

Amendments 16 to 18, which Mr Simpson lodged, would either mean that the made affirmative procedure was not available for regulations under that part of the bill or lead to delay. There are significant safeguards in the bill, and the Government amendments that we consider today will add to those safeguards, to ensure that regulations are made urgently only when that is necessary to meet the public health emergency that is faced, and to ensure that such regulations are in force for as short a time as possible. The amendments in Mr Simpson’s name would significantly undermine the provision that the bill puts in place with the intention of protecting people in the face of a future public health emergency.

I heard what Mr Simpson said, and I hope that he can, in good spirit, acknowledge that the Government has accepted a number of the arguments that the DPLR Committee advanced. I hope that he also accepts that I have said on the record that we should use the made affirmative procedure only where it is absolutely required.

I welcome the dialogue that is under way with that committee about a form of expedited draft affirmative procedure that would enable parliamentary scrutiny before the effect of regulations is in place. Fundamentally, as members will understand, much comes down to the definition of “expedited”.

I do not want to avoid parliamentary scrutiny at any stage, but I want Government to be able to take action that is necessary to protect public health. It is the reconciliation of that balance that is critical on this question. I will be happy to have further dialogue—I see that Mr Simpson wants to intervene.

I have no comments to add.

Amendment 60 agreed to.

Amendment 61 moved—[John Swinney]—and agreed to.

Section 21, as amended, agreed to.

Section 22 agreed to.

Section 23—Alcohol licensing: how hearings may be held

Amendments 62 and 63 moved—[John Swinney]—and agreed to.

Section 23, as amended, agreed to.

Sections 24, 25 and 27 agreed to.

Section 28—Mental health: removal of need for witnessing of signature of nominated person

Although I understand Mr Fraser’s motivation in lodging them, the Scottish Government does not consider that amendments 2 and 3 are necessary for a number of reasons, which I will set out.

Amendment 2 would require the Scottish ministers to publish guidance on named persons. However, such guidance is already available through our website. We propose to revise the content to take account of changes to legislation, and we will do that in partnership with key stakeholders, including the Mental Welfare Commission. The revised documents will make it clear that, in addition to the published guidance, there should be on-going engagement through clinical teams and that that should always be the default position.

The Mental Health (Care and Treatment) (Scotland) Act 2003 already places specific duties on mental health officers when it comes to the role of named persons. Those duties direct them to seek out and talk to a named person before certain orders and applications are made or, in some cases, as soon as practicable after an order is made. Therefore, the potential for a person not to understand the role is extremely minimal.

In addition, the statutory code of practice that accompanies the 2003 act is clear that

“it would be best practice for the”

mental health officer or any other practitioner discussing the matter with the nominee

“to ensure that they are provided with information about the role in a form which is helpful to them.”

That role will not change.

The legislation as it stands only places a duty on a prescribed person to act as a witness to the nominee’s signature. The process of checking understanding is separate to the requirement for the nominated person’s signature to be witnessed and can be undertaken by a range of professionals, not just mental health officers.

Amendment 3 proposes that a nominee should declare that they understand the role and responsibilities that are associated with becoming a named person, but the legislation does not provide specific duties for named persons, because they will vary in each case. The named person and the patient are each entitled to act independently of the other. Unlike, for example, a welfare guardian—depending on their powers—a named person does not step into the shoes of the patient.

Although the proposals would extend the reach of that provision, they would also be difficult to verify, because we are unclear how one would evidence that a nominee has been provided with guidance on their role, rights and responsibilities before they accept their nomination. There is no statutory form to complete at present, although there is a suggested template, and we are aware that some local authorities have their own versions.

Our aim is to reduce bureaucracy and encourage more people to accept the role of named person, which this committee agrees is a vital safeguard in the patient’s care and treatment. The change that amendment 3 proposes would be difficult to verify and offers no new safeguard, because there is already an established practice, which should ensure that nominated persons are provided with relevant guidance in a form that is helpful to them before they accept their nomination.

Given the position that I have just set out, these suggested stage 2 amendments are, in my view, not required. They potentially and unhelpfully introduce more procedure before the role of supporting a patient takes effect.

The intention behind the reform is to remove a requirement that is currently experienced as disproportionately bureaucratic and might even be a disincentive to taking up the role. I believe that amendments 2 and 3 would not assist in the efforts that we are trying to make in that respect, and I invite Murdo Fraser not to press them.

Amendment 109 would introduce what I consider to be unnecessary reporting arrangements. As significant reporting duties are already included in the Coronavirus (Scotland) Act 2020 and Coronavirus (Scotland) (No 2) Act 2020, including two-monthly reports to Parliament on the operation of the tenancy provisions, the preparation of a further report on the operation of those acts is unnecessary.

In addition, we have committed to carrying out a review of all repossession grounds. That will include the consideration of the impact of part 4 of the bill and is a more appropriate vehicle for assessing and reporting on the impact of the changes. It is far more meaningful to assess the impact of the statutory framework for private tenancies as a whole, of which those changes are a part.

On amendment 110, obliging the First-tier Tribunal to collect, prepare and publish statistical information on its roles and responsibilities in relation to part 4, to contribute to the Scottish ministers’ reporting duties, is both problematic and unnecessary. It is problematic because it is not clear what information would be required, and because the tribunal does not have any roles and responsibilities in relation to part 4, as its powers and duties are contained in the Rent (Scotland) Act 1984, the Housing (Scotland) Act 1988 and the Private Housing (Tenancies) (Scotland) Act 2016. It is unnecessary because the First-tier Tribunal already provides a range of statistical information to the Government on a monthly basis.

Amendment 111 seeks to oblige the Scottish ministers to introduce primary legislation to reform the law on residential tenancies, without specifying what aspects should be reformed. The Government has already committed to introducing legislation to reform residential tenancies, which will deliver a new deal for tenants. Therefore, amendment 111 is unnecessary.

I urge members not to support amendments 109, 110 and 111. However, if it would be helpful, the Minister for Zero Carbon Buildings, Active Travel and Tenants’ Rights, who will lead on the upcoming housing bill, will be happy to meet Mr Griffin to explore how some of his thinking in relation to the improvement of data on the private rented sector could be reflected in that work. I am sure that he would also be happy to meet Mr Mountain to discuss the issues that he is concerned about.

Yes, and I think that the bill makes that provision, but Mr Mundell and his colleagues need to reflect on the lines of argument that were being advanced during the pandemic. I say that in the respectful position that we are in in this exchange.

As colleagues will have deduced, I cannot support amendment 137. However, I am happy to explore other questions that we might come on to in this group.

On the remainder of the group, amendments 112, 115, 117, 13 to 15, 134, 136, 140 and 145 leave out sections 5 to 13 of the bill. The powers in those sections are necessary and proportionate and had majority support in committee and the chamber, so I cannot support those amendments.

Amendment 118 and its more general alternative, amendment 130, propose a new role for the Children and Young People’s Commissioner to consider and report on any proposed use of the education regulation-making powers. No timescale is provided for the commissioner’s report and no exception is offered for urgent cases. Therefore, those amendments would seriously delay the Government in responding swiftly to a public health emergency.

First, it is welcome to see Mr Mountain and I wish him well.

The amendments in this group seek: to significantly alter the provisions in part 4 of the bill that remove mandatory grounds of eviction; to remove the private landlord pre-action protocol provision; and to propose new eviction grounds relating to employees.

The Government’s view, as endorsed by the Local Government, Housing and Planning Committee, is that the position under the coronavirus acts should be continued so that all grounds of eviction remain discretionary. In a sense, that is one of the key points about this series of amendments and the consideration that has to be applied to them. I have had this thought about some of the other provisions in the bill that we have wrestled with today. The purpose of this piece of proposed legislation is to look at the arrangements and circumstances for which we have had to legislate as a consequence of the pandemic, and to put in place longer-term arrangements arising out of the pandemic. It is entirely legitimate to raise the issues that have been raised in this series of amendments, as we have seen in other amendments that we have looked at today, but they are not driven by the circumstances of the pandemic on its own. When the Local Government, Housing and Planning Committee looked at the question in relation to the coronavirus acts, it came to the same conclusion as the Government: all grounds of eviction should remain discretionary.

A tribunal is the correct place to balance the rights of tenants and landlords when deciding whether an eviction is reasonable, and the tribunal cannot arrive at a decision that is incompatible with the convention rights of either party in determining whether an eviction order should be granted. Moving permanently to discretionary grounds is not a bar to eviction; it simply allows the tribunal to consider all the facts and do what is reasonable in the particular circumstances of each case. I consider that the amendments seek to remove provisions that allow the full circumstances of both tenants and landlords to be taken into account by a tribunal. For that reason, I cannot support them.

The private landlord pre-action protocol is, again, not a bar to eviction, but we hope that, in many cases, the support that is provided to a tenant by things such as being signposted to information under the protocol will enable rent arrears to be addressed and the tenancy to continue. That is in the interests of both parties, as it costs a landlord to find a new tenant and it costs a tenant to move.

In addition, if all rent arrears grounds of eviction continue to be discretionary, the removal of the protocol would disadvantage landlords by removing a means by which they can demonstrate that eviction is reasonable in the circumstances. For those reasons, I oppose amendments 107 and 108.

Both Mr Fraser and Mr Mountain also seek to create a further ground of eviction where a landlord seeks to recover possession of a property in order to rent it to an employee of the landlord. I do not consider that any of those proposed new grounds of eviction is appropriate. There are already existing grounds to enable a landlord to evict a tenant from a property that is occupied for the purposes of employment, where the tenant is no longer an employee.

When we introduced the Private Housing (Tenancies) (Scotland) Act 2016, we committed to a review of all the grounds for repossession after five years, and that period ends in December this year. I am happy to reconfirm that commitment and to ensure that key stakeholders are consulted in the development of that work.

I agree with Mr Mundell but, in my experience of handling the pandemic, that was not always what I heard from Mr Mundell’s colleagues. I have had endless exchanges with members of the committee about the importance of reopening clubs, pubs and airports before schools. Philosophically, I agree with Mr Mundell’s point. I was the education secretary who took the decision to cancel exams and close schools. That was a difficult day in my life; I was walking up and down the floor wondering at what moment we would have to act and whether we had to act so abruptly and so early. I totally agree with Mr Mundell, but what he said is not what I heard at all times.

I have made a number of points in that regard. Mr Kerr encourages me to ignore the routes by which such things must happen. We have to work with local authorities and schools on the delivery of that proposition. Mr Mundell has just rehearsed the fact that we have 32 local authorities that do things in different ways. Not all local authorities deliver electronic access to education in exactly the same way; they have different means and methods of doing so and utilise different technologies. The point that I am making is that the amendment does not take that into account.

With regard to the Government amendments in the group, amendments 30 to 35 replace the cross-references in sections 8 to 10 to section 6, which relate to the duty on relevant authorities to have regard to any advice of the chief medical officer, with the term “about protecting public health”. The effect of the amendments is to make clearer the subject matter of the advice from the CMO that ministers must have regard to before they make any regulations under sections 8 to 10.

The current approach may have implied that the only advice to which ministers must have regard before making regulations under sections 8 to 10 was advice given under section 6. The more specific reference to advice “about protecting public health” will mean that a wider range of advice from the CMO may be considered before any regulations are made, including advice that relates specifically to the measures to be used in such regulations.

The amendments will ensure that there is clarity about the nature of the advice that the CMO will provide to ministers to inform their decision to use the regulation-making powers. The amendments will further strengthen those important provisions and help to ensure that the powers are fully and appropriately informed by advice from the CMO. As was debated under groups 1 and 2, CMO advice is also built into the gateway vote mechanism that will apply before any educational continuity regulations are made.

I turn to the other amendments in the group. Amendment 113 seeks to add to the requirements in section 6. Under section 6(1), a relevant authority must properly consider the advice of the CMO with an open mind and take it into account when carrying out their functions. CMO advice will be an important consideration alongside the rights and interests of the people whom a relevant authority serves, such as pupils or students; other advice, including legal advice; advice on health and safety matters; and advice on pedagogical issues and other matters.

The potential effect of amendment 113 would be to set out in law the specific actions that relevant authorities must take when exercising their existing functions in relation to the duty to have regard to CMO advice. The same argument applies in relation to amendment 116 and the changes that it proposes in relation to statutory guidance that is issued by ministers under section 7.

Those measures would place a significant additional burden on relevant authorities and, via the ability to delay implementation for up to 28 days, would negatively affect how swiftly mitigating actions that are advised by the CMO can be introduced. They could also lead to significant divergence in the actions that are taken by relevant authorities, allowing some, but not others, to act swiftly in accordance with the advice of the CMO and guidance from ministers.

The measures would also place an additional burden on operators of educational establishments ranging from local authorities to childminders and universities by requiring them to conduct consultation exercises in the midst of a public health crisis. I urge the committee not to support those amendments.

For the reasons that I have given, I invite the committee to support my amendments in the group, and I ask Oliver Mundell not to press amendment 113 or move his other amendments.