Coronavirus (Scotland) (No.2) Bill – Stage 3 Briefing

Parliament & Government Comments Off on Coronavirus (Scotland) (No.2) Bill – Stage 3 Briefing
Reading Time: 30 minutes

Introduction

The Coronavirus (Scotland) (No. 2) Bill was introduced in the Parliament on  Monday 11 May 2020.  The purpose of this Bill is to make further changes to the way essential public services operate, to provide more support for business and to assist central and local government and health and social care services to respond effectively to the COVID-19 pandemic. For a more detailed briefing on the Bill, as introduced, see this SPICe Briefing.

On 12 May 2020, the Parliament agreed that the Bill should be treated as an Emergency Bill.

Normally, all stages of an Emergency Bill are taken on the same day, unless the Parliament agrees to an alternative timescale.  Also, Stage 2 is normally taken by a Committee of the Whole Parliament. However, for this Bill, the Parliament agreed a different timescale and also agreed that Stage 2 should be taken by the COVID-19 Committee.  

The agreed timescale for the Bill is:

  • 12 May: Stage 1 consideration by the Covid-19 Committee and by the Delegated Powers and Law Reform (DPLR) Committee
  • 13 May: Stage 1 debate
  • 19 May: Stage 2 consideration by the Covid-19 Committee
  • 20 May: Stage 3 final consideration in Chamber

The general principles of the Bill were considered by the COVID-19 Committee on Tuesday 12 May. At that meeting, the Committee took evidence from the Law Society of Scotland and from Mike Russell, Cabinet Secretary for the Constitution, Europe and External Affairs, and Luke McBratney, Scottish Government bill team leader.

The DPLR Committee considered the delegated powers in the Bill on 12 May and reported to the COVID-19 Committee.

The general principles of the bill were debated in the Chamber on 13 May and agreed to.

This detailed, extended blogpost considers the 56 amendments to the Bill lodged at Stage 2 but not those lodged at Stage 3.

Coronavirus(Scotland) (No.2) Bill as amended at Stage 2

Contents

For ease of navigation, the links below take you to the relevant section of the briefing.

AMENDMENTS AT STAGE 2

Housing and tenancies

Background

Paragraph 2 of Schedule 1 of the Coronavirus (Scotland) (No2) Bill (“The Bill”) would enable those with a student residential tenancy to terminate the accommodation agreement with their landlord where certain requirements are met.

Paragraph 3 sets out the requirements that a notice to terminate a student residential tenancy must meet and the minimum notice periods that apply. A valid notice must be in writing (this includes electronic communications) and it must state the day on which the tenancy is to end. This date must be a day that is after the last day of the minimum notice period.

Provisions in this Bill temporarily introduce:

  • a 7-day notice to leave period for those currently tied into a student accommodation contract; and
  • a 28-day notice to leave period for agreements entered while the Coronavirus (Scotland) Act 2020 is in force.

These measures ensure students who have left accommodation, or are unable to return to it due to the coronavirus outbreak, are able to end their contracts early. Students looking to find suitable accommodation for the next academic term have reassurance that, should restrictions continue, and they are unable to take up the accommodation, they will not be forced to pay for accommodation they are not using for a full academic term during the time that the provisions are in force.

Part 2 of schedule 3 amends section 70 of the Housing (Scotland) Act 2010. This states that Registered Social Landlords (“RSLs”) must submit their accounts to the Scottish Housing Regulator within six months of the period to which the accounts relate. It is an offence for an RSL not to comply with that duty.

Paragraph 2(2) of schedule 3 disapplies the above duty, in respect of the financial year ending with 31 March 2020. Instead, the accounts must be provided within nine months of the end of the period to which they relate.

Section 8 of the Homelessness etc. (Scotland) Act 2003 came into force on 7 November 2019. It amended the Housing (Scotland) Act 1987 (“the 1987 Act”) by giving Scottish Ministers the power to modify the operation of referrals between local authorities of applications for accommodation on the grounds of local connection. It also provided that the Scottish Ministers must prepare and publish a statement on how the new power is to be exercised within 12 months (i.e. by 7 November 2020). Section 33B also requires that the Scottish Ministers consult before preparing the statement.

Paragraph 4 of schedule 3 would amend section 33B(1) of the Housing (Scotland) Act 1987 to extend, by six months, the deadline for the Scottish Ministers to publish a statement on the circumstances and criteria for exercising the power in section 33A of the 1987 Act, relating to referrals between local authorities on the grounds of local connection. It extends the deadline for publishing the statement to 18 months from the coming into force of section 33B(1) on 7 November 2019. This could extend the deadline until May 2021.

Proposed amendments to the housing and tenancies provisions of the Bill

Amendment 15 by Graham Simpson aimed to clarify the dates as being for the 2019/2020 academic year and whether this applies to every student on an existing tenancy. The amendment seeks to clarify that anyone who signed a lease for the next academic year, during the pandemic, would not be covered.

Amendment 15 was withdrawn and will be taken forward to Stage 3.  The Minister undertook to work with Mr Simpson to ensure that the aim of Amendment 15 will be achieved at Stage 3.

Amendment 16 in the name of Andy Wightman aimed to provide for a Tenants Hardship Fund. This would provide financial support to tenancies affected by the Coronavirus (COVID-19), due to a reduction in income.

After a division, this amendment was disagreed to.

Amendment 17 proposed a rent freeze for tenants for two years for all tenants. It would forbid landlords to raise rents for this period.

This amendment was disagreed to after a division.

Amendment 18 proposed that rent arrears should be disregarded if they had arisen during the period of the pandemic.

This amendment was disagreed to after a division.

Amendment 19 suggests that rent arrears accrued during the pandemic should not be considered, should a landlord evict a tenant.

This amendment was disagreed to after a division.

Amendment 20 proposes that rent arrears accrued during the pandemic should not be considered as grounds for eviction if the landlord was in receipt of a loan from the Scottish Government.

This amendment was disagreed to after a division.

Amendment 22 is similar to Amendment 16 in that it’s intention was to set up a Tenant Rent Support Fund for those households unable to pay their rent because of income reduction due to Coronavirus (COVID-19).

This amendment was disagreed to.

Amendment 42 would enable holiday lets to be made available as Private Residential Tenancies for a fixed, renewable two-month period. The landlord is required to give 28 days’ notice to the tenant to vacate the property.

This amendment was disagreed to.

Amendments 46 and 47 propose that properties, which have been left unoccupied for a reason related to the coronavirus (COVID-19), should be exempt from Council Tax. Amendment 46 was not moved.

The Minister stated that: “… if [the member] does not press amendment 47, I will be happy to make a commitment that the Government will work with him to draw up an appropriate stage 3 amendment.”

Amendment 47 was not moved.

Further Action at Stage 3

There will be further discussions between MSPs and the Scottish Government regarding amendments 15 and 47. These will then be considered at Stage 3 of the Bill.

Social care sector

There is nothing in the Bill that relates to social care. In Schedule 1 part 4 however, there is a provision that removes the requirement for a ‘prescribed person’ to witness the signature of a person nominated by someone to act as their advocate if they have a mental disorder.

The main government amendment would be inserted immediately after this, along with amendments lodged by Monica Lennon and Jackie Baillie. These all relate to care homes and other social care services.

Amendments 26 and 27 are in the name of Michael Russell  and would insert new provisions in Chapter 3, section 65 of the Public Services Reform (Scotland) Act 2010, about cancellation of the registration of care services. The provision would allow the Scottish Ministers to apply to the sheriff for an emergency intervention order in respect of a care home service registered with the Care Inspectorate ( Social Care and Social Work Improvement Scotland, SCSWIS) if the standards of care are not adequate in relation to managing coronavirus.

Mike Russell clarified in the Committee Meeting on 19 May that:

“Importantly, that provision will enable Scottish ministers, in extreme situations, to exercise those powers before making an application to the sheriff, provided that they apply to the court for the necessary order as soon as it is practical. I will lodge amendments at stage 3 to make that even clearer and ensure that there is a strong limit on what can be done.

Scottish ministers would exercise that power in advance of the judicial process only if they judged that it was essential to prevent that serious risk to life, health and wellbeing. In normal circumstances, residents at risk would be moved to another home: it would be impossible and unsafe to do that during a pandemic and nobody would support that action.”

The Ministers would be able to appoint a nominated officer (from the health board/local authority or Healthcare Improvement Scotland) to take over the running of the care home service for up to twelve months, which could be extended by six months if required.

Amendment 27 would allow for a local authority or health board to acquire (by agreement) a care home or a care at home service and any assets or liabilities of that provider if that service is ‘distressed’. A ‘distressed’ service would be in one or more of the following 3 situations:

  • serious financial difficulties,
  • the service ceasing to operate,
  • if there is a threat to life, health or wellbeing to people being cared for by the service.

The Cabinet Secretary wrote to the Convener of the COVID-19 Committee about this amendment on 11 May.

Under Section 6 of the NHS Reform (Scotland) Act 2004, Scottish Ministers have powers of intervention in relation to health boards. However, because most care services are privately owned and run, (but registered centrally by the Care Inspectorate), any analogy is limited.

Amendments 26 and 27 were agreed to

Amendment 30 is in the name of Monical Lennon and would amend Section 53 of the Public Services Reform (Scotland) Act 2010 and place a duty on the Care Inspectorate to report to Parliament on care home inspections every two weeks during the emergency period, setting out which homes have been inspected and the findings of those inspections. Michael Russell said that during the emergency period, a faster publication process should be in place for inspection reports. This amendment was agreed to.

Amendment 31 amends Section 57 of the 2010 Act and also places a duty on the Care Inspectorate to ) impose temporary management on a care home service where the the management of the care home service is unable to perform its functions because of an issue related to the coronavirus COVID-19. This was said to be redundant because the Care Inspectorate already has enforcement powers, and anyway, its purpose is covered by amendment 26. This amendment was not agreed to.

Amendments 33 and 34 are in the name of Jackie Baillie and amendment 33 seeks to amend Section 79 of the 2010 Act. It sets out that that every care home must make a daily report during the emergency period on the number of deaths or suspected deaths from coronavirus, and any other deaths, within 7 days. In turn, the Care Inspectorate must report these deaths to the Scottish Ministers, who must report to Parliament within 7 days of receiving the information. This amendment was agreed to.

Amendment 34 seeks to amend Section 67 of the 2010 Act and relate to the conditions of registration for care services. One of the Care Inspectorate’s enforcement powers is that it can serve a condition notice which alters the conditions under which a service can operate. Condition Notices relate to all services, but this amendment appears to apply to care home services. It relates to the availability of PPE for staff and testing of staff. The person providing the care home service must report to the Care Inspectorate:

  • all deaths of care home residents where the resident has been diagnosed as having coronavirus or suspected of having coronavirus;
  • the quality, availability and use of personal protective equipment;
  • each week on how many staff working in the care home
    • (i) have been tested for coronavirus,
    • (ii) have tested positive for coronavirus,
  • each week on how many residents of the care home
    • (i) have been tested for coronavirus,
    • (ii) have tested positive for coronavirus

On 30 April notification guidance was amended in relation to COVID-19, requiring services to make immediate reports to the Care Inspectorate on staffing issues and infections. Michael Russell said that there is already weekly reporting and that these amendments would confuse matters. He also said that the Care Inspectorate is not responsible for provision of PPE, but for scrutiny and inspections of care services.

This amendment was not agreed to

Other amendments relating to social care (21 and 24) were proposed by Neil Findlay and Monica Lennon respectively. Amendment 21 would establish collective bargaining for the private social care sector. The purpose would be to ensure that all workers in the private social care sector benefit from a common set of terms and conditions throughout Scotland in relation to issues arising from coronavirus, as NHS or local authority staff do. This amendment was not agreed to.

Amendment 24 seeks to establish and maintain a “social care staff support fund, administered by Scottish Ministers, to provide financial assistance to workers in the social care sector whose ability to work is restricted because of coronavirus (such as the inability to work in multiple or linked workplaces). Conservative and SNP members of the COVID-19 Committee rejected this proposal. This amendment was not agreed to.

Amendment 50 in the name of Monica Lennon seeks the appointment of a National Social Care Officer to provide advice to the Scottish Ministers on issues relating to coronavirus in respect of the social care sector in Scotland. This was said to be redundant as there is a currently a Chief Social Work Adviser fulfilling the role This amendment was not agreed to.

Young carer grants supplement

Alison Johnstone, MSP lodged two amendments on social security (23 and 35), but withdrew both after assurances from the Scottish Government.

Amendment 23 would have provided an additional payment on top of the Young Carer Grant, in a similar way to the Bill’s provision of an additional payment of Carer’s Allowance Supplement.  The Cabinet Secretary, Shirley-Anne Somerville opposed this on the grounds that the Scottish Government was planning to provide a ‘wider package of support’ for young carers and that introducing a new payment would place additional pressure on Social Security Scotland.

Extension of services under the minor ailment service

Amendment 25 sought to ensure the Scottish Government extended the eligibility for the minor ailments service and to make oral and self-administered contraceptives available through it. The minor ailments service allows people to access medications from a community pharmacy without a prescription and free of charge. Current eligibility is limited but the Scottish Government is planning on permanently extending eligibility to everyone in Scotland. This has been delayed due to the pandemic. The amendment also sought to make oral and self-administered contraceptives available through this service. At the moment, women usually have to obtain a prescription from a doctor or nurse and undergo occasional monitoring. The aim of the amendment was to make access to contraception easier during the pandemic.

The Cabinet Secretary expressed agreement with the aim of the amendment but explained that it is not a straightforward policy to implement safely. However, he did explain that scoping work is already underway to make bridging and long-lasting contraception available via the pharmacy network.

The amendment was not agreed to.

Bankruptcy

One of the likely impacts of the current coronavirus crisis is an increase in debt problems. People who have lost their jobs or taken a pay cut may struggle to meet their financial commitments.

The Coronavirus (Scotland) (No. 2) Bill contains several proposals which would increase support for debtors accessing bankruptcy.

Jackie Baillie MSP brought forward two amendments to this part of the Bill at Stage 2.

Amendment 1 would require creditors to freeze interest and charges on debts during a “moratorium on diligence”. The moratorium protects debtors from enforcement action by their creditors (such as seizing money in a bank account) while they seek advice on an appropriate solution for their debt situation.

Ms Baillie argued that a freeze would prevent debts spiralling out of control during the moratorium. She also noted that it would reward good practice. Some creditors freeze interest and charges in this situation anyway, but their interests may be undermined by those creditors who do not.

The Scottish Government argued that it would be too complex to put the relevant administrative arrangements in place. The amendment was disagreed to by division (3:6).

The Bill proposes to reduce the fee payable by debtors who apply for their own bankruptcy. Amendment 2 would remove the requirement to pay any fee at all.

Ms Baillie argued that any fee was a barrier to people considering bankruptcy. The Minister agreed to work with her in advance of Stage 3 to agree a proposal. Amendment 2 was not moved.

Regulation of businesses

Amendment 28, lodged by Colin Smyth, would have required the Government to issue regulations ensuring employers could not compel people to undertake any work that does not fall within the definition of “essential work”. Obviously, the amendment would firstly require the Government to define what is meant by “essential work”.

Members are reminded that the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 currently specify which businesses/premises must close at this time (cafes, restaurants, pubs, many retail outlets, etc.) and also lists the types of business that can remain open with certain social distancing measures in place (including supermarkets, petrol stations, bike shops, etc). However, for all other types of workplace the Scottish Government has essentially asked, or requested, they stay closed. The Government has done this through issuing guidance, which states:

“All business workplaces that are not being specifically required to close should consider a set of key questions – and at all times work on the precautionary basis:

  • is what you do essential or material to the effort against the virus or to the wellbeing of society?
  • are you able to demonstrate and give confidence to your workforce that you can consistently practice safe social distancing and comply with ALL other standard health and safety requirements?

If the answer to either of the above questions is no, the advice of the Chief Medical Officer on a precautionary basis is to close.”

Mr Smyth argued that, although the vast majority of Scottish businesses and employers have followed the Government’s guidance, others have chosen not to “because they know that the guidance cannot be enforced”. This has led to examples of constituents being compelled to go to work by their employers, putting themselves and others at risk of infection.

In his response to Mr Smyth, the Cabinet Secretary provided assurances that the Government would work with the trade unions and others “to agree what other elements of the lockdown regulations require to be made legally enforceable”. This review will take place over the coming weeks. Mr Smyth was satisfied with these assurances, particularly the commitment to working with the trade unions, and therefore withdrew his amendment.

Scottish welfare fund: monitoring of applications

Amendment 35 would have created a statutory duty on Ministers to monitor demand for the Scottish Welfare Fund.  This discretionary fund provides grants to people in times of crisis. The Scottish Government increased the fund by £45m due to COVID-19.  In reply, the Cabinet Secretary said she was already monitoring applications and spending and publishing monthly management information.  Further detail is set out in a letter to the Social Security Committee dated 17 May. This amendment was withdrawn by agreement with the Scottish Government.

Marriage and civil partnerships

The Bill as introduced did not contain any provisions relating to marriage or civil partnerships. However, the way marriages and civil partnerships have been affected by the current crisis was raised as an issue by Adam Tomkins MSP and others during Stage 1 consideration of the Bill. This was both as a human rights matter and, in the words of Mr Tomkins, considering “an increasing volume of increasingly anxious emails from constituents” (OR 12 May 2020, col 25).

At present, marriages and civil partnerships are not taking place in Scotland, unless there are exceptional circumstances. This is as a result of a policy decision by the National Records of Scotland (NRS). (NRS is the non-ministerial department of the Scottish Government responsible for the registration of various events). Local registration offices are currently closed to the public and NRS has said that local registrars should prioritise the registration of deaths and stillbirths.

According to the NRS guidance, there are exceptional circumstances in which the required marriage or civil partnership schedule might be completed or issued by a registrar during the current crisis. These include where one person is “seriously ill or about to be posted overseas in the armed forces, or another urgent consideration.”

In addition, under normal circumstances, the law requires at least 28 clear days between a) the couple giving notice of intention to marry or enter into a civil partnership; and b) a marriage or civil partnership schedule being completed or issued by a registrar. However, under statutes which predate the crisis, the 28-day rule can be waived by the Registrar General (who oversees NRS). The Cabinet Secretary has said said this power would be used to expedite the marriages and civil partnerships that take place in the aforementioned exceptional circumstances.

What the Stage 2 amendments would do

Amendment 36, in the name of Adam Tomkins MSP, would require Scottish Ministers, in conjunction with the Registrar General, to “take such steps they consider to be necessary” to ensure that it is still possible to marry or enter into a civil partnership during the period the proposed legislation is in force.

In this context, Amendment 36 would require Scottish Ministers to ensure that people’s rights under Article 12 of the European Convention on Human Rights are not disproportionately interfered with for reasons relating to Coronavirus. Article 12 of the European Convention on Human Rights sets out the right to marry. (This is a ‘qualified right’, i.e. one that will only be violated if the interference with it is not proportionate.)

Amendment 36 would also require Scottish Ministers to report to the Scottish Parliament at two monthly intervals on two issues. First, the steps taken by Scottish Ministers and, secondly, the number of marriages and civil partnerships which have taken place in Scotland during the reporting period.

Amendment 37, in the name of Gordon Lindhurst MSP, relates to religious marriages. For the effect of the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 is to restrict the use of places of worship, except for certain limited purposes (not related to marriages or civil partnerships). However, Amendment 37 would amend the 2020 Regulations with the aim of allowing marriages to happen in such places.

Note that, despite their name, civil partnerships can also have ceremonies carried out by a religious celebrant.

What happened at Stage 2

Amendment 36 was agreed to. During the Stage 2 consideration of Amendment 36, the Cabinet Secretary expressed his support for it, subject to some concerns about the drafting which he thought could be revisited at Stage 3.

At Stage 2, Mr Lindhurst said that the exclusion of civil partnerships from Amendment 37 was a drafting oversight which could be resolved at Stage 3.

The Cabinet Secretary said that Amendment 37 was not necessary as marriages (including religious ones) can take place anywhere. He also said that religious bodies wanted to take a cautious approach to reopening places of worship. However, for the next three-week review of the 2020 Regulations, he committed to considering marriages in places of worship as a high priority. Given the Cabinet Secretary’s remarks, Amendment 37 was not moved.

Concessionary travel

Section 40 of the Transport (Scotland) Act 2005 grants Scottish Ministers the power to make national travel concession schemes, such as the concessionary fares scheme for older and disabled people.

Neil Findlay MSP lodged Amendment 38 to require Scottish Ministers to introduce a new national concessionary travel scheme that would offer free bus travel to people who are unemployed, seeking work and in receipt of certain benefits or who have partners who are in receipt of those benefits.  The scheme would also cover the recipients of certain other benefits.  The scheme would last until the expiry date set out in Section 9 of the Act.

The amendment was not agreed to, following a division in which two members voted in favour and seven against.

Sale of Alcohol

Murdo Fraser MSP lodged amendment 39 to enable shops to sell alcohol from 8am in the morning. The current law prohibits sales before 10am. Mr Fraser argued that this disadvantaged key workers and vulnerable people who made use of dedicated early morning shopping slots.

The Scottish Government argued that removing restrictions on alcohol off-sales was contrary to their objective of reducing the health impacts of alcohol consumption. The amendment was disagreed to by division (3:6).

Fixed penalty notices under Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020

The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 place restrictions on:

  • the running of businesses
  • people leaving the place where they live
  • gatherings or more than two people

Breaching these restrictions is a criminal offence. Options for enforcing them include police powers to direct people to return home and to issue fixed penalty notices. It is also possible to prosecute people in the criminal courts.

Police Scotland has stated that formal enforcement powers will be used as a last resort. It has published data on the steps taken by its officers.

During stage 2 consideration of the Bill, the Covid-19 Committee unanimously agreed to Amendment 3, put forward by Ross Greer MSP, to restrict the power of the police to issue fixed penalty notices under the Regulations.

The Regulations, as originally made, allow the police to issue fixed penalty notices to people aged 16 or over. The amendment provides for this to be raised to 18 or over.

In explaining the purpose of the amendment, Ross Greer noted that it was supported by organisations including the Children & Young People’s Commissioner Scotland. The Commissioner had briefed on the Bill arguing that such an amendment:

“could remove the possibility of a 16/17 year old child being issued with a Fixed Penalty Notice and subject to the long-term implications of having a criminal record, for breaching lockdown restrictions. This would go some way to mitigating the impact of the UK provisions and towards compliance with the requirements of the UNCRC [UN Convention on the Rights of the Child].”

Proceeds of Crime

Time limits for payment of a confiscation order

The Bill includes provisions which deal with time limits for payment of a confiscation order under proceeds of crime legislation.

Section 92 of the Proceeds of Crime Act 2002 (“the 2002 Act”) makes provision for confiscation orders, which are orders requiring an accused person convicted of a criminal offence to pay a sum of money representing the accused person’s benefit from crime. Proceedings for a confiscation order take place as part of the sentencing process. Section 116 of the 2002 Act provides that the amount to be paid under a confiscation order must be paid immediately. However, if the accused can demonstrate that they need further time to pay, the court may make an order giving a period to pay that does not exceed six months. In exceptional circumstances, this may be extended to a maximum of twelve months from the date that the order was made.

The Bill makes provision so that an accused who has been unable pay a confiscation order within the period allowed by the court for reasons relating to coronavirus is not prejudiced and is able to apply to the court for a further extension. If the court is satisfied that the accused is unable to pay the amount due for a reason relating to coronavirus, it may extend the period in which the order is to be paid for a period which the court considers appropriate in the circumstances.

Amendment 4 was brought forward at stage 2 by Liam Kerr, which sought to remove entirely from the Bill, the provisions providing for the possibility of a further extension to pay a confiscation order. Mr Kerr questioned the fairness of this provision and stated that members of the public would find it difficult to accept that criminals should be afforded an extended opportunity to pay a confiscation order for reasons related to coronavirus, when members of the public and victims of crime may be struggling financially due to the impact of the pandemic. Mr Kerr also stated that it was highlighted in the stage 1 debate that there was £6m in unpaid and unrecovered compensation payments. Mr Kerr questioned how it could be right that this shortfall existed and yet the Bill proposed to give criminals more time to pay from proceeds of crime.

In response, the Cabinet Secretary for the Constitution, Europe and External Affairs, Mike Russell MSP, stated that in his opinion, the amendment did not take account of the fact that the coronavirus crisis had occurred at all, and that circumstances had changed. He stated that an accused, no matter what people thought of them, may have practical difficulties outwith their control related to the coronavirus outbreak which affected their ability to pay a confiscation order. For example, they may be unable to sell property in order to raise funds for the order. He stated that all the Bill does is allow the court discretion to allow an extended period of time to pay when it is satisfied that it is necessary and is for a reason related to coronavirus. He emphasised that no convicted person will be excused from paying a confiscation order, it remains in force. He stated that in addition, before allowing an extension for payment, the court must be satisfied that the accused was unable to pay within twelve months as a result of coronavirus. It is then up to the court to decide on an appropriate extension. He stated that the Bill also gives the prosecutor an opportunity to make representations where an extension is sought.   

Liam Kerr pressed the amendment and following a division, the amendment was not agreed to.  

Land and buildings transaction tax: repayment of additional amount

The Land and Buildings Transaction Tax (LBTT) Additional Dwelling Supplement (ADS) has been in place since 1 April 2016 and places a 4% charge on purchases of additional residential properties in Scotland (such as buy-to-let properties and second homes) of £40,000 or more.

Currently, where the ADS has been paid and the buyer has been able to dispose of their previous main residence within an 18 month period, the buyer (or their solicitor acting on their behalf) may claim a repayment of the ADS paid.

The Bill as introduced contained a provision to extend the period for a taxpayer to reclaim ADS paid from 18 months to 27 months. As introduced, the Bill sought to assist taxpayers who had paid the ADS in relation to a transaction prior to 25 March 2020 and had intentions to reclaim it (whether or not they indicated this at the time that ADS was paid) but had not yet sold a previous main residence. The proposals would apply if taxpayers were within their 18-month window from when they bought their additional dwelling, ie those who paid ADS between 24 September 2018 and 24 March 2020.

The Scottish Government view is that taxpayers who had been unable to dispose of their previous main residence should not be unfairly penalised as they will not have been able to take into account the impact on the housing market of the covid-19 outbreak when they paid their ADS.

Amendment 40 sought to increase the 27 month reclaim period by 9 months to 36 months, and bring Scotland in line with the rest of the UK. During Stage 2 deliberations, Beatrice Wishart MSP, speaking on behalf of Liam McArthur MSP’s amendment, cited concerns about properties in Orkney and other island communities which operate differently to other parts of mainland Scotland, and can remain on the market for prolonged periods of time.

“A further extension of the timeframe would provide more breathing space for those who are trying to sell up in areas that move more slowly, and it would also “island-proof” the original legislation. Given that we do not know how the property market will react to the coronavirus crisis, that breathing space could make all the difference.” 

Responding to the amendment on behalf of the Scottish Government, Jenny Gilruth MSP stated that she understood the concerns raised about potential impacts on housing markets in island and rural communities, and the desire to provide taxpayers with additional reassurance that the pandemic will not stop them from being able to reclaim ADS. On that basis, she accepted the amendment, which was subsequently agreed to.

This amendment will have costs associated with it. On the Bill’s introduction, the Scottish Fiscal Commission published an estimate of the impact on tax revenues of the ADS provisions in the Bill. These equate to a forecast of the revenues foregone over the 27 months proposed at introduction. The SFC estimated that there would be £4 million additional ADS reclaimed by taxpayers in 2020-21, £6 million in 2021-22 and £1 million in 2022-23. By adding a further 9 months to the repayment period (increasing from 27 to 36 months), there will presumably be an additional amount of revenue foregone in 2022-23

Relief to be provided to small business tenants

Schedule 4, Part 5 of the Bill would amend section 153 of the Local Government etc. (Scotland) Act 1994 to allow ministers to retrospectively apply Non-Domestic Rates relief retrospectively.

Currently the legislation only allows for reliefs to be applied, through subordinate legislation, in advance of them being granted for a financial year. This change would mean that further reliefs could be granted during the financial year and backdated to 1 April 2020, essentially giving the Scottish Government the option to offer further reliefs to businesses in Scotland should it see the need for further business support through reliefs during 2020-21.

Amendment 41 in the name of Alex Cole-Hamilton sought to add additional provisions to Schedule 4, Part 5. Under existing measures, only those classed as the ‘ratepayer’ (i.e. the owner or tenant named on the NDR bill) for a property may claim financial support measures such as rates relief or business grants tied to Non-Domestic Rates.

There are a number of business owners who do not pay Non-Domestic Rates, usually because they let space from a ratepayer so are not directly eligible for business rates related grants or relief. For example, someone who rents office space from an office building owner/manager who is the Non-Domestic Rates payer. Under current measures, the ratepayer for the building could claim rates relief and potentially a business rates grant, but the renter could not, even if they pay a service charge to the ratepayer which contributes towards the NDR bill.

Amendment 41 required that Scottish Ministers establish a scheme to support people, businesses or organisations who, were they to directly pay Non-Domestic Rates, would be liable for support. Amendment 41 was disagreed to following a division (For 4; Against 5; Abstentions 0).

Execution of Documents

Scottish Government amendment 8 would enable lawyers to sign or witness the signing of documents and take statements without a requirement to be in the physical presence of the other person. Amendment 8 was agreed to without division.

Freedom of Information

The Coronavirus (Scotland) (No.2) Bill as introduced did not contain provisions relating to freedom of information.

The Coronavirus (Scotland) Act 2020 (‘the 2020 Act’) does, however, contain provisions which relate to freedom of information. The 2020 Act extended the time which public bodies, including the Scottish Government, have to respond to information requests. The Scottish Government argued that all public bodies required this flexibility during the COVID19 pandemic and that the changes reduced pressure on public bodies. The issue was fiercely contended, but the Parliament narrowly passed the extension (the Presiding Officer casting the deciding vote) meaning that public bodies now have 60 working days to respond to freedom of information requests rather that the 20 working days provided for by the Freedom of Information (Scotland) Act 2002 (FOISA).

The 2020 Act also allows the Scottish Information Commissioner to take into account the impact of coronavirus on the authority where it has failed to comply with the timescales set out in FOISA. If the Commissioner is satisfied that a failure was due to the effect of coronavirus, and that it was reasonable for the authority not to comply with the timescales, the Commissioner is able to find that the authority has not failed to comply with Part 1 of FOISA.

Given the debate on the issue of freedom of information during the first emergency COVID legislation, it is perhaps unsurprising that the issue is being considered again during scrutiny of the Coronavirus (Scotland) (No.2) Bill.

Nine amendments relating to FOI were considered at stage 2 of the Coronavirus (Scotland) (No.2) Bill.

  • Amendment 7 in the name of the Cabinet Secretary, Mike Russell MSP, proposed adjusting the timescales for public bodies to respond to freedom of information requests from 60 days to 40 days, except in the case of the Scottish Ministers which would revert to the 20 working day deadline provided for in FOISA. The Government amendment also removed ‘unnecessary provisions’ in the Coronavirus (Scotland) Act 2020. The amendment also sought to make provisional amendments for public bodies which would allow them to adjust from a response timeframe of 60 working days to 40 working days. The amendment was not agreed to with 4 votes for and 5 votes against.
  • Amendment 48 in the name of Neil Findlay MSP sought to ensure that the Scottish Information Commissioner has regard to the public interest test when making a decision on whether a public body has failed in its duty under Part 1 of FOISA, taking into account the Commissioner’s new power to be able to consider the impact of coronavirus. The amendment was agreed to with 5 votes for and 4 votes against.
  • Amendments 9 and 10 in the name of Alex Cole Hamilton MSP sought to undo the changes to FOISA provided for by the 2020 Act. Mr Cole Hamilton stated that amendment 9 contained ‘a drafting error’ in repealing paragraph 7 of Schedule 6 Part 2 of the 2020 Act (which allowed for the giving of notice electronically). Amendment 10 sought to repeal Schedule 6 Part 2 in its entirety thus, for example, removing the ability of the Scottish Information Commissioner to take into account the impact of coronavirus on public bodies. Mr Cole Hamilton did not move the amendments stating that others in the group (those tabled by Ross Greer MSP and supported by Adam Tomkins MSP) achieved what he has intended to provide for.
  • Amendments 11, 12 and 13 were lodged by Ross Greer MSP and supported by Adam Tomkins MSP. These three amendments sought to remove the extension to freedom of information deadlines provided for by the 2020 Act whilst retaining the ability to give notice electronically and allowing the Scottish Information Commissioner to allow discretion to take into account the impact of coronavirus when considering whether public bodies have met their duties under Part 1 of FOISA. The amendments were agreed without division.
  • Amendment 14 in the name of Adam Tomkins MSP and supported by Ross Greer MSP was identical in its aim as amendments 11, 12 and 13. As such, Mr Tomkins did not move amendment 14.
  • Amendment 45 which was lodged by Neil Findlay MSP sought to place a requirement on Scottish Ministers to report on the freedom of information performance of the Scottish Government during the emergency period of the pandemic. The amendment was agreed to by 5 votes to 4.

Traffic Regulation

The Road Traffic Regulation Act 1984 established a system of Temporary Traffic Regulation Orders (TTROs), which are used by roads authorities to temporarily restrict or prohibit access to a road for a number of purposes, most commonly road works.  Transport Scotland confirmed in recent guidance that TTROs can be used to authorise temporarily widened footways and “pop-up” cycle lanes to facilitate safe walking, wheeling and cycling while Covid-19 related social distancing requirements remain in place.  Currently, a TTRO has a maximum duration of 18 months, unless it applies to a footpath, cycle track, byway or bridleway – in which case it can only remain in force for six months. 

The Roads (Scotland) Act 1984 established a system governing the reallocation of road space, known as redetermination of public right of passage orders, which are often used by roads authorities in the creation of segregated cycle lanes and wider footways.  Roads authorities can quickly implement experimental redetermination orders, which cannot last more than 18 months.

Mark Ruskell MSP lodged Amendment 43 to extend all the time limits listed above to 24 months, which would revert back to the original durations for orders made following the expiry date set out in Section 9 of the Act.

The amendment was not agreed to, following a division in which three members voted in favour and six against.

Low Emission Zones

Amendment 44 was agreed to at Stage 2.  This amendment would require Scottish Ministers to report to Parliament on progress towards establishing Low Emission Zones (LEZs) by December 2020. The report would be required to include information on how progress has been impeded by coronavirus, and how account has been taken of the impact LEZs would have on the public health response to coronavirus. These requirements now form the Coronavirus (Scotland) (No.2) Bill as amended at Stage 2.

An LEZ is a scheme under which the driving of vehicles which fail to meet specified emission standards is prohibited in contravention of the terms of the LEZ, within a designated area. Part 2 of the Transport (Scotland) Act 2019 enabled the creation of LEZs by local authorities. The Scottish Government had committed to introducing LEZs into Glasgow, Edinburgh, Aberdeen and Dundee between 2018 and 2020, but announced on 07 May 2020 that plans have been paused in response to the COVID-19 outbreak. Glasgow’s LEZ was introduced in 2018 (applying to buses only) and remains in force, but further development is paused.

Some environmental stakeholders raised concerns about the delay, saying there is an urgent need to address air pollution and highlighting evidence of links between air pollution and vulnerability to COVID-19.

Speaking at Stage 2 in the COVID-19 Committee, the Minister for Europe and International Development, Jenny Gilruth MSP, agreed that the Scottish Government should review how LEZs can be designed as part of both COVID-19 recovery and “a green recovery transformation” and asked Members to support the amendment.

Advancement of equality and non-discrimination

Section 6 of the Bill provides that Scottish Ministers must have regard to opportunities to advance equality and non-discrimination when exercising the functions contained in Part 1 of the Bill. This provision is identical to section 9 in the Coronavirus (Scotland) Act 2020; this was an amendment made at Stage 2 by Ruth Maguire MSP and received cross party support.

Amendment 51, in the name of Mark Griffin MSP, seeks to ensure that the Scottish Government uses its powers under Part 1 of the Bill in a way that is inclusive and communicates appropriately with all people.

Mark Griffin said that the amendment was sponsored by deafscotland, “who reported how deaf and hard of hearing people have been badly hit by the pandemic. It pointed out how, for example, face masks inhibit lip-reading; how shielding has prevented older and unwell deaf people from accessing repairs; how Covid-19 information lines are not BSL enabled”.

The Social Security (Scotland) Act 2018 has a similar duty on inclusive communication.

The intention is not to mandate that all “publications, paperwork, adverts or correspondence fully accessible”, but that the needs of those with a range of communication requirements are considered.

The Minister said that the Scottish Government would accept amendment 51, but bring the following clarifications at stage 3:

“We will, however, seek to make a clarificatory amendment at stage 3, both to amend the new duty in the Coronavirus (Scotland) Act 2020 and to include a definition of “inclusive communication”, as exists in section 4(2) of the Social Security (Scotland) Act 2018.”

Mark Griffin said he looked forward to working with the government and deafscotland on the amendment. Amendment 51 was agreed to.

Therefore, amendment 51 would place a duty on Scottish Ministers, when exercising the functions contained in Part 1 of the Bill, to have regard “to the importance of communicating in an inclusive way.”

Amendment 52, in the name of Pauline McNeill MSP (Monica Lennon MSP spoke for Pauline McNeill), would require Scottish Ministers to request information from Police Scotland on incidences of domestic violence received, during the emergency period:

  • by Police Scotland
  • by Police Scotland from third parties

for the purpose of measuring the extent of domestic violence incidences.

Monica Lennon said that according to Police Scotland, the number of requests from people seeking information about whether their partner has been abusive in the past was 18% higher in the first month of lockdown compared with the same period in 2019.

“The number of calls to Refuge’s national domestic abuse helpline had risen by 49 per cent after three weeks of lockdown. Fourteen women and two children were killed by men in the UK in the first three weeks of the lockdown, which is more than three times higher than in normal times.”

The aim of the amendment is to “allow ministers to focus on what further action should be taken to protect women in the lockdown period and beyond. Amendment 52 will require ministers to request that information from Police Scotland and third parties so that they can monitor the extent of domestic violence.”

The Minister said that it is a Scottish Government priority that victims of domestic abuse and gender-based violence get the support that they need during these challenging times and are kept safe from harm. Reference was made to guidance published earlier this month on domestic abuse to support the coronavirus regulations and new guidance for local authorities published on 19 May 2020.

The Minister was sympathetic to the need to collate and monitor the incidence of domestic abuse during the pandemic to ensure the response is effective and appropriate.

However, the Scottish Government would prefer it to be linked to the more expansive definition of domestic abuse rather than domestic violence.

The Minister asked for the amendment not to be moved and committed to working with Pauline McNeill to agree an amendment “that will, I hope, be supported by all parties at stage 3.”

Monica Lennon said:

“I think that Pauline McNeill will welcome the commitment to work together at stage 3. On that basis, I will not press amendment 52”.

Therefore, there is likely to be a stage 3 amendment regarding the reporting of domestic abuse incidents.

Section 6 was agreed to.

Conditions of support for business

The issue of attaching conditions to public money going to business – either in the form of grants and loans, or through public sector procurement – has been a subject of interest to parliamentarians for a number of years. The Scottish Greens, as well as elements of Scottish Labour, have been particularly vocal in calling for conditionality to be used to require Living Wage payment and other fair work practices amongst recipient companies.

Since the creation of its Enterprise and Skills Strategic Board in 2017, the Scottish Government has committed to exploring ways of doing more to ensure business support is conditional on a commitment to fair work. This led to the announcement by the First Minister in October 2018 of a new ‘fair work first’ approach to economic development. As a result, since April 2019 receipt of Regional Selective Assistance grants from Scottish Enterprise has been conditional on businesses committing to:

  • investing in skills and training
  • no inappropriate use of zero hours contracts
  • action to tackle the gender pay gap
  • genuine workforce engagement such as trade union recognition, and
  • payment of the real Living Wage.

We know that the level of support to business during this current crisis is unprecedented. According to the Scottish Government over the coming months it will provide £2.3 billion to help sustain businesses. Cabinet Secretary Michael Russell stated that “the new pivotal enterprise resilience fund, and the creative or tourism and hospitality enterprises hardship fund, which were introduced to mitigate the effects of Covid-19, specifically ask grant applicants to demonstrate a similar commitment”. These two funds amount to £65 million (around 3% of the total package). It is unclear whether the rest of the money provided to business during this period contains similar conditions.

Neil Findlay’s amendment 54 recognises that trade unions often have trouble accessing some workplaces across Scotland. He was therefore keen to see improved access to trade unions being a legal requirement for any business benefitting from Scottish Government financial support during the current crisis. However, the Scottish Government argued that this “would add a level of complexity that would slow down the process, but for no benefit at all”. The amendment was not agreed to.

Beyond the issue of fair work, the Scottish Greens have been keen to attach other conditions to public sector support for business in recent years. For example, John Finnie MSP attempted to amend the South of Scotland Enterprise Bill to prevent the new agency from providing financial support to any business involved in the arms trade (his amendment was voted down).  Patrick Harvie’s amendment 53 to the current Bill seeks to prevent Scottish Government financial support going to firms that are based in tax havens. It is unclear how many businesses operating in Scotland would be denied support on these grounds. The Scottish Government was far more sympathetic to Mr Harvie’s amendment, and therefore committed to “work hard with him to develop an amendment that fulfils its principle and intention” in time for Stage 3 should he refrain from moving his amendment at Stage 2. Amendment 53 was not moved.

Reports by the Scottish Ministers on coronavirus subordinate legislation

Amendment 56 in the name of Adam Tomkins MSP sought to place a reporting duty on Scottish Ministers in relation to subordinate legislation connected to coronavirus, but not made under the powers of Coronavirus legislation (the Coronavirus Act 2020 and the Coronavirus (Scotland) Act 2020).

The Delegated Powers and Law Reform Committee had drawn attention to the matter in a letter send to the Convener of the COVID19 committee. The letter noted that “most of the subordinate legislation which has been made in response to the coronavirus pandemic has not been made under powers in the Coronavirus Acts (the UK Act and the previous Scottish Act). Instead it is made under existing powers in other legislation.” The effect being that the safeguards (time limitations and reporting) offered by the Coronavirus Acts do not necessarily apply.

Mr Tomkins amendment sought to place a duty on Scottish Ministers to report on all Scottish statutory instruments made ‘for a reason relating to coronavirus’.

The Delegated Powers and Law Reform Committee also wrote to the Cabinet Secretary for Government Business and Constitutional Relations, Michael Russell MSP, on 12th May 2020 asking that the Scottish Government commit  to “report on all coronavirus related subordinate legislation every 2 months, not just the instruments made under this Bill and the previous Coronavirus Acts.”

Amendment 56 was withdrawn by Mr Tomkins after the Cabinet Secretary for Government Business and Constitutional Relations agreed to bring a workable amendment on reporting at stage 3. Mike Russell MSP raised some concerns with the extent of the amendment as drafted.

SPICe Research, 20 May 2020