Good evening. We reconvene at the start of group 4. I remind members that we have 14 groupings of amendments in total. We intend to conclude stage 2 proceedings this evening, and I am keen that we achieve that aim. I am mindful that there are on-going travel disruptions and that members who have lodged amendments in groups that appear towards the end of the list of groupings should be given a fair hearing. I therefore ask members to keep their interventions and responses concise. If I feel that an intervention is going on for too long, I will interrupt to ensure that we continue to make progress on the bill.
If a member has the first amendment in a group, they should bear in mind that they will be given the opportunity to respond to points that are made by other members when I invite them to wind up. Section 8—Regulations on continuing operation of educational establishments Group 4 is on education regulations: exemptions for non-educational functions of further education and higher education institutions. Amendment 29, in the name of the cabinet secretary, is the only amendment in the group. Amendment 29 exempts the non-educational functions of further and higher education institutions from the regulation-making powers in section 8. The effect of the amendment is that the power of ministers, under section 8, to make regulations in relation to the continuing operation of an educational establishment will continue to apply in relation to further education and higher education institutions but with the express limitation that any regulations that are made under section 8 “may not make provision relating to” an institution’s “non-educational functions”.
That will prevent any regulations having an effect on functions of further and higher education institutions that are not connected to the continuing operation of education. In my response to the committee at stage 1, I committed to “considering the scope of the regulation making powers” for further and higher education institutions and to continuing our dialogue with stakeholders. I am grateful to Universities Scotland and Colleges Scotland for their engagement with ministers and officials on the bill, which has allowed us to make progress in that regard. Throughout the Covid pandemic, we worked in partnership with the sectors and with student accommodation providers, trade unions and student representatives to ensure that appropriate guidance was in place to enable the safe operation of colleges, universities and student accommodation. I can confirm to the committee that, in the event of a future public health emergency, the Government’s preferred approach will be to continue that partnership approach, working with the college and university sectors and other stakeholders, as appropriate, to ensure that effective guidance is in place. We expect that the regulation-making powers in part 2, in so far as they relate to further and higher education institutions and student accommodation providers, would be used only should that partnership approach identify a need for regulatory certainty.
I hope that the amendment reassures members, and the college and university sectors, of our commitment to working in partnership with both sectors in the event of a future public health emergency. On that basis, I encourage the committee to support it. The question is, that amendment 118 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order for the committee to reach a decision. I vote against the amendment. The question is, that amendment 119 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision.
I vote against the amendment. The question is, that amendment 120 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 121 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 122 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision.
I vote against the amendment. The question is, that amendment 123 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 124 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 125 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 126 be agreed to. Are we agreed? There will be a division. The result of the division is: For 2, Against 4, Abstentions 0. The question is, that amendment 13 be agreed to. Are we agreed? There will be a division.
The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. Group 5 is on education regulations: issues consequential to making regulations. Amendment 127, in the name of Oliver Mundell, is grouped with amendments 129, 135 and 144. These are further amendments that seek to put in place additional protections and address some of the shortcomings that we saw in the Government response during the pandemic. The principles behind them are fairly straightforward, but I accept that there may be questions relating to the way in which they are drafted or worded. Again, I am happy to work with the Government and/or anyone else to find a form of words that takes the principles forward, particularly around educational assessment and examinations, because I think that our young people want to see that lessons have been learned.
There is a great deal of anger and concern in that regard, and I feel that some recognition that things must be fair in the future is important if these powers are to rest with ministers. In addition, there are often significant financial impacts on students as a result of the use of these powers, and, again, I think that young people would want to know that their interests would be protected. Amendment 135 would create a right “to repeat a school year”. Many young people feel that they have missed out to the point that they have been significantly disadvantaged. Amendment 144 would introduce a right to seek “an education catch-up plan”, which, again, would give young people the chance to catch up on lost learning.
That is probably enough of an explanation for now regarding the idea behind the amendments. I am interested to hear what the Government has to say. 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 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. I have to say that I am unsurprised that the Deputy First Minister is unable to support any of the amendments in the group, because they all speak to errors or a failure to provide support relating to his input to education during the pandemic.
To be frank, with regard to the SQA, to hear that ministers were somehow not involved in some of those mistakes is a bit— Will the member give way? Certainly. Does the member accept that there were different opinions on some of those things and that it is a question not of an error or a mistake, but of one choice being made against another choice? I say politely to the member that I think that the use of historical data at a school level in a way that impacts the grades of other young people is wrong.
In addition, when grades were changed on the basis of an algorithm, and when ministers were aware of the information and chose not to act, those were mistakes—that is why changes were made later. Young people deserve a guarantee that such things will not happen again. I go back to Mr Mason’s point in relation to some of the other amendments, which relate to areas such as the financial impact. Again, we hear that the Government would not, in a future pandemic, do this or that, but we do not know who the Government or the ministerial office holders are going to be at that point. Putting some of these things in the text of the bill, rather than relying on guidance or regulation, therefore offers much stronger protection to those who may be impacted. I could go on for some time, but I know that members have travel plans.
Do you intend to press amendment 127? Yes. The question is, that amendment 127 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 14 be agreed to. Are we agreed? There will be a division. The result of the division is: For 2, Against 4, Abstentions 0. The question is, that amendment 128 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision.
I vote against the amendment. The question is, that amendment 15 be agreed to. Are we agreed? There will be a division. The Convener: The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 129 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 132 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 133 be agreed to.
Are we agreed? There will be a division. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 134 be agreed to. Are we agreed to? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 135 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision.
I will vote against the amendment. The question is, that amendment 36 be agreed to. Are we agreed? There will be a division. The result of the division is: For 5, Against 1, Abstentions 0. The question is, that amendment 136 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 38 be agreed to. Are we agreed? There will be a division. The result of the division is: For 5, Against 1, Abstentions 0.
The question is, that amendment 39 be agreed to. Are we agreed? There will be a division. The result of the division is: For 5, Against 1, Abstentions 0. The question is, that amendment 137 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 138 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision.
I vote against the amendment. The question is, that amendment 140 be agreed to. Are we agreed to? There will be a division. The result of the division is: For 2, Against 4, Abstentions 0. The question is, that amendment 141 be agreed to. Are we agreed? There will be a division. The result of the division is: For 2, Against 4, Abstentions 0. The question is, that amendment 142 be agreed to. Are we agreed? Members: No. There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 143 be agreed to. Are we agreed? There will be a division.
The result of the division is: For 3, Against 3, Abstentions 0. As the outcome of the division is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that in 144 be agreed to. Are we agreed? Members: No. There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the outcome of the division is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I vote against the amendment. The question is, that amendment 145 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the outcome of the division is a tie, I will use my casting vote as convener in order that the committee can reach a decision.
I vote against the amendment. The sixth group is on transitional and saving provision and commencement. Amendment 40, in the name of the cabinet secretary, is grouped with amendments 41 to 43, 64, 65, 67 and 67A. I remind members that, if amendment 67 is agreed to, cannot call amendment 68 in the group that is headed “Tenancies: emergency rent freeze plan” because it will have been pre-empted. 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. My amendment 67A is consequential to amendment 69, which is in the next group that we will debate.
I will say more about that amendment at that point. Amendment 67A would, in effect, amend Government amendment 67 so that my proposed changes to the protected minimum balance that is applied when someone is subject to a bank arrestment would come into force on 1 November 2022. As the Deputy First Minister said, that would introduce the change at an early opportunity. As no other member wishes to contribute, I ask the cabinet secretary to wind up. I have no closing comments, convener. We move on to group 7, which is on diligence: bank arrestments. Amendment 69, in the name of John Mason, is the only amendment in the group. The Government responded rapidly to the Covid pandemic and introduced some welcome changes to the insolvency process.
Unfortunately, the emerging cost of living crisis is putting further pressure on household budgets, which will regrettably lead to further instances of unsustainable debt, as has been underlined by StepChange and other charities. I am aware of the advice sector’s concerns about the current bank arrestment process, which it thinks could be improved, taking into account the unique pressures that are faced by households. I understand that the issue has been raised recently during evidence to the Social Justice and Social Security Committee as part of its inquiry into low income and debt problems. The current arrangements protect the sum of £566.51 through provision in the Debtors (Scotland) Act 1987. Those arrangements are linked to the arrangements for a wage arrestment in that that sum is the maximum monthly salary that is required before any wage arrestment can be enacted. I believe that it is right to decouple those arrangements and to fix the protected balance for bankruptcy separately by providing new powers to vary that by regulations that are subject to the negative procedure.
That is the parliamentary procedure that is used for regulations to vary the wage arrestment threshold, which, in turn, amends the protected minimum balance. I believe that the sum of £1,000 would offer a better level of protection than the current sum of £566.51. It would afford greater flexibility and financial resilience while being consistent with the level of funds that an individual can retain while pursuing debt relief through minimal asset process bankruptcy.
As I mentioned during the debate on group 6, my amendment 67A in that group would make the new provision come into force on 1 November 2022. I encourage the committee to support my amendment. I read Mr Mason’s amendment with interest. I was a member of two committees that dealt with bankruptcy legislation in previous sessions of Parliament, so I am well aware of the issues around diligence and arrestment, and how difficult it is to balance the rights of creditors and debtors. When such issues have been raised in the past, creditors such as credit unions have expressed concerns about their inability to recover funds and the position that that might put them in.
My concern about amendment 69 is that the issue that it addresses is not one that we have taken any evidence on. The representation that I have seen from the Society of Messengers-at-Arms and Sheriff Officers expresses concern about the proposed increase in the level to what appears to be the arbitrary figure of £1,000. I find it difficult to agree to amendment 69 given the absence of substantial evidence in support of it. 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. I thank members for their comments. I take Murdo Fraser’s point that we did not spend much time on the issue, but the committee looked at a range of measures around bankruptcy and related matters and, generally, the theme was to round figures up and make them a bit higher.
Amendment 69 is fully consistent with that. Although £1,000 is a round figure and Mr Fraser might call it arbitrary, £566.51 is a very odd figure, and I have to say that I dislike that kind of level of detail. With the current inflation level, £566.51 is clearly not very much to live on. I therefore encourage members to support the figure of £1,000. The question is, that amendment 69 be agreed to. Are we agreed? There will be a division. The result of the division is: For 4, Against 2, Abstentions 0. Amendment 69 agreed to. The next group is on diligence: period of moratorium. Amendment 44, in the name of the cabinet secretary, is grouped with amendment 45. 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. Group 9 is on registration of births and deaths. Amendment 46, in the name of the cabinet secretary, is grouped with amendments 47 to 59.
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. Group 10 is on alcohol and civic licensing: format of hearings and meetings. Amendment 60, in the name of the cabinet secretary, is grouped with amendments 61 to 63. The purpose of amendments 60 to 63 is to ensure that any views that participants at a licensing hearing or meeting may offer with regard to the appropriate format for the hearing or meeting must be taken into account by a licensing board or licensing authority, prior to finalising its decision on the format.
That applies to anyone who notifies the authority of their intention to participate, such as the licence holder or an objector. The requirement that an authority “must take account of any views” seems a bit weak. How would it demonstrate that it has taken account of any representations? The licensing board is subject to statutory requirements but is in control of its own proceedings. As a consequence of the provisions that are proposed in the amendments, licensing boards or authorities must consider any representations made to them but are not obliged to accept them.
Mr Rowley will be familiar with legislative terms; language matters, which is a point that I have made in the course of today’s proceedings. Expressions such as “must take into account” or “must have regard to” are different from “must accept”. The licensing board or authority is required to consider the opinions and views expressed by participants, but is not obliged to accept those views. Should the amendments be accepted, Mr Rowley would be free to return to the provisions at a later stage in proceedings, if there was a desire to strengthen them. I am willing to engage in dialogue on that question. The amendments respond directly to the recommendation in the committee’s stage 1 report that amendments should make it explicit that those entitled to participate in licensing hearings and meetings are able to be involved in the process of decision making on the format of meetings.
Following the stage 1 report, we have undertaken engagement with licensing stakeholders in relation to the decision-making process around the format of licensing hearings and meetings. The policy contained in the amendments reflects that engagement and codifies current good practice The amendments ensure that licensing boards and licensing authorities retain flexibility and discretion to decide the format of licensing hearings and meetings as part of their overall responsibilities, but must ensure that any views expressed by participants are taken into account. Ensuring that the licensing board or licensing authority retains overall discretion is important for two key reasons. First, licensing boards and licensing authorities have to ensure that licensing hearings and meetings are fair for all parties involved, not just one party; failure to do so may result in licensing decisions being appealed. Secondly, licensing boards and licensing authorities have to be mindful of the statutory timescales for determining a licence application. Because some larger licensing boards may hear 25 or more cases at a meeting, ensuring that the decision to be made on meeting or hearing format sits with the licensing board or licensing authority is important in allowing for the effective operation of the licensing system.
The amendments that I have lodged are a pragmatic and proportionate response to the committee’s recommendation and balance the goal of public participation alongside the need to be mindful of the responsibilities of licensing boards and authorities. Members will recall that the preceding group included amendments that were intended to minimise digital exclusion risks. I acknowledge that the committee’s stage 1 report posited wider cross-cutting amendments requiring public authorities to preserve the option of in-person or paper-based services.
As the Government committed to do in the stage 1 response, we have considered whether any further amendments to other aspects of the bill might be brought forward and I can confirm that we have concluded that none is needed beyond those in this and the preceding group. We are satisfied that, across the bill as it is now proposed to be amended, the potential for digital exclusion has been minimised. I invite the committee to support the amendments on the licensing context.
As no members wish to comment, I invite the cabinet secretary to wind up. I have no comments to add. Group 11 is on mental health: named person. Amendment 3, in the name of Murdo Fraser, is grouped with amendment 2. I have two amendments in the group, which address an issue on which the committee took evidence at stage 1. Indeed, we made a unanimous recommendation on it in our report. The background is that the Mental Health (Care and Treatment) (Scotland) Act 2003 provides for a named person to be appointed to support someone who is subject to compulsory powers—for example, where they may be detained in hospital or are subject to a compulsory treatment order.
As the law stands, the signature of the named person accepting the appointment must be witnessed by a suitably qualified professional, with the intention that the responsibilities of being a named person should be explained to the person. Section 28 of the bill removes that requirement. That is an understandable change and it has been supported by stakeholders and people from whom we took evidence. However, we also heard in evidence a concern that a named person could be appointed under the new procedure without a full understanding of the role and the responsibilities that it involves. When we took evidence, Dr Arun Chopra of the Mental Welfare Commission for Scotland and Dr Roger Smyth from the Royal College of Psychiatrists in Scotland agreed that a named person should have to declare that they understand their role.
The point of my amendment 3 is to require that there should be a declaration from the named person that they understand the role, duties, rights and responsibilities of being a named person. Amendment 2 is a complementary amendment that requires the Scottish ministers to issue guidance to named persons so that they are aware of their responsibilities. The fact that there will not be a person witnessing a named person’s signature leaves a lacuna. That is why it is important that the matter be addressed. As I said, convener, we discussed the matter in the committee and there is a unanimous recommendation on it in our report. I hope that the amendments will have members’ support. 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. I ask Murdo Fraser to wind up and press or withdraw amendment 3. I listened with great interest to the comments that the cabinet secretary made and I will respond briefly. I do not regard asking someone simply to sign a declaration—to say that they understand the role and responsibilities of being a named person—as a major bureaucratic burden. I go back to the fact that we took evidence on that from stakeholders, who were clear in their view that it would be a positive step to incorporate that particular measure. It was a unanimous recommendation of the committee in its stage 1 report and, on that basis, I press amendment 3. The question is, that amendment 3 be agreed to. Are we agreed? There will be a division.
The result of the division is: For 3, Against 3, Abstentions 0. As the outcome of the division is a tie, I will use my casting vote as convener in order that the committee can reach a decision. I will vote against the amendment. Before we move on to the next section, I will suspend the meeting briefly for a comfort break. Group 12 is on “Tenancies: eviction grounds and pre-action protocol”. I welcome to the meeting Edward Mountain, who joins us virtually. Good evening, Mr Mountain. As this is your first time at a meeting of the committee, I invite you to declare anything that is recorded in your entry in the members’ register of interests that might be relevant to the committee’s remit. Thank you, convener. Having not been to the committee before, I do want to make a declaration of my interests, which have already, of course, been declared to the Parliament. In my farming business— —six rental properties. The rental income from those properties is critical to the security of the core agricultural business. I also remind the committee that I am a qualified rural surveyor with more than 20 years of professional experience, including the letting of properties for clients who are on holiday, and short and long-term lets.
That experience has allowed me to develop a good understanding of the three housing acts that will be amended by the bill. I am not practising in the surveyors market at the moment, and have not done since I was elected. Amendment 70, in the name of Edward Mountain, is grouped with amendments 71 to 82, 146, 147 and 84 to 108. I ask Edward Mountain to speak to and move amendment 70, and to speak to all the amendments in the group. There are amendments in the group that cover the three acts, so I propose to give a description of what I see as the problem with them and then to concentrate on the Private Housing Tenancies (Scotland) Act 2016. I will not speak to the other amendments, which, convener, I am sure that you will be delighted about, as will be the rest of the committee. Over the past years, we have seen a move towards the protection of tenants, which I believe should be welcomed.
The difficulty in finding the balance between landlord and tenant is showing that the legislation is equitable. The 2016 act was regarded as a tectonic shift in that regard. Tenants’ rights have become more defined and their position has become more protected. However, it is clear that not all private landlords have welcomed the changes. Those who did, did so on the basis that the act contained some of the mandatory and discretionary grounds for ending a tenancy that we had seen previously. That will change under the bill. Worrying research that was recently published by Propertymark says that there has been a 50 per cent reduction in the number of rented properties between 2019 and 2022.
That climate has been directly attributed to the 2016 act. Fewer landlords mean fewer properties, and that results in increased rent and increased pressure on social housing. We all should be concerned. During the pandemic, everyone adapted to working and living in what was, after all, a very hostile environment and to the need to limit the spread of what was, before vaccinations, a virus that could and did pose a threat to life. It was simple and very right to make the mandatory grounds for eviction discretionary.
No one could support the eviction of tenants when the virus was as virulent as it was. The additional compensatory loans that were made available by the Government to tenants and landlords to help tenants to pay their rent was welcomed by both tenants and landlords. That is not the position that they are in now. Before we consider the bill, I want to look very briefly at the provision of housing in Scotland. We all agree that there is a chronic shortage of all types of housing. We need more housing, and there will not be an MSP in this meeting who does not support greater provision. The private sector has a role in providing that: there are about 360,000 privately rented houses in Scotland, which is about 14 per cent of the total housing stock. It is impossible to define who owns those houses. It is a complete mixture and includes buy-to-let landlords; families that have relocated due to work; companies and employers that provide accommodation as part of their employment contracts, such as farmers and churches; and people who have invested in their future retirement home.
I could go on forever and still not produce an exhaustive list. It is clear that the takeaway message is that Scotland needs private housing to fill in the gaps in housing provision. To ensure that we continue to have that invaluable resource, we must ensure that the rights of tenants and landlords balance. If we favour one over the other, I am afraid that we will distort the provision of use and the provision of housing. From my background knowledge of the market, and from having spoken recently to landlords, their agents and tenants, I believe that part 4 of the bill, which makes all mandatory grounds for eviction discretionary, tips the balance too much in favour of the tenant.
Although that approach was acceptable and right during the pandemic, which was a public health emergency, I do not believe that continuing with it beyond then is justified. I want to make some general comments on the mandatory grounds for eviction in the three housing acts that part 4 of the bill amends. The majority of those grounds exist to ensure that a property can be reclaimed by the landlord promptly when there has been a serious and clear breach of the tenancy, or the property is required for another reason. Making every ground for eviction discretionary will slow down the process and ensure that every case goes to the First-tier Tribunal for Scotland. “So what?”, you might ask. Well, prior to the pandemic, some landlords were having to wait up to eight months for a tribunal hearing.
Making every eviction ground discretionary will add to delays and further increase the backlog. In the past, the Government has made much of listening and consulting, but the changes in question have not been examined, and if they had been—[Inaudible.]—housing bill, which I, too, would favour. That would have allowed them to have been more fully scrutinised and market tested, which they have not been. I believe that that is fundamental. The bill makes changes to the Private Housing (Tenancies) (Scotland) Act 2016.
Before I turn to my amendments that relate specifically to that act, I have sought to address fundamental problems with the bill through the following amendments: amendment 82 seeks to remove section 33, which relates to the 2016 act; amendment 93 seeks to remove section 34, which makes changes to the Housing (Scotland) Act 1988; and amendment 106 seeks to remove all changes to the Rent (Scotland) Act 1984. It would be my preference for those amendments to be agreed to. However, I have also lodged amendment 111, which is a stand-alone amendment that would not affect the changes that are proposed in the bill. Amendment 111 would introduce a sunset provision in relation to sections 33, 34 and 35. I will talk about that briefly later on. I turn to my amendments that address the changes that the bill makes to the Private Housing (Tenancies) (Scotland) Act 2016.
Amendments 70 and 71 would allow the landlord and the lender, respectively, to sell the property with vacant possession. If you were to sell a property with vacant possession, you would get full market value. Without vacant possession, you would not get full market value. If the position is maintained that possession cannot be given in such circumstances, we will be promoting a buy-to-let arrangement, and first-time buyers who might want to live in the house will be put off, because they will not be able to get in. Amendment 72 would allow the landlord to take possession to refurbish his property when it is empty. If a landlord cannot get vacant possession of a property to refurbish it, I sincerely doubt that the Government will be able to make all properties energy performance certificate compliant within the desired timeframe. I remind members that, for an older house to achieve an EPC, it will probably be necessary to strip out all the walls and floors and to remove areas of the roof in order to provide lagging.
That cannot be done room by room. Amendment 73 would allow the landlord to take possession to live in their own property. I cannot believe that anyone would want to deny a landlord their right to live in their own house. That cannot be anything but a right. Where will the landlord live if he cannot live in his own house and has to wait for the First-tier Tribunal to give him that right? Council housing will not be available to people who own their own houses. Section 33 of the bill creates a further problem in that respect. Amendment 74 would allow a change of use of the property. Such a change of use would have to receive planning permission. That process would be the filter—in other words, the local authority would not grant planning permission if there was pressure on housing. I believe that that should remain a mandatory ground for eviction. Amendment 75 would allow properties to continue to be required for religious purposes. It is quite a niche reason; it covers church houses. If manses are not available, especially in rural areas, I suspect that churches and local congregations will suffer, because they will not be able to have a minister.
Amendment 76 would introduce a new discretionary ground for situations in which the landlord requires a property for an employee. That is important in rural areas, where housing is in short supply—employers have housing that they need for an employee but cannot get. Amendment 77 would allow any houses that have been offered as part of a contract to be given vacant possession should that contract terminate. That is important. NHS Highland is looking at that, as far as its staff is concerned, to try to attract people to the Highlands, but if it cannot get possession of the houses, it will not be able to do that. Amendment 78 is interesting, because it would allow a property to be got back by the landlord if it is empty. If a property is empty, why would anyone want to remove that as a mandatory ground for eviction? It is not good for a property to remain empty, especially if that is complicated by going to a First-tier Tribunal, which could take up to a year.
Neither is that good for local taxation. I lodged amendment 79, which concerns rent arrears for three or more consecutive months, because, given that it takes so long to go through at a First-tier Tribunal, those could rack up for more than a year. Amendment 80 would allow possession of a property if the tenant has been engaged in criminal behaviour, given that, for example, a landlord might not be able to get their house back if it has been used for criminal activities that attract a non-custodial sentence. Relevant examples in rural areas are of houses having been turned into cannabis farms. Amendment 81 would mean that antisocial behaviour is not treated as a discretionary ground. Those are all the amendments that I want to talk to specifically, convener, although I could talk to all the amendments on the Housing (Scotland) Act 1988 and the Rent (Scotland) Act 1984. Incidentally, the 1984 act is interesting and quite niche; the youngest of the tenancies that were generated under the act would be 32 years old, and I am not sure that there are many of those.
However, as we have not done any research on it, we do not know. Before I close, I will talk briefly on amendments 107 and 108, which are probing amendments. I agree with the Scottish Property Federation that there are merits in introducing pre-action protocols. They have great advantages in creating a supportive process for tenants, and we should encourage that, to continue to get them back on track.
However, those merits are lost should the grounds for eviction become discretionary. If the landlord not only has to do the pre-action protocols but proceeds to a secondary, discretionary process through a tribunal, that could create a very drawn-out process. I have therefore lodged amendments 107 and 108 not because I want to stop the provisions but because I want to hear how the Government will address the problems that I perceive. I will not rehearse all the arguments that have been put forward by Edward Mountain.
I have a lot of sympathy for the points that he made, and the submission to the committee from Scottish Land & Estates, NFU Scotland, the Scottish Association of Landlords and the National Trust for Scotland makes strong points about the unintended consequences of the proposed legislation. Scotland needs to have a vibrant private rented sector. People depend on the provision of private rented accommodation—often, they are young; often, they are in transient employment and want to move from place to place.
There is a concern about a reduction in the supply of private rented properties, and that is likely to be exacerbated if we continue down the route that is proposed in the bill. Mr Mountain is correct to bring some of those issues to the committee. Amendment 147 is similar to Mr Mountain’s amendment 146, but it is narrower in scope and intended to deal with a specific issue in relation to rural communities. We know that housing in rural communities is often in short supply, and it is important that rural businesses have access to suitable accommodation for those whom they employ. The purpose of amendment 147 is to make sure that there is a mandatory eviction ground for a landlord who owns property in a rural business, such as a farming or forestry business, who wishes to recover possession of that property to provide accommodation for an employee who might struggle to find somewhere to stay.
If accommodation is not offered with employment in rural areas, particularly remote rural areas, it is simply not practical for people to take up the offer because they cannot find anywhere to stay. Amendment 147 would therefore protect a rural business or employer who wants to create employment and provide accommodation to go along with it. My concern is that, if we do not put such a provision in the bill, the unintended consequences will be that rural landlords, who are looking ahead and might be in a position in which they can take on a new employee, might just decide to leave a property empty rather than offering it up for a long-term let, or they might decide to let it in the short term rather than make it a residential let, and that is probably not in the interests of wider public policy.
Amendment 147 is supported by the NFUS and Scottish Land & Estates. It provides a sensible balance in protecting the interests of rural communities. 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. Mr Swinney will recall that a number of members who spoke in the stage 1 debate, including me, raised the issue of manses and other church properties, which often lie vacant for a year or more while the church seeks a new minister. Rather than allow the property to lie empty, the church will seek to let it on a private residential basis.
The Church of Scotland, among others, expressed concern that, without a mandatory ground to allow it to recover possession, that would be too risky. As Mr Swinney says, the matter could go to a tribunal, but there would be no guarantee that the property could be recovered when it is required for a new minister taking up office. I think that Mr Swinney said during the stage 1 debate that he would reflect on that. Does he have any more thoughts as to how that issue could be addressed? I fear that the unintended consequence could be that churches will just leave such properties lying empty, when they could be used to house families, even on a short-term basis. I understand the dilemma, and I know that the Church of Scotland has made representations to the Government about that point. There are further discussions to be had with it on those particular arrangements.
I understand the context that the Church of Scotland sets out, but options for resolving those questions are available to aid churches. I accept that those options are not guaranteed, because a tribunal has the ability to come to a judgment. Earlier, I made the point that a tribunal considers all the facts and must do what is reasonable in the particular circumstances of each case. I do not wish to draft the outcome of a tribunal judgment, but I would think that a church appointing a minister after a period of vacancy and therefore requiring the accommodation to house that minister is a reasonable set of circumstances to put to a tribunal, should that be required.
The overwhelming majority of eviction cases do not go anywhere near a tribunal; they are resolved outwith the precincts of a tribunal. I am grateful to the cabinet secretary for that explanation. My concern, which I think has been expressed by the Church of Scotland, is that, although that might well be the case, there is no guarantee that a tribunal would reach that outcome. Therefore, the unintended consequence is likely to be that churches will just not take the risk of renting out such properties. Obviously, there are matters for a church to weigh up as a landlord in those circumstances. We are happy to explore the matter with the Church of Scotland in due course, but I contend that there are strong grounds and foundations for churches to be optimistic in assessing the possibility of securing access to manse properties.
That is, first, because most eviction cases do not end up anywhere near a tribunal and, secondly, because a tribunal has to do what is reasonable in the particular circumstances of the case. However, I am not dismissing the issues. I am very happy for ministers and officials to engage further with the Church of Scotland. I give that assurance. I understand your points about amendments 107 and 108. Regarding your other points, it is critical that the First-tier Tribunal is correctly resourced. Given that you support keeping the act as it is, can you give some indication of the additional resources that will be made available to the First-tier Tribunal? For how long would it be reasonable for tribunals to wait before hearing a case? It is difficult to give a definitive prescription about timescales, because tribunals, by their nature, exercise their judgments independently. I dare say that I would get into hot water if I were to start setting out the timescales for tribunals.
My second point is about resourcing. We make the best judgments that we can about resourcing so that decisions can be made, the private rental sector can operate smoothly and the issues that Mr Mountain puts to me can be properly resolved through the tribunal process, if they need to go there. I return to the point that I made to Mr Fraser, which is that the overwhelming majority of such cases do not go anywhere near a tribunal. I return to the point that I was making about the Private Housing (Tenancies) (Scotland) Act 2016 before I accepted Mr Fraser’s intervention. I reconfirm the Government’s commitment to review all grounds for repossession after five years. That period ends at the end of 2022, and it is right for us to fully consider all the grounds for eviction together.
I hope that that gives Mr Fraser and Mr Mountain some reassurance. On the basis of those points, I urge Mr Fraser and Mr Mountain not to move amendments 76, 146 and 147, so that all grounds for eviction can be reviewed together. Any necessary legislative changes could be introduced following that review. For all the reasons that I have provided, I invite the committee to reject all the amendments in the group. On a point of order, convener. I have an interest to declare. I should have put on the record that I am a member of the Church of Scotland. Thank you. I invite Edward Mountain to wind up and to press or withdraw amendment 70. You gave me sufficient time at the beginning to make my case. I have listened to what the Deputy First Minister has said. Before stage 3, I would like to explore with him and with the Scottish Government how we can resolve any perceived backlogs that are realistically felt to be affecting the First-tier Tribunal. By looking at that issue, we might be able to give some confidence if the changes are to go ahead.
I fear that Mr Fraser is right about unintended consequences. I think that churches, for a whole heap of reasons, would rather not risk going through a tribunal and would think that it would be easier to let premises lie empty. I think that that goes for many landlords who wish to house their employees. I press amendment 70. I am sure that we can look at each amendment in turn. The question is, that amendment 70 be agreed to. Are we agreed? There will be a division. The result of the division is: For 2, Against 4, Abstentions 0. Amendment 71, in the name of Edward Mountain, has already been debated with amendment 70. I ask Edward Mountain to move or not move amendment 71. I would move amendment 71, but I might be able to help you. I do not know whether this is impertinent, but I think that the voting might continue in a certain way. Therefore, I would be happy to move amendments 71 to 82 and 146 en bloc, if that suits the committee and you, convener. I do not wish to pre-empt your position, but I am trying to save you some time. That is appreciated. Please hold on for one moment. Unfortunately, those amendments relate to more than one section.
Therefore, at the moment, you could move amendments 71 to 81 en bloc, if you are happy with that, Mr Mountain. I am very happy to move amendments 71 to 81 en bloc. Cabinet secretary, do you want to come in? Oh, no. I think that that would be called interfering, convener. The question is, that amendments 71 to 81 be agreed to. Are we agreed? There will be a division. The result of the division is: For 2, Against 4, Abstentions 0. The question is, that amendment 82 be agreed to. Are we agreed? There will be a division. The result of the division is: For 2, Against 4, Abstentions 0. The question is, that amendment 146 be agreed to. Are we agreed? There will be a division.
The result of the division is: For 2, Against 4, Abstentions 0. The question is, that amendment 147 be agreed to. Are we agreed? There will be a division. The result of the division is: For 2, Against 4, Abstentions 0. Amendment 84, in the name of Edward Mountain, has already been debated with amendment 70. I ask Mr Mountain to move or not move amendment 84. At the risk of “interfering”—I do not know whether that was directed at me, Mr Swinney, but I am trying to help—I am prepared to not move amendments 84 to 106 to allow us to move on.
I am also prepared to not move amendments 107 and 108 in the hope that the Scottish Government will be prepared to discuss with me how to resource the First-tier Tribunal to ensure that delays are reduced. There has been no undertaking from the Government; I just hope that it will discuss that with me. I am prepared to not move any of the remaining amendments in my name in this section. I am sorry for the delay, Mr Mountain. I am taking advice from the clerks. You are not going to move amendment 84. Is that correct? I do not want to move amendments 84 to 108. Thank you for your help, but, unfortunately, we have to go through them individually. Amendment 107, in the name of Edward Mountain, was debated with amendment 70. I ask Mr Mountain whether he wishes to move or not move the amendment.
I will not move the amendment. I hope that I can discuss the matter further with the Scottish Government. Amendment 108, in the name of Edward Mountain, was debated with amendment 70. I ask Mr Mountain whether he wishes to move or not move the amendment. I will not move the amendment. I hope that I can discuss the matter with the Scottish Government. Group 13 is on tenancies: emergency rent freeze plan. I welcome Mercedes Villalba and Mark Griffin. You have not been to the committee before, so I invite you to declare anything that is recorded in your entry in the register of interests that might be relevant to the committee’s remit.
I am a member of tenants unions Acorn and Living Rent. I am the owner of a private rented property in the North Lanarkshire Council area. Amendment 66, in the name of Mercedes Villalba, is grouped with amendment 68. I remind members that amendment 68 can be pre-empted by amendment 67, which is in the group on transitional and saving provision and commencement. If amendment 67 is agreed to, I cannot call amendment 68. I ask Mercedes Villalba to speak to and move amendment 66 and to speak to both amendments in the group.
I thank the committee members for their work on the bill so far, and I thank the convener for giving me the opportunity to speak to amendments 66 and 68. We all recognise that the private rented sector is continuing to grow in Scotland; it now encompasses more than 15 per cent of all households. Those households are now under increasing financial pressure due to above-inflation rent rises. In the past year alone, average monthly rents in Scotland have increased by more than 8 per cent, and that was before the current cost of living crisis and double-digit inflation hit.
As members know from contact from their constituents, the impact of rent costs, coupled with the other financial pressures that are caused by the cost of living crisis, is taking its toll on tenants. Scotland’s tenants union, Living Rent, has been gathering testimony from tenants about how rent increases are impacting on them, and I will share some of those testimonies with the committee. The first quotation is: “My landlord increased my rent by £300 with no reason given. We can’t afford to stay and will have to move out.” Another testimony reads: “The landlord increased the rent by £100 a month. He said he looked at the average rents for the street and decided he could raise it to £900. It’s had a very big impact on my financial situation, but I feel I cannot afford to move.” The final testimony that I will share with the committee today reads: “Our landlord increased our rent by £150 to £850.
To explain, he said that he ‘could not be expected to stand still while the market moves on.’ We had to move to a place that doesn’t suit our requirements, as my wife is pregnant and the new flat is very old, has dirty and nicotine-saturated carpets, and is on the top floor.” That is just a small sample of the testimonies that were submitted to Living Rent. I have more submissions here, if any member would like a copy. I want to take what the Scottish Government says in good faith. By its own admission, rent pressure zones have not been successful in tackling rip-off rent hikes.
I am pleased that, thanks to campaigning by Living Rent members, the Scottish Government has committed to introducing rent controls by 2026. That is welcome progress, but allowing a lead time of up to four years is causing a short-term incentive for landlords to increase their rents prior to rent controls being introduced. Tenants cannot afford another four years of hikes. That is why I have repeatedly raised in Parliament the proposal that there be an emergency rent freeze. Although the First Minister said that, as a matter of good faith, she will undertake to explore any suggestion that is made in the chamber, the subsequent response that I received from the Minister for Zero Carbon Buildings, Active Travel and Tenants’ Rights did not even address the idea of an emergency rent freeze. I have lodged amendments 66 and 68 at stage 2 of the Coronavirus (Recovery and Reform) (Scotland) Bill because rents are rising right now, and renters need urgent action right now. Amendments 66 and 68 would require Scottish ministers to produce, within three months of the bill receiving royal assent, a plan to introduce an emergency rent freeze for all tenancies in Scotland.
The rent freeze would have to remain in place until Scottish ministers bring forward their promised legislation in relation to rent control measures. I hope that the cabinet secretary will engage constructively with amendments 66 and 68, and recognise the importance of standing up for tenants as part of our Covid-19 recovery, because we cannot allow four more years of rent hikes. I also hope that members of the committee will put their constituents first by supporting amendments 66 and 68. Today, we have the power to legislate in the interests of tenants, and there is no excuse not to do so.
Amendments 66 and 68 enjoy the support of tenants, through Scotland’s tenants union, Living Rent, and of workers in every sector, through the Scottish Trades Union Congress. Let us show people which side we are on and in whose interests we are working by introducing the rent freeze that we so desperately need. I move amendment 66. I thank Mercedes Villalba for lodging her amendments, because she raises some important issues. I have a great deal of sympathy with the case studies that she identified. However, what she proposes would potentially have unintended consequences. We heard earlier about concerns that the supply of private rented property is already in decline.
There is a danger that, by bringing in such a measure at this point, we would constrain further the supply of private rented property. That would not be in the interests of people who are seeking accommodation in the private rented sector. Such accommodation might suit young people or those who move around often with their jobs, for whom being in the private rented sector is very helpful. There is a broader debate to be had around the issue, but the correct context for that would be a housing bill, which I understand the Scottish Government is considering, rather than this bill. Although I have some sympathy with the point that Mercedes Villalba makes, I do not think that the bill is the appropriate avenue for bringing in the particular measure that she proposes. First, let me say that I and the Government share Mercedes Villalba’s concerns regarding high rents. That is why the Government has set out the action that we will take. Our upcoming housing bill will seek to put in place a framework for a new set of rent controls, and will improve rent adjudication further by limiting the increase in rents that tenants might face in the adjudication process.
The whole issue of rent controls is important, but we have to recognise that its consideration cannot be rushed, despite the difficulties that individuals are facing. I do not in any way question that they are having those difficulties, but there are complex issues to address and there is, quite simply, no quick-fix solution that can be implemented. All the international evidence shows that the systems that are robust and provide lasting benefit are those that are developed over time.
With the bill—the same argument that I deployed in relation to issues that were previously raised by Edward Mountain applies here—there has been no opportunity for Parliament to take evidence from a range of stakeholders on the pros and cons of a rent freeze. That means that there has been no opportunity to assess the likely impact of the proposal in a range of situations, or to consider how the rent freeze is to interact with a broader discussion of rent controls, as set out in our consultation “A New Deal for Tenants—Draft Strategy Consultation Paper”. In my view, therefore, taking such action through the bill would, at this stage, be premature. Given the examples that have been highlighted today, and the fact that there are people out there who own properties and are trying to cash in, which is causing massive problems, is there anything that the Government should be looking to do in the short term? Obviously, the Government will seek to take whatever action we can in the short term.
I do not, in any way, doubt the testimony that has been put on the record today, and I acknowledge the challenges that individuals face. However, a range of substantial and complex issues have to be wrestled with in relation to the question of rent controls. Regardless of whether the issues are addressed on an emergency basis or over the longer term, their significance remains the same. I will set out a few points in relation to particular challenges that the amendments raise. There are three problems with amendment 66.
First, it states that the rent freeze should apply to “all tenancies in Scotland”, but it does not specify whether those are residential, commercial or agricultural tenancies and would therefore apply to all three. Secondly, the proposed rent freeze is to be in place until rent control legislation is introduced, yet there is no clarity about the nature of the legislation that would be required. Amendment 66 does not take into account the fact that rent control measures are already in place in some form, with limitations on landlords regarding the number of rent increases that can be applied in a year.
We also have in place, via the Private Housing (Tenancies) (Scotland) Act 2016, rent adjudication, which allows tenants to challenge unfair rent increases. That addresses, in part, the issue that Alex Rowley put to me. It is not clear what further measures would count as the bringing forward of rent control measures so, as drafted, amendment 66 would not give any clarity as to the duration of the proposed rent freeze. Thirdly, the amendment would oblige the Scottish Government to produce a plan to impose a rent freeze, but the Scottish Government has no power to implement a rent freeze. Amendment 66 would not confer such a power on the Government. It is not clear how the proposed rent freeze would take account of the individual circumstances of the tenant, the landlord or the property. That would include giving due consideration to the impact of high rents in certain areas and the impact of the cost of living crisis.
The difficulties that I have highlighted with amendment 66 demonstrate why it is necessary to do detailed work to create a system of rent control that is effective, sustainable and robust against challenge, and which will stand the test of time. Proper consultation is a central part of that work. Although the amendments in the group have been lodged with the best of intentions, I ask the committee to reject amendments 66 and 68 on the understanding that the Government is currently going through the required consideration of the implementation of rent controls and will consult all stakeholders fully on the issues. I understand from the cabinet secretary’s comments that the Government supports the principle of controlling rents in Scotland. I am grateful to him for outlining the ways in which amendment 66 could be improved. On that basis, I am happy to seek to withdraw it and to discuss the matter with his office to improve it and bring an amendment back at stage 3.
Amendment 66, by agreement, withdrawn. We move on to group 14. Amendment 109, in the name of Mark Griffin, is grouped with amendments 110 and 111. Amendments 109 and 110 seek to improve the information, evaluation and reporting of the operation and effect of the provisions in part 4 and their precursors, which is substantially lacking at the moment. It is clear to anyone with an interest in the private rented sector that there is a lack of hard and fast data to give an understanding of that sector, particularly when it comes to the length of tenancies, rent levels and the make-up of the sector. Amendments 109 and 110 seek to address that in a small way through the collection of more data, which would put us in a much more informed position ahead of the forthcoming housing bill and in assessing how the provisions have worked and continue to work.
Amendment 109 would require an evaluation of the operation and effect of part 4 and that tenants, landlords and the Scottish Courts and Tribunals Service be consulted. It would also require that the impact on those groups be assessed one year after royal assent and in time for the housing bill. Members will know that the provisions in part 4 maintain the pre-action protocols and the requirement for all eviction grounds to be discretionary. Those measures are already active in the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No 2) Act 2020, so amendment 109 would require the evaluation to cover three years of continued operation. Amendment 110 would require the Scottish Courts and Tribunals Service to publish quarterly statistics relating to the operation of the provisions in part 4. Anyone who has tried to retrieve statistical information from the service will know that that is difficult. It is a transparent body and publishes its individual judgments clearly, but it has been difficult to find overall aggregated statistical information on the work of the First-tier Tribunal.
We want tenants’ rights to be protected so that people are not evicted from their homes as a result of hardship faced during the pandemic and subsequent cost of living crisis. However, we recognise concerns that the measures in the existing coronavirus legislation are not supported by information or evidenced reporting on their effectiveness. At the moment, the extent of the debate has essentially been two sides—the tenant side and the landlord side—saying that they do or do not agree with the measures, but without there being any underlying evidence for their positions. The reporting requirement would fill that gap. The Scottish Association of Landlords has questioned the effectiveness of the move to discretionary grounds, having published its analysis of tribunal cases. That fairly lengthy piece of work showed that only one eviction had been prevented on the grounds of reasonableness. I am pleased that Shelter Scotland supports my amendments. At stage 1, it recommended evaluation and monitoring of the pre-action protocols so “that they are working in practice, with the Tribunal ensuring that they are upheld.” Legislation without robust evidence of the impact of the policies was far from best practice, albeit that it was done with the best motivations in mind.
It would be entirely unacceptable to remove tenants’ rights in the absence of any compelling information to do so. I believe that the amendments strike a balance in setting a requirement for post-legislative evaluation to assess the effects of the decision to legislate two years ago. I move amendment 109. I have lodged amendment 111 to give a time limit to the proposed changes to the mandatory and discretionary eviction grounds under sections 33 to 35 of the bill, which will amend the housing legislation that we have been discussing. The amendment would require the Government to introduce its new housing bill by 31 July 2024, thereby allowing it to respond to the effects that the changes that it is bringing in will have on the lettings market.
I know that the Government will find it hard to accept putting a time limit on that, but it is suggesting a fundamental and retrospective change to existing law. To my mind, it is doing so without full consultation, without really speaking to all those whom it should speak to and without listening to people on both sides—that is, landlords and tenants—in relation to the changes. I am sure that the way in which committee members will vote on the amendment will be driven by their wish to make good and watertight law. Therefore, to my mind, a sunset clause should find their favour. After all, that would ensure that a proportionate response to the pandemic is not allowed to be carried forward beyond the pandemic. Before I finish, I highlight that Mark Griffin’s amendment 110 has merit. I would go further than it proposes—I would like it to be amended to include a note of all types of tenanted properties over the period.
The Government will say that it is not possible to collect that information but, of course, it is possible—you need only speak to councils, which must have a register of landlords and their properties. You can easily find out how that changes on a yearly basis. As Mr Swinney will know, landlords pay a fee to councils to be on that register.
Therefore, checking and keeping on top of that should be simple. We would then be able to see the effect of the changes. 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. I ask Mark Griffin to wind up and to say whether he wishes to press or withdraw amendment 109.
In relation to amendment 111, we were sympathetic to the idea of a sunset clause, but one that was linked to the introduction of the housing bill. However, I understand that there are difficulties with that in legislative terms. I do not support amendment 111. It seeks to introduce a hard date for the relevant provisions to expire, which could result in the protections that the bill introduces for tenants simply expiring if the housing bill was not introduced by the specified date. Amendment 109 is unique in the sense that representatives of landlords and of the tenants lobby are equally supportive of using the proposed provisions to fill a particular data gap and to fill a gap in assessing the Government’s performance against the measures in that part of the bill. However, I take on board what the cabinet secretary has said and the offer that he has made for Mr Harvie to meet me to discuss the matter.
Therefore, I seek permission to withdraw amendment 109. The question is, that amendment 111 be agreed to. Are we agreed? There will be a division. The result of the division is: For 2, Against 4, Abstentions 0. Amendment 67, in the name of the cabinet secretary, has already been debated with amendment 40. I remind members that, if amendment 67 is agreed to, I will not be able to call amendment 68, because of pre-emption. The question is, that amendment 8 be agreed to. Are we agreed? There will be a division. The result of the division is: For 3, Against 3, Abstentions 0. As the result is a tie, I will use my casting vote as convener in order for the committee to reach a decision.
I vote against the amendment. The question is, that amendment 9 be agreed to. Are we agreed? There will be a division. The result of the division is: For 2, Against 4, Abstentions 0. That ends stage 2 consideration of the bill. I thank the Deputy First Minister and his supporting officials for their attendance this morning and this evening. The committee’s next meeting will be on 23 June, when we will continue to take evidence as part of our inquiry on the communication of public health information on Covid-19.