 Mer chords and welcome to the seventh meeting of the Covid-19 recovery committee in 2022. This morning, we will take evidence at stage one on coronavirus recovery and reform Scotland bill. I'd like to welcome our first panel to the meeting, who are all virtual today. Professor Fiona Dall Palestine and professor of global legal studies, Covid review observatory University of Birmingham.동아lding Offer corresponding information needs, chief executive of Westminster foundation for democracy a Professor Paul Hunter, Professor in Medicine Norwich Medical School University of East Anglia. I warm welcome and thank you for giving us your time this morning. This session will be the first of the committee's evidence sessions on the bill, and we will look at the public health measures contained in part 1 of the bill. We will be taking evidence on the bill at two further meetings on 10 and 24 March, before we hear from the Deputy First Minister on 31 March. Each member will have approximately eight minutes to speak to the panel and ask their questions. If you would like to respond to an issue being discussed, please type R in the chat box, and we will try to bring you in. I am keen to ensure that everyone gets an opportunity to speak. I apologise in advance, therefore, if time runs on too much and may have to interrupt members or witnesses in the interests of brevity. If I can just briefly just ask you to introduce yourselves to members. Can we start with Professor Dylondras? Good morning, convener and members of the committee. My name is Fiona Dylondras. I am a Professor of Law here in Birmingham Law School, and also I lead the Covid-19 review observatory, which analyses ways in which parliaments have affected oversight during the pandemic. I am looking forward to speaking with you this morning. Anthony Smith? Anthony Smith, Chief Executive of Westminster Foundation for Democracy. I am a substitute for my colleague, Franklin De Greaves, who was a co-author of a relevant paper, but unfortunately is ill today, so I will do my best to fill in for his much deeper knowledge. Thank you. Thank you very much. I just think that there is a slight problem with your sound. We could hear you, but it was a bit more faint than it was from the previous witness. Can I bring in Professor Hunter? Hello, I am for Hunter. I am a Professor in the medicine at the Norwich Medical School at the University of Anglia. I am a medical doctor specialising in medical microbiology and virology. Most of my research for the past business knows how many years has been on the spread of emerging infectious diseases, epidemics and outbreaks and infection. If I can move on to questions and if I may start, with the great benefit of hindsight, I think that we can all acknowledge that no country on this planet was prepared for Covid when it hit. In my personal opinion, Governments around the world have a moral duty to reflect over the past two years, learn lessons and put measures in place to ensure that we are never in the position that we found ourselves in March 2020. We know that the Prime Minister confirmed on 21 February that certain temporary provisions for England relating to improvements in the delivery of public services will also be made permanent via the Westminster bills. As we move forward to put legislation in place to keep the public safe in the future, my question to the panel is what do you believe are the principles which underpin good quality and effective legislation for emergency situations? I think that there are a couple of things that are important here. The first thing is to ensure that the legislative framework that is put in place to enable emergency responses would itself envisage the kinds of situations of urgency and strain that both executives and parliaments find themselves under in emergency situations. That means trying to design in a way that balances the need for a rapid response and flexibility with the need for effective parliamentary oversight. This is more difficult than it sounds, but a couple of principles that are helpful are to try to ensure that the law allows for fast and coordinated responses, that it also ensures that, in those responses, human rights concerns are recognised as effective limitations on what the state may do. That means that measures should be targeted and limited potentially in time but also in scope to what is required in a particular situation and that there should be no policy laundering or the use of emergency powers to address things other than the emergency in question. It is useful for measures to be limited in time, so that is the emergency measures introduced to be limited in time, but with an effective review mechanism, so not only that there would be review but that there would be a way for that review to be meaningful and to cause change if needed and that there would be the maximum possible transparency in decision making and to the extent that that can be imposed through a legislative framework that would be welcome. I am happy to expand on any of those as they relate to the particular bill if you wish, but I think that those are some principles to start with. Thank you very much. If I can bring in Anthony Smith for the same question. Thank you, convener. I hope that this is clear now in the sound. Slightly better. Thank you. I think the points that our paper which examined the use of sunset clauses tried to make were that when emergency measures are introduced into legislation, there is often a provision for them to be temporary, but the way that those provisions are framed can sometimes be inadequate in a number of ways. First, those provisions can sometimes set up an expectation of renewal of the measures. So, even though at the time of drafting the legislation, the debate says that these will be temporary, in some ways the way in which they are framed makes it easier for them to be renewed without significant debate. Second, the way in which those review provisions are framed can sometimes be unclear. It has to be very clear exactly which provisions are going to be reviewed and what the mechanism of review is going to be. And third, they need to provide the type of scrutiny that is appropriate to those measures. In other words, if you look at some of the legislation in a number of countries including the UK, a very small amount of parliamentary time is devoted to the review of the provisions before they are extended. So, there are some things which need to be thought through carefully if there is an expectation that these measures are temporary. And I think the second thing that I would comment on is whether in addressing a situation like the pandemic and coronavirus, the types of emergency measures that were used and that are being made permanent in the new legislation have shifted the boundary between what is considered ordinary levels of executive power and extraordinary ones. If they have shifted that boundary, has there been full consideration of that by the Parliament in the new legislation before that step has taken? Thank you. Thank you, Mr Smith. And can I ask the same question which is what do you believe are the principles which underpin good quality and effective legislation for Professor Hunter? I have heard it said that military planners are always planning for the previous war, not the next war, and I think that the same applies to infectious diseases. Whatever we do has to be flexible because there is no guarantee that the next outbreak is going a major pandemic, major infectious disease threat is going to be anything like what we have just lived through. So I think that it has to be flexible to cope with new threats, whatever they may be, and they may not be like what we have had with Covid. But again, I think that the issue as well is actually how much did the existing legislation fail us and to a large I cannot speak about the Scottish legislation, but most of the English legislation was in terms of certainly the early parts of a pandemic were fit for purpose in my view and certainly it wasn't until well into the initial pandemic that additional legislation was needed. Thank you very much for all your answers and raising your valid points. Thank you, convener. Good morning to our witnesses. I suppose that the key issue that the committee has to consider in relation to the bill is are the measures that are before us necessary and proportionate, or do they represent ministerial overreach? We have had a lot of evidence presented to us from interested parties and from members of the public and there is quite a strong theme that has come through these about the issue of civil liberties. That is really what I wanted to ask you about this morning. The bill will allow Scottish ministers to impose quite substantial restrictions on people's activities, as we have seen over the past two years, but we will do that on a permanent basis. There will be particular impacts in the area of health where individuals can be required to submit to medical treatment, can be detained in a hospital or other suitable establishment or be forced to be put into quarantine. What is your view on that and does the bill strike an appropriate balance between the protection of public health and respect for civil liberties? How do you think that the question of proportionality will work through in practice? Maybe start with Professor Laundrist. Thank you. I think that one of the challenges with a bill of this kind that relates to what Mr Smith was saying in his first response is that, of course, you are thinking here about introducing a permanent legislative edifice in which the responsive measures could be taken. The questions of necessity and proportionality in substantive terms that you raise are likely to arise most urgently in respect of the individual regulations introduced under the powers within the bill. Much will depend on the modes of scrutiny of those regulations if and when they need to be introduced. Broadly speaking, within the structure that the bill proposes to introduce, I think that it is worth noting that it has a number of safeguards. It has threshold or triggering safeguards, which you are familiar with, of course. There has to be a public health emergency and the measures themselves must be proportionate or considered to be proportionate. For more intrusive kinds of powers such as medical examinations and so on, there is an additional safeguard that must be the least intrusive method available and so on. The bill does have safeguards built into it that I think are welcome and worth noting, but the challenge, therefore, is around how regulations would be made and the extent to which Parliament would be enabled to challenge assertions of proportionality and necessity of the individual regulations. That, as you know, gets us into the territory of affirmative or made affirmative lawmaking and so on, which may arise later. I think that that is an important consideration here. Certainly, questions of proportionality in responding to public health emergencies will have an element of judgment to them. They are not an exact science, as you know. That is why I think that those matters of process combined with the safeguards built into this permanent edifus within the bill are particularly important to dig into at some point. Thank you. I might come back to you on the issue of process, but can I ask the others on the panel for a view? Professor Hunter? I think that one of the issues that has come out very strongly during the Covid pandemic is clearly sides what is proportionality or not. One of the main issues in my view is that we have very different groups of individuals and individual scientists, not all of whom have actually got any prior experience with infectious disease, it must be said, but have very strong views one way or the other. To a certain extent, some of them could be accused of maintaining those views despite the evidence, not because of the evidence. Ultimately, who makes the decision? Is it the minister who generally won't be somebody who will have a public health background and won't have any infectious disease background? How is that person going to be advised? How are you going to come to a decision about what is proportional, often in a setting where there is considerable uncertainty, as we saw in 2020 about the uncertainty of the future of Covid? One of the things that you said about requiring people to undergo medical treatment, by understanding, was that the draft bill specifically excludes that, and I think that that is appropriate. We have a long history in the UK of having powers to remove patients to hospital if they pose a threat to others, and that already exists certainly in English legislation, and I believe also in Scottish legislation. It is relatively rarely implemented, but I think that we do need to make sure that those sorts of restrictions are only brought in at a very last resort over. Nothing much to add except to say that, in looking at the experience of emergency legislation during Covid around the world, the key issue has been the extent to which the emergency legislation allowed real oversight and scrutiny of the provision by the legislature, and too often it didn't. In a situation in which the knowledge and understanding of what is required is changing over time, it has often been felt to be even more important to build into the legislation the opportunity to really understand and review the provisions on a regular basis. I understand that Professor De Laundras wants to come back in. If I could just add two things, just to note, the bill does include a power to require someone to submit to medical examination, but that is at the highest threshold of being able to be triggered. Not only does there have to be a public health emergency, but the measure and question must be made in response to a serious and imminent threat to public health, and then it must also be proportionate. It has multiple levels of safeguards, reflecting its more invasive nature, its special restriction or requirement, and I think that that is important to note. Secondly, on proportionality, I think that one thing that the Scottish Parliament is very well aware of and extremely good at doing is to dig down into the distinctions between the idea of something being proportionate from a scientific perspective and where proportionality is understood as a test of public law and human rights law. Of course, those questions of whether a measure is rationally connected to the outcome and the likelihood of its success in achieving that outcome are issues on which a minister would need to be advised by scientists, but the ultimate question of balancing, that fundamental proportionality question, is not answerable by scientific method, as you know. It is a matter of judgment weighing all the different costs, including human rights costs up against the likelihood of success and whether the measure is the least intrusive available measure. Thank you and good morning. I noted the analysis or analogy of the military planning for previous wars rather than future wars. Is there evidence that there is a real need for this bill? Covid has exposed many things. In Scotland, for example, health and social care, social care sits in chaos and the Government has not been seen to act on that, but suddenly it comes forward and says, we need this legislation. What would you take beyond that? Has Covid exposed Governments inability to respond quickly? Is there a need for this legislation or is it as many people are putting out a desperate power grab in order to shift the agenda from the major weaknesses in public services? Professor Hunter would like to come in. Sorry, that R was relating to a previous question. To a certain extent, the issue certainly in the English setting was not so much about lack of legislation, but more about preparedness and letting our preparedness slip in recent years. In 2019, the Gates Foundation wrapped the UK as being the second best country in the world in terms of preparedness for pandemics. When it came to it, we were not. We were not because we had not maintained the preparedness, we had not maintained the stocks of PPE that we should have done. To a large extent, the legislation that we had in place would have been adequate, in my view, but what had failed was our reduced preparedness because we had not maintained stocks, we had not acted on the findings of the Cygnus exercise and we had not used the coronavirus pandemic plan, we used the influenza pandemic plan in the UK, despite the fact that we had a coronavirus plan written up and available. In your view, do you believe that the legislation has looked at it will lead to the Government being better prepared, or is it not so much legislation but getting the work done and ensuring that things like PPE are in place? You do not need to legislate for that, I would have thought. From a public health perspective, I cannot always speak for Scotland, although I know that some aspects of the Scottish legislation have worked with colleagues in Scotland for many years. To a large extent, what failed in the first months of the pandemic was not a failure of legislation, it was a failure of preparedness that we were already obliged to have undertaken. On the other members of the panel, the actual need for the legislation— Yes, I will come in on that, Mr Rowley. One thing to note, and just to build on what Professor Hunter said, is that what schedule 19 of the coronavirus act effectively does, which is what this part of the bill builds on, is to level up public health powers in Scotland compared to the public health act that the Westminster Government had available to it. Similarly, other schedules do the same, as you know for Northern Ireland and Wales. As a general matter, if one considers that powers of this kind are necessary and useful, should there be a public health emergency, my understanding is that some kind of legislative provision is required, because the coronavirus act schedule 19 will expire, as you know. The second part of my response is to say that one of the benefits that this Parliament now has is that it can make a set of legislation looking forward to potential future public health emergencies outside of the context of a public health emergency. In other words, without the pressures of urgency and time and exigency that are experienced by parliaments when they have an emergency right before them, of course, that was the context in which the coronavirus act itself was passed. One question that the committee might want to consider is whether it is appropriate to take schedule 19 as the kind of blueprint for this part of the bill, given that it was introduced in an emergency setting, albeit that it mirrors powers from the public health act in England that themselves are very long-standing. I cannot speak to the political dimension to which you invite us to respond, but I will just say that there will be multiple strands of preparation for any kind of emergency or exigency. Some are resource-related, some are planning-related, some are logistical, but some are legal. This is about getting ready to have a legal framework available should it be needed or not. Activities are divisible in that way. The fact that the Government does this does not necessarily mean that they are not involved in doing other things or ought not to be. Thank you very much. Can I bring in Jim Fairlie, please? You have already given us a huge amount to think about. I am just trying to go back to something that Mr Lohriff said. The bit when you are talking about forcing people to have a medical intervention, can you clarify what that actually means, please? Fiona? I am looking here, if I understood correctly what we were referring to. At proposed section 86E of the Bill of Special Restrictions and Requirements, which includes, if you look at 21A, for example, submission to medical examination, or 21E to be disinfected or decontaminated, or sub-sub-H have their health monitored and the results are reported, there are some things, of course, that cannot be required, as you know, under the Bill, but those are special restrictions and requirements that are possible but subject to a higher level of threshold for triggering that power. That is contained in proposed 86C2 that they are made in response to a serious and imminent threat to public health. For a layman like myself, that would immediately spring to mind for me. If somebody came into the country who had, for instance, Ebola, they could be required to take medical intervention in order to protect the public, is that what that means? Within what is contained here in this provision, to submit to examination, to be removed to hospital, to be kept in quarantine and so on. It is expressly excluded in proposed 86D, is vaccination or prophylactic treatment, that can never be required through a power under this act. The fears of the people who would be opposed to this couldn't say that this act would allow the Government to force you to get a vaccination, but if you come into the country with an infectious disease that we don't have a control for, the Government could take action there. Is that a fair assessment of what you are saying? I think that that is a fair assessment of the content of these provisions, but it is subject to that caveat that there are numerous safeguards built into it that are significant. The second point that I just want to pick up, but I'm sorry, I'm jumping about a bit here. I've written spider scribble notes all over the place here. Am I right in thinking of what you're saying is that the preparedness that we had in terms of what the Gates Foundation said in 2019 was UK-wide and therefore it was more what Westminster was prepared to do, but Scotland didn't have that same legalistic preparedness and that brings us in line with Westminster, is that correct? So I don't think that it was referred to by the Gates Foundation, I'm not familiar with that report, but to say that the part of the coronavirus act 2020 passed by Westminster that gave Scottish ministers powers to make public health orders with which you are familiar is schedule 19. The idea of that was to ensure that the Scottish Government and in other schedules, the Northern Irish and Welsh Governments had equivalent powers to make these regulations to those enjoyed by the Government in Whitehall and what this bill in my reading does is it puts those powers on a permanent footing because the coronavirus act in totality is temporary and it will expire. Okay, that raises another question that I hadn't thought about. If the coronavirus act falls would that then remove all of the Scottish Parliament's ability to make provision in case of another outbreak of an infectious disease? I'm not an expert in Scottish Public Health law but my understanding is that the Public Health etc Scotland act of I think 2008 does not at this time include these kinds of powers and that the idea of this bill is to insert them in that act without if this isn't passed then the Scottish Parliament if it wished the Government to have similar powers would need to pass another piece of legislation. Okay thank you so I'm sorry I'm just trying to gather my thoughts here. When Alec was talking about preparedness absolutely we were caught short with PPE and all the rest of it but does this act allow that level of preparedness to be put in place at a time when we are not in an emergency? Is that a level of preparedness that we should have on the statute in order to be ready if something else does come along? So I think there's a danger of conflating multiple things so things like ensuring you have sufficient stocks of PPE or other forms of medication you know almost certainly don't require legislation so the kind of preparation that this bill in part one seeks to do seek to put in place is to say that there is a legal structure there that we can use to introduce restrictions in essence that we consider are proportionate and necessary if we are in a situation of a public health emergency. Other things like resourcing workforce management and so on may be dealt with elsewhere in the bill and I apologise that I did focus on part one but in any case are unlikely to require to my knowledge significant legislative preparation they're probably more about resource management but I could be corrected on that. No no I absolutely take on board what you're saying I'm just going back to the the statement that you made there that you need multiple strands to me this is just another strand that we in this Parliament need to have in preparedness by all means we can go back to preparedness in the physical sense in the healthcare sense in the hospital sense we can do all of those things separately but this is just an illegitimate a legislative sense we are preparing ourselves in case of another emergency for the future that we have the legislative competence to deal with it in this Parliament. Is that a fair assessment? Yeah okay thank you. Thank you Ms Felly can I move on to Brian Wittle please. You know good morning to the panel I'm interested around the the potential impact of the legislation and I'm kind of drawing the looking back over the way in which the legislation was initially introduced into Parliament so two years ago and the way in which we responded to coronavirus over that period and it was over an extended period of time it didn't happen to us suddenly. We watched coronavirus move across the world from China across Europe and into the UK and into Scotland and I'm wondering what difference it would have made to the way in which we responded to coronavirus had this legislation actually existed in the first place because you know we actually legislated particularly quickly once the decision was made or Parliament legislated very quickly and I don't I'm struggling to understand what difference it would have made had this legislation existed in the first place I think if I could I would I would ask Professor Hunter please in the first instance. Yeah I mean I think the first thing to say is that a lot of these restrictions generically we call non-found suitable intervention they're anything from getting people to wear masks, social distancing, isolating patients, border controls all these things fall within the sphere of NPIs and I think we've known for centuries really that NPIs never ultimately stop the spread of infectious disease what they do is delay infections and the spread and so when you look and you can see this classically in in in New Zealand where at the moment New Zealand has got a higher incidence rate than the UK has I think has ever had at the moment or is certainly heading that way and and so ultimately all these things fail but the thing though about them is if you delay you can delay long enough that you can develop prepare for it you can develop treatments you can develop vaccines and that's what's happened and that's why although the UK has had a dreadful mortality rate because of Covid it could have been a lot worse so ultimately they fail I think the early on certainly in the English setting we managed it pretty well in terms of identifying those cases that came into the country and caring for them in secure hospital isolation clearly once you've got more than a certain number of infections though that sort of control fails and breaks down and we went into the setting that we had but yeah I think the the value is not so much in stopping the pandemic because ultimately that's going to happen anyway it's delaying it to the point that you can actually reduce the disease burden reduce mortality reduce the pressure on the health services I think the question is Professor Hunter is what difference would let would having this legislation have made to the impact and the decisions that were made during that period of time? Well it would not have ultimately stopped the pandemic in the UK I think one of the difficulties that we've had in the UK is that the four different nations have been doing quite different things and ultimately you know the in that sort of context the the bread in one country one of the four developed nations has always going to be the impact on the other nations whatever anybody does and that's not just a UK criticism that's the same thing happened in Germany the same thing happened across Europe as a whole and so I think that if any legislation needs to be around actually trying to do the right thing across the UK and not just in one country compared to another because ultimately restrictions in one country aren't going to ultimately have much of an impact and I think certainly some of these restrictions in place could well have delayed the peak the initial peaks of infections so that giving people more time to prepare health services more time to towards getting better treatments but ultimately the pandemic would have it has any way I could move on to to Professor Darlondas if I could but just like layering on top of that would it not be if we have now now that we understand the legislation that's required during a pandemic would it not be more appropriate for that legislation to lie dormant with potential to be resurrected by Parliament very quickly as we've done in the past it should such a pandemic come along Professor Darlondas I'm just waiting again we can distinguish between two different sets of legal measures right that take that are needed here the first of all you need legislation that empowers the government to make restrictions this is this kind of legislation and then you need the restrictions or the regulations in order to try to address the public health emergency as it exists at a particular time and that's what you would introduce under these so in some ways you could argue that yes the entire act or this part of the act could be dormant and be debated now and then promulgated or commenced if there is a public health emergency that would be one way of doing it it's not clear that it adds a huge amount in terms of process or rigor right to do that with the broad enabling legislative framework what is interesting to think about is whether or not it would be possible to look at the types of restrictions that may be required and to try to model out for example different levels of restriction you know lockdowns partial lockdowns public health restrictions education restrictions and so on and to have almost a kind of a set of templates or potential drafts for different levels of regulation that could be introduced which the parliament could debate and scrutinise and might then be triggered by the ministerial using the ministerial power in the framework legislation in the case of any kind of public health emergency so you have these two kind of models one put it all on ice you have an example like the enhanced TPM act in Westminster it's been on ice since 2011 ready to be used or commenced if needed or you can introduce the legislation but try to predict different levels of regulation that might be introduced you'd have to leave the space for flexibility you know for responsiveness to the realities of a pandemic as they existed on the ground but you could have a general sense that schools or public institutions could plan for you know to know that you have three levels let's say full lockdown partial lockdown no lockdown whatever in different institutions and they could plan around that so that is an option it doesn't seem to have been foreseen or considered as an alternative approach based on the policy memorandum but even if you passed this bill you could still think about maybe developing a set of potential regulations or tiers or approaches that would be available as the kind of blueprint or starting point in the event of an emergency in the future. Thank you if I bring in Anthony Smith here just for my final point I think one of the concerns here is that the impact of Covid restrictions on non-covid health issues are still being collated and I wonder what your thoughts are on the impact of bringing legislation like this in before we can take that judgment. I think that the words you know require the Scottish ministers bringing in restrictions require a proportionate proportionate. I would suggest that it's subjective and in doing so there's no need to seek any advice and as an example this idea of being submitted to some medical interventions whether it may be a higher threshold is still subjective and these decisions can be made by Scottish ministers I wonder if you would comment on that Mr Smith. Thank you I think my expertise that I can bring on this is not so much on that specific issue but about the general point that there has to be a political judgment about the balance in public health measures but when those judgments are being taken in the midst of an emergency it is far more likely that there will be some great risk of overreach and an inability of the public debate to be properly heard and that's what we saw during the pandemic in a range of countries around the world that measures were brought in without proper consideration so I think the only comments I could make about this particular process is that there is a potential benefit of being able to have that today properly in a non-emergency at that time to really consider what we learned from the differences both in Scotland and other countries about the type of measures that were appropriate and that impact on rights of individuals under their public policy priority. Thanks so much convener. Maybe if I can stick with Mr Smith on the issue of kind of scrutiny I mean I'm still trying really trying to get my head around what should be in primary legislation and what should be in secondary legislation so I mean would it be your argument that it's easier and generally scrutiny of primary education at primary legislation is better than of secondary legislation? I don't think that's necessarily our experience that that problems in primary legislation tend to include the possibility of close legislative scrutiny more frequently and but it is more likely that secondary legislation would be less subject to post legislative scrutiny which can go back and test whether or not the provisions are being implemented properly whether they achieve the objectives that they have but the secondary legislation there's a greater risk that it's not reviewed as as effectively and as deeply but that can also happen with primary legislation. You need to make sure that you put the right provisions in that are clear that set up five scales for that review and that enable review to be done clearly. But the very fact that we're spending longer on this piece of legislation as primary legislation and I mean your paper on a post legislative scrutiny is very critical of parliaments generally and we are one of them that are guilty of not going back and looking at legislation enough and also the whole point around made affirmative that things were being rushed in so I mean it seems to me you're going to get better legislation are you not if you've spent more time over it you've thought about it and then you give it a proper review whereas anything that's rushed in at the last minute is inevitably you know going to be weaker. Okay I don't know if I have the other two want to comment on these kind of points is primary legislation you know more solid is it more dependable than secondary legislation? Professor DeLondris right? Yes so I think in a way it goes back to the preliminary comment you made Mr Mason about what goes into primary and what goes into secondary legislation right so as certainly primary legislation made in a non-emergency context and subject to a robust legislative procedure such as this one will have a higher level of scrutiny than for example a regulation made using the made affirmative procedure but the point is that there needs to be a balance so the primary legislation provides the framework through which the secondary legislation as you know can be made and you know the thing is that you have to leave some space in secondary legislation for things that you couldn't foresee at the time of primary legislation because the secondary legislation has to respond to the concrete realities of a particular situation that cannot be foreseen in an abstract situation like this so the question becomes then what can you do in the primary legislation to try to ensure an appropriate level of scrutiny of the secondary legislation you know going forward and here I think you know there are a couple of things in this bill that maybe you might want to explore further on this so for example the default position onto the bill is that regulations would be made using the affirmative procedure but the usual capacity to use the made affirmative procedure in a situation where a Scottish minister considers its urgently required remains now we know that over the pandemic the made affirmative procedure has been used with unprecedented frequency in Scotland and often or not often but at least sometimes in situations where it's not at all clear that there is an urgent need like that no other mode of making the secondary legislation was possible more scrutiny heavy mode of making it so the question is is there anything you can do there to up that threshold of urgency like for example requiring a ministerial statement to explain why they consider it is urgently required rather than something that could be done using the affirmative procedure we also have a very welcome provision in the bill that all power sorry regulations introduced would be reviewed and I think that is very welcome that's proposed section 86 g and they should be reviewed every three weeks but the bill doesn't actually say you know what should happen to the review does it need to be published does the parliamentary committee have to consider it the review is supposed to inform whether it would be continued right so if it's simply a ministerial review that is not actually scrutinised by parliament is it useful in terms of ensuring there is robustness and rigor throughout the process and the last point I'll make just to flag it in case we get through this without mentioning it is that the proposed section 86 fd that would go into the public health act would allow a Scottish minister to make a regulation under these powers that could modify any enactment including this act that's an extremely wide Henry the eighth power they're known as I cannot see where it came from it doesn't seem to be in the equivalent provisions of schedule 19 of the coronavirus act and while it's mentioned in the explanatory notes it's not explained and of course that's a hugely can you imagine a power like that being used with the main affirmative procedure that would be extremely concerning I think that's something perhaps to press in terms of figuring out how the scrutiny through the primary legislation could be enhanced for the justified and necessary use of secondary legislation in the future sorry that was very long okay no that was helpful I think when you refer to 86 if I'm not mistaken that's in the 2008 act which is now being amended in this bill and I suppose you know use the word balance which is exactly a word that was in my mind you know from what you know of the 2008 act did it get the balance wrong was there not enough in it I'm sorry to say that I don't know I don't I'm not familiar with as sufficiently familiar with that act to give a view on it sorry no that's okay I mean we've not heard from Professor Hunter yes did you want to say anything in this point yeah I'll just say I mean I think looking at some of the I think there's a difference in terminology in terms of what we classed as a medical intervention 86 E don't think any there's a difference between getting people to have antibiotic treatment for say multi drug resistant tuberculosis than getting and and certainly that is excluded from the act and I think that's right and I don't think we can even we can do that in the UK but a lot of the requirements under 86 E are things that actually in in England are already we can do and it's very rare to to use these powers but for example in in my own career I've seen people with multi drug resistant tuberculosis be required to be relocated in in healthcare establishment because of the risk that they pose to spreading a very difficult very serious disease to people in the local posts and that sort of thing so a lot of what is in there is stuff is things that we already have available and I think some of these issues as well I mean if you've got a Ebola patient coming into the UK into into Scotland flying into Glasgow and then they have clearly got Ebola but they don't want to stay in hospital what what are the powers in Scotland at the moment regarding that because if you release them that could be and so it seems to me that some of these if they're not available to you you know there is an argument to have that those powers available so I mean if I can just push you finally on that one point to finish I mean if some powers are specific for Ebola and some powers are specific for TB should we not leave them till the situation arises and have them in the secondary legislation then well I think that with Ebola you know why do you need legislation until you get cases and the issue about Ebola if you've got a patient right into Glasgow and then wants to self discharge from hospital that's not going to give time for secondary legislation to be enacted is it if that power doesn't if maintaining them in hospital isn't already a power that you have in Scotland and I don't know you know I'm listening to the other pages talking that may not be a power that you actually haven't known but if it isn't then you do need to have some thought about how you could actually deal with that situation okay thanks that's very helpful thanks thank you very much we've got just a couple more minutes can I bring in Murdo Fraser please thank you thank you very much community I wonder if I could go back to Professor DeLondris and just explore a little bit further an issue that we touched on earlier which is this question of the use of the made affirmative procedure which is covered quite in detail in the written evidence you've given and you're clearly quite critical of the use or the overuse of made affirmative procedure from a practical point of view if you were going to amend the bill in front of us in order to reduce the reliance of made affirmative procedure how could you do that to achieve the objective that clearly you want to achieve that's a very good question I mean I think there are two pathways one is to change the threshold by which the made affirmative procedure can be used which at present is the Scottish minister's determination of urgency it strikes me as not necessarily very desirable to change that because of course the map is designed to enable lawmaking in a situation of urgency so let's say you leave the threshold then it becomes about the procedure and I guess although it is in some ways will appear rather weak or proceduralised the thing to do would be to require justification of the claim of urgency either through a statement ministerial statement or perhaps otherwise you have to find the right balance so you cannot over proceduralise or over bureaucratise this because of course it is about being able to respond quickly but at least to say that a statement justifying why this must be done using the map at to parliament that can be challenged you know would be useful you'd have seen in our evidence that the SSIs that have been made using this procedure have largely not been subjected to debate in the house they've been voted through in the chamber I should say but where they have been it's been in response to like a disagreement or or somebody expressing concern the point would be to try to create situations where if there is concern there's a prompt to express it that would then lead to a question of justification and through that to try to ensure that self-restraint is used by the executive in terms of availing of the made affirmative procedure thank you that's very helpful thank you thank you very much I thank the witnesses for their evidence and giving us their time this morning if witnesses would like to raise any further evidence with the committee they can do so in writing and the clerks will be happy to liaise with you about how to do that I will now briefly suspend the meeting to allow a change over witnesses thank you good morning we will now continue to take evidence on the corona virus recovery and reform Scotland bill the focus on this second evidence session will be on bankruptcy measures contained in part three of the bill I would like to welcome to our second panel to the meeting is Abbie Fleming from policy and communications lead from money advice Scotland Jamie McNeill money matters advice service and social work resources at South Lanarkshire council emerata professor donna w mackenzie scheme school of law at university of Aberdeen and david minas director of practice institute of chartered accountants of scotland warm welcome and thank you for giving us your time this morning each member will have approximately eight minutes to speak on to this panel and ask their questions if you'd like to respond to an issue being discussed please type r in the chat box and we will try and bring you in I must apologise in advance therefore if time runs on too much I may have to interrupt members or witnesses in the interests of brevity as all our witnesses are remote this morning can I just ask yourselves to introduce yourself to our members can we start with abbie Fleming please hi good morning I'm abbie Fleming and I'm policy and communications lead at money advice Scotland and money advice Scotland is a membership organisation and we work to support money advisors secure fair public policy for people in debt and improve financial wellbeing in Scotland thank you for having me along this morning thank you abbie can I bring in Jamie McNeill morning convenient members of the committee thank you for having me my name is Jamie McNeill I work for south Lanarkshire council I work as both a money advice manager and both as a money advisor I'm hoping today was it if if I can was it to describe me sort of practical challenges that as a money advisor and as a money advice manager was it we're currently having at the moment thank you for having me thank you very much Jamie and can I bring in emerita professor donna w mckenzie scheme I think we've got a single problem thank you for having me along to the committee I have recently been early retired can you hear me now yes I can yes we can I'm sorry I think we're having a few problems with yourself we'll just move on to David Mingus please good morning Camila and good morning to the committee members I'm David Mingus the director of practice with ICAS the institute chart accounts of Scotland we authorise and regulate many of the IPs that work in Scotland in the area of bankruptcy and prior to my present role I work as a licensed insolvency practitioner for almost 20 years or so so have lots of practical experience of the issues that are under discussion today thank you for having me thank you very much I think we still have technical issues with emerita professor donna w mckenzie scheme I just going to bring you in just to see if we've resolved those issues yes I think hopefully I'm on audio only now and that will work I have recently taken early retirement from the University of Aberdeen having researched and published in the area of insolvency law particularly personal insolvency law for the past 30 years but I remain active in research and some delighted to make a contribution to the committee today brilliant thank you very much and a warm welcome if we could just move to questions and if I may begin the first one I'm going to ask the panel about is the proposed bankruptcy threshold so the emergency coronavirus legislation increased the debt threshold in which the creditor can make someone bankrupt from 3000 to 10 000 during the pandemic now this bill proposes to set it permanently at 5000 pounds I would just like the the panel's view on the amount of the bankruptcy threshold if I may could I start with abby phlemming thanks convener and I think the first point I'd like to make is that although this is a piece of legislation on Covid recovery I think it's really important to address it in the context of yes we're coming out of a pandemic we're coming out of a pandemic into a cost of living crisis and I don't think that I don't think the legislation can be taken without considering that fact we at money by Scotland do agree that there is a need for a permanent increase from 3000 pounds however we are unsure if five in the context of the long lasting effects of Covid and the likely long lasting cost of living crisis will be sufficient so we don't have the view that 5000 pounds may be too low at this point Scottish Government has indicated plans to extend the current 10 000 pounds level and we believe that this is the correct approach however as this will only be a temporary measure and the cost of living crisis is likely to endure for some time we aren't convinced that 5000 pounds will be sufficient after that and maybe six or seven thousand pounds might be albeit to offer better protection for people in debt and debt not only incurred by the pandemic but debt that will be incurred or exacerbated by the current cost of living emergency. What we're worried about is that 5000 pounds may put people at significant risk of bankruptcy who due to the pandemic and current situation no longer have or don't have this disposable income to access other debt solutions such as the debt arrangement scheme or a trusted aid and we worry about what might happen to people's assets that they might have wanted to protect by going into something like a DAS and so that would be our main point to raise at this moment. Thank you. Thank you Abbie. I think you raised some very valid points there with the increase of concern. Can we bring in Jamie McNeill, please? Thank you, convener. Myself and my colleagues do believe that 5000 is too low. I'm sure everybody here would agree that bankruptcies are the ultimate sanction and therefore should have a proportionate value. If somebody, for instance, had their car repossessed, potentially they could lose their property as a result if they were made bankrupt. With the high cost of living increasing, especially over the last couple of months, we do believe that a lot of people are going to be put under severe pressure. Even if you're not willing to—even the extension of six months would be good, but we think that permanently it was at £10,000 because it should be the limit and that way a lot of people would feel safer when taking out credit because it works both ways, otherwise it was potentially somebody taking out a loan for £5,000 is unknowingly for potentially putting their house at risk with it in the future. Thanks, that's all I've got to say about that. As the committee will be aware, there has been an on-going review of bankruptcy solutions and I have been chairing working group 3. The current figure, which is in the bill, corresponds with the figure in which working groups are recommended. Now, those recommendations were finalised at the end of last year, but I'm full of thinking. Sorry, we are still having technical issues with your audio. Do you think that there is a question of battle at this point? I'm sorry. I'm going to have to come back to you because you are cutting out because of those technical issues. Apologies for that. If I can bring in David Mingers, please. On the text of the situation, it really isn't just about coming out of coronavirus. In actual fact, it's not just about the cost of living crisis that's going to come about. That's obviously a figure that's going into primary legislation, and, therefore, hopefully, that should go much longer than any of those relatively short-term crises. However, what that is really about is balancing the rights of creditors together with the rights of debtors. That's purely about whether creditors are able to take steps to declare someone bankrupt. It's really important to put it in the overall context, which is that of bankruptcies, roughly about 96 to 98 per cent of bankruptcies each year are debtor-led. The debtor is taking that step. Only in approximately 2 to 4 per cent of overall bankruptcies are creditors taking those initial steps. The number of bankruptcies that that affects is very low in overall terms. We're talking probably about, in normal times, somewhere around 1,000 to 1,200 bankruptcies per year are creditor-led petitions. The vast majority of those are made by local authorities on the back of council tax debt and on HMRC. A lot of the decisions around that come back to local authority and government policy on debt recovery. That has a significant bearing on who is petitioned for bankruptcy. It's important to mention that a lot of consumer debt, which is what most individual bankruptcies are relating to, comes from the debt that are in those bankruptcies that come from financial services—banks, credit cards, HPE, etc. Those are all regulated by the Financial Conduct Authority and the FCA guidance, which requires those entities to treat customers fairly and not take those ultimate steps of bankruptcy unless they have already worked through all the other provisions that there can be to get the debt sorted out in the first place. Bankruptcy is never without ultimate warming. Debtors will be aware of the issues, the debt lying beforehand, so they have the opportunity to deal with them in advance. We believe that, in overall terms, the increase from 3,000 to 5,000 is a fair balance. We are concerned that there is perhaps not enough thought to be given at this particular stage in terms of unintended consequences that there might be and the knock-on effect, for instance, into protected trust deeds. Will the increase of £5,000 debt force more people into trust deeds rather than bankruptcy or vice versa? Those are just the unintended consequences. Satisfied, I guess, that reducing it from 10,000 to 5,000 mitigates some of the risk of those unintended consequences. Therefore, in overall terms, the increase to 5,000 is a fair balance to be struck in overall terms. Very interesting. I was not aware of the Government and local authorities and the amount of bankruptcies that were initiated by them. I would like to raise a slightly different issue, which is the question of electronic notification of bankruptcy documents. I note the bill as proposing to make permanent the temporary provisions that were in the coronavirus legislation to allow electronic notification rather than service in hard copy. I am interested to know from the panel whether you have any concerns about that being made permanent and whether there are any practical implications to that. I just speak from personal experience. Like many of my MSP colleagues, we probably receive hundreds of electronic communications every day. It is not infrequently that people will say to you that we sent you an email that we did not receive, either because it has gone into spam or because it has been quarantined or because it has disappeared into the ether. How reliable is the system of electronic notification and are there enough safeguards in the bill to protect people from that? Maybe I could start with Abbie Fleming. Thank you very much. Despite our name as Money Advice Scotland, we ourselves do not deliver money advice, so I do not have all the evidence to comment on the effect on clients rather than making a general point about the importance of taking account of digital exclusion. A lot of people who are presenting money advice may not be the most digitally literate and may not have the best access to digital, so that is something that, as a wider point, needs to be taking account of. Unfortunately, I cannot provide figures or anything like that at the moment. It is important that, in the bill, it seems to build in a safeguard in the sense that the recipient must have indicated to the sender that they are willing to receive those documents and notifications in a particular way. Therefore, I think that there should go some way to mitigate against documents being sent electronically when that is not appropriate for the client. However, if there is a wide volume of electronic documents being sent, it is important to make sure that that is not overlooked. That is why I do not have any massive concerns about the provision being made for permanent, but I do not deal directly with clients. Yes, we would have concerns. What tends to happen is that, when somebody goes into debt, they eventually start disconnecting things. Your internet will go first and your telephone will go next, just to keep your gas and trustee on. Although the person may have made the application via online and ticked the box to say, yes, online is great because, in those circumstances, that is where they were at that point, at the point of where they are in debt and potentially at a bankruptcy stage, the most likelihood is that they probably will not have that service available and are more likely to miss it. Obviously, the consequences of bankruptcy are too great for somebody not to have that notification. We believe that a personal visit by a sheriff's officer or recorded delivery is still the most effective way of communicating a potential bankruptcy or notification of a bankruptcy to somebody. I think that there are lots of different points of delivery in lots of different situations throughout the course of a bankruptcy, pre, during and post, where communication is made. It is important to offer some distinction between some of those. I absolutely take the point from Jamie Greene in terms of the pre-bankruptcy situation or such like where there can be the difficulties of communications being cut off, etc. I think that that is a completely different situation from once you are in bankruptcy and once you are in that bankruptcy in terms of communicating with the individual who is subject to the bankruptcy and to their creditors. There needs to be some real distinctions made in many of those cases. In terms of communication with creditors from the trustee to the creditors, I reflect on my previous comments that many of the main creditors involved in consumer bankruptcies are large institutions such as banks, credit cards, local authorities, etc. They very much prefer electronic communication and I think that they have robust systems in place. We have had many years of experience through the other personal insolvency regimes where electronic communication is being used and there are certainly no indications that there are issues with those in those cases. Similarly, we have moved in corporate insolvency very much to electronic communication that was introduced in England and Wales in 2016 and in Scotland from 2018. Again, there is no evidence to suggest that there have been substantial problems with that in those cases. I think that there are many advantages. I absolutely take your point about you have experienced situations where you are told emails have been sent and they have not been received. I think that we can also equally reflect on that and say that I have certainly had lots of situations where I am led to believe that a letter has been posted to me and it has never been received either. Electronic communication and old-style communication are always risks that things are not received either from the infrastructure or for various other reasons. However, in broad terms, electronic communication is the way things are going. It is absolutely the way that Government wants to go in terms of a digital first policy. From the evidence that we are seeing from the temporary measures and equivalent provisions in corporate insolvency, we are not experiencing many difficulties at any stages, either from the creditors, from the trustees or from those that are affected by insolvency themselves. Okay, thank you, Mr Minis. Professor Mackenzie-Skeen, get your view on this, please. I think that if we continue to have technical issues with Professor... Yeah, I am sorry, I hadn't been unmuted. I'm not aware of particular practical difficulties which have arisen. I'd very much support everything that David said in relation to the electronic communications issues. I think that things occasionally do go missing, whether it's electronic or... Sorry, you have cut out again. Sorry, Professor Skeen. I think that if we continue to have these technical issues, what we can do is we can send the questions raised from the committee today and I know that you can respond in writing, but apologies for these technical issues. Okay, can I move on to Alex Rowley? Thank you, convener. I think that it was David Minis that said that I talked about normal times and I found myself thinking what is normal times. But strikes me, we had the global economic collapse in 2008. We then had austerity, which had a major impact on public services and I have a general question that I would like to ask, and it is about the on-going support that is available for members of the public trying to access money advice, debt services, etc. Have we seen a rise, certainly so a rise in demand, but have we seen a rise in the numbers of services available? I certainly know that, in my case, in Fife, the local authority made big cuts in those areas, so maybe I could start with Jamie and ask around the provision and the pressure so that people are getting the support and services that they need. Thank you, Alex. Like every agency across the country, there was a big change. We were predominantly a face-to-face organisation. People used to walk in, see us, make appointments and see us, and then all one day it just changed. Like everybody, we had to change the way we delivered the service, but now we have to communicate mainly by telephone, which has its own practical challenges. A lot of stuff is now done by post, sometimes email if the client is able to. We have provided the service throughout the pandemic. We have adapted it as best we can. We are continuing to adapt as we come out of the pandemic. We are putting in plans and trying to catch the people that we have missed. A lot of people are almost sure that we have not seen it. The increase in demand for service has just continued. Even since October, we have increased about 30 per cent. It has been huge. Was it a lot of money visors just now? And clients? Was it wellbeing? Obviously, some issue that, as a manager, we are having to look at because of the fact that each client you see, you take on a little bit of their stress. The clients were saying just now that we would call them complex cases. The reason why we call them complex cases is because it is not normal consumer debts that we have seen in 2008 where people overspent or they are irresponsible lending. Now we are seeing that people cannot afford to heat their home, they cannot afford to pay their rent, they cannot afford to heat themselves. Food bank referrals are up, fuel voucher referrals are up, it is just the normal cost of living. The demand that we are seeing on service, a lot of people are coming to us because there is no quick easy fix. It is not just a case of, okay, you go bankrupt because you go bankrupt because it is for rent, council tax, gas and electricity arrears. That does not help. Was it that subbandied on it next year? You are in the same problem again. What requires, from the money advice point of view, is to look at budgeting, look at anything else and maximising income. Again, it is delayed because of the fact that if somebody has a disability and acclaiming disability benefits, the DWP has a bit of a backlog with assessment periods, which means that people are taking longer to be awarded disability benefits. Where we would normally maximise somebody's income and it would be happening relatively soon, nowadays everything is taking so much longer. As a resource, we find that we are managing the best we can, but it is under a lot of pressure just now. We can only see it increasing as we say, month by month. Has it since October especially? The increase has been really dramatic. I hope that that answers your question. The same question, but is there adequate provision out there to support the level of demand for those types of services? Funding for the advice sector, the free advice sector, has been a long-standing issue well before Covid. That is something that we have raised time again before the pandemic happened. As was already mentioned, advice services have been cut over the years, so that has happened before Covid. Obviously, that has a knock-on effect now when demand has increased. As Jamie Greene said, advice agencies are trying to meet the needs of their clients as best they can with what provision they have. However, as Jamie mentioned, it is not just that there are more cases, but that there are more cases in those cases that are complex. Advisors are reporting to us that it is getting harder to know what to advise clients to do because they are presenting with these complex debts. As Jamie mentioned, it is things like, I cannot keep my home, I am struggling to afford my central outgoins and they just do not have the income or the finances to meet their outgoins. That makes it very difficult for advisers and makes it much more complex. We conducted some research that was published in 2020, just as the pandemic began. It was done in the context of so-called normal times. That research found that people will endure significant hardship before they eventually reach a money adviser. For example, it was not until someone received a letter without a court summons or a sheriff officer that they would think that this is the point where they need to seek money advice. People would go without a lot of essentials that would endure significant hardship before they would eventually seek money advice. That leads to how complex their situation is by the time they get in front of someone who can help. That extends the process. I am not sure whether that answers your question about provision. Funding is an issue that has been going on before Covid, but how complex cases are that people are presenting with compounds is that there is a limited availability of advice services and they are having to spend more time on each client because of the situation that they are presenting. David, you mentioned earlier about the numbers of bankruptcies that are pursued, for example, by local authorities in terms of council tax debt. Is there something that we need to look at there? There is a feeling that the local authorities will go after individuals, yet the right of millions of pounds every year that is owed to them by co-operates and others Is the approach of the public sector one that is fair or is it just that it is easier to go after the individual for small amounts and it is to go after the co-operates and the companies? That is a really interesting question. However, I am not sure that I have the knowledge to talk about that in much detail. A lot of that is really around public sector financing and how that is done. As I seem to recall, there were some issues around how local authorities treat debt write-offs and the impact that that has on their budgeting and such like. Again, unfortunately, that is not an area that I have a lot of knowledge on. I am not sure that I can answer much more than that at the moment, but I am afraid. Professor Skeen mentioned earlier on that I am not sure whether she is available to speak or not, but there is a working group and there is a review going on of wider bankruptcy legislation. Having been on finance and other committees in the past, I know that that is quite a complex area. I suppose that my main first question is whether we should be touching bankruptcy at all in this bill or whether we should be leaving it aside for the review to come along in due course. Professor Skeen, if you are there, does not look like it. I think that there is certainly some merit in regaining after the situation. Sorry, Professor Skeen. I think that it is important to bear in mind that wider review is going on. We are hearing bits of you, but I am afraid that we are not hearing enough, I do not think. I do not know if any of the other panel members are involved in this process. Mr Mingus? I am also involved in this process and I have been sitting on the working group that has been dealing with the auditorium and common financial tool side of things. In terms of your general question, Mr Mason, whether we should be looking at bankruptcy or not at the moment is a good one, but I think that I caught Donna Sane there that she probably would agree that now is the time to look at it. I would agree with that. I think that there are some very easy fixes in some ways. The temporary measures that we have brought in through the coronavirus emergency legislation, there are some really good things there that have aided the process in the meantime. I think that they are generally uncontroversial in major terms. Where the wider review is looking at is some of the more controversial areas or the more difficult areas or some of the areas that go across multiple areas. That is right to leave those for further stages, but I think that the aspects that are included in the bill are probably ones that can be tackled just now. I think that there is a concern that, if those were kicked further down the road, there would be consequences for individuals and just the way that the process works just now, which are unnecessarily being delayed. Can you give us any indication, if we didn't do it in this bill, how much longer it might be before the review and so on carries on? From my understanding, I think that all the working groups have now drafted their initial reports and that should be with ministers imminently. As far as I understand, I guess that beyond that, that is clearly down to ministers and parliamentary time as to how that can be looked at. It is also important to say that, again, those are still very much short-term measures that can be fixed or that we are looking at. You will be aware that ICAS has called for many years for a much wider review of bankruptcy in overall terms, and that is known as the stage 3 review that ministers have committed to. That will be many years down the line where much of the bigger issues can really be looked at in some detail. That is very helpful. If nobody else is jumping in on that point, I will go on to one other point that I had, which would be on moratorium on diligence. As I understand it, that used to be six weeks and was extended to six months in the emergency, so the question is, do we go back to six weeks? Do we stay at six months? Although the suggestion was that if we stay at six months, some clients might disengage from the process, so I do not particularly mind, but maybe I could start with Mr McNeill on that one. Thank you, John. We had a big discussion yesterday with all our money advisers, and they see it as a very useful tool. We did think from the other side that there was a concern. Was it do people disengage? If they are full six months, you will be absolutely fine, but we never tell people that. What the six months does, it allows people who have found themselves getting into debt, especially nowadays, through no fault of their own. A lot of time, you know, they may have been unfurlo, they may have been off sick, they may have lost their job, they have increased cost in living, and in the world today there is so much uncertainty. When they come to money advice was that they want a little bit of certainty, just a wee bit of breathing space, that is all it is. Six months may seem excessive in some cases, but the average bankruptcy, the average does that we do, probably takes 12 weeks if everything goes to plan. By that I mean that the client can provide all the information that is required because they are statutory solutions. What we would suggest is extending the six months was it until September, which I think is allowable, and then after that point doing a review and potentially maybe looking at the 12 weeks, but I think there is some consultation going on just now about moratoriums, but what we feel at the moment, as we are coming out of pandemic, now is too early. There is so much uncertainty in the world. People are, their mental wellbeing, if you imagine, was after two years of being in the pandemic, and now you look, turn on the news and there is no good news just now, prices are going up, potential war is everywhere. So, in summary, you are saying stick to six months just now and then maybe 12 weeks later on. Ms Fleming, would you go down the same route? Yeah, I would agree with what's been said there. I think six months has given clients a bit of breathing space, as Jamie mentioned. I think what the long-term moratorium period is should be, we need to consider, as Jamie mentioned, how long it takes someone to get through that process because, if they still get through the money advice process in a six-week moratorium period, it's far too short. One of the aims of the moratorium is so that someone has appropriate time to seek advice, so we need to make sure that it's realistic in terms of how long that takes and some of the points that have been raised as to why that is now taking longer need to be considered when deciding what the long-term moratorium period would be. So, at money advice Scotland, we have the view that it should not be any shorter than 12 weeks. I'm also a part of the working group that is looking at moratorium, and I thought it might be useful just to share some of the discussion that's coming out in there in terms of longer-term suggestions from moratoriums and one of the points that we're going to do. A little bit pushed for time, but any quick comment you could make on it, yes? Just the suggestion that it might be useful longer-term for advisers to be able to apply for an extension to that moratorium should extraneous circumstances come up, so that might be something that could be considered. However, that's been, as I said, dealt with in the working group, but just to make you aware. Thank you. Okay, and I think I've used my time, but Mr Meng has wanted back in just very quickly. Yeah, I was just going to say again that this is something that the working group has been looked at. I think that if I'm correctly stating that the build doesn't actually deal with the moratorium at all, there are no provisions within it at this stage, albeit I understand that perhaps the Government is looking to introduce something at stage 2 of the bill is the indication on that. I think that just going back to Abbie's comments just in relation to where the working group is sat on this at the moment, I think that it's fair to say that there was no consensus as to what that period should be. I think that there are wider considerations that need to be taken into account. Some of the discussions that we had was really around creditors, which are typically UK-wide creditors rather than necessarily Scottish creditors. There's the impact of the debt relief scheme down in England and Wales, where the equivalent moratorium breathing space period is 60 days. I think that there was concern that 60 days was perhaps more than the six weeks, but perhaps reflecting back on some of the comments around access to money advice generally, is that still going to be enough? I think that there was a feeling that perhaps 60 days might be a good starting point, but perhaps with the ability for money advisers to apply for an extension to take up to 90 days. I'm sorry, I think that we're going to have to leave it at that, but maybe if there is an amendment, witnesses might like to write in with their comments on that, thanks. Can I move to Brian Whittle, please? Thank you. I'll be brief. My interest really lies around the impact of pre-Covid both business and personal debt. Obviously, it was being managed and the impact of Covid has put an awful lot of strain on that. I know that we're talking about here about potentially having time for a moratorium that allows people to get back on to an even keel, but in the end, bankruptcy is about training insolvent. How do we square that circle in that respect if we're going to allow people a bit more time to get back on to an even keel, but there may be potentially training insolvent during that period of time? I think that that is a really difficult question to deal with. To be clear, the moratorium will not resolve those issues. That is very much around a very short period of time for somebody to access appropriate advice in those circumstances. As both Jamie and Abby have said earlier on, there is a distinction to be made between money advice and debt advice, money advice very much being around how we can look at your future going forward, your income, your expenditure as well as the debt position. I think that there are different solutions that need to be looked at as part of that. That is part of what I referred to earlier on as the stage 3 bankruptcy review, which is that we need to take a much wider and more fundamental view of some of those issues to come up with a solution for the modern working day. The 5K limit aside, which has been discussed and perhaps suggested, is too low. Is there anything within the bill that you should be considered to deal with the issue that I spoke about before that time to try to change the way in which Covid has impacted on debt? I do not believe that Covid itself has impacted on debt significantly. The biggest issue at the moment is the cost of living crisis. That element around many people not having enough income to deal with the expenditure, the rising fuel costs, etc. Those are not debt issues. Those are much wider issues that impact on social care funding and all sorts of other issues. This is not really about debt issues in this particular circumstance. Unless anybody else has a comment to make, I am happy to leave it there, convener. One of the things that struck me about this is that we are talking very much in broad terms about debt and all the rest of it. The bit that strikes me is one of the most significant strains on anybody's mental wellbeing is debt. It is a massive thing. We are talking in very abstract terms about the power to serve documents to a bankruptcy process electronically or by post and all the rest of it. It is all very abstract, but I think that we should keep it in our heads that this is about people and what they are living through. I think that we have probably covered whether it should be electronically or by post. We have also covered the power to hold meetings remotely or in a physical location. That is the purpose of what is coming in this bill. I just want to get a general sense of how people are coping with their debt right now, given the circumstances that they are living in. Abby, can I come with you first? I do not deal directly with clients, but the anecdotal evidence that we are getting from our members and those in our network is that, as you said, debt and the pandemic have been our two major stressors on mental health. When you combine the two, I think that there is a bit of a sense of hopelessness from people. Advisors are reporting, as has already been mentioned, that it is not that someone is in debt yet and they need a debt solution. It is that they are not able to afford their costs and whether that is because they have had an income shock because of the pandemic and that is now being exacerbated by the current cost of living crisis. I think that there is a sense that people just do not really know what to do and that is trickling down into the advice community as well. It is very hard for advisers to tell people that they can make a saving here or that they can switch to this and that they can have more disposable income when they are in a cost of living crisis, for those sort of things that just really are not possible and any savings may be marginal. I think that someone in a meeting a few weeks ago described it as that people just have too much money left at the end of the money and that is the sense that they are getting. I am going to go on that very quickly. The cost of living crisis, people getting into debt, what causes people to get into debt in the first place? I remember the debates going around people charging interest to 2,500 per cent, these short-term loan companies. Are we going to see a prevalence of that kind of direction that people who are struggling to cover their cost of living, is that the direction that they are going to go? Jamie, what do you think of that? Hi there. Actually, in fact, what we found recently, probably in the last six to 12 months, was that a lot of family members are borrowing from each other, so you borrow and then they help to pay back. There is a lot of family support if you have a family support network. We tend to find that a lot of people are doing that on their bank statements, so you can see a lot of money passing through and from. The only trouble is that it does not solve the problem. It only alleviates it for that one week, that two days, where somebody needs to top up for their gas electricity. What drives people into debt is not that the high interest rates are the fact that their income is taken up with rent, council tax and gas electricity. Food is kind of a fourth priority sometimes for people, but as soon as you start increasing the gas electricity, it is the biggest one that we are seeing at the moment. As soon as you start increasing that, everything else—people need to heat their house, have their electricity on, so they start cutting back on other things, so they stop paying their debts, stop paying their council tax and even stop paying their rent. My gas is an immediate need that I have right now, whereas my rent, fair enough, will take me to court, was a bit of a couple of months away. That is the experience that we are having with clients, that they are having to self-prioritise what is important for them, as opposed to—it could be easy for us to say, you know your rent is really important, your council tax is really important, but for them the immediate fact is that I am cold, I am sitting here freezing, I need to put my heating on, I either choose my heating and my rent, what am I going to pay or I am going to feed my kids. When people come to us, I was saying four different when it was like consumer debt and you could just manage that and you can move it away, but now it is not. It is like you phoned your gas electricity company and you missed a couple of payments. They do not want their repayment plan that is built into your actual on-going direct debit, so they will say to you, you owe us £600, we will divide that by 12, we will add it on to your increased cost that you have already, so now you are going to be paying us £300 a month. People are going to say, I cannot pay £300 a month to my gas electricity, I cannot pay £150, I cannot pay £100 for how you are expecting to pay £300. As a result, it has a knock-on effect of everybody else's disposable income that is taken up just by living, because that is all it is. People were just managing before, no longer managing. I think that the poverty bar you probably find is now increased, was it to such a level, was it that? In terms of the legislation that we are looking at just now, I fully take on board all of the stuff that you are talking about and it is why I made the comment right at the start, but in terms of what we are looking at just now, David, how is this going to help the situation that we find ourselves in right now? Abbie, I will come back to you very briefly at the end of what David has got to say. I think that part of the issue is in relation to actually understanding what it is or how the route out is to be taken, and I think that that is quite a difficult one. I think that there is often a messaging that comes across, which is, actually, let's work your way out of this. Let's see if we can find a solution. Let's pay things off over a longer period of time. Let's move you into the debt advice scheme or something like that. Actually, I think that sometimes the best solution will be to actually deal with the debt that has built up. That then allows some of the cash that is coming in on a monthly basis to be released to service on going a new expenditure that has been caused. In some ways, there needs to be a change from Scottish Government in terms of saying that sometimes bankruptcy is the right solution. It can be okay to go bankrupt. The vast majority of individuals who enter into bankruptcy have no assets. They do not have much to lose in terms of physical stuff to lose, if you like. Yes, it will absolutely potentially affect credit ratings going forward, but some of their credit ratings are shot in any case. Sometimes bankruptcy might well be the best solution to absolutely take away that debt and allow some of that money, which is previously servicing the debt, to be used to deal with day-to-day expenditure. Okay, thanks, David. Abby, I know you wanted to come on very quickly. We're getting short of time. Yes, it was just to touch on the points that were made by JMA just to say that people don't get into debt because they're spending too much. They get into debt because they're not able to spend enough. In the order of prioritisation, council tax normally falls at the bottom, which is why, going back to David's point earlier, the majority of credit or petitions are local authorities, because that is the payment that is seen as the one that can be put at the bottom of the priority list under food and heating and living expenses. In terms of what the bill does to address that, I think that the bill is obviously in the context of the provisions that have been put in for Covid, but there are much wider issues that come into play here. With David's point about people coming into bankruptcy that don't have a lot of assets, what we are worried about is that that might start to the people who do have a home, who do have assets they want to protect, may not, as a result of the cost of living and Covid, be able to access a solution that might better protect their assets. That's a slight concern or a major concern for us, but we don't know how that will play out yet. We have a little bit of time, because we are going to 11.30. I just want your views, and that could be covered under the on-going bankruptcy review, but a committee received a submission this week that I thought was quite interesting that I wanted to raise. In light of the cost of living crisis, we have families say that they have been made bankrupt and their wages have been arrested and their bank accounts have been arrested as well. The person that got in touch with us raised a valid point that people who are struggling financially and also questioned if the bill could be an opportunity to provide people with increased protection from bank account arrestments. We were told that bank account arrestments leave families with a minimum of £529 in their bank account, regardless of whether you are single or if you are a couple with three or four kids. We were sent examples for one family who had two children and a mum and dad. The bank account was arrested and they were left with £529 for the rest of the month to survive, and they had to choose between food, gas, electricity and travel. The childcare cost that month. Do you think that there is an opportunity here that there could be an amendment to the debtors Scotland Act 1987 to increase the amount that people are left with in their bank accounts from £529, say, for example, to £1,000? I just wanted the panel's views on that. Maybe Abby, if we start with you. Yes, absolutely. I think that an increase would be much needed. Obviously, that ties in to the discussions about the moratorium because, while some are in the moratorium, they are protected, but, as I mentioned, the moratorium does not necessarily solve the problem. Yes, it would be very useful and we would be keen for something to be built in, although we start looking at whether that becomes a longer-term thing and whether some of that might have already been covered in some of the working groups. I am not sure, but a short answer, yes, that is absolutely something that needs to be looked at. Thanks, Abby. Jamie, can I get your thoughts on that? I will keep an answer short. I agree that £1,000 would be appropriate. The main reason is that it leaves people in destitute. They cannot get to work, they cannot pay for general things, food, etc. £1,000 would be more appropriate. I agree with the submission. Thank you very much. David, I will bring you in. Yes, again, this is not an area that I have a particular expertise in, but I think just looking at the general concept of what we want to do for society, I would agree. I think just generally an increase between £500 and £1,000, frankly, is probably neither here nor there to most creditors at the end of the day. I think that the one thing I would say or just highlight is that I know that the accounts at the bankruptcy have been looking at diligence in general, and there has been a long-going working group looking at that. Again, I think that that report is nearing completion, so it should be with ministers relatively shortly, or at least I think that certain ministers would be able to be briefed on where the working group has got to with that relatively easily. Brilliant, thank you very much. I thank all the witnesses for your evidence and giving us your time this morning. If witnesses would like to raise any further evidence with the committee, they can do so in writing, and the clerks will be happy to liaise with you on how to do that. The committee's next meeting will be on 10 March, where we will continue to take evidence on the bill and our inquiry into excess deaths in Scotland since the start of the pandemic. That concludes the public part of our meeting this morning, and I suspend the meeting to allow the witnesses to leave and move the meeting into private. Thank you.