Coronavirus Acts: fifth report to Scottish Parliament (February 2021)

Executive Summary

Overview

As we set out in our previous two-monthly reports on the Coronavirus Acts, in seeking the Parliament's approval for the necessary legislation to respond to the coronavirus pandemic, the Government has always been clear that the legislation agreed by Parliament should be proportionate to the public health challenge and last only as long as required. Throughout, we have sought to ensure that the Scottish Parliament has continued oversight of those provisions and can hold Scottish Ministers to account for their use. This has continued to be central to the implementation, monitoring and review of the legislation, and that will remain the case beyond this fifth report covering the reporting period up to 31 January 2021.

During the previous reporting period, we implemented a number of additional measures to enhance Parliamentary scrutiny of COVID-19 legislation. These mechanisms afford Members the opportunity to scrutinise any proposed changes to levels-based Regulations before changes come into effect.

Our position has always been that creating additional powers does not mean they will automatically be used; decisions to activate any individual power are taken in light of the prevailing situation in Scotland. Through this and our previous reports, we have demonstrated that the powers in the legislation continue to be used proportionately and only where necessary.

It remains the case that some provisions have not yet been commenced as there has not been a need to do so, or have commenced but have not been required to be used in practice. In some cases, this is because these powers will be an important tool in supporting the lives and health of people living in Scotland, the economy, the public sector, and the third sector as we continue to deal with the changing circumstances of the pandemic. In other cases, the powers are judged to continue to be necessary because they may be required to respond to unknown future circumstances resulting from the pandemic – which, as current circumstances show, cannot be ruled out.

During the third reporting period, regulations to extend the expiry dates of Part 1 of the Coronavirus (Scotland) Act 2020 (the ‘first Scottish Act’) and the Coronavirus (Scotland) (No.2) Act 2020 (the ‘second Scottish Act’) from 30 September 2020 to 31 March 2021 were made and came into force on 29 September 2020. As the pandemic is not yet over, regrettably, consideration must shortly be given to whether some provisions of the Acts will require to be needed beyond 31 March 2021. Ministers are now conducting the analysis necessary to determine whether specific provisions should be expired, suspended or extended. Following this, if supported by the evidence, regulations will be brought forward seeking the Scottish Parliament’s agreement to extend the expiry dates of the Scottish Coronavirus Acts up to 30 September 2021. A Statement of Reasons providing information on any provisions recommended for extension will also be laid before Parliament.

As Parliament is aware, the majority of the provisions in the Coronavirus 2020 Act, the UK Act under which Scottish regulations containing restrictions are made, will expire in March 2022. There is, therefore, no need to consider the extension of any of the powers available to Scottish Ministers under the UK Act as part of this exercise, but consideration will be given to whether any of these should be suspended or expired at 31 March 2021.

This is in line with the continued necessity of the legislation to be kept under review throughout the reporting process. It is also important to note that if the Scottish Parliament agrees to extend provisions under the Scottish Acts beyond 31 March 2021 they could be subject to suspension (with subsequent revival) or early expiry at any point after that.

Our first report was published a short time after the publication on 21 May 2020 of ‘Coronavirus (COVID-19): Scotland’s route map through and out of the crisis’ (the ‘Route Map’). Since our third report was published on 6 October 2020, the Scottish Government has brought into effect ‘COVID-19: Scotland’s Strategic Framework’. Published on 23 October this Framework set out five levels of protection that can be applied nationally or to different areas of the country according to evolving patterns of infection and transmission. Since our fourth report was published, and as a result of the new, more transmissible variant of the virus being identified in the UK in December, firm, preventative action was taken designed to reduce the risk of it spreading any further in Scotland. This action included applying level 4 measures to all of mainland Scotland from 5 January 2021. The island areas were kept under review and level 4 restrictions were applied to the Isle of Barra and the Isle of Vatersay from 20 January 2020^[1], while Na h-Eileanan Siar also moved to level 4 from 30 January 2021 due to an increase in prevalence of coronavirus and an increase in infection rates^[2].

The Scottish Government ‘Coronavirus (COVID-19): framework for decision making’ which was published in April 2020 set out seven core principles across our approach to responding to coronavirus. One of these was ‘fair and ethical’: committing us to uphold the principles of human dignity, autonomy, respect and equality, as we deal with the pandemic. In continuing to develop our approach to legislation and reporting, human rights and equality impacts have continued to be a key consideration.

We remain committed to ensuring transparency in the implementation of, and reporting on, the legislation, but we equally continue to be cognisant of the important balance to be struck in the processes for obtaining information to support openness and transparency, with the need to avoid undue pressures to provide information on those at the frontline of the coronavirus response. We have therefore continued in this report, our approach of going beyond the statutory reporting requirements, by providing additional information for provisions which, at this time, we have judged to be of most significant impact and/or interest because of their impact on human rights, children’s rights or equality, or because they are areas in which the Scottish Parliament has indicated a particular interest.

Coronavirus legislation: our approach to reporting

We have always made clear that it would be essential that this legislation be supported by safeguards including regular reporting and review, and these were built into the first and second Scottish Acts. Section 15 of the first Scottish Act, and section 12 of the second Scottish Act require Scottish Ministers to review the operation of the provisions of Part 1 of those Acts in each reporting period, and every two months, report on the status of the provisions and make a statement that they are satisfied that the status of those provisions is appropriate.

The Coronavirus Act 2020 (‘the UK Act’) does not contain equivalent reporting requirements for the Devolved Administrations to those which require the UK Government to report on its non-devolved provisions every two months. However, as was the case in our previous reports, we have reported in this fifth review period on the provisions of the UK Act for which the Scottish Parliament gave legislative consent, in a manner which is consistent with the reporting on the Scottish Acts, and which is in line with our previous commitment to do so.

This report therefore includes information on the status and operation of the provisions under Part 1 of the first and second Scottish Acts in this reporting period, and the provisions of the UK Act for which the Scottish Parliament gave legislative consent. It also includes reporting on Scottish Statutory Instruments (SSIs) made by Scottish Ministers where the main purpose relates to coronavirus, other than those made by Scottish Ministers under the first or second Scottish Acts or the UK Act, as SSIs made under those Acts are already included in our reporting.

This report also reflects the duties set out in section 15A of the first Scottish Act and section 13 of the second Scottish Act, that require Scottish Ministers to take account of information from the Scottish Police Authority or the Chief Constable of the Police Service of Scotland about “the nature and the number of incidents of domestic abuse occurring during the reporting period to which the review relates”, and to explain in the report on that review period, how the information was taken into account. We are clear of the need to ensure that robust and regular exchange of information about incidences of domestic abuse is collected and monitored during the pandemic and we were pleased to support these duties. This ensures that the specific impact that the current situation is having on those experiencing domestic abuse is considered when reviewing the operation of the provisions in the Scottish and UK Acts.

We have, in the development of this fifth report, continued to reflect on the views and publications of key stakeholders whose focus is on the areas of human rights, children’s rights and equality. We also recognise views of the Parliament's Equalities and Human Rights Committee which is paying particular attention to this in relation to the Government’s response to the pandemic through its inquiry into the impact of the pandemic on equality and human rights. We are grateful for the work that is being undertaken by the Parliament, stakeholders and others in scrutinising the work of the Scottish Government to ensure that human rights, children’s rights and equality are protected at this time. Stakeholders’ expertise continues to assist us to better understand how the pandemic impacts all of Scotland’s people and how these impacts can affect particular people and communities across Scotland in different ways.

Use of provisions in the Coronavirus Acts

Some of the provisions in the legislation which were commenced immediately have supported key elements of our response to the pandemic, whilst others have not yet been needed due to effectiveness of other action taken or because thresholds for use have not been met.

The UK Act enables Ministers to consider suspension and revival of certain powers where they may be needed again in future. It also enables Ministers to permanently expire certain provisions which are considered to no longer be needed in advance of the two year sunset clause in section 89 of that Act, and to extend certain provisions beyond the two year sunset period.

The first and second Scottish Acts contain similar provisions for suspension and revival, and provisions can be considered for expiry in advance of expiry on 31 March 2021 (which applies to Part 1 of the first and second Scottish Acts). Part 1 of both Acts could be extended for a further six months to 30 September 2021 through regulations with the agreement of Parliament. As noted above, Ministers are now conducting the analysis necessary to determine whether specific provisions should be expired, suspended or extended before regulations are brought forward seeking the Scottish Parliament’s agreement to extend the expiry dates of the Scottish Coronavirus Acts up to 30 September 2021, should that be necessary. Taken together, these safeguards help to ensure the powers in the legislation can be used appropriately and proportionately, and that the powers do not remain in force longer than they are required.

The regular reporting cycle for the provisions of the Scottish and UK Acts enables us to keep the overall operation of the powers under review and inform decisions on when specific measures are no longer needed. Our decisions will be guided by the course of the pandemic and by the expert advice underpinning the Scottish Government's overall response to it.

Statement by Ministers on necessity and status of provisions

Scottish Ministers have undertaken a review of the operation of the provisions of Part 1 of the first and second Scottish Acts, and the provisions of the UK Act for which the Scottish Parliament gave legislative consent, in order to consider whether the provisions remain necessary. Ministers are satisfied that the status of those provisions at the end of this reporting period is appropriate.

Scottish Ministers have also undertaken a review of the Scottish Statutory Instruments (SSIs) to which section 14 of the second Scottish Act applies. Ministers are satisfied that the status of those SSIs at the end of the reporting period is appropriate. This report contains information as required by section 14 of that Act.

As at the end of the reporting period on 31 January 2021, all of the provisions in the UK Act for which the Scottish Parliament gave legislative consent have been commenced, with the exception of those in section 10 and schedule 9, and sections 25-29. Section 16(1), (2), (4)(a) and (b) of the UK Act are suspended together with section 16(4)(e) as it relates to adult carers (SSI 2020/377).

All provisions in the first Scottish Act commenced the day after Royal Assent, with the exception of paragraph 11(1) of schedule 3 which has now been expired through the Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020 (the ‘expiry regulations’). All provisions in the second Scottish Act commenced the day after Royal Assent.

The Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2020 (the ‘extension regulations’) which extend the expiry date of Part 1 of both Scottish Acts from 30 September 2020 to 31 March 2021, came into force on 29 September 2020.

The expiry regulations which expire provisions under Part 1 of both Scottish Acts which were judged not to be required also came into force on 29 September 2020.

Separate regulations have been made to suspend schedule 3, Part 2, paragraph 11(2) and (3) of the first Scottish Act which relate to adults with incapacity provisions, and schedule 7, paragraphs 32 and 33 of the first Scottish Act which relate to muirburn.

On 29 January 2021, the Bankruptcy (Miscellaneous Amendments) (Scotland) Regulations 2021 were laid in draft before the Scottish Parliament. If approved by Parliament, these will expire some provisions under the second Scottish Act from 29 March 2021 and make them permanent.

If, following Ministers’ current analysis of provisions in relation to extension, suspension or expiry, the evidence supports the expiry or suspension of provisions, then expiry regulations to expire provisions under Part 1 of both Scottish Acts which are judged not to be required will be made with the intention that they should come into force on 30 March 2021. Similarly, separate regulations could be made to suspend specific provisions if that is judged to be the most appropriate course of action to ensure appropriate powers remain with Ministers to address ever changing coronavirus-related scenarios.

Additional information

Within the material for each of the provisions covered in the report, links have been included to other relevant published material including declarations and directions relating to, or made under the powers in the Acts.

Next steps

We welcome the opportunity to further update the Scottish Parliament on the operation of the Coronavirus Acts and stand ready to engage with the Parliament in its scrutiny of this fifth report.

Michael Russell MSP

Cabinet Secretary for Constitution, Europe and External Affairs