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

2. Background

Reporting requirements

2.1. The UK Act received Royal Assent on 25 March 2020. The Scottish Parliament gave its consent to the provisions of the UK Act as far as they relate to devolved matters on 24 March 2020.

2.2. Section 97 of the UK Act sets out the requirements for the UK Government to report on the status of non-devolved provisions within the UK Act every two months.

2.3. The UK Act does not set out an equivalent statutory requirement for reporting by the Scottish Government or other Devolved Administrations. However, as per the approach in our previous reports to the Scottish Parliament, in this fifth report we have included information on the provisions of the UK Act for which the Scottish Parliament gave legislative consent, in a manner which is consistent with the reporting arrangements for Part 1 of both of the Scottish Acts.

Extension and expiry of the Scottish Acts

2.4. Under section 12 of the first Scottish Act and section 9 of the second Scottish Act, Part 1 of both Acts were due to expire on 30 September 2020, the end of the third reporting period.

2.5. Part 1 of the Scottish Acts could only be extended in their entirety and not on a provision by provision basis. On 24 August 2020, the Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2020^[7] (the ‘extension regulations’) were laid in draft before the Parliament, a Statement of Reasons^[8] for the regulations having already been laid. The Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020^[9] (the ‘expiry regulations’) were laid in Parliament on the same day and both sets of regulations came into force on 29 September 2020.

2.6. The extension regulations extended the expiry date of Part 1 of both Scottish Acts to 31 March 2021. The expiry regulations expired provisions of those Acts which were no longer required beyond 29 September 2020.

2.7. The Bankruptcy (Miscellaneous Amendments) (Scotland) Regulations 2021^[10] were laid in draft before the Scottish Parliament on 29 January 2021. If approved by Parliament, these will expire some provisions under the second Scottish Act from 29 March 2021 and make them permanent.

2.8. The Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment Order 2020 and the Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment (Coronavirus) Order 2020 both contained temporary provisions, which have now expired, and made amendments, which are now spent. Therefore, these were revoked from 31 January 2021 by the Homeless Persons (Unsuitable Accommodation) (Scotland) (Modification and Revocation) (Coronavirus) Order 2021^[11].

2.9. Further information is included within the Policy Notes which accompanied the regulations, and in the Statement of Reasons which was published on the Scottish Government’s website. Table One of this report includes information on which provisions of Parts 1 of the Scottish Acts have been expired and suspended.

2.10. Ministers are now conducting the analysis necessary to determine whether some provisions of the Acts will require to be needed beyond 31 March 2021. This includes analysis of whether specific provisions should be expired, suspended or extended. If supported by that analysis, regulations will be brought forward for Parliament’s consideration, along with a Statement of Reasons as to why we have considered this to be necessary, to extend the expiry dates of the Scottish Coronavirus Acts up to 30 September 2021.

3. Our approach to reporting

3.1. In continuing to develop our approach to reporting, we have recognised that some measures in the legislation may have greater impact than others in terms of their potential impacts on individuals or groups (people with one or more of the protected characteristics listed in the Equality Act 2010), or their implications more generally for equality and human rights. In assessing the equality impact of the measures the Scottish Government has considered the measures in light of the requirements of the public sector equality duty as set out in section 149 of the Equality Act 2010, and the need to eliminate unlawful discrimination, harassment and victimisation, advance equality of opportunity between people who share a protected characteristic and those who do not, and foster good relations between people who share a protected characteristic and those who do not. Public authorities that are required to publish equality information by 30 April 2021 under the Scottish specific duties (including a new set of equality outcomes, pay gap information and equal pay statements) must do so.

3.2. Some provisions are of significant interest to the Scottish Parliament for other reasons.

3.3. In addition to the information on operation and status which is provided for all of the above noted provisions, we have also reported in more detail on those provisions which we consider to be, at this time, of most significant impact or interest. For these provisions in particular, we have gone beyond the reporting requirements under the legislation, for example, by providing detail on the factors which have been considered in determining the continued necessity. This is consistent with our approach in our previous reports.

3.4. Assessment of the equality, human rights and children’s rights impacts of the provisions is a central aspect of our review and reporting approach, and in developing our report we have again sought to examine these impacts. We have in this reporting period continued to reflect on the views and publications of key stakeholders with an interest in the areas of human rights, children’s rights and equality impacts. This has included, but is not limited to, consideration of the written and oral evidence which was submitted to the Parliament’s COVID-19 Committee in response to its call for evidence on the Scottish Acts extension and expiry regulations which extended the provisions of the Act beyond 30 September 2020. We have considered the views of other stakeholders in this reporting period, including the British Institute of Human Rights, the Scottish Human Rights Commission and the Children and Young People’s Commissioner Scotland, and we also recognise the interest and views of the Parliament's Equalities and Human Rights Committee.

3.5. While it is the view of the Scottish Government that any remaining impacts on equality and human rights are currently justified and are a proportionate means of helping to achieve the legitimate aim of reducing the very significant public health risks posed by coronavirus, the Scottish Government also recognises that these measures are only required to respond to the current set of circumstances, and are only necessary as long as the potential public health benefits justify any negative impacts caused. The commitment to ensure that powers should not be in place for longer than they are needed was demonstrated in the decision to expire a number of paragraphs of Part 1 of the Scottish Acts which were judged not to be required beyond 29 September 2020 as part of the overall extension of the Acts, and to suspend other paragraphs of those Acts which are not currently required, but may be required at a future point.

3.6. One specific example of where human rights and equality implications have informed decisions on the continued necessity of provisions in the legislation was the decision to expire paragraph 11(1) of schedule 3 of the first Scottish Act relating to adults with incapacity. As set out at paragraph 19 of the Policy Note^[12] which accompanied the expiry regulations: “in considering whether this paragraph should be expired early, the Scottish Government has examined very carefully the considerations in relation to human rights”. The expiry of this paragraph was welcomed by the Scottish Human Rights Commission (SHRC), as set out in a written submission by SHRC to the COVID-19 Committee on 16 September 2020^[13]. Other stakeholders have also supported the expiry of this paragraph. Prior to being expired, the paragraph had not been commenced and had not been in operation since the first Scottish Act came into force on 7 April 2020. This was reflected in the reporting on these provisions in our first and second reports to Parliament on the Coronavirus Acts.

3.7. We have also, in this report, included examples of how equality impacts have been, and are being, considered in relation to the implementation of particular powers, including the Equality Impact Assessments (EQIAs) which have been carried out for the Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment Regulations from No.2 to No.13^[14] and the EQIA for the Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020^[15] as well as the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020^[16] and the 17 sets of amending regulations made to them. This report also includes information on how the impact of the powers relating to evictions from dwelling houses under the first Scottish Act, and pre-action requirements under the second Scottish Act, have been considered.

3.8. We will keep our approach to reporting on these impacts under review in line with legislation and in response to the views of the Scottish Parliament.