Coronavirus Acts: second report to Scottish Parliament (August 2020)

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 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 first report, we have reported in this second 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.

When the first review for the period ending 31 May 2020 was undertaken, some of the measures under the UK Act and first Scottish Act had only been in place for a very short time, and the monitoring and reporting arrangements were in the early stages of development. Since this time, these arrangements have continued to be developed and refined. This has included information gathering to establish the operation of the powers at a local level where possible.

This is the first reporting period for the second Scottish Act. The monitoring and reporting arrangements for the provisions under this Act will also continue to be developed. The level of detail provided in the report for some of the provisions under the second Scottish Act, reflects that they are at a slightly earlier stage of implementation than the provisions under the other two Acts.

We 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 front line of the coronavirus response. As with our first report, we have reported in most detail on the provisions which we have judged, at present, to be of the most significant impact 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.

We have, in the development of this second report, reflected on the views and publications of key stakeholders with an interest in the areas of human rights, children’s rights and equality impacts, including (but not limited to) the Scottish Human Rights Commission, the British Institute of Human Rights, the Children and Young People’s Commissioner Scotland, and the ‘Human Rights Leadership Advisory Note to the Scottish Government’ which was published by Professor Alan Miller, Professor of Practice in Human Rights Law at the University of Strathclyde. We also recognise the interest and 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. We are grateful for the work that is being undertaken by the Parliament, stakeholders and others towards ensuring that human rights, children’s rights and equality are protected at this time. We will continue to work to ensure that we consider carefully recommendations and best practice coming from this.

We support the addition of the duties in section 15A of the first Scottish Act and section 13 of the second Scottish Act to take account of information about the nature and number of incidents of domestic abuse occurring during the reporting period. 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.

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 July 2020, 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. 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 not been commenced in the reporting period. All provisions in the second Scottish Act commenced the day after Royal Assent. No regulations have been made to suspend or revive any provision, or to alter the date of expiry.

Use of powers contained in the Coronavirus Acts

Some of the powers in the legislation which were commenced immediately have supported key elements of our response to the pandemic, whilst others have not 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 and 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 the six month sunset provision which applies to Part 1 of the first and second Scottish Acts. 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 will enable 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.

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 second report.

Michael Russell MSP

Cabinet Secretary for Constitution, Europe and External Affairs