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

3. Our approach to reporting

3.1. In continuing to develop our approach to reporting, which now includes the additional requirements under the second Scottish Act, careful consideration has been given to ensuring that this balances openness and transparency with the need to avoid placing undue pressures on those individuals and organisations at the heart of the coronavirus response.

3.2. For provisions under the first Scottish Act and the UK Act, some of which have now been in force over two reporting periods, data reporting, collation and monitoring processes which had been put in place for the first reporting period, have been further developed in this second reporting period. The reporting arrangements are more newly-established for the provisions under the second Scottish Act and in some cases require new data reporting and other monitoring arrangements to be put in place. Some of the work that has been carried out to support the monitoring and review process in this reporting period has included the development of the Scottish Government Justice Analytical Services data report on how the coronavirus pandemic has affected the justice system^[5]. Our approach for reporting on all three Acts will continue to evolve and develop as more information on particular aspects of implementation becomes available.

3.3. 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 for equality and rights. In addition, some provisions are of significant interest to the Scottish Parliament for other reasons.

3.4. As per the approach in the first report whereby we reported in most detail on the provisions of the first Scottish Act and UK Act which we had judged to be of the most significant impact or interest, we have also taken this approach to reporting on the provisions of Part 1 of the second Scottish Act which are being covered for the first time in this second report. For these provisions we have sought to provide detail over and above the reporting requirements under the legislation.

3.5. 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 sought to examine these impacts.

3.6. 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.

3.7. 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 equalities are protected at this time. We will continue to work to ensure that we consider carefully recommendations and best practice coming from this, including from the Independent Children’s Rights Impact Assessment^[6] which was commissioned by the Children and Young People’s Commissioner Scotland. We will continue to embed children’s rights and human rights into our response to coronavirus and in our journey to recovery and renewal, including through the promotion of Child Rights and Wellbeing Impact Assessments (CRWIAs).

3.8. Consistent with the expectation that CRWIAs will be undertaken on all new policies and legislation, CRWIAs have been prepared and published for the first^[7] and second^[8] Scottish Acts. We are working with third sector organisations to monitor and support strategies to mitigate the economic and social impact of the coronavirus pandemic and to protect children, particularly those living in poverty.

3.9. We are mindful of the three needs of the Public Sector Equality Duty (PSED) i.e. 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.

3.10. Where any negative impacts have been identified, we have sought to mitigate and/or eliminate these. We are also mindful that the equality duty is not just about negating or mitigating negative impacts, as we also have a positive duty to promote equality. We have sought to do this through the provisions contained in the measures, or by support and guidance which is available.

3.11. As we continue to develop our approach to reporting, where possible, we will include or signpost to information on how rights and equality considerations have been taken into account, including the impact on those with protected characteristics. In this report, an example of this has been provided in relation to assessing the impact of the prisoner release measures on each of the protected characteristics as defined in equality legislation.

3.12. Analytical partners across the Scottish Government, National Records of Scotland, Public Health Scotland and the NHS are working together to consider how we can better understand the impact of coronavirus on those from all minority ethnic communities. This is one of multiple workstreams we are taking forward to address this issue.

3.13. This is an area of our reporting where our approach will continue to develop in response to how the powers in the legislation have been used, and the data collections which are available as part of ongoing monitoring and implementation.

3.14. While it is the view of the Scottish Government that any remaining impacts are currently justified and are a proportionate means of helping to achieve the legitimate aim of reducing the 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 can justify any negative impacts caused.

3.15. We have in this report included examples of how equality impacts have been or are being considered in relation to particular powers, including: the Impact Assessment for ‘The closure and reopening of schools as part of the COVID-19 recovery process in Scotland’^[9] which was published on 30 July 2020; the Equality Impact Assessment (separate to the one completed at the Bill stages of the first Scottish Act) to assess the impact of the prisoner release measures on each of the protected characteristics as defined in equality legislation^[10]; and the Equality Impact Assessments which have been carried out for the Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment Regulations from No.2 to most recently No.9^[11].

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