Coronavirus Acts: first report to Scottish Parliament (June 2020)

7. Supplementary information

7.1 Scottish Act

7.1.1 Section 2 and schedule 1 - Eviction from dwelling-houses

Description of Provision

7.1.1.1 The provisions increase the notice period across all eviction grounds in the private and social rented sector, except the abandonment and vacant property grounds and for short Scottish secure tenancies, the antisocial behaviour grounds. For the private rented sector, the provisions amend all the eviction grounds a landlord can use to regain possession to make them discretionary.

Operation of Provision in Reporting Period

7.1.1.2 Section 2, schedule 1, paragraph 2 makes all private rented sector eviction cases going before the First-tier Tribunal (Housing and Property Chamber) to be considered on a discretionary basis. These powers have not been exercised in the reporting period because the Tribunal and the courts have suspended business and eviction cases were not being heard in April and May 2020.

7.1.1.3 Section 2, schedule 1, paragraph 8 provides a power for Scottish Ministers, exercisable by the negative procedure, to modify the length of any period of notice specified to apply during the relevant period. In exercising this power, the Scottish Ministers cannot specify a notice period which is longer than six months. This power under the provision has not been used in the reporting period.

7.1.1.4 The provisions which extend the notice period to - in effect - halt any eviction action under the existing legislation including the Private Housing (Tenancies) (Scotland) Act 2016 and the Housing (Scotland) Act 2001 for up to six months, have been used in the reporting period. This applies to both the social and private rented housing sectors in order to ensure that the position is absolutely clear for all landlords in Scotland.

7.1.1.5 Before the provisions commenced, a tenant with a private residential tenancy could have been asked to leave their home within 28 days of a notice being served by the landlord, if they had been living in the property for six months or less; or if the landlord was using an eviction ground to do with the tenant's behaviour. Where a tenant had lived in a property for six months or more and the eviction ground did not relate to the tenant's behaviour, a landlord was required to give 84 days' notice. With the new provisions, the tenant can stay for up to six months.

Factors Considered to Determine Use and Continued Necessity

7.1.1.6 In this reporting period, in order to assess the continued necessity of the provision, the Scottish Government has considered various sources of information, including results from a recent poll which was commissioned by Citizens Advice Scotland and which was published on 30 April 2020^[18]. This found that four in ten people in Scotland are concerned about income during the coronavirus pandemic and 31% are either very concerned or fairly concerned about paying rent.

7.1.1.7 The provisions remain necessary to ensure that tenants have time to apply for, and receive, the available support in the short term and, if necessary, to give them time to plan for the longer term over this unprecedented crisis. The provisions also continue to be necessary in order to help mitigate any further pressure on housing, health and other public services.

7.1.1.8 The Private Rented Sector Resilience Group has been set up to provide a mechanism for key stakeholders to discuss key issues arising from the coronavirus outbreak and it will assist in monitoring the impact, and continuing need for, these provisions.

7.1.1.9 The Social Sector Resilience Group meets weekly to discuss and resolve issues of common interest, to ensure that landlords can deliver and maintain essential services during the period of the coronavirus outbreak.

7.1.1.10 The Scottish Government is developing a process to analyse the immediate impact of the extended notice periods. This analysis will be used to help inform the future assessments of continued necessity of these provisions. It will seek to gather evidence on the financial vulnerability of tenants, as well as the impact on the financial vulnerability of landlords.

7.1.1.11 In addition to the Equality Impact Assessment which was carried out by the Scottish Government prior to the introduction of the legislation, the Scottish Government assessed the potential impact of these provisions on human rights. Consideration has also been given to the impact of the provisions on a landlord's human rights with regards to their ability to be able to regain possession of their property in relation to Article 1 of Protocol No. 1 to the European Convention on Human Rights. The Scottish Government's view is that the temporary nature of the provisions strike an appropriate balance between the landlord's rights in the property, and the rights of the tenant to be protected during the pandemic. The maximum period of notice that the landlord will have to provide will be six months and the provisions will not affect notices which have already been issued under existing notice periods. The above framework for analysing continued necessity which is being developed by the Scottish Government will help to inform the assessment of the impact of these provisions going forward.

7.1.2 Section 4 and schedule 3 – Children and vulnerable adults – Part 1 – Children

7.1.2.1 Description of Child protection provisions: The provisions remove the requirement for a second working day hearing to be held following the issuing of a Child Protection Order, and to amend timescales in relation to the issuing of Child Assessment Orders.

7.1.2.2 Description of Children's hearings provisions: The provisions relax existing requirements for the composition of children's hearings, and the administration and conduct of children's hearings and there are extensions to the timescales for when certain legal orders must be reviewed and appeals against legal orders lodged.

7.1.2.3 Description of Looked after children provisions: The provisions extend the timescales for review of children's cases when they are placed in different forms of accommodation and enable Local Authorities to use foster carers more flexibly to look after additional children when necessary.

Operation of Provisions in Reporting Period

7.1.2.4 This section provides supplementary information on the use of children's provisions within Part 1 of schedule 3 of the Scottish Act. Guidance^[19] on the use of provisions has been published. The provisions have been separated into three groups: child protection provisions, children's hearings provisions and looked after children provisions, as data comes from different sources and there are separate decision making structures to assess continued necessity of the provisions within each group.

7.1.2.5 The data in relation to the use of the powers under section 4 and schedule 3, Part 1 covers the period 7 April to 20 May 2020, unless specified otherwise below. Information on where data has been gathered has been included along with any caveats about the data provided.

Child protection provisions

No requirement for a second working day hearing to be held following the issuing of a Child Protection Order

7.1.2.6 Under the Scottish Act, the second working day children's hearing is not required. Instead a children's hearing to consider grounds for referral will sit on or before the eighth working day. Until the eighth working day, a child or relevant person can make an application for the Child Protection Order to be recalled or varied (ordinarily this would have been available until the second working day children's hearing under the Children's Hearings (Scotland) Act 2011) and for two working days following the second working day children's hearing (if the order is continued or varied by that hearing).

7.1.2.7 In the reporting period, there have been 82 Child Protection Orders. The use of this provision has meant that the Scottish Children's Reporter Administration did not have to hold second working day children's hearings in these cases.

Amendment of timescales in relation to the issuing of Child Assessment Orders

7.1.2.8 There were no Child Assessment Orders during the reporting period. Although there were no orders during the reporting period, the provisions continue to be useful and necessary, particularly in light of the need to ensure that services can assess vulnerable children who are not visible to services during coronavirus, when necessary.

Children's hearings provisions

Relaxation of requirement for children's panel to consist of three members and relaxation of requirement to have a gender mix on each children's hearing

7.1.2.9 The provisions include relaxation of the requirement for children's hearings to consist of three members and to have a gender mix. In the reporting period 797 hearings were held, of which five had fewer than three panel members in attendance, and one which did not have both male and female members^[20].

Maximum period for which a Compulsory Supervision Order has effect

7.1.2.10 The Scottish Act provides that if a hearing has not taken place to review a Compulsory Supervision Order before it expires, the order will not expire, unless six months have passed since the expiry date or the child has attained the age of 18 years. However, alongside this, there is a duty on the Principal Reporter to arrange a hearing before the original expiry date, and if not, to arrange the hearing as soon as practicable thereafter.

7.1.2.11 Within the reporting period there have been 462 Compulsory Supervision Orders, where orders have been extended beyond their expiry date. This provision has only been used to the extent necessary driven by the practicalities of holding children's hearings in the current context, and the extent of their use will vary as the safety and operational context develops. Due to the severe restriction in the number of children's hearings which could be held, this provision has had the effect of extending a number of orders. Prioritisation of work has been essential to ensure continuity of protections for children and young people and putting in place appropriate legal measures to keep children and young people safe. The Scottish Children's Reporter Administration has been unable to operate at anywhere near normal capacity as a result of social distancing and virus prevention measures which have been put in place and enforced. The Scottish Children's Reporter Administration is seeking to increase the number of hearings which can be held through the use of technology to allow "virtual" attendance. The Principal Reporter is applying a prioritisation framework to enable the timely consideration of individual cases to the maximum extent possible, in consultation with referring authorities and with children/relevant persons, and is closely monitoring the situation with a view to arranging such hearings as soon as practicable. While service user availability, views and preferences for rescheduling are only elements of 'practicability' - more significant considerations being need and risk, the Scottish Children's Reporter Administration has done so following dialogue with social workers and families. Those involved indicated that they would prefer to come back at a later date to a face to face children's hearing. Reporters are reviewing these arrangements on a case by case basis, and taking into consideration whether there would likely be a risk of detriment to the child's welfare if the Compulsory Supervision Order was not varied or terminated before the original expiry date.

7.1.2.12 During the reporting period there have been 113 children's hearings when orders were due to expire. The number of hearings being held has been increasing since 4 May 2020 as the system has adapted. As the recovery moves through particular phases, the Scottish Children's Reporter Administration will continue to review the necessity of the use of this provision and the scheduling of reviews as soon as practicable.

Maximum period for which Interim Compulsory Supervision Order (ICSO) or Interim Variation of Compulsory Supervision Order (IVCSO) has effect

7.1.2.13 To allow more flexibility for agencies seeking to respond in a prioritised way to the challenges posed by the coronavirus pandemic, paragraphs 4(2) and (3) of schedule 3 of the Scottish Act amend sections 86(3) and 140(4) of the Children's Hearings (Scotland) Act 2011. This provides that the maximum period for which an ICSO or an IVCSO has effect is:

where the order is made by a children's hearing, 44 days, or

where the order is made by a sheriff, such other period as the sheriff may specify.

7.1.2.14 As with the existing legislation, a hearing may make an ICSO or interim variation for a shorter period than the maximum.

7.1.2.15 Table Two below sets out the interim orders where the provision has been used (some children will have had more than one interim order issued in the period and the figures include orders which authorised secure accommodation). It is not possible to calculate how much time has been added; some orders will have had the maximum time (44 days for a hearing/possibly longer for the Sheriff Court) and others will have had different times up to the maximum.

Table Two – Interim orders where the provision has been used

Interim Order Type	7 April - 20 May 2020
ICSO	284
IVCSO	152
Court ICSO / IVCSO (including following appeal)	244
Total	680

Period within which children's hearing must be heard in certain cases - secure care and other place of safety placements

7.1.2.16 In the period 7 April and 21 May 2020, of 16 interim orders authorising the use of secure accommodation, 9 used the extended timescales which are available under the provision. The provision allows the timescales to 7 working days from 3 working days in situations that the existing permitted timescales i.e. 3 days, is not practicable.

Extended timescale following emergency transfer of a child or young person to secure accommodation

7.1.2.17 The Scottish Act allows the Principal Reporter the discretion to extend the period within which a Children's Hearing must be held by 24 hours (from 72 hours to 96 hours) where it is not practicable to meet the existing timescale. The Scottish Children's Reporter Administration has not recorded any cases where a young person has been kept in secure accommodation for an additional 24 hours before coming to a children's hearing.

Modification of certain time limits for making and determination of appeals

7.1.2.18 Paragraph 7 of schedule 3 of the Scottish Act extends the time limits for the making, disposal or determination of appeals or the making or lodging of applications. Disaggregated is data not available from the Scottish Children's Reporter Administration or the Scottish Courts and Tribunals Service. The Scottish Government intends to explore with the Scottish Children's Reporter Administration and Scottish Courts and Tribunals Service whether it could be made available for subsequent reporting periods.

Dispensation with physical attendance at children's hearings

7.1.2.19 The provision provides that there is no longer any obligation on a child or relevant person to attend a children's hearing unless a children's hearing specifically directs that personal attendance is required.

7.1.2.20 All of the 797 children's hearings that have taken place in the reporting period have been 'virtual children's hearings' as children, family members, professionals, reporters and the decision makers (panel members) have been unable to attend the public spaces in children's hearings centres.

Authentication of children's hearings documentation by electronic signature

7.1.2.21 This power has been used in all of the 797 children's hearings held in the reporting period.

Looked after children provisions

7.1.2.22 The timescales for review of children's cases when they are placed in kinship care are extended and Local Authorities are enabled to work with foster carers more flexibly to look after additional children when necessary. Data on these provisions is not available as yet. The Scottish Government is considering the most effective way to provide supporting information without adding an additional burden on Local Authorities which are already providing significant data and reporting to the Scottish Government. Informal feedback has indicated that the kinship provisions have allowed social work teams to focus home visits for the most vulnerable children. The fostering provisions have not been used to a great extent as existing fostering provision has coped with demand, and social work teams have tried to find longer term placements which will provide more stability for children.

Factors Considered to Determine Use and Continued Necessity

7.1.2.23 In relation to the provisions covering child protection and looked after children, the Scottish Government is aware that there is continued pressure on services in relation to vulnerable children and these provisions continue to be necessary.

7.1.2.24 The main factors which have been considered in the assessment of continued necessity of the children's hearings provisions include: prevailing Government guidance and public health advice, an assessment of the impact of the pandemic on the health and availability of staff and volunteers, and an assessment of the impacts on vulnerable and disadvantaged children and families. In the context of this emergency, these provisions are designed to enable best use of very limited resources in Local Authorities, and the children's hearings system, so that efforts can be focused on safeguarding the welfare of Scotland's most vulnerable children and on supporting families and carers who need it most. The measures in the Scottish Act are limited to those considered necessary to support and protect children's rights and promote their welfare and well-being in accordance with obligations under United Nations Convention on the Rights of the Child.

7.1.2.25 The Scottish Government is in regular dialogue with the children's services sector and children's hearings partners to monitor the impact of the pandemic on service provision and the protections afforded to children.

7.1.3 Section 4 and schedule 3 - Children and vulnerable adults – Part Two - Vulnerable adults

Description of Provision

7.1.3.1 Paragraph 11(1) modifies the application of certain principles of existing legislation relating to adults with incapacity and makes changes to guardianship rules. Paragraphs 11(2) and 11(3) effectively 'stop the clock' on the duration of guardianship orders and certificates authorising medical treatment for the period the emergency legislation is in force.

Operation of Provision in Reporting Period

7.1.3.2 The powers under paragraph 11(1) of this section have not yet commenced and therefore the powers have not been used in the reporting period.

7.1.3.3 Paragraphs 11(2) and 11(3) of this section commenced on 7 April 2020 and the powers under these sections have been used in the reporting period. In relation to expiry of guardianships, in the period 7 April to 21 May 2020, 150 guardianships were due to expire and will have had the clock stopped when the provisions came into force.

Factors Considered to Determine Use and Continued Necessity

Paragraph 11(1)

7.1.3.4 The aim of the amendments to section 13ZA of the Social Work (Scotland) Act 1968, was to put provisions in place to ensure the safety of the adult, for instance where they might be in an acute hospital ward which was expecting a large influx of coronavirus patients, putting the adult at risk. In these cases the section 13ZA amendment provides a way to move the adult quickly, and with legal authority, to a more suitable location.

7.1.3.5 In the reporting period, the powers under this section have not required to be used. This may be in part due to a reduction in delayed discharge since the provision was introduced. Delayed discharge figures, which are monitored by the Scottish Government, have come down substantially since the section 13ZA amendments were put in place. As of 18 May 2020, they have reduced by 59% (950 beds) since the 4 March 2020 baseline. The Scottish Government is liaising very closely with Health and Social Care Partnerships on their procedures around discharge in order to monitor the continued necessity of the provision.

7.1.3.6 Amendments to section 13ZA remove the requirement to consult with the adult or interested parties and also allow the Local Authority to use the powers in section 13ZA where there is an existing guardian, welfare attorney or intervener with relevant powers.

7.1.3.7 Article 5 of the European Convention on Human Rights (right to liberty and security) could be engaged in particular with these amendments as they could be used to empower the Local Authority to speedily move adults from acute hospital beds to other more appropriate accommodation.

7.1.3.8 Where the amendments to section 13ZA are utilised to provide services to the adult by way of moving them in to a care home, Article 5 is likely to be engaged and it is very possible that it could be argued that this results in an adult being deprived of their liberty. However, this will be in accordance with a procedure prescribed by law and the adult will be able to bring judicial proceedings to challenge this. In fact, most are likely already to have a guardianship application in process.

7.1.3.9 Article 8 of the European Convention on Human Rights (right to respect for private and family life) may also be engaged here in that Local Authorities can provide services without involving the views of the adult, or other relevant party including any guardian, welfare attorney or intervener. However, the Scottish Government is satisfied that this interference would be legitimate, proportionate and justified in that the services would be provided more quickly to protect the health, rights and freedoms of the adult.

Paragraphs 11(2) and 11(3)

7.1.3.10 The main factors which were taken into consideration in the assessment of continued necessity included the availability of resources, including the courts and relevant health professionals. At the end of the reporting period, the courts were only considering urgent interim guardianship cases. Although the courts advise that a return to business as usual may not be viable in the near future, as of 1 May 2020, the sheriff courts have been dealing with adults with incapacity applications where the court is satisfied that there is good reason why the action should be restarted and that the action can be progressed remotely without recourse to a hearing which requires the leading of evidence. This has been set out in guidance which was published by the Scottish Courts and Tribunals Service^[21].

7.1.3.11 The courts have prioritised their work due to a lack of staff, and cases requiring a hearing have been pushed back in some cases. If these provisions were not in place, it is likely that the cases would have required a renewal application to court, which would have increased the risk of additional pressure on the court, or that guardianship would have expired, which would have required a new application to be completed. In relation to certificates authorising medical treatment, these are, in the main, completed by the medical practitioner primarily responsible for the treatment of the adult and therefore the extension of the time limit takes the pressure off their valuable time whilst the provisions are in force. The Mental Welfare Commission requested that these provisions were added into emergency legislation and they will be one of the stakeholders that the Scottish Government consults with in considering whether the provisions continue to be necessary.

7.1.3.12 It is possible that some of the guardianships, and the certificates to authorise medical treatment under section 47 of the Adults with Incapacity (Scotland) Act 2000 which were due to expire within the emergency period would not have been renewed. This would be in keeping with the principle in section 1(3) of the Adults with Incapacity (Scotland) Act 2000, in that an intervention shall be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention. Under these amendments, they will continue for the period the emergency provisions are switched on. However, it is expected that guardians and those health professionals who have authorised medical treatment (mainly doctors), will adhere to the principles of the Adults with Incapacity (Scotland) Act 2000, and respect the adult's human rights.

7.1.4 Section 5 and schedule 4, part 4 - Extension of time limits

Description of Provision

7.1.4.1 The provision suspends certain time limits contained in the Criminal Procedure (Scotland) Act 1995.

7.1.4.2 The provisions have the effect of increasing the maximum time period that an accused person can be held on remand prior to trial, together with other time limits for progressing a criminal case including the maximum wait prior to trial where the accused is not in custody. This has an impact on the rights guaranteed by Articles 5(3) and 6(1) of the of the European Convention on Human Rights. However, the Scottish Government does not consider that these increases are incompatible with the right guaranteed by Articles 5(3) and 6(1) to a trial within a reasonable time. The increases are necessary to address the disruption to the justice system that is already being caused by the coronavirus outbreak.

7.1.4.3 In any individual case, where an accused is brought before the court for a custody hearing, in determining whether to grant bail, the court requires to consider the accused's Article 5 and 6 rights in deciding whether it is appropriate to grant bail. Furthermore, an accused person can, at any time, apply to the court for a bail review under section 30 of the Criminal Procedure (Scotland) Act 1995 to enable the court to determine whether their continued detention is justified. The courts remain subject to the requirement to ensure that there is a fair and public hearing within a reasonable time.

Operation of Provision in Reporting Period

7.1.4.4 The time limits to which the provision applies are: those under section 65 of the Criminal Procedure (Scotland) Act 1995 which sets various time limits in respect of trials under solemn procedure; section 136, which requires that proceedings in summary cases must commence within six months of the alleged offence; section 147, which makes provision for summary procedure in cases where the accused has been held on remand; and section 52T, which applies the custody time limits in sections 65 and 147, where the accused is detained in hospital because of an assessment order or a treatment order. The provision applies automatically in respect of any criminal case where one of those time limits was in effect on the date when the Act was commenced, or began after the Act commenced.

Factors Considered to Determine Use and Continued Necessity

7.1.4.5 At the end of the reporting period, no jury trials were taking place in Scotland, largely due to difficulties faced in applying social distancing measures. There has also been a significant reduction in summary court business. While court business is affected by coronavirus, these provisions will continue to be required.

7.1.4.6 Justice Analytical Services is working with the Scottish Courts and Tribunals Service to collect data to monitor the backlog of cases in the courts, which will assist in assessing the continuing need for this extension of time limits.

7.1.4.7 The Justice Board, supported by the Scottish Government's Justice Analytical Services, is monitoring closely the impact of coronavirus on criminal, civil and tribunal business, and how the utilisation of these provisions as part of the overall system response is impacting on the ability to restart and manage business.

7.1.5 Section 5 and schedule 4, part 8 - Release of prisoners

Description of Provision

7.1.5.1 The provision allows that the Scottish Ministers may, by regulations, provide that a person who falls within a class of persons specified in the regulations is to be released from prison early.

Operation of Provision in Reporting Period

7.1.5.2 The Release of Prisoners (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/138) ^[22] and the Criminal Justice (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/137)^[23] were made by Scottish Ministers and came into force on 4 May 2020. Scottish Ministers were satisfied that the release of prisoners under the regulations was a necessary and proportionate response to the effects coronavirus is having, and is likely to have, on prisons generally, for the purpose of protecting the security and good order of prisons and the health, safety and welfare of prisoners and those working in prisons.

7.1.5.3 The Scottish Government engaged with a range of different partners prior to commencement of the provisions including: the Convention of Scottish Local Authorities (COSLA), SOLACE, the Association of Local Authority Chief Housing Officers, Social Work Scotland and relevant third sector organisations, in relation to the prisoner release measures and the potential impact it would have on community based services. Letters providing further information on the prisoner release measures were sent to a broad range of stakeholders (including: all Health Boards, Integration Joint Boards, Local Authorities, Police Scotland, and the Department for Work and Pensions) to ensure that they were kept updated on the relevant policy developments and could prepare accordingly for the release measures coming into force.

7.1.5.4 To inform the detail of the regulations (i.e. how the release of prisoners should be configured), the Scottish Government worked with the Scottish Prison Service to understand whether the primary legislative provisions needed to be used and, subsequently, to ensure that the regulations fulfilled the Scottish Prison Service's operational needs (to the extent that they complied with the relevant legislative requirements). The legislative requirements are that Scottish Ministers may make regulations only if they are satisfied that the making of the regulations is necessary and proportionate, in response to the effects coronavirus is having or is likely to have on a prison or prisons generally, for the purpose of protecting: the security and good order of any prison to which the regulations relate, or the health, safety or welfare of prisoners, or those working, in any such prison.

7.1.5.5 The powers have been used to make regulations which provided for a limited number of short-term sentenced prisoners to be considered for release on or after 4 May 2020. Eligibility for release is limited to (amongst other things) those who are sentenced to 18 months or less and who, on 4 May 2020, had 90 days or less left of their time in custody.

7.1.5.6 It was agreed that the prisoner releases brought forward would be phased over three distinct phases (the initial two weeks from commencement of the regulations on 4 May 2020, the following week, and the week after that). This meant that from 4 May 2020:

• prisoners with 1-30 days until their release at the halfway stage of their sentence (the earliest date of liberation) were released no later than 18 May 2020;
• prisoners with 31-60 days remaining until their earliest date of liberation were released no earlier than 19 May 2020 and no later than 25 May 2020; and
• prisoners with 61-90 days remaining until their earliest date of liberation were released no earlier than 26 May 2020 and no later than 1 June 2020.

7.1.5.7 By the completion of the process on 1 June 2020:

• 348 of the 445 considered had been released early;
• a further 27 eligible individuals from that group had been released at their 'earliest date of liberation' and 7 had requested a release on Home Detention Curfew instead;
• 63 eligible individuals had been vetoed by Prison Governors; and
• None had been held back on health grounds.

Factors Considered to Determine Use and Continued Necessity

7.1.5.8 Although there has been some reduction in the prison population since the introduction of this power, prisons have also had to take steps to end visits and reduce time out of cell. A significant number of prison staff cannot work, due to ill health, a requirement to isolate, or as a result of a need to take care of children and family members. Taken together with the changes to prison regimes, these factors make prisons an especially challenging environment at present for prisoners, prison officers, NHS staff and others who work in prisons.

7.1.5.9 The Scottish Government and Scottish Prison Service have held detailed discussions over the current and potential future impact that coronavirus may have on the operation of prisons, including the effect on staffing, and the conditions for prisoners. After careful assessment of the capacity of the prison estate, the additional flexibility required to properly respond to heath concerns, and the necessary staffing levels to maintain safe and effective operations - it was agreed with the Chief Executive of the Scottish Prison Service, that releasing around 300 to 450 short-sentence prisoners would provide a significant improvement to operating conditions – whilst still being proportionate to the current situation.

7.1.5.10 The Scottish Government is engaging with the Scottish Prison Service on a regular basis in relation to the use of these powers and their impact. The Scottish Government is also regularly liaising with stakeholders who are most impacted by the prisoner release measures. The Scottish Prison Service monitors the number of prisoners that are released and which prisons they have been released from. The statistics on the release process are published on the Scottish Prison Service website^[24].

7.1.5.11 The associated prisoner release regulations are time limited and they only allow prisoners to be released over a 28 day period. The Release of Prisoners (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/138) were made under the expedited procedure, but were subsequently recommended for approval by the COVID-19 Committee on 21 May 2020. The Criminal Justice (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/137) were made under the negative procedure and the COVID-19 Committee was content not to make any recommendation to the Scottish Parliament on this SSI.

7.1.5.12 The Scottish Government expects that the proposed release process will achieve the intended and necessary reduction in the prison population. However, if circumstances were to change and the prison population were to increase significantly in future, it might be necessary to review this position. The Scottish Government must keep in mind that this action is being made to ensure safety and good order within prisons, and to protect the health of prison staff and prisoners. Any decisions on future release of additional prisoners would be made with regard to the legislative requirements contained in the Scottish Act, and through very careful assessment in partnership with the Scottish Prison Service.

7.1.5.13 With the assistance of Justice Analytical Services, an Equality Impact Assessment (separate to the one completed at the Bill stages of the Scottish Act) was completed to assess the impact of the prisoner release measures on each of the protected characteristics as defined in equality legislation.

7.1.6 Section 7 and schedule 6, part 2 – Freedom of Information

Description of Provision

7.1.6.1 Prior to the repeal of the provisions mentioned below, the provisions extended the statutory deadlines under the Freedom of Information (Scotland) Act 2002 (FOISA) for responding to Freedom of Information (FOI) requests and reviews by an additional 40 working days; gave the Scottish Ministers the power, by direction, to specify circumstances where a Scottish public authority could extend that deadline; gave the Commissioner discretion to decide that, where failure to comply with a deadline was due to the effect of coronavirus, an authority had not failed to comply; and allowed the Commissioner to issue notices by electronic means.

Operation of Provision in Reporting Period

7.1.6.2 Paragraphs 3 and 4 of schedule 6 extended the deadlines for responding to FOI requests and reviews by an additional 40 working days. The extension applied to both new requests and those outstanding when the Scottish Act came into force, but the requirement within FOISA "to comply promptly" with requests was otherwise unchanged.

7.1.6.3 The power of Scottish Ministers, as conferred by paragraph 5 of schedule 6, was not used during the reporting period (and has now been repealed).

7.1.6.4 Where an appeal is made to the Commissioner in respect of a failure to comply with a relevant deadline, paragraph 6 of schedule 6 gives the Commissioner discretion to decide that, where that is due to the effect of coronavirus or (as amended in the second Scottish Act) resulted from the repeal of the extension provisions at paragraphs 3 and 4, a Scottish public authority has not failed to comply.

7.1.6.5 Paragraph 7 of schedule 6 allows the Commissioner to issue notices by electronic means. Information in respect of the use of this element of the provision will be held by the Commissioner.

Factors Considered to Determine Use and Continued Necessity

7.1.6.6 The powers under paragraphs 3, 4 and 5 of schedule 6 were repealed by the second Scottish Act.

7.1.6.7 The powers at paragraphs 6 and 7 of schedule 6 are conferred on the Commissioner.

7.1.6.8 While the rate of coronavirus infection has reduced, physical distancing measures remain in place and Scotland's route map does not anticipate non-essential indoor office spaces opening until phase three. As a result, Scottish public authorities will continue to experience significant disruption that may impact on their ability to respond to FOI requests for some time, so the power at paragraph 6, conferring discretion on the Commissioner, remains necessary.

7.1.6.9 The Commissioner's office is likely to remain closed for some time, so the power at paragraph 7, to issue notices electronically, remains necessary to reduce disruption to its statutory functions.

7.1.7 Section 8 and schedule 7, paragraphs 1 to 5 - Social security

Description of Provision

7.1.7.1 These provisions relax timescales which apply to clients seeking (and Social Security Scotland making) a redetermination, and clients bringing an appeal before the First-tier Tribunal for Scotland, where normal timescales cannot be met for reasons related to coronavirus. Other provisions modify timescales for making applications where these have not been able to be met directly as a result of coronavirus.

Operation of Provision in Reporting Period

7.1.7.2 The provisions have been commenced. External guidance for members of the public is available via the Agency's website^[25] and at www.mygov.scot/benefits/. Social Security Scotland, in consultation with policy colleagues, has also developed guidance for staff on the practical implementation of the provisions. If a client cites disruption caused by coronavirus as the reason for a late application or late request for an appeal or redetermination, Social Security Scotland will use the powers to allow the late application or request to be considered.

Factors Considered to Determine Use and Continued Necessity

7.1.7.3 The key factor in the continuing necessity of the provisions is the continued disruption created by coronavirus. Where this is likely to have an impact on people's ability to make applications for benefits in timely fashion or make a request for a redetermination or appeal, including to gather and receive supporting information, or where it could have an impact on the timing of their award of a qualifying benefit, there will be a need for these provisions. Similarly, where the continued disruption created by coronavirus impacts on Social Security Scotland's ability to process redeterminations, or on clients' ability to gather information requested in support of their redetermination, the extended timelines for redetermination should remain in place. The Agency is however required to make the redetermination as soon as reasonably practicable within the extended redetermination period; this provides a safeguard to ensure that clients' rights to receive a decision as quickly as possible and subsequently appeal rights to the First-tier Tribunal, are respected. There are currently no new or specific arrangements in place for reviewing the impact of the implementation of these provisions. These provisions amend the Social Security (Scotland) Act 2018 and the impact assessments that are in place for that Act are relevant. Ongoing monitoring arrangements will include monitoring the impact of the changes brought about by these provisions and, if changes are identified, the impact assessments will be reviewed and updated.

7.2 UK Act

7.2.1 Section 10 and schedule 9 - Temporary modification of mental health legislation

Description of Provision

7.2.1.1 The provision makes temporary changes to mental health legislation and it aims to ensure that people can continue to be treated and cared for in a way which both respects their rights and maintains safeguards. These temporary changes will continue to be compliant with human rights obligations.

Factors Considered to Determine Use and Continued Necessity

7.2.1.2 The provisions have not yet commenced.

7.2.1.3 Mental health legislation in Scotland provides for rigorous safeguards in respect of individuals' human rights which include that any function should be carried out for the maximum benefit of the patient, with the minimum necessary restriction on the freedom of the patient. During the passage of the Bill, Ministers were clear that these temporary changes would be brought in only when absolutely necessary.

7.2.1.4 The temporary provisions aim to provide some flexibility to enable services to cope with significant staff shortages whilst maintaining appropriate safeguards for patients and to help support the continued safe running of compulsory care and treatment services under mental health legislation.

7.2.1.5 In order for Scottish Ministers to take a view on appropriate and timely commencement of the mental health provisions, the Scottish Government has been clear that there is an ongoing need to collate and review a range of evidence including NHS workforce information showing the overall and coronavirus-related staff absence rate across NHS Boards. In addition, the Scottish Government has sought intelligence from key stakeholders and it is working closely with practitioners, such as the Mental Welfare Commission, the Mental Health Tribunal for Scotland, the Royal College of Psychiatrists and Social Work Scotland. The Mental Welfare Commission has a statutory duty to monitor the use of the Scottish Government's mental health legislation and it will ensure that the data continues to be collected. Also, through its oversight group, the Mental Welfare Commission will be in a position to scrutinise the use of these emergency powers, if commenced.

7.2.1.6 The current information indicates that workload pressures are not at a stage where they are impacting on the operation of mental health legislation and there is no new compelling evidence to suggest the need to commence these new temporary measures.

7.2.1.7 While at this time, the assessment is that the powers under schedule 9 do not require to be commenced, the provision remains necessary overall.

7.2.1.8 The Scottish Government will continue to engage with stakeholders in order to gather, analyse and review all available data and evidence. This will be used to inform and shape future advice to Scottish Ministers regarding commencement of these new temporary measures.

7.2.2 Sections 16 and 17 - Duty of Local Authority to assess needs: Scotland, and section 16: further provision

Description of Provision

7.2.2.1 The provisions allow for relaxation of some requirements relating to social work needs assessments.

Operation of Provision in Reporting Period

7.2.2.2 Sections 16 and 17 of the UK Act allow Local Authorities to dispense with particular social care assessment duties where: 'it would either not be practical to comply, or where to do so would cause unnecessary delay in providing services, support, advice, guidance and assistance'. The provision covers social care for adults and children and support for carers. It is intended to allow Local Authorities to provide urgent care without delay.

7.2.2.3 The provisions allow Local Authorities the flexibility to focus on prioritising the most urgent need and protecting the lives of those who are most vulnerable while ensuring effective safeguards. Local Authorities are still expected to do as much as they can to meet people's needs. While the provisions soften assessment duties, the main duties on authorities under section 12 of the Social Work (Scotland) Act 1968 remain in place.

7.2.2.4 Scottish Minsters made the Coronavirus Act 2020 (Commencement No. 1) (Scotland) Regulations 2020 (SSI 2020/121)^[26], which came into force on 5 April 2020. Statutory guidance^[27] on these powers was issued on 3 April 2020, and the Deputy First Minister and Cabinet Secretary for Health and Sport wrote jointly to key stakeholders ahead of commencement on 5 April 2020. These communications made clear that the power to disregard assessment duties would remain in operation only while absolutely necessary to protect people.

7.2.2.5 Under section 17(2)(B) of the UK Act, Scottish Ministers can direct Local Authorities to comply with any guidance which is issued under section 17(1). It is intended that this power will only be used if it is considered that the guidance requires the weight of direction, and it will not be necessary to make the direction if Local Authorities demonstrate that they are exercising their functions accordingly. As such, this direction making power has not been used in the reporting period.

7.2.2.6 Following liaison with COSLA and Social Work Scotland, a survey was issued to Chief Social Work Officers to identify use of the powers over the period from commencement of the above regulations on 5 April 2020 until 16 May 2020. Responses were received from 26 Local Authorities/Health and Social Care Partnership areas. Of these, five partnership areas comprising six Local Authorities said they were using the powers. Some are using the powers across the whole authority area and all services, while others are using the powers in a more targeted way, for example, on particular services only. Some of the reasons for the use of the powers included: to support quick access to services where face to face assessment cannot take place, to allow staff to support frontline duties and reduce bureaucracy, and to avoid delays in the provision of care.

7.2.2.7 All those Local Authorities/Health and Social Care Partnerships that used the powers thought the powers were helpful in managing their response to coronavirus. Some respondents noted a potential increase in demand following the transition from lockdown which may affect their likelihood to wish to use the powers.

Factors Considered to Determine Use and Continued Necessity

7.2.2.8 The statutory guidance referred to above, provides a reference point and framework for Local Authorities, if they choose to implement the provisions. The statutory guidance which is referred to above states: "all assessments other than full should be regarded as temporary. These should be reviewed as well as possible at regular intervals".

7.2.2.9 The guidance sets out that Local Authorities are responsible for ensuring that the powers are only used for as long as is necessary. When using these provisions, all decisions made on an individual's social care needs should be considered alongside their individual wellbeing and fundamental human rights.

7.2.2.10 Most Local Authorities have decided that it is not operationally necessary for them to use these powers. This may suggest that Local Authorities are carefully considering use of the powers and seeking to use them only where appropriate and necessary, subject to their governance processes. While significant progress is being made, the future path of the virus, and levels of demand for assessments and impact on social work professionals is hard to fully predict. It is therefore appropriate at this time to maintain the flexibility for Local Authorities to use these powers. This will be subject to further monitoring and review.

7.2.3 Sections 34 and 35 - Temporary disapplication of disclosure offences: Scotland and Power to reclassify certain disclosure requests: Scotland

Description of Provision

7.2.3.1 The provisions give Scottish Ministers the power to issue a direction that disapplies or modifies the offences under section 35 (organisations not to use barred individuals for regulated work) and section 36 (personnel suppliers not to supply barred individuals for regulated work) of the Protection of Vulnerable Groups (Scotland) Act 2007 ("the PVG Act").

Factors Considered to Determine Use and Continued Necessity

7.2.3.2 This power has not been used in this reporting period. The use of these provisions is directly linked to the ability of Disclosure Scotland to continue to provide a service to those critical workers requiring PVG scheme membership. This provision is to ensure that employers who employ someone who is barred from regulated work is not criminalised due to the inability of Disclosure Scotland to provide this check in a timely manner.

7.2.3.3 Disclosure Scotland's Leadership Team monitors the number of applications received on a daily basis, and the length of time that it is taking to process and issue disclosures. Throughout the reporting period, the vast majority of disclosures have been issued within one week of the application being received. Disclosure Scotland's Leadership Team also monitors staff absences daily, and these have not been at a level to impact adversely on the processing and issuing of disclosures. Scottish Ministers will make the decision to invoke this contingency if monitoring shows that there is a material risk of Disclosure Scotland being unable to continue to provide a service to critical workers requiring PVG scheme membership.

7.2.3.4 While at this time, the assessment is that the powers under sections 34 and 35 do not require to be used, the provision remains necessary overall as a contingency to ensure continuity of service.

7.2.4 Section 37 and part 2 of schedule 16 and section 38 and part 2 of schedule 17 - Temporary closure of educational institutions and childcare premises, and Temporary continuity: education, training and childcare

Description of Provision

7.2.4.1 The provisions provide Scottish Ministers with powers to close educational establishments, disapply or disregard specific legislation and to require educational establishments to open either partially or fully.

Operation of Provision in Reporting Period

7.2.4.2 The powers under section 37 and part 2 of schedule 16 have not been used in the reporting period.

7.2.4.3 The powers under section 38 and part two of schedule 17 have been used in the reporting period. Scottish Ministers exercised their powers conferred by section 38(2) and paragraph 11(1) of schedule 17 of the UK Act, to give an Educational Continuity Direction^[28] to Education Authorities which came into force on 21 May 2020. As required by the legislation, Scottish Ministers had regard to advice relating to coronavirus from the Chief Medical Officer ahead of the Educational Continuity Direction being issued.

7.2.4.4 The direction supports and provides a legal basis for key measures of the Strategic Framework for Reopening of Schools and Early Learning and Childcare Provision^[29] as published by the Education Recovery Group. For example, it includes requirements on planning and preparing for return to school when it is safe to do so, remote learning, provision for keyworkers' children and vulnerable children, and restricting access to school buildings except for these purposes. It also provides that failures to comply with a number of statutory duties on education authorities are to be disregarded, to the extent they are attributable to the direction.

7.2.4.5 The Educational Continuity Direction also applies to early learning and childcare and out of school care provided by Local Authorities (i.e. not private or third sector providers of early learning and childcare and out of school care). It does not apply to Further Education or Higher Education institutions.

Factors Considered to Determine Use and Continued Necessity

7.2.4.6 The provisions for closure directions and continuity directions remain necessary in case of any future surge in infection which may necessitate closure, and to underpin the phased re-opening of education establishments. This continuity direction is in place for 21 days from 21 May 2020. However, it will be kept under review by the Education Recovery Group, and it is expected that further directions will be made to modify or supplement it as appropriate. As required by the UK Act, this direction will be reviewed within 21 days, and the intention is to continue to do this in partnership between the Scottish Government and Local Government.

7.2.4.7 The Scottish Government will continue to use its close links with stakeholders to monitor the impact of the Educational Continuity Direction on those affected by it, in particular, as it is closely aligned with the work of the Education Recovery Group, this will provide a broad based overview of the effect of the direction. This work of the Education Recovery Group includes the ongoing assessment of the impact of these measures on those with protected characteristics under the Equality Act 2010, in relation to children's rights and wellbeing and any differential impact on island communities.

7.2.5 Section 49 and schedule 19 - Health Protection Regulations: Scotland

Description of Provision

7.2.5.1 Section 49 introduces Schedule 19, which gives Scottish Ministers the powers to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Scotland.

Operation of Provision in Reporting Period

7.2.5.2 Section 49 commenced on Royal Assent and schedule 19 came into force on 25 March 2020. The powers have been used to make several sets of regulations to provide for the "lockdown". The chronology of this, and related guidance, is as follows:

• 25 March 2020: The UK Act receives Royal Assent and section 49 and schedule 19 of the Act (the enabling powers for the regulations) come into force. Coronavirus (COVID-19): Business and Social Distancing Guidance^[30] is also published.

• 26 March 2020: The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (SSI 2020/103)^[31] are made and come into force.

• 27 March 2020: Physical Distancing Guidance Staying at Home and Away from Others^[32] is published.

• 1 April 2020: The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment Regulations 2020 (SSI 2020/106)^[33] are made and come into force. These regulations make minor amendments to regulations 4 and 7 of the original regulations to amend cross referencing errors.

• 16 April 2020: The regulations are reviewed. The Cabinet Secretary for Constitution, Europe and External Affairs wrote to inform the Scottish Parliament of this.

• 21 April 2020: The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 2) Regulations 2020 (SSI 2020/126)^[34] are made and come into force. These regulations strengthen the position already set out in guidance by making it a legal requirement that all businesses that are open during the emergency period must take reasonable steps to ensure that their employees are able to maintain social distancing. They also make minor extensions and clarifications to the regulations in relation to livestock markets, holiday accommodation services and burial grounds.

• 7 May 2020: The regulations are reviewed.

• 11 May 2020: The Physical Distancing Guidance which is referred to above is updated to reflect that people are advised they can exercise as often as they wish. Scottish Ministers made this change following scientific advice and using the COVID-19 Decision-Making Framework^[35]. This change will be monitored carefully and reviewed in order to assess the effects on physical distancing and infection spread.

• 28 May 2020: The principal regulations are reviewed and the Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 3) Regulations 2020 (SSI 2020/164)^[36] are made. These regulations provide that people may take part in outdoor recreation with members of their household and with members of one other household. They allow garden centres to reopen and provide that it is a reasonable excuse to leave your home to obtain supplies from garden centres (or any other business or service listed in part 3 of schedule 1) or to access waste/recycling services. The regulations provide for the reopening of outdoor tennis courts and bowling greens. They allow businesses and service providers, currently closed to the public under the regulations, to begin preparing social distancing procedures in readiness for when they are allowed to reopen. The regulations came into force on 29 May 2020.

7.2.5.3 Also on 28 May 2020, Physical Distancing Guidance Staying at Home and Away from Others is updated to reflect that people may take part in outdoor recreation alone or with members of their household and/or members of one other household at a time, while emphasising the importance of physical distancing, hand hygiene and other precautions when meeting. The revised guidance strongly recommends not travelling beyond a person's local area for outdoor recreation (and advises a five mile limit to travel). It also provides a non-exhaustive list of non-contact leisure activities that people from up to two households can engage in, such as golf and bowls.

7.2.5.4 Police Scotland is publishing weekly updates on the use of coronavirus legislation, including Fixed Penalty Notices (FPNs) issued and other intervention activity^[37]. This information is drawn from Police Scotland's 'Coronavirus Interventions' application, which relies on manual input from Police Officers. Due to this manual input, these figures are indicative only and should not be considered Official Police Statistics. This system currently provides the broadest picture of the differing levels of co-operation experienced by Police across Scotland.

7.2.5.5 In due course and as standard practice, the Official Statistics produced by the Scottish Government on Recorded Crime^[38] and Criminal Proceedings^[39] will ultimately provide users with information on both the number of crimes recorded in relation to the new powers, and the number of FPNs issued. Further updates on developments with these Official Statistics can be received by signing up to the SCOTSTAT network^[40].

7.2.5.6 A Local Authority can also use enforcement powers in relation to the parts of the regulations (regulations 3 and 4 of the principal regulations) that relate to restrictions on businesses.

7.2.5.7 To ensure a co-ordinated approach to coronavirus was taken nationally, the Environmental Health/Trading Standards COVID-19 Expert Group was formed by the Society of Chief Officers of Environmental Health of Scotland and the Society of Chief Officers of Trading Standards in Scotland in conjunction with COSLA. Both Environmental Health and Trading Standards staff have been designated as authorised officers by Local Authorities to enforce the relevant requirements of The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (SSI 2020/103), as amended.

7.2.5.8 Each Local Authority is publishing information about enforcement activity undertaken in relation to the regulations on the respective Authority's website. This information is currently published every two weeks.

Factors Considered to Determine Use and Continued Necessity

7.2.5.9 Prior to the regulations being made, confirmation was sought from the Chief Medical Officer that the measures set out in the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 were required due to the serious and imminent threat to public health posed by the incidence and spread of the coronavirus.

7.2.5.10 Scottish Ministers also had to ensure that the restrictions and requirements that they imposed were proportionate to what is sought to be achieved by the imposition of the regulations. Advice that the regulations should continue to remain in force was sought, and provided, ahead of each review of the regulations. This was provided by a range of analytical and health teams across the Scottish Government. Advice on the impact on public health of any changes to the regulations to relax the measures was sought before each change was implemented in the regulations.

7.2.5.11 The necessity of the restrictions and requirements imposed by the regulations must be reviewed at least every 21 days, and measures must be terminated as soon as they are no longer required.

7.2.5.12 In practice, this means that at least every 21 days, the full range of measures are formally reviewed based on whether they are needed on public health grounds, and the results of the review are communicated to the Scottish Parliament. In between these formal reviews, the individual measures are kept under continuous review and changes are assessed based on public health grounds and the threat to public health that is posed by coronavirus and whether the restrictions and prohibitions imposed by the regulations remain proportionate to what the regulations seek to achieve. Where measures can be eased, they are being eased as soon as the evidence suggests this. These changes are being announced by the Scottish Government, and announced to the Scottish Parliament, as and when they are made.

7.2.5.13 Throughout the development of the regulations and guidance, the Scottish Government has always had regard to equality considerations and the particular needs of island communities as part of the policy development process. Ministers were clear that the regulations and the restrictions and requirements that they impose were necessary.

7.2.5.14 Whilst these measures were brought in to deal with a significant threat to public health, impact assessment will be carried out as required on these measures. Any proposed changes to the measures are being assessed for their impact on equality and other areas as part of the policy development. This will be reported to the Scottish Parliament in appropriate impact assessments supporting any further amending regulations.

7.2.6 Section 51 and part 3 of schedule 21 - Powers relating to potentially infectious persons

Description of Provision

7.2.6.1 Section 51 introduces schedule 21 which sets out powers which can be exercised by public health officers, constables and immigration officers in respect of persons where there are reasonable grounds to suspect that they are "potentially infectious".

Operation of Provision in Reporting Period

7.2.6.2 A declaration of a serious and imminent threat to public health^[41] was made on 25 March 2020 under schedule 21, and a further clarificatory declaration^[42] was made on 30 March 2020. Although the Schedule 21 powers have been "switched on" via this declaration made by Scottish Ministers, they have not been used in the reporting period. The views and agreement of the Chief Medical Officer were formally sought and secured prior to the issuing of the declaration to switch on the Schedule 21 powers.

Factors Considered to Determine Use and Continued Necessity

7.2.6.3 The schedule 21 potentially infectious persons powers continue to be required as they may be needed to support any future strategies to disrupt transmission of coronavirus.

7.2.7 Section 52 and part 3 of schedule 22 - Powers to issue directions in relation to events, gatherings and premises

Description of Provision

7.2.7.1 Section 52 introduces schedule 22 which gives the Scottish Ministers direction-making powers in relation to events, gatherings and premises.

Operation of Provision in Reporting Period

7.2.7.2 A declaration of serious and imminent threat to public health^[43] was made on 25 March 2020 under schedule 22. This had the effect of starting a "public health response period" and switching on the schedule 22 powers (with a further clarificatory declaration^[44] made on 30 March 2020).

7.2.7.3 The views and agreement of the Chief Medical Officer were formally sought and secured prior to the issuing of the declaration to switch on the Schedule 22 powers.

7.2.7.4 Although the schedule 22 powers have been "switched on" via the declaration made by Scottish Ministers, they have not yet been used to make directions relating to events, gatherings and premises. Provision in that regard has instead been made to date by regulations made under schedule 19 which have closed certain businesses, prohibited anyone leaving the place where they live without reasonable excuse, and banned public gatherings of more than two people.

Factors Considered to Determine Use and Continued Necessity

7.2.7.5 As the requirement for the schedule 19 regulations is kept under review, based on public health grounds, so too is the ongoing requirement for the schedule 22 powers and when they might be invoked. Whilst no directions have been made under schedule 22 yet, the powers remain necessary and could be used to take fast targeted action beyond the scope of the regulations if it appeared necessary, proportionate and justified in the circumstances. As part of exiting lockdown, the powers may be necessary to allow Scottish Ministers to take more targeted action in local areas.