Coronavirus (Recovery and Reform) (Scotland) Bill: fairer Scotland duty impact assessment

Coronavirus (Recovery and Reform) (Scotland) Bill: Fairer Scotland Duty Impact Assessment (FSDIA)

Summary of aims and expected outcomes of strategy, proposal, programme or policy

The purpose of the Coronavirus (Recovery and Reform) (Scotland) Bill (“the Bill”) is to embed reforms in Scotland’s public services and justice system that, though necessitated by the Covid pandemic, have delivered improvements for service users and improved efficiency. The Bill will also help build resilience against future public health threats.

The Bill will also help build resilience against future public health threats. Furthermore, the Bill will continue certain temporary justice system provisions on a longer extension basis as part of the Recover, Renew, Transform programme^[1] and as a response to the impact of Covid on Scotland’s justice system, most particularly where backlogs have unavoidably built up. The Bill’s provisions demonstrate the Scottish Government’s openness to making legislative reforms that can help respond to the Covid pandemic and support the country’s recovery ambitions.

Further information about the background and the policy intention behind the Bill and also about the existing temporary Covid legislation is set out in the Policy Memorandum which accompanies the Bill. The Bill, Policy Memorandum and other accompanying documents are available from the Scottish Parliament website and are linked to from this Bill webpage.

The Bill follows a full 12-week public consultation between 17 August and 9 November 2021. The consultation paper, entitled “Covid Recovery: a consultation on public health, public services and justice system reforms”^[2], was publicised widely and almost 3,000 responses were received.

322 respondents offered free text responses to the question about the socio-economic impact of the consultation. A full consultation analysis report is available via the webpage linked to above.

The consultation analysis report notes that some respondents took the view that extending the proposals may exacerbate socio-economic inequalities. A common theme in the comments was digital exclusion. Respondents feared remote or virtual services could exclude or disadvantage those with poor broadband access or low levels of digital literacy, such as elderly people, people with disabilities, low-income households and remote and rural communities. with COSLA and Citizens Advice Scotland noting that low-income or vulnerable groups were less likely to have access to, or skills with, the technology which is used under some of the provisions and could therefore become further isolated. On the other hand, Argyll and Bute Council described the benefits of online processes to those in island and remote mainland communities. A few responses highlighted a concern about setting the debt level for a creditor pursuing bankruptcy through the courts as too high and there were mixed opinions about the tenancies proposals, with a few considering that this would improve the rights of private tenants while another response was critical of the proposal, citing the impact on landlords.

There were many references to Covid’s impact on vulnerable groups, particularly that the pandemic and the response to it hit the poorest in society hardest and exacerbated poverty. Other points included the disproportionate impact of school closures in more deprived areas and the long-term impact on the attainment gap. The damage Covid caused to businesses was also mentioned by some.

In addition, a targeted Disability Workshop was undertaken to support and inform policy consideration. An online consultation workshop took place on 26 October 2021, jointed hosted with Disability Equality Scotland, and heard from 23 people, including people with lived experience and members/representatives of disability organisations.

Summary of evidence

The evidence stage of the assessment process has identified relatively little impact on individuals facing socio-economic disadvantage and inequalities of outcome in relation to the provisions of the Bill. Further, the evidence has identified some negative impacts that would arise if the current temporary Covid legislation was simply allowed to expire.

The provisions in the Bill for Modifications of the Public Health etc. (Scotland) Act 2008 and Educational establishments etc. contain only enabling powers and so the provisions themselves have no immediate impact on sectors and groups. In the event of a future health threat, any regulations made using these powers would require to be accompanied by a Fairer Scotland Duty assessment, and it would be at that point that the impacts would be measured and set out. Some evidence about the current Covid pandemic on educational establishments is provided in this assessment.

The Scottish Government has assessed all of the provisions contained in the Bill. Where provisions are not mentioned in this Fairer Scotland Duty summary, this is because the Scottish Government has concluded that these provisions would have no significant impact on individuals experiencing socio-economic disadvantage and has determined that no effect on those groups is anticipated in respect of those measures.

Public Health Protection

Modifications of the Public Health etc. (Scotland) Act 2008

As this section of the Bill contains only enabling powers, the provisions themselves have no immediate impact on socio-economic disadvantage and inequalities of outcome. The content of any regulations laid using this new public health protection power would depend on the nature of the threat faced; the actions required to control it; and the potential consequences of failing to mount an effective response. As such, it would be the content of the regulations that would determine impact rather than the Bill itself.

In the event of a future health threat, any regulations made using these powers would require to be accompanied by a Fairer Scotland Impact assessment, so it would be at that point that there would be active consideration of how to reduce inequalities of outcome caused by socio-economic disadvantage.

Education

Educational establishments

As with the Modifications of the Public Health etc. (Scotland) Act 2008, this section of the Bill contains only enabling powers; the provisions themselves have no immediate impact on sectors or groups. In the event of a future health threat, any regulations made using these powers would require to be accompanied by a Fairer Scotland Impact assessment, so that it would be at that point that the impacts would be measured and set out. The powers are designed to ensure that the education system would be supported so that educational provision is maintained despite the disruption of a public health emergency. The powers also give stakeholders greater clarity about the requirements placed upon them and certainty about how actions will be taken. If the powers in the Bill were used to make regulations to address and mitigate an emerging public health issue, it may limit the scope and effect of any inequalities of outcome caused by socio-economic disadvantage.

During the Covid pandemic, there was evidence of the negative impact of school closures on children and young people from disadvantaged communities. The Scottish Government’s Equity Audit provided evidence to show negative impacts in terms of children and young peoples’ mental and physical health, gaps in access to digital infrastructure negatively affected the experience of socio-economically deprived children and young people of remote learning especially in comparison to less deprived children and young people. There was also evidence of negative impact on pupil progress and attainment for socio-economically deprived children and young people. For example, using data gathered from the UK Household Longitudinal Study, Pensiero et al estimated that the ‘educational loss’ caused by the transition to remote learning will be higher for children from lower socio-economic backgrounds^[3], with a lack of access to their own device at home an important factor. The Centre of Economic Performance estimated that due to disruption to schooling between March 2020 and April 2021, the maximum number of classroom days lost in Scotland was 119 days, and that this would translate to a learning loss of 64 days of schooling.^[4]

In relation to regulated childcare, including early learning and childcare (“ELC”), and school age children there is some evidence that use of such powers would impact young children depending on the child’s individual circumstances. For example, the COVID-19 Early Years Resilience and Impact Surveys (CEYRIS) of parents of 2 to 7 year-olds found that ELC-aged children in affluent households and/or two adult households were more likely to be doing well psychologically and behaviourally during lockdown than children in less affluent and/or single adult households. It also found that children in single adult households experienced a bigger decline in relation to behaviour, sleep and concentration, were less likely to participate in home learning activities and were less likely to be physically active.

Any use of these powers would therefore need to be carefully balanced against the direct health-related harms that they were designed to prevent (for example, reducing transmission of an infectious disease from childcare settings into homes).

In relation to further and higher education, any use of these powers would impact primarily on the student population. This population include a substantial proportion who are from deprived areas, (in 2019/20, 34.2% of Scottish domiciled enrolments in full-time Further Education came from the 20% most deprived areas. This is a drop from 34.7% in 2018/19^[5]). This population will have been impacted upon by the measures that were in place during the current pandemic although there is not available evidence showing the specific impacts. If Ministers required a period of online only or blended learning, with restricted access to campus, students from deprived areas could be limited in their ability to access any on-campus support, such as mentoring, exacerbating any disadvantages already faced compared to their peers from more affluent areas.

The Coronavirus (COVID-19): Advisory Sub-Group on Universities and Colleges considered a ‘Coronavirus student survey’ commissioned by the National Union of Students (NUS) Scotland and published in November 2020. The results showed that three in five students say that Covid has had some degree of impact upon their income; with a quarter saying this impact has been major. This survey was carried out across the student population and not specifically focused on those from deprived areas or low-income households.

In addition, the interim report from the Commissioner for Fair Access on the impact of the Covid pandemic on fair access to higher education considered both the direct impact of the public health measures that have had to be taken and indirect impact of actions taken by colleges and universities to mitigate the worst effects of these measures. Its key findings found that there had been a disproportionate impact on students from social deprived areas:

• ‘Digital poverty’ has put students from more socially deprived backgrounds at a serious disadvantage because they lack the tools of effective learning – IT, connectivity and quiet space – in a predominantly online environment;
• The same students are experiencing unprecedented levels of financial hardship, as a result of the shortage of part-time jobs and their inability to fall back for help on parents and carers (who themselves are often being exposed to unprecedented levels of economic strain);
• All students are experiencing an impoverished learning, and social, experience and also increased levels of poor mental health. But deprived and disadvantaged students, with more limited familiarity with university life, are suffering worst;
• There is a real risk the attainment gap between pupils in the most advantaged and most deprived schools will widen as a result of interruptions which have been greatest in areas of the greatest social disadvantage.

The Thriving Learners study, undertaken by the Mental Health Foundation and published on 18 November 2021 covered a number of topics related to the health and wellbeing of the student population. Relevant findings included that in the previous 12 months: over a fifth (21.5%) of students worried about running out of food; nearly a quarter (23.5%) ate less due to a lack of resources or money; and 7.2% resided in households that had run out of food.

The Scottish Funding Council published the College Leaver Destination statistics for the 2019-20 academic year. This demonstrates that college leavers looking for work or further study during the early stages of the pandemic who have achieved at Scottish Credit and Qualifications Framework (SCQF) level 1-6 have been disproportionally negatively impacted - in terms of their leaver destinations, with 74.5% going on to positive destinations, compared to 80% from the previous year. Students studying at SCQF Levels 1-6 tend to be from more socially disadvantaged backgrounds.

In contrast, those studying at SCQF level 7+ and going to positive destinations decreased by 0.2 percentage points to 90.2%. A higher proportion of students from lower levels of SCQF are from more socially disadvantaged backgrounds, with 34.2% of full-time further education college students (typically SCQF 1-6) coming from the 20% most deprived areas, compared to 29.3% of full-time Higher-Education (typically SCQF 7+) college students.

Should Ministers decide to use their powers under this legislation, it is possible that these issues could be exacerbated. For example, prolonged periods of online only learning or restricted access to campus or student accommodation could exacerbate the issues identified above in terms of social skills deficits, the ability of students to complete courses (particularly those of a practical nature), or to access in-person advice and support. It is the case however that the overarching purpose of these powers is to ensure educational continuity during a public health emergency and to help prevent the spread of infection and the reduce detrimental effects that could be caused.

School consultations

The provisions will help ensure that consultations under the Schools (Consultations) (Scotland) Act 2010 could proceed safely despite a public health emergency. The powers to permit local authorities to hold public meetings which are virtual only would only be used where necessary and proportionate in connection with the protection of public health.

Virtual public meetings may be easier to attend, and have no physical or cost barriers to attending (e.g. petrol costs in a rural area), provided participants have access to appropriate technology. Local authorities would be expected to ensure they choose accessible options for virtual meetings which could be joined from a wide range of devices, for example, from a smart phone. Government programmes to increase availability of electronic devices particularly for those from disadvantaged families will further improve access to such consultations. Virtual meetings during a public health emergency would be expected to reduce risk of illness and illness, which would have a greater impact on children or families with disabilities (who are at an increased likelihood of being socio-economically disadvantaged).

Paper copies of consultation documents to support consideration of complex documents will be more beneficial to consultees with poorer access to technology or printing. However, in practice, the uptake of paper copies is low. This disadvantage is balanced by the reduced risk of illness from accessing offices to obtain copies, and local authorities are expected to make alternative provision on request, for example, sending a paper copy by post. In the most restricted circumstances, where schools and offices were closed to most people, this would be difficult, but under reduced restrictions when free access to public buildings was still not appropriate but they continued to function with pupils attending school and administrative staff having access to printers, this would be possible.

During the consultation period, the Scottish Government met with children’s rights bodies who provided valuable insights into the way in which, particularly those with disabilities, engage with virtual meetings/hearings, drawing on the experience of their organisations during the pandemic and wider research on the use of virtual hearings across society during the pandemic.

An increasing evidence base is being built on the impact of the Covid pandemic on people experiencing socio-economic disadvantage and this would be used to inform policy decisions in a future public health emergency, to ensure that adverse impacts are minimised. It will be important to continue to gather evidence from the Covid pandemic on the impact of restrictions on in-person access to services for socio-economically disadvantaged families to understand how successfully or otherwise were the mitigations which sought to support them and reduce adverse impacts.

Public Service Reform

Bankruptcy

Evidence is available on the disadvantages experienced by vulnerable individuals with problem debt. For instance:

Citizens Advice Scotland’s research has shown that almost two in five people in Scotland are concerned about their income during the Covid pandemic. The debt advice charity Stepchange has estimated that 2.4 million people affected by Covid are now at high risk of long-term debt problems.^[6]

Many charities are predicting that the UK is facing a debt crisis in the coming months as government business support schemes are wound down and creditor forbearance reaches its end point. Almost inevitably this will result in large numbers of people facing issues with problem debt.

However, from the responses to the Bill consultation or through engagement with stakeholder working groups, no particular concerns were raised with regard to the provisions having a negative impact on those with a socio-economic disadvantage.

Stakeholders responding to the consultation highlighted the potential negative impact of the debt level being too high for a creditor pursuing bankruptcy through the courts (i.e. £10,000). In their view, high debt level could ultimately be counterproductive. It would mean the vulnerable individual could build up more significant debts before seeking to address their financial difficulties which reduces the chances of a successful outcome for all parties.

Citizens Advice Scotland said in its response to the public consultation “The proposal to allow the provision for electronic service of bankruptcy documents to become permanent is an appropriate change which would allow the bankruptcy system in Scotland to reflect the modern world we now inhabit. This would also have no implications on digital exclusion as the system this operates through (BASYS) is not available to the public….”

Registration of Births and Registration of Deaths

The use of the phone for remote registration of births or deaths may be expensive for people on lower incomes. Video conference calls may be cheaper. However, there is also evidence to suggest that use of the internet is lower in lower income groups^[7]. This evidence suggests there may be some potential barriers in relation to people on low incomes participating in remote registration of births and deaths.

Requirements of writing: Disapplication of physical presence requirements

No negative impacts were identified. The following comments were received to the consultation:

• The Law Society of Scotland commented that “were this provision to be repealed that could have an adverse impact on those who need notarial services in terms of risk of exposure to Covid-19, anxiety, cost and delay.”
• Citizens Advice Scotland commented: “CAS is pro-channel choice and allowing notaries public, solicitors and advocates the ability to execute documents and administer oaths by means such as live video connection on a permanent basis would be beneficial. The extension of channels will allow for greater flexibility in accessing legal services. We believe that this will also be more convenient and create less stress for many clients, particularly those who have disabilities or are vulnerable.”

Tenancies

The Scottish Government considers that the temporary legislative changes introduced during the Covid pandemic to protect renters have continued to have a positive impact across those with protected characteristics, including women who are more likely to have caring responsibilities and therefore be impacted more significantly - socially and financially - by the consequences of the outbreak.

The provisions will ensure that both children and young people living within rented family homes continue to be protected from homelessness, with an estimated 120,000 children living in the private rented sector^[8]. The provisions will also ensure that tenants, including those who have become unemployed and the pre-action requirements will require landlords to signpost tenants to access available support, and if necessary, to give them time to plan for the longer term. Preventing tenants in the private rented sector from requiring local authorities to provide homelessness temporary accommodation will protect them from increased housing costs for this group.

Responses to the Bill consultation showed support for these provisions, for example Shelter Scotland commented “… keeping all grounds for eviction discretionary keeps an important extra protection for tenants against eviction and the often-resulting homelessness. The negative impact that eviction has on tenants, and particularly children, is well documented.”

Temporary Justice Measures

The temporary justice measures are currently due to expire on 30 November 2023, but any of the provisions may initially be extended for a further year by regulations. On 20 September 2023, the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Extension and Expiry of Temporary Justice Measures) Regulations 2023 were laid. These regulations, if passed, will expire those of the temporary justice measures that Scottish Ministers consider are no longer needed. The regulations will extend the remaining temporary measures for a further year, until 30 November 2024. The Scottish Government has therefore taken this opportunity to review the material in this EQIA on the temporary measures, to ensure that it remains relevant. Alongside the regulations, Ministers have laid a Statement of Reasons (SG/2023/180) in the Scottish Parliament, which sets out how each of the temporary provisions proposed for extension is being used; the effect it is having; what the impact would be if it were not extended; and views expressed by stakeholders who were consulted on the proposed extensions.

Courts and Tribunals

The use of technology to enable electronic transmission of documents has developed during the Covid pandemic with mitigations in place where that has not proven possible. It has been recognised that some groups of society have concerns around accessibility to and the use of technology, around the security electronic signing and transmission by email, and receive greater reassurance through actual signing, physical delivery and even through delivery by post.

In relation to virtual attendance at court, in many instances the virtual nature of attendance was managed through the attendance at remote jury centres across Scotland (until these were largely decommissioned in autumn 2022). In addition, assistance has been provided for those who may struggle to attend, be that through not having access to private transport, through limited income in order to be able to use public transport, or general concerns related to the pandemic or other factors.

Widespread support was expressed to the consultation from organisations and local authorities, nonetheless it was recognised that digital exclusion was raised as a concern by organisations that often deal with clients from disadvantaged groups.

Public Health Scotland said “The implementation and use of digital technology and its infrastructure can both reduce and widen health inequalities and the underpinning social and economic inequalities that people face. Digital exclusion has emerged as a major issue through the course of the pandemic. Consideration must therefore be given to those that are currently digitally excluded, and have an unequal access to information and services. We fully endorse the ‘No one is left behind’ commitment in the Scottish Government’s Digital Strategy^[9]. We agree that it is important to ensure that options are available to people who do not have the equipment, data, skills, knowledge or desire to connect digitally. This includes ensuring that more traditional face to face and telephone options are available.”

In relation to the statutory public display of certain court documents, the main alternative is to only physically display documents in court buildings. Limited other alternatives exist for the required publication of documents, such as publication in newspapers (there is already provision for this in relation to some, but not all, documents.) However, there is no evidence that suggests that these more traditional methods of publicly displaying documents is more inclusive or reaches a wider audience than publication online would be, especially with reducing newspaper circulation and potential travel costs. In addition public display in court buildings would not provide the courts with a viable alternative should there be similar restrictions imposed during future public health emergencies.

There are Scottish Government strategies and range of policies in place to increase digital access. Connecting Scotland is a Scottish Government initiative set up in response to the Covid pandemic. Its aim is to help get every citizen in Scotland online. Connecting Scotland has reported that they had brought over 61,000 households online by the end of 2022. It has provided both hardware and support to develop digital skills for people who are digitally excluded and on low incomes. This should help to reduce digital exclusion now and in the future.

Criminal procedure time limits

Research has shown that a disproportionate percentage of Scotland’s prison population come from the country’s most deprived areas. A paper published by the Scottish Centre for Crime and Justice Research in 2019 cited research by Robert Houchin in 2005 which found that “the imprisoned population of Scotland comes disproportionately from the most deprived communities in Scotland (those which score highly on SIMD). In addition, they found that the probability of imprisonment increases with increasing deprivation.”

There is some evidence that people from a deprived background may be more likely to be victims of crime. The Scottish Crime and Justice Survey did not find significant difference in the risk of becoming a victim of crime by socio-economic class, but did find that people living in the 15% most deprived areas of Scotland were more likely to be victims of crime (16.5% of respondents living in the 15% most deprived areas reported being a victim of crime in the previous 12 months, compared with 11.2% of the population as a whole)

Summary of assessment findings

Public Health Protection

Modifications of the Public Health etc. (Scotland) Act 2008

As the provisions of the Bill only allow the Scottish Ministers to make regulations, it would will be through the regulation-making process that the full impact assessment process would be followed and results published.

Education

Educational establishments etc.

These powers would only be used as a last resort public health measure that was necessary to protect public health and prevent more serious adverse impacts of serious risk to health in the population. These powers would need to be applied consistently across Scotland or in a specific area to achieve the intended health benefit. It is likely that socio-economically disadvantaged groups would be at the same or potentially greater risk (due to other characteristics such as poorer health) than the general population and exempting them from these powers would undermine the fundamental objective of protecting public health.

Instead, the impact of using the powers on all groups in society should be fully considered before exercising the powers, and appropriate accompanying measures should be made to mitigate their impact on particular groups. These could include wider economic measures (such as the furlough scheme and other targeted funding support); and education measures to support socio-economically disadvantaged families and reduce adverse impacts

The powers were used during the Covid pandemic to reduce adverse impacts on people experiencing socio-economic disadvantage, (for example alternative provision of free school meals and continued in-person education and childcare for vulnerable children and young people and for children and young people whose parent(s) was a key worker).

An increasing evidence base is being gathered on the impact of the Covid pandemic on people experiencing socio-economic disadvantage and this would be used to inform policy decisions in a future public health emergency, to ensure that adverse impacts are minimised.

It is also likely that some negative impacts e.g. access to remote learning and effects on pupil attainment can be mitigated in a future public health emergency through improvements in provision of technology, and through learning from the experience of delivering remote learning during Covid^[10][11].

Schools consultations

These powers would be used to allow school consultations to proceed where the need to protect public health meant that meetings in person and collecting copies from public buildings posed a serious risk to health in the population. It is likely that socio-economically disadvantaged groups will be at the same or potentially greater risk (due to other characteristics such as poorer health) than the general population.

The guidance and procedures developed within Scottish Government to support the potential use of these powers will ensure that processes are as robust as possible in minimising or mitigating inequalities of outcome caused by socio-economic disadvantage, when using these powers. For example, in advising local authorities to ensure that virtual meetings are as accessible as possible, and facilitating alternative access to copies of consultation documents.

Public Service Reform

Bankruptcy

Debt level that enables creditors to pursue the bankruptcy of a debtor through the courts – this provision will provide additional protection for those dealing with the consequences of problem debt. Debtors facing unsustainable debt are concentrated amongst those with low wealth and low income. Increasing the minimum debt level a creditor must be owed to petition the court for bankruptcy of a debtor from £3,000 to £5,000 will provide further protection to those with unsustainable debt.

Registration of births and Registration of deaths

Guidance to local authorities (and the Registrars’ Handbook prepared by the National Records of Scotland) will make it clear that the cost of sustained phone calls in relation to remote registration beyond any initial, brief call made by an individual to set up a full telephone appointment will be borne by local authorities (i.e. the local authority) calling the informant back at a specified appointment time, rather than being paid by the informant up front. In-person registration will also remain as an option across Scotland, as well as remote registration. Many registration offices continue to be easily accessible in town and city centres.

Requirements of Writing: Disapplication of physical presence requirements

The alternative approach would be to revert back to the previous process before the pandemic whereby an individual was required to attend in person, for such legal services as the signing of documentation, or administering of oaths, affirmations and declarations. Remote access makes it easier to obtain such legal services, and a cheaper option for those who find it expensive to travel. However access to a laptop or phone with a good camera, and a good internet connection may be prerequisites that could act as barriers to those of socio-economic disadvantage.

Tenancies

Positive impacts were identified as pre-action requirements for rent arrears ensure that landlords make tenants aware of their rights, and that landlords make efforts to engage with tenants to access available support. This allows all tenants more time to seek help and advice to deal with rent arrears. By allowing the First Tier Tribunal (Housing and Property Chamber) to have discretion for all eviction grounds, this will mean that all relevant factors will be taken into account before a decision is made. This will have positive impacts for all tenants, as those in the PRS are likely to be low income households.

Temporary Justice Measures

Courts and Tribunals

The provisions are an integral part of the Justice Recovery programme to address the backlog of cases built up as a result of the pandemic. They have also progressed the utilisation of new initiatives that have been championed by Disability Groups, to enable far more interaction with the Justice sector.

The alternative approach would be to revert back to previous processes; provision only for in person hearings, physical signing of documents, juries within traditional court estate, and physical display of documents in court buildings.

These provisions enable the Justice Recovery programme to more readily respond the impacts of the pandemic, enable the backlog to be cleared more quickly, and alleviate waiting times and anxiety on children and families. More generally, there is ongoing and wider analysis across different user groups to ensure a direct response to any emerging issues around equalities of outcome and access to Justice.

In relation to viewing court documents, this requires the use and availability of technology to court users and the wider general public to be able to view documents on the SCTS website. It is acknowledged that digital exclusion is a factor for some citizens and may be higher in groups that experience socio-economic disadvantages. As explained above, the Scottish Government’s “Connecting Scotland” initiative set up in response to the Covid pandemic aims to help get every citizen in Scotland online, providing both hardware and support to develop digital skills for people who are digitally excluded and on low incomes. This should help to reduce digital exclusion now and in the future.