Coronavirus (COVID-19) recovery - public health, public services and justice system reforms: consultation analysis

Appendix B: Additional information

A small number of questions - H1, J7 and Q34 - received either a very large number of responses or included detailed technical information in responses. It has not been possible to include the full analysis of these questions within the main report. This appendix therefore summarises the less commonly mentioned themes and specific technical evidence identified at these questions.

H1 – Education: powers to close educational establishments, and to ensure the continuity of education

Some respondents, including a few local authorities that supported extension but opposed permanence, emphasised the importance of local authorities input into decisions about closures, rather than central government making the decision without local stakeholders.

“Education is a local matter and decisions around school matters should be taken whenever possible by councils.” (Extract from Dundee City Council)

The Scottish Council of Independent Schools opposed extension or permanence, noting the particular challenges that face independent schools including a mix of day and residential students, and where there are a large number of international students. The University & College Union Scotland felt the provision should be extended but, as it had not been necessary to date to use the power to close universities and colleges, there was no need for permanence. Universities Scotland gave a similar view, but opposed extension and permanence. In response to another question, the Children and Young People’s Commissioner Scotland opposed this measure for the same reason.

“It is not appropriate for emergency powers such as these to remain ‘on the books’ for use by any future government without prior reference to Parliament. It is particularly concerning that in at least one case (educational closure direction) these proposals include powers that were not used during the current pandemic. Unused (and therefore unnecessary) provisions cannot justifiably be extended.” (Extract from Children and Young People’s Commissioner Scotland)

“A number of families we work with were supported by a number of the measures introduced under these directions. This power was key to ensuring mitigations were put in place when schools were closed nationally or were forced to close due to Covid outbreaks.” (Extract from Families Outside)

In response to another question, the Equality and Human Rights Commission emphasised the need to ensure measures are taken to ensure disabled people are able to access the remote technology used to deliver public services virtually. Enquire made a similar point.

“It should make clear on the face of the Bill that use of video or remote technology – by any public body, in any setting – must be accompanied by proactive efforts to understand individuals’ needs, reasonable adjustments where these are required, and alternative means of conducting business where video or remote technology makes effective participation unlikely.” (Extract from Equality and Human Rights Commission)

“We understand the reasons behind these closures but feel it is vitally important that, if the powers to make directions to close educational establishments and the associated continuity directions around suspending the duties of the Additional Support for Learning Act are made permanent, serious consideration must be given to the impact these directions have on children with additional support for learning needs.” (Extract from Enquire)

J7 – Criminal justice: time limits

Less commonly mentioned themes

A small number felt increasing time limits was or could be used to excuse deficiencies in the capacity or funding of the court system. Similarly, a few felt the provisions should not be used to save court time. In their response to J7(i), HMIPS described their experiences and provided alternative suggestions for how court activity could be increased to reduce the backlog – for example better utilisation of court space, and using Saturday courts.

A few called for wider justice reform, arguing for example, that time spent on remand is too long and should be addressed separately rather than because of Covid, or that alternatives to custody should be considered. A few requested further review of the impact of increased time limits before decisions are taken to extend the provision.

Comments about specific time limits

J7(i) - Time limit on summary-only cases at section 136 of the 1995 Act

• SCTS noted that, without an extension, pressure on courts may increase as proceedings may need to start to preserve a case without it being ready to be heard.
• A few respondents noted the potential for summary-only cases to expire without an extension. A small number linked this to support for a longer extension, as they felt it was important that victims of crime are able to see justice done and move on.

“Given the extent of the backlog and the length of delays, Victim Support Scotland is keen to ensure that victims are not penalised for the delays caused by the pandemic. Extending this provision until the backlog is dealt with will ensure that cases are not ‘timed out’ and that victims will still see justice done.” (Victim Support Scotland – J7(i))

J7(ii) - Remand time limits at section 65(4) and section 147(1)

• The Sheriffs’ Association stated that a hard deadline may encourage prosecuting authorities to make progress in preparing solemn cases for trial.
• The Senators of the College of Justice, Sheriffs Principal of Scotland and SCTS supported an extension at J7(ii), as they felt that without this a significant amount of court time would be needed to process case-by-case applications for extensions.

“Without an extension, the courts will face a very large number of applications for extension of remand time limits at a time when the resources of the criminal justice system are better directed at tackling the backlog.” (Extract from Sheriffs Principal of Scotland – J7(ii))

J7(iii) - Extending time limits relating to the maximum time between first appearance on petition and the first diet/preliminary hearing and commencement of the trial at section 65(1)

• The Sheriffs’ Association stated that: “…the extension of the periods in section 65 Criminal Procedure (Scotland) Act 1995, should not be indefinite, and should have a hard deadline no later than early-2023”.

J7(iv) - Removing time limits on the length of individual adjournments for inquiries

• A few noted at J7(iv) that the provisions could allow a case to roll on indefinitely or encourage unnecessary delay.
• The Sheriffs’ Association used their comment to oppose an extension, as they felt services across Scotland are generally able to respond within original time limits. Any case-by-case issues could be managed with the pre-pandemic powers.
• The Senators of the College of Justice supported an extension as “it may help to avoid fruitless hearings and/or unnecessary administrative adjournments when reports cannot be completed in time as a result of the pandemic”.
• Aberdeenshire Council offered support as “An extension of this provision would be helpful at the current time, to allow time to respond, with more flexibility – for example where there are requests for additional information that may take longer to gather than normal, due to Covid.”
• SCTS felt extensions of individual adjournments would be unnecessary if the other time limit provisions are extended until the court backlog is cleared.

Q34: To support the key three themes for Covid recovery as described, do you have any proposals for legislation which goes beyond or is different to the consultation proposals?

The following pages summarise more specific comments given in response to Q34, in addition to the common themes described in the main report.

Singular comments related to the consultation proposals

Comments on the justice system included:

• Victim Support Scotland called for judge only trials for sexual offence cases and for the video recording of statements to be introduced across Scotland.
• Scottish Women’s Aid recommended that legislation should make domestic abuse trials virtual by default, with exceptions as needed.
• Families Outside called for The Scottish Prison Rules to be reviewed to ensure human and children's rights are embedded and that changes following the pandemic can be taken into account.
• The Senators of the College of Justice called for it to be clear that the provision at J1 applies to joint minutes of agreement under section 256 of the Criminal Procedure (Scotland) Act 1995; that at J2 remote balloting of jurors should remain available on a permanent basis; and commented that: “It seems needlessly cumbersome to use letter of request procedure under section 272 and 273 of the Criminal Procedure (Scotland) 1995 Act to take evidence by television link from England, Wales and Northern Ireland. The senators consider that reform of the Letters of Request process to make it more streamlined would be beneficial.”
• A call from an individual for SCTS to follow a uniform process in all courts to avoid a strain on court users operating to different procedures depending on the court.
• Justice Services, South Ayrshire Council HSCP suggested: “Multi-agency communication systems must be considered to ensure end to end process from every perspective.”

Comments in relation to tenants and landlords included:

• Aberdeenshire Council stated in relation to P18: “rather than instructing landlords to carry out pre-action requirements, funding should be provided to Local Authorities to enable them to support private sector tenants when faced with eviction.”

Other singular points included:

• Legislation or stricter requirements on circumstances when schools can be closed.
• Law Society of Scotland recommended a review of the law relating to health emergencies. They questioned whether: “The preference of Government to employ either the Coronavirus specific legislation or Public Health Acts rather than [pre-existing] Civil Contingencies legislation raises questions about the legislative framework which applies across the UK and its fitness to deal with future public health crises.” They also suggested the creation of a Standing Advisory Committee on Pandemics, a quadripartite parliamentary group, bringing together all the UK legislatures to share experience, best practice and knowledge about legislating in the pandemic, and the regular consolidation of Coronavirus subordinate legislation across the UK.
• Law Society of Scotland also suggested changes to the Requirements of Writing (Scotland) Act 1995 and the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 in connection with the challenges of generating both traditional and electronic documents for proceedings.
• North Ayrshire Council called for safeguards on how long the public health regulations can be imposed, similar to those for school closures.
• For all local government committees to be held virtually, to improve access to decision making and be more environmentally friendly.
• That the current debt relief solutions (PTD, DAS and Bankruptcy) not be amended until 2025 at least.
• A call for an amendment to the process for submission of Marriage and Civil Partnership Notices to enable remote submission of notices to marry / civilly partner.
• Crisis highlighted the opportunity for the Rented Sector Strategy and subsequent Housing Bill to consider introducing other changes to support tenants to sustain their tenancies and keep their homes.
• An organisation representing planning officers outlined their thoughts on how various elements of the planning process could be digitised and suggested an overarching Digital Bill that could have positive change to planning and other areas of work without the need to change individual legislation. They also asked for clarity on whether Local Review Body meetings could continue to be held virtually or hybrid.
• Angus Council requested that any extension or new legislation should ensure local democracy is not eroded.
• Glasgow City Council Labour Group urged ministers to “consider what further powers, resources and clarity can be given to Local Government to ensure that recovery is broad-based and inclusive”.

Comments related to the consultation proposals already covered in the analysis:

• Concerns over digital exclusion resulting from the provisions for remote services.
• The potential for fraud in relation to the remote registration of births and deaths.
• That face-to-face court / licence hearings should be allowed if any party objects to a remote hearing.

Comments not directly related to consultation proposals

Other suggestions for legislation were typically mentioned by one or two respondents. Not all were directly related to Covid recovery. These included legislation to:

• Support digital wills and their storage and retention which may reduce the number of citizens who die intestate.
• Ensure food security for vulnerable people.
• Establish a core social care entitlement.
• Enable disqualification of elected Councillors.

The Health and Social Care Alliance Scotland (the ALLIANCE) provided a detailed response which outlined legislation and specific actions which they believe are key to a sustainable and just recovery from the pandemic. These included the establishment of a National Care Service and support for the Scottish Government’s intention to consult on a new Human Rights Bill and the incorporation of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) into Scots law.

Other singular suggestions not directly linked to the proposals or legislation included:

• Law Society of Scotland called for urgent action “to ensure the legal aid system is adequately funded and attracts sufficient members of the profession to represent the most vulnerable in society.”
• Dundee City Council stated that resilience officers felt that the spend and structures on resilience preparedness would benefit from review. Similarly, an individual called for public bodies to have better preparedness to provide continuity of service.
• That the environmental health profession was used in the pandemic, principally because of local relationships, and that this should be built upon.
• Allow for changes to taxation: lowering or reforming income tax and generally reducing the tax burden, introducing a Covid recovery tax.
• Extend licensing hours to allow hospitality to recover.
• Councils being able to place planning notices online rather than on-site.
• Greater use of means testing.
• Encouraging immigration from Europe.
• Extending dental exemptions for pregnant women and new mothers.
• Trial periods of Traffic Regulation Orders.
• Encouraging public projects to be undertaken by Scottish companies (another respondent specifically mentioned ferry building procurement).
• Scrapping free prescriptions, free tuition fees, baby boxes and Gaelic language support.
• Abolishing minimum alcohol pricing.
• Using private sector rent caps.
• Protecting museums and culturally significant institutions.
• Increasing Council Tax on under-inhabited homes.
• Introducing a public transport pass.

Comments on the three themes outlined at Q34

• In relation to sustainable green jobs, all but two comments were dismissive of the green agenda; one individual, however, called for more home grown produce, and an organisation detailed how they would attempt to sustain the environmentally friendly changes that had resulted from the pandemic.
• Singular comments on financial security for low-income households varied. These included: a suggestion for investment in affordable Wi-Fi and available technology for all children who need it to access education; a call for recognition of the impact of lengthy justice proceedings on families of the accused and victims of crime; a request to not withdraw extra Covid benefits; a call for employers to offer job security; and a suggestion that “the enactment of the draft Moveable Transactions Bill produced by the Scottish Law Commission (along with their Report on Moveable Transactions (2017)), would support access to finance for individuals and businesses across Scotland.”
• Public Health Scotland’s response detailed proposals for marginalised and disadvantaged groups, for example, legislation to avoid destitution for those with no recourse to public funds, particularly those in the immigration and asylum system and ethnic minority groups.
• Additional comments on young people’s wellbeing included: Scottish Council of Independent Schools calling for “the upcoming re-framing of Getting It Right for Every Child, including the Children and Young People Act, should be revisited to include genuine equity of access to all necessary health and related support provisions for all children and young people in Scotland”; and another organisation describing how the pandemic has influenced the way they work with children and young people.