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

Appendix A: Analysis of Q35 to Q43

The final questions in the consultation covered a range of areas which could be impacted by the proposals. Only a very small proportion of respondents directly addressed these questions. The vast majority used the questions as an opportunity to describe their views on Covid regulations, the overall pandemic response, and the Scottish Government. The analysis in this chapter therefore focuses on themes and responses of direct relevance to the questions; other prevalent themes are summarised briefly.

Q35: Business and regulatory impact assessment

These figures are a non-representative sample	Yes, have comments	No	Unsure	No view / answer	No. of comments
All respondents (2905)	12.6%	53.1%	7.4%	27.0%	370
All org responses (130)	4.6%	18.5%	2.3%	74.6%	6

Most comments at Q35 were of a general nature, however several respondents gave comments on an impact assessment or in relation to specific consultation proposals.

A prevalent theme in discussion of the proposals’ impacts was that the extension of powers, particularly public health protection regulations in H2, could damage businesses. Respondents feared they would exacerbate the challenges created by restrictions, cause further damage to the economy due to uncertainty, business closures and job losses.

Some highlighted how the provisions on evictions, debt and justice has impacted landlords’ businesses and reduced rental income. A few reflected that online or remote processes can only be effective if everyone has connectivity and access to the equipment needed. One expressed concern around accessibility for people with disabilities. An individual noted the time and cost savings from remote processes.

On judicial proposals, Justice Services South Ayrshire Council HSCP noted the challenges of managing staff who feel ‘short-changed’ from additional pandemic responsibilities without these being resourced. An individual felt the legal profession could be de-skilled as solicitors would not learn from observing in-person hearings.

Comments about impact assessments varied. They included support for assessments, questions about whether they had been done, and concerns that impacts may not have been assessed properly. One called for an assessment of the impact on childcare settings.

Other comments, each from a few respondents, included calls for more consultation with businesses and professional bodies, for the UK to work together to support and regulate businesses, and that businesses do not need or want more regulation.

Outwith the specific comments on impact, most comments concerned the overall impact of Covid restrictions. Many respondents were vocal about how lockdowns have damaged small businesses; some felt big businesses were not treated as unfairly. The next most prevalent theme was calls to allow all business to re-open with no restrictions. A recurring theme was the negative impact of mask wearing and vaccine passports on businesses, especially travel and hospitality. Other views identified in some respondents were that government should not have the power to close or interfere with businesses, general criticism of the Scottish Government’s policies towards businesses, and comments and suggestions about the economic recovery, including support for small businesses.

“The impact on landlords who are not receiving rent and are not being allowed to evict the tenants is huge. These landlords like myself have only 1 or 2 properties and this is a huge impact on their ability to pay their mortgages. Not all landlords are millionaires!” (Individual)

Q36: Child rights and wellbeing impact assessment

These figures are a non-representative sample	Yes, have comments	No	Unsure	No view / answer	No. of comments
All respondents (2905)	20.1%	47.2%	7.5%	25.2%	591
All org responses (130)	9.2%	15.4%	1.5%	73.8%	13

Several issues were raised in responses to this question. Most frequently mentioned was the negative impact of Covid mitigation measures, including the closure of educational establishments and other wider lockdown restrictions, on children and young people’s mental health, wellbeing, education and development.

“The detrimental effects on the health, wellbeing and education of our young people of the measures taken to ‘combat coronavirus’ have been horrific and will continue for many years.” (Individual)

Several noted that Covid poses a low risk of serious illness for children and young people and suggested that these measures were disproportionate. Some felt it was unfair to disadvantage children to protect older adults who are more at risk of serious illness. Many also opposed the use of face coverings, social distancing and testing in schools. They described these mitigations as unnecessary and possibly harmful to children’s wellbeing.

Another common theme related to governmental overreach. It was not always clear whether these comments related specifically to measures outlined in the consultation document or other Scottish Government policies, but many perceived that the government’s actions represent interference in family life that could diminish the role of parents in their children’s upbringing.

“Government must stop interfering in the primary rights of parents to raise their children according to their own values, morals, personal and/or religious beliefs. The provisions in the proposals give government far too much control over family life.” (Individual)

Many respondents mentioned the importance of collecting more data about the impact of the measures on children and young people. The Children and Young People’s Commissioner Scotland, Children in Scotland and Public Health Scotland, for example, highlighted the need to carry out robust impact assessments to identify the full impact of these measures on children and young people.

“There must be comprehensive impact assessments on these proposals, to ensure that all measures are compatible with children and young people’s legal and human rights.” (Extract from Children and Young People’s Commissioner Scotland)

Although the issue of vaccinations for children and young people was not covered by the consultation document, many respondents made comments related to this. There were concerns around perceived attempts to coerce children and young people to take the vaccine, and about the safety of the vaccine.

Several respondents made comments in opposition to Scottish Government policies not directly covered by the consultation document, including named person legislation, GIRFEC and education about sexual orientation and transgender issues.

While the closure of educational establishments and other lockdown restrictions were the main focus of the comments in response to this question, some made comments related to other proposed measures because of their indirect impact on children’s rights. For example, Families Outside supports the retention of the early release scheme.

“Families Outside works with children affected by imprisonment. A number of the proposals covering the criminal justice system will indirectly affected children. The consultation proposes retaining the Early Release Scheme (Topic J3); if this is used, parents in prison could be released earlier than anticipated. If this were to happen, it would support a number of children's rights including UNCRC Article 9 (right to contact with parents), as the Scottish Government will be taking action to reduce the time parents are away from the family home. However, it is important that robust multi-agency support is put in place to meet the needs of all family members, both to provide support and information to the family but also to ensure reoffending is reduced which in turn positively support children's rights.” (Families Outside)

Q37: Equality impact assessment

These figures are a non-representative sample	Yes, have comments	No	Unsure	No view / answer	No. of comments
All respondents (2905)	11.2%	51.6%	8.9%	28.2%	337
All org responses (130)	12.3%	13.8%	4.6%	69.2%	17

Most common in discussion about equality impacts, including the stakeholder workshop, was the focus by some on digital exclusion which could limit participation in proposals involving remote processes. This was felt to be particularly challenging for older people, and people with disabilities, lower incomes, or from an ethnic minority background.

Some respondents gave varied comments on specific proposals. These included: the limited availability of specialist family sheriffs in Scotland; the impact on victims of crime, especially women, of the justice proposals; COSLA called for more detailed assessments around access to virtual public meetings (H4) and remote registration (P16/P17). Aberdeenshire Council, while supportive of the eviction proposals (P18), expressed concern that tenants could continue to build up rent arrears. A few commented that people should not be prevented from gathering to worship or to support loved ones (H2).

The equality impact assessment process was a recurring theme. Some felt there had been no assessment of the existing provisions or criticised the assessment carried out for the extension. This included questions around whether those with lived experience had been consulted. A small number questioned the value of equality impact assessments, but there was also support for assessing the impact of further extensions from, for example, the Health and Social Care Alliance Scotland, Law Society of Scotland and Citizens Advice Scotland. The latter two highlighted the need for new assessments to include evidence of the impact of the measures since they were introduced in 2020.

Some focused on the impact of the proposals for vulnerable groups. Specifically it was noted that: the provisions around eviction would benefit ethnic minority households who it was suggested are more likely to be in the private rented sector; that the proposals were bad for people with disabilities, additional needs or poor mental health and that their needs should be considered; and that the measures will disproportionately affect the poorest in society.

More generally, several respondents commented on the negative impact of Covid restrictions for different groups. Most commonly mentioned were people with disabilities, who experienced reduced care and support services, poor mental health and abuse for not wearing a mask due to hidden disabilities. Some reflected that women have taken on disproportionate childcare and home-schooling duties which has damaged their ability to work. Small numbers mentioned impacts on ethnic minority groups, care home residents, young people, and people with poor mental health or low incomes.

The most prevalent focus of comments at Q37 was vaccine passports. Many felt these created a two-tier society, with unvaccinated people unfairly discriminated against. Some felt everyone in society should be treated equally; conversely a few criticised the views of minority groups being given too much attention. A small number criticised the Scottish Government’s approach to equality, including a few comments about the Gender Recognition Act.

Summary of Consultation Workshop

In October 2021, the Scottish Government co-hosted an online consultation workshop with Disability Equality Scotland. There were 23 attendees, including people with lived experience of disabilities and representatives from organisations such as Ideas for Ears, Deafblind Scotland and several regional disability access panels.

Attendees discussed Covid recovery and the proposed legislative changes. Themes which emerged at the workshop aligned very closely with those identified during the analysis of comments provided in consultation responses, and are summarised below.

Attendees generally agreed with the necessity of the proposals related to public health and support was expressed for the provisions to be made permanent. It was suggested that certain public health measures have protected clinically vulnerable members of society during the pandemic. However, discussions also highlighted the negative impact of various Covid response measures. For example, while masks were seen as an effective mitigation strategy, it was noted that they also caused communication difficulties. In addition, attendees felt that access to support services during the pandemic was insufficient.

Support in principle was expressed for proposals related to online meetings and hearings. They were seen as useful during lockdown and reduced the need to travel long distances. However, some challenges related to virtual meetings were discussed, including difficulties when lip reading and setting audio levels correctly. While support for permanence was expressed, the majority of attendees commented that a choice should be available between in person and virtual meetings. It was also commented that there is a need for improved guidance and training to ensure meetings are as accessible as possible.

Workshop attendees generally agreed with proposals about communicating by phone or online and some highlighted the benefits of this approach, noting efficiency and less stress for vulnerable groups accessing public services. However, it was noted that online/phone services should be person-centred and that service providers should offer a range of access options and access to support throughout the user journey. Concerns were also raised regarding security and data protection.

Multiple attendees at the workshop agreed with the proposals related to protection from eviction, highlighting the importance of these safeguards. It was suggested that there should be clear limits for both landlords and tenants to ensure that neither party takes advantage of the other. In addition to support for the proposals, concerns were raised regarding the quality and accessibility of housing. Attendees commented that legislation should go further to ensure greater protection for tenants.

Q38: Socio-economic equality impact assessment (the Fairer Scotland Duty)

These figures are a non-representative sample	Yes, have comments	No	Unsure	No view / answer	No. of comments
All respondents (2905)	11.0%	52.0%	9.0%	27.9%	322
All org responses (130)	6.9%	13.8%	3.8%	75.4%	8

Many respondents commented on the socio-economic impact of consultation proposals. Some argued that extending the proposals may exacerbate socio-economic inequalities.

Digital exclusion was a common theme in comments. Respondents such as COSLA and Citizens Advice Scotland noted that low-income or vulnerable groups are 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. Argyll and Bute Council, however, described the benefits of online processes to those in island and remote mainland communities.

Beyond these, a few individuals were critical of measures to help debtors (P2). There were mixed opinions about P18, with a few believing this would improve the rights of private tenants and one person critical of the proposal, citing the impact on landlords.

On the impact assessment, there were questions about whether these had been carried out and their thoroughness, and agreement that impacts should be assessed. Specifically, there were singular calls to review the impact of school closures, business closures and the transfer of wealth to large corporations during the pandemic.

Covid’s impact on vulnerable groups was mentioned repeatedly. Some respondents focused on the effects for low-income and vulnerable groups, and on children and families. Most frequent were broad comments 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; that closing businesses has diminished the right to work or led to job losses; and one individual commented that unpaid carers have been more affected than usual due to cuts in care packages and loss of support. A very small number noted the impact on the middle class and argued against tax rises.

The most prevalent theme in response to Q38 was criticism of the Scottish Government’s approach to socio-economic equality; these comments varied considerably. Some reflected on socio-economic equality in Scotland more generally, without referencing the Government, describing the challenges around drug and alcohol deaths, food banks and an overall lack of fairness. Perceptions of inequality arising from vaccine passports was mentioned by some respondents. The damage Covid caused to businesses was also mentioned by some. A small number called for a consistent approach across the UK; an individual suggested greater devolution to local or community level. A small number were also dismissive of the Fairer Scotland Duty.

“If governments were given powers to impose further lockdowns the impact on society would be catastrophic, and it would be the poorest and weakest in society who would suffer the most.” (Extract from Individual)

Q39: Human rights

These figures are a non-representative sample	Yes, have comments	No	Unsure	No view / answer	No. of comments
All respondents (2905)	28.6%	41.4%	6.6%	23.4%	817
All org responses (130)	11.5%	15.4%	1.5%	71.5%	14

This question recorded the second highest number of open comments in the consultation. Respondents put forward a range of views, which are summarised below, with a focus on comments which relate directly to the proposals in the consultation.

Several respondents made specific comments on human rights aspects of the proposals, with each point mentioned by a few respondents. These included: the rights of victims who may be affected by the early release of prisoners; in relation to freedom of assembly and association (covered in Chapter 2/H2); the impact of time limits in J7 on those on remand and victims of crime; concern around the dilution of safeguards for a named person; lack of public access to remote court hearings; and positive comments that strengthening the housing rights of tenants supports the right to adequate housing. While a few expressed concern that the focus on digital options in some proposals could cause discrimination – for example, the Equality and Human Rights Commission considered these in their response – others expressed support for the modernisation of processes.

The most common theme was the erosion of rights which respondents felt had resulted from the pandemic and associated restrictions. Comments focused primarily on the impact of lockdowns, with the lack of freedom to leave home, socialise, travel and worship mentioned by many; and masks were raised by some. Direct comments on the extension of the powers centred on views that extending the provisions or the public health regulations would further erode human rights.

More broadly, the second most prevalent theme in relation to human rights was calls for individuals to have the right to decide whether they have a Covid vaccine. Respondents noted their dislike of vaccine mandates and passports and felt they should have body autonomy and make their own medical choices. Many made general statements about the importance of human rights. Conversely, many took the opportunity to question the Scottish Government’s record on human rights specifically, while others commented about a lack of rights, rights being gradually diminished, or asking to be left alone.

Some respondents highlighted the right to education; others noted the rights of hospital patients and care home residents which they felt had been violated by visiting restrictions. Small numbers of respondents each: called for a consistent UK-wide approach; supported human rights impact assessments being carried out; suggested other areas for government focus; and highlighted women’s rights.

The two prevalent themes in discussion of government overreach and calls for temporary powers to not made permanent were also evident in many and several responses, respectively.

Q40: Data protection impact assessment

These figures are a non-representative sample	Yes, have comments	No	Unsure	No view / answer	No. of comments
All respondents (2905)	12.8%	50.9%	8.6%	27.6%	362
All org responses (130)	3.8%	15.4%	3.8%	76.9%	4

Several respondents noted their concerns around data protection and security in relation to the proposals. Most of these comments were broad and centred on the challenges of using online and digital systems. Points raised included: concern over confidentiality of documents sent by email i.e. if documents are received by the wrong person due to incorrect or out of date email addresses being used; ensuring secure access to online meetings; the secure storage of recordings of meetings and copies of documents which are being stored electronically; and concern over the increased risk of data breaches, theft or hacking. Three individuals commented that the UK’s data protection laws are already strong. One individual asked if public bodies would comply with GDPR if updated IT systems are needed for the proposals.

On specific proposals, one individual noted the potential for malicious hacking of birth and death registration if these are online. COSLA and a local authority commented on P6 and the need to consider privacy and the potential loss of personal information if a care home manager’s email address is out of date.

A small number, including Police Scotland and Public Health Scotland, agreed a data protection impact assessment should be undertaken; the latter noted they had not identified any data protection impacts. Two questioned if assessments had been done.

A number of general strands of discussion about data protection were also evident in responses to Q40. The most prevalent theme, mentioned by many respondents, was that an individual’s medical history or vaccination status should not be shared. Respondents felt they should not be required to prove their vaccination status to access businesses and services, and that medical records should only be held by GPs and not shared with other third parties. Related to this, several respondents raised concerns about the security of personal data held in the vaccine passport app and similar forms of digital ID.

Many shared general comments around the importance of data protection, noting that privacy should be respected and data should not be shared or sold without consent. Several expressed a view that the Scottish Government could not be trusted with data protection, raised concerns about breaches in data security and personal information being shared or sold to third parties without consent, or observed an increasing lack of data protection, particularly during the pandemic. Some respondents criticised the security of the Track and Trace process, with a similar number noting their belief that there is too much control and surveillance of society.

“Many of the measures proposed in Chapter 3 would digitise the way that public services and the justice system are handled. While there may be some benefits to this, it would also potentially make people's personal data available to be sold and profited from.” (Extract from Individual)

Q41: Island communities impact assessment

These figures are a non-representative sample	Yes, have comments	No	Unsure	No view / answer	No. of comments
All respondents (2905)	6.0%	52.3%	8.4%	33.2%	173
All org responses (130)	5.4%	12.3%	2.3%	80.0%	6

Some respondents shared comments which directly addressed the consultation proposals. Proposals to continue using online or digital platforms were often welcomed on the basis of making services more accessible and inclusive, and significantly reducing the need to travel. However, a few felt that internet connectivity and access to technology in the islands are barriers to virtual engagement which could increase feelings of isolation.

In relation to specific proposals, one respondent felt remote registration of deaths allows speedier registration compared to local offices, which only open part time. Conversely, another argued that registration offices needed to remain open to the public and resisted moves to a solely remote registration process. One respondent noted the potential convenience of appearing in court virtually from an island but felt there would be little difference for islanders in relation to the other proposals.

Three respondents commented on the impact assessment process itself. One agreed it should take place, another questioned whether it had, and one called for remote rural areas to be considered in an impact assessment.

More broadly, the most common theme in responses was a call to improve the transport links, particularly ferries, to the islands. The second most prevalent theme was the impact of the pandemic on the islands; respondents described the isolation resulting from travel restrictions and how reduced tourism affected businesses.

Other less common themes were: that island communities should make their own decisions free of Government interference; the poor treatment of island communities by Scottish Government; calls for more support and respect for island communities; and comments describing challenges of island life such as housing provision, infrastructure and cost of living. There were mixed views on whether the islands should be treated differently; a few called for all of Scotland to be treated in the same way while others highlighted the need for different approaches. Two respondents called for consistent approaches across the UK.

“Argyll and Bute Council would highlight positive impacts of remote/online meetings, registration, electronic signatures, etc. which have been experienced to date by those living in our island communities, where many of the individuals living in these communities are generally older and/or have a lower than average income. Factors such as these in many cases can impact on ability to travel to carry out the aforementioned business in person.” (Argyll and Bute Council)

“The proposals broadly support rural and island communities by proposing continued remote hearings and other digitally enabled justice options.” (Police Scotland)

Q42: Strategic environmental assessment

These figures are a non-representative sample	Yes, have comments	No	Unsure	No view / answer	No. of comments
All respondents (2905)	7.2%	53.3%	8.5%	31.0%	204
All org responses (130)	3.1%	16.2%	2.3%	78.5%	2

Only a very small number of comments at Q42 directly addressed the proposals’ environmental impact. These highlighted how the increased use of remote hearings and digital options create less need to travel and therefore reduce carbon emissions.

A few also addressed the impact assessment process. These comments varied and included agreement that impacts should be assessed, questions whether an assessment had been carried out, and concerns over whether the Scottish Government would undertake an assessment effectively or in a way that involved the public or stakeholders.

The remaining open comments covered a range of environmental issues which did not relate directly to the consultation proposals. The most prevalent theme, raised by several respondents, was the environmental damage caused by discarded masks and PPE. Two other common themes in responses included criticism of the Scottish Government’s environmental policies; or expressing anti-environmental views and questioning the existence of the climate emergency.

Less common themes included: a small number who highlighted the importance of taking action on environmental issues; that Scotland’s policies should be aligned with the UK; general comments on a range of issues relating to the environment, for example recycling and cycling infrastructure in cities; and two respondents who called for more consultation on environmental issues. One individual requested that businesses who already try to look after the environment should not be overburdened by legislation.

“The proposals broadly reduce environmental impact by extending options for remote and digitally enabled justice options.” (Police Scotland)

Q43: Do you have comments on the financial implications of the proposals in Chapters 2 to 4 of this consultation for public bodies, individuals and businesses, having regard to the Financial Memorandum for the Extension and Expiry Bill?

These figures are a non-representative sample	Yes, have comments	No	Unsure	No view / answer	No. of comments
All respondents (2905)	11.5%	50.5%	8.9%	29.1%	324
All org responses (130)	7.7%	13.8%	1.5%	76.9%	12

Several respondents commented on the financial implications of the specific consultation proposals. COSLA highlighted the ongoing cost of the provisions on local authorities, echoed by a few local authorities. On the digitisation of services, there were singular calls to reduce the budgets of public bodies due to remote working, for increased used of virtual meetings to reduce costs and one noted the cost-saving of online registration of deaths. More generally, a small number commented on the investment required to ensure equitable access to digital services and for IT to run these effectively.

A few individuals described how continuing the provisions around protection from eviction could result in financial hardship for landlords. Another felt that extending the measures could negatively impact the available rental stock.

Several respondents expressed concern about the wider economic impact of the proposals, commenting that they have the potential to damage Scotland’s economy and Covid recovery, lead to tax increases or job losses, and increase poverty. A few felt they would exacerbate uncertainty and unnecessarily punish businesses. A small number expressed an opinion that the proposals were a waste of money, with some noting other priorities for spending e.g. health, education and economic recovery. Some questioned how the proposals would be paid for. There were singular calls for financial help for nurseries if they are to provide emergency childcare, and from the Scottish Council of Independent Schools for support if future measures prevent their operation.

The most common theme in response to Q43 was the financial impact of Covid generally. Several highlighted the impact to businesses; some described the impact on individuals and families. The long-term financial impact was also mentioned by several who questioned when the true cost of the restrictions and furlough scheme would be known.

Another recurring theme was the perceived mismanagement of Scotland’s economy by the Scottish Government; a few made general comments on the state of Scotland’s economy. Related to this were some calls for increased transparency over funding allocation, including how existing Covid support funds have been spent. There were a small number of calls for impact assessments and alignment with the UK.

“COSLA would note that a number of the provisions may have (and have had) financial implications for Local Government. These would include H1, H2 and J3. It is possible that the provisions relating to digitisation of services, such as registration services or virtual meetings, may require IT systems to be changed or upgraded which would also have financial implications.” (COSLA)