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

Chapter 3: Public services and justice system reform

42. The First and Second Scottish Acts, and UK Act, contain important, practical measures to help public services and public service users deal with the operational, service delivery challenges and wider impacts of the Covid pandemic. In some cases measures have led to modernisations in working practices that in the Scottish Government’s view have benefited public service and justice system users.

43. Therefore, in this Chapter, the Government sets out why it proposes specific, listed measures to be made permanent even for times where there is no public health risk. Modern, practical legislation that benefits public service and justice system users supports the Government’s Covid recovery ambitions (as set out in Chapter 1) more widely.

Proposals within this Chapter

44. With one exception, the public services and justice system measures in this Chapter originate in the First Scottish Act, Second Scottish Act and UK Act and expire in March 2022. The Scottish Government proposes, in the first instance, to extend those measures to September 2022 via secondary legislation subject to the agreement of the Scottish Parliament and proposes that they be made permanent thereafter, via further primary legislation.

45. The new proposal (Topic P17 - Remote registration of live births) is similar to and in the Scottish Government’s view complementary to Topic P16 - Remote registration of deaths and still-births, which is an existing temporary measure considered in this Chapter.

46. Topics within this Chapter are listed in alphabetical order rather than by their position in the First Scottish Act, the Second Scottish Act or the UK Act. What is meant by “making permanent” is explained at the beginning of the preceding Chapter 2.

Digital government context

47. Many of the topics being consulted on in this Chapter have a “digital” element in that the provisions remove some of the older working practices in public and justice system services and make things more convenient for users. The Covid crisis has shone an intense spotlight on the importance of public services which are not only secure, accessible to all and resilient, but which are able to work across organisational boundaries, adapt and scale in response to changing demands. It has increased the pace of digital adoption and innovation, as organisations and businesses in every sector of the economy have had to, almost overnight, become digital organisations. An unprecedented opportunity therefore exists to reimagine public services in key areas like health and social care, learning and justice, and to ensure that they are designed and delivered in Scotland; are based around the lives and needs of users; and drive better outcomes for people. The Covid pandemic, and our response to it, has shown that the public sector can act at speed to design and deliver new services that meet the needs of users and reflect a rapidly changing environment. The provisions being consulted on conform in particular to the digital principle “inclusive, ethical and user focussed” from the Scottish Government’s March 2021 Digital strategy: “A changing nation: how Scotland will thrive in a digital world”^[15].

48. As we become a digital nation, the nature of government, at a national and local level, will change. The people we serve expect services that are responsive and tailored to their needs and they expect to hold us to account for the quality and efficiency of these services. This requires us to both re-think how we design and deliver services and change the operating model of the organisations that provide them. The new Digital Strategy is creating the building blocks that will enable (and support) the continuing transformation of public services into truly digital organisations and will deliver improved public services for us all. Of course this will not ever be the only approach we offer; this is about increasing access without creating barriers for those who don’t want to or can’t always use digital means.

49. For many Scottish public services, their governing legislation was already sufficiently digital-ready so there was no need to use Covid legislation to modify it for pandemic-related reasons.

Other previous and ongoing consultation activities

50. The Policy Memorandum for the Bill for the Extension and Expiry Act highlights where targeted consultation has already taken place on a number of the topics being further consulted on in this Chapter.

51. In relation to justice system proposals specifically, the Government is consulting directly with an independent Advisory Group which was established to support the work of Covid recovery and renewal across the justice system. Its membership of third sector organisations provides regular feedback and a mechanism for consultation on human rights issues, equalities and overall impact on system users.

52. In relation to the Accountant in Bankruptcy (“AiB”), in October 2020 the then Minister for Business, Fair Work and Skills agreed to carry out a wider review of Scotland’s statutory debt solutions. As part of that commitment AiB established three working groups to help carry out that review. The groups consist of 39 key stakeholders from a broad range of sector interests including the advice community, insolvency and legal professions and creditors.

53. In recent months AiB has undertaken targeted consultation with stakeholders relating to the bankruptcy provisions introduced through the First and Second Scottish Acts. A series of consultation meetings focussing on immediate priorities were hosted in November 2020, following the Ministerial stakeholder meeting. This process led to some of the provisions – namely the bankruptcy application fee structures, the increase in Minimal Asset Bankruptcy debt thresholds, the extended time period for a trustee to submit debtor contribution proposals and electronic signatures on forms – being introduced permanently (i.e. not temporarily) through the Bankruptcy (Miscellaneous Amendments) (Scotland) Regulations 2021^[16].

54. On 18 May 2021, AiB issued a further targeted consultation to the members of the policy review working groups on the remaining provisions. The feedback highlighted full support for placing the provisions on virtual meetings and electronic service of documents in bankruptcy proceedings on a permanent footing. There were some mixed responses around the moratorium on diligence and on the debt threshold enabling a creditor to petition for a person’s bankruptcy but overall strong support. On these issues, while the specific provisions included on a temporary basis are not widely considered appropriate for permanence, stakeholders have highlighted the merits of amended provisions being put in place; these could have advantages over a reversion to the earlier time limit and debt threshold set in bankruptcy legislation prior to the provision introduced through the First and Second Scottish Acts.

55. In relation to Registers of Scotland (“RoS”), the organisation has consulted with stakeholders throughout the period of the Covid pandemic. This consultation on these specific provisions has been reported on as part of the statutory two-monthly reporting by the Scottish Ministers to the Scottish Parliament and has informed decisions on the continued necessity and appropriateness of the measures^[17].

56. The provisions permitting digital submission of applications, in addition to providing vital access during the period of restrictions, have proven to be extremely popular with stakeholders and also represent a key stepping stone on RoS’ roadmap towards a fully digital registration system. Ahead of seeking permanent provisions, RoS recently ran a public consultation on behalf of the Scottish Government^[18] on a number of proposals related to digital submission, including making these changes permanent. The consultation attracted 223 responses from key stakeholders, with over 93% of responses being positive, demonstrating overwhelming support for making the provisions permanent^[19]. In order to implement the proposals RoS has already consulted on, secondary legislation is also being developed.

Topic P1 – Alcohol licensing remote hearings

Legislative reference: Schedule 5 of the First Scottish Act (legislation.gov.uk)

57. This proposal relates to retention, in an amended form, of one aspect of the alcohol licensing provisions in the First Scottish Act. This relates to the holding of Licensing Board hearings. Topic P7 below concerns Civic government licensing remote hearings.

58. The proposal would enable Licensing Boards to make discretionary decisions as to whether it would be appropriate for a hearing to be held remotely as opposed to “in person”. The additional flexibility will be of benefit to users (e.g. licence holders) of the licensing system as well as Licensing Boards. Where a Licensing Board decides to make use of this discretion to hold a remote hearing, it is proposed that no dilution of public access will be permitted with the Licensing Board requiring to put in place appropriate arrangements to allow for the public to observe the hearing and, where relevant, participate as an objector.

59. The First Scottish Act gives discretion for Licensing Boards to provide parties with an opportunity to be heard by remote means where an in person hearing is not possible because of reasons relating to Covid. This was a response to the pandemic and the inability of Licensing Boards to be able to hold face-to-face meetings. As we move through the pandemic, it has become clear this particular discretion for Licensing Boards may have value outwith times of pandemic.

60. We propose to ensure flexibility in this specific area is available on a permanent basis so that, whilst it may be expected that the norm would be that hearings should take place “in person”, Licensing Boards would have flexibility to hold remote hearings where they consider it appropriate. The exact format of a remote hearing would be for a Licensing Board to determine, but alternative means for the holding of hearings could include persons to be heard by telephone, video or audio-conferencing.

61. The importance of the public being able to observe Licensing Board proceedings was recently debated in the Scottish Parliament during proceedings for the Extension and Expiry Act. The views offered indicated considerable importance being placed on ensuring access for the public and the Scottish Government is committed to ensuring the operation of any reforms will mean public access happens.

62. In light of these considerations, where a Licensing Board elects to hold a remote hearing, it would be expected that Licensing Boards will be required to take appropriate steps to ensure members of the public are able to observe hearings. This could be through a web link or some other mechanism. It is also proposed that members of the public who are engaging formally with the subject of the hearing e.g. as an objector can do so remotely. This will ensure members of the public can observe and, where appropriate, participate in remote hearings held by the Licensing Board.

63. The Scottish Government takes the view that ensuring the availability of remote hearings will allow Licensing Boards to consider how best to conduct their business and as such continue to provide welcome flexibility that will benefit and assist all users of the licensing systems as they begin to recover from the adverse impact of the Covid pandemic. In given situations, there are advantages of remote hearings such as reduced travel for participants which creates both benefits for the environment and time-savings for individuals. It may be that in some cases an “in person” hearing is more suitable in the circumstances and it is intended for Licensing Boards to assess when remote hearings should be used subject to them weighing up all relevant factors which may arise in any given situation.

Question 5:

It is proposed that the provisions for Topic P1 (Alcohol licensing remote hearings) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P1 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P1 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P1 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P1, or the proposal for permanence, please write them below.

Topic P2 – Bankruptcy: debt level that enables creditors to pursue the bankruptcy of a debtor through the courts

Legislative reference: Part 5 of schedule 1 of the Second Scottish Act (legislation.gov.uk) (paragraph 10)

64. The proposal is to strengthen the protections available for those dealing with problem debt by making permanent measures that increase the minimum debt level a creditor must be owed to petition for bankruptcy through the courts.

65. Paragraph 10 of schedule 1 of the Second Scottish Act modifies the definitions of “qualified creditor” and “qualified creditors” in section 7(1) of the Bankruptcy (Scotland) Act 2016 by raising the amount of money a creditor or a group of creditors must be owed in order to be “qualified” from £3,000 to £10,000. A qualified creditor has the right to petition the court for a debtor’s bankruptcy in terms of section 2(1)(b)(i) of the Bankruptcy (Scotland) Act 2016, where the debtor is apparently insolvent.

66. The volume of creditor petitions has reduced significantly since April 2020 as compared with previous years. For example, the provisional figures highlighted in the published statistics for quarter 4 2020/21 show that there were 169 creditor petitions for the full year 2020/21 - compared with 910 submitted in 2019/20. There will be a range of factors involved, including the limitations provided by the increased creditor petition debt level, increased creditor forbearance during the pandemic and the protections provided by the moratorium described earlier in this memorandum.

67. In common with the stakeholder views set out in relation to the moratorium, there is a recognition that the protection afforded through the increased creditor petition threshold is very likely to be required beyond March 2022. This reflects the significant uncertainty over the timing and scale of demand for debt solutions that will arise. There have however been questions raised as to whether the £10,000 minimum debt level introduced on a temporary basis is appropriate for the longer term. It was suggested that such an amount would frustrate smaller creditors as it would prevent them from initiating sequestration proceedings. Equally, stakeholders have suggested that a reversion to the previous £3,000 minimum debt level might not afford sufficient protection as the economic consequences of the pandemic emerge. This consultation seeks views on the appropriate debt level that should enable creditor petition bankruptcy to be pursued through the Scottish courts, including whether a figure of £5,000 would strike a more appropriate balance between the interests of debtors and creditors were the provision to be placed on a permanent footing.

Question 6:

It is proposed that the provisions for Topic P2 (Bankruptcy: debt level that enables creditors to pursue the bankruptcy of a debtor through the courts) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P2 should be extended beyond March 2022 and made permanent (i.e. with a creditor petition debt level of £10,000 as per the current provisions)

I think the provisions for Topic P2 should be extended beyond March 2022 and made permanent with an amended creditor petition debt level of £5,000

I think the provisions for Topic P2 should be extended beyond March 2022 (i.e. with a creditor petition debt level of £10,000 as per the current provisions), but not made permanent

I think the provisions for Topic P2 should be extended beyond March 2022 with an amended creditor petition debt level of £5,000, but not made permanent

I do not think the provisions for Topic P2 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P2, or the proposal for permanence, please write them below.

Topic P3 – Bankruptcy: electronic service of documents

Legislative reference: Part 5 of schedule 1 of the Second Scottish Act (legislation.gov.uk) (paragraph 8)

68. The proposal is to improve the use of technology in bankruptcy proceedings by permitting documents required during bankruptcy administration to be transmitted to a person electronically.

69. Paragraph 8 of schedule 1 of the Second Scottish Act makes modifications to section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010 as that section applies to documents which are authorised or required to be sent by or under the Bankruptcy (Scotland) Act 2016. The effect of the amendment is to permit a document to be transmitted to a person electronically and also to modify the rules which apply in relation to the circumstances in which willingness to receive a document electronically may be given or inferred.

70. The provisions have been widely used by the insolvency profession, for example in issuing circulars to the creditors involved in insolvency proceedings. Electronic delivery provides for more efficient process, ensuring quicker delivery of information to recipients and reduced costs of administration. Electronic submission also addresses issues that have arisen during the pandemic including uncertainty over home-working and whether mail delivered to business premises will be received. These measures have been supported by the insolvency profession and there is a recognised continuing requirement for these provisions. Feedback suggests that the insolvency profession would consider permanent provision for electronic delivery of documents a welcome modernising reform.

Question 7:

It is proposed that the provisions for Topic P3 (Bankruptcy: electronic service of documents) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P3 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P3 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P3 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P3, or the proposal for permanence, please write them below.

Topic P4 – Bankruptcy: moratoriums on diligence

Legislative reference: Schedule 2 of the First Scottish Act (legislation.gov.uk)

71. The proposal is to protect those with unsustainable debt by increasing the length of the moratorium against diligence. This topic follows on from the discussion of AiB’s specific consultation earlier in this Chapter.

72. Schedule 2, paragraphs 1 and 4 of the First Scottish Act increased the length of the moratorium against diligence established under sections 195 to 198 of the Bankruptcy (Scotland) Act 2016 (‘the 2016 Act’) from a period of six weeks to a period of six months. The rationale behind the provisions was to extend the period during which individuals with financial difficulties could secure protection from creditors taking action against them, allowing such individuals more time to find advice on how best to deal with their debts as well as to recover from time-limited income shocks. The provisions in the 2016 Act allow for a ‘breathing space’ in which the debtor can seek money advice, and find the right longer term solution for their circumstances.

73. The new provisions have been used and there were 2,152 applications for moratoriums granted in the 12 months to April 2021 (inclusive) compared with 1,060 for the previous 12 months.

74. While the provisions have been welcomed and representations have been made from stakeholders mentioned earlier in this Chapter on the need for permanent provisions that provide enhanced protection, the general view is that the 6 month period provided for is not appropriate on a longer term basis. Concerns have been raised that a 6 month period may result in individuals losing that sense of urgency and disengaging from the advice seeking process to find a solution to their debt problems. In response to the previous consultations referenced earlier in this Chapter on the moratorium on diligence provisions, respondents have indicated that a 12 week period might be the preferred option and offer advantages over reverting to the earlier 6 week period prescribed in bankruptcy legislation prior to the amending provision brought forward by the First Scottish Act. This consultation aims to seek further views and confirm that this is still the case.

Question 8:

It is proposed that the provisions for Topic P4 (Bankruptcy: moratoriums on diligence) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P4 should be extended beyond March 2022 and made permanent (i.e. with a moratorium period of 6 months as per the current provisions)

I think the provisions for Topic P4 should be extended beyond March 2022 and made permanent with an amended moratorium period of 12 weeks

I think the provisions for Topic P4 should be extended beyond March 2022 (i.e. with a moratorium period of 6 months as per the current provisions), but not made permanent

I think the provisions for Topic P4 should be extended beyond March 2022 with an amended moratorium period of 12 weeks, but not made permanent

I do not think the provisions for Topic P4 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P4, or the proposal for permanence, please write them below.

Topic P5 – Bankruptcy: virtual meetings of creditors

Legislative reference: Part 5 of schedule 1 of the Second Scottish Act (legislation.gov.uk) (paragraph 12)

75. The proposal is to improve the use of technology in bankruptcy proceedings by enabling meetings of creditors to take place by virtual means rather than in a physical environment.

76. Paragraph 12 of schedule 1 of the Second Scottish Act modifies the Bankruptcy (Scotland) Act 2016 to allow meetings of creditors to take place using electronic means. Although creditors’ meetings in personal insolvency proceedings are now infrequent there are circumstances that give rise to them being convened and with the onset of the pandemic-related restrictions it was essential that provision was introduced to allow those to take place in a virtual environment. This rationale remains and the provisions will be required beyond March 2022. There now appears to be broad consensus that a permanent change to allow virtual meetings would be welcomed should the opportunity exist. This is not only in response to the Covid pandemic, but as a longer term modernising change to the insolvency process that would improve efficiency and reduce the costs – potentially increasing the returns paid to creditors.

Question 9:

It is proposed that the provisions for Topic P5 (Bankruptcy: virtual meetings of creditors) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P5 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P5 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P5 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P5, or the proposal for permanence, please write them below.

Topic P6 – Care services: giving of notices by the Care Inspectorate

Legislative reference: Part 4 of schedule 4 of the Second Scottish Act (legislation.gov.uk)

77. The proposal is to enable the Care Inspectorate to send formal notices to care service providers by electronic means.

78. Schedule 4, paragraph 5 of the Second Scottish Act provides the Care Inspectorate with powers to send formal notices to care service providers by electronic means, in addition to normal post, for the duration of the emergency period. Formal notices include those relating to registration, variation of conditions of registration, and enforcement action. The provisions also make it clear that notices can be served on a wider range of persons including, most notably, managers of care services provided by a corporate body as well as that body’s directors.

79. As of 13 May 2021 the power provided by this provision has been used by the Care Inspectorate in relation to 2,858 matters for the issuing of notices relating to registration, variation of conditions of registration, and enforcement action. The Scottish Government considers that there is an opportunity to modernise and expedite the pre-pandemic arrangements, to retain the ability to give notices by electronic means.

Question 10:

It is proposed that the provisions for Topic P6 (Care services: giving of notices by the Care Inspectorate) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P6 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P6 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P6 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P6, or the proposal for permanence, please write them below.

Topic P7 – Civic government licensing remote hearings

Legislative reference: Part 1 of schedule 6 of the First Scottish Act (legislation.gov.uk)

80. This proposal relates to retention, in an amended form, of one aspect of the civic government licensing provisions in the First Scottish Act. This relates to the holding of licensing authority hearings. Topic P1 above concerns Alcohol licensing remote hearings.

81. This enables licensing authorities to make discretionary decisions as to whether it would be appropriate for a hearing to be held remotely as opposed to “in person”. The additional flexibility will be of benefit to users (e.g. licence holders) of the licensing system as well as licensing authorities. Where a remote hearing is to be held, it is proposed that no dilution of public access will be permitted with the licensing authority requiring to put in place appropriate arrangements to allow for the public to observe the hearing and, where relevant, participate as an objector.

82. The First Scottish Act gives discretion for licensing authorities, when discharging functions under the Civic Government (Scotland) Act 1982, to provide parties with an opportunity to be heard by remote means where an in person hearing is not possible because of reasons relating to Covid. This was a response to the pandemic and the inability of licensing authorities to be able to hold face-to-face meetings. As we move through the pandemic, it has become clear this particular discretion for licensing authorities may have value outwith times of pandemic.

83. We propose to ensure that this flexibility in this area is available on a permanent basis so that, whilst it may be expected that the norm would be that hearings should take place “in person”, licensing authorities have the flexibility to hold remote hearings where they consider it appropriate. The exact format of a remote hearing would be for licensing authorities to determine, but alternative means for the holding of hearings could include persons to be heard by telephone, video or audio-conferencing.

84. The importance of the public being able to observe discussions held by local authorities (which in effect is what licensing authorities are) was recently debated in the Scottish Parliament during proceedings for the Extension and Expiry Act. The views offered indicated considerable importance being placed on ensuring access for the public and the Scottish Government is committed to ensuring the operation of any reforms will mean public access happens.

85. In light of these considerations, where a licensing authority elects to hold a remote hearing, it would be expected that licensing authorities will take appropriate steps to ensure members of the public are able to observe hearings. This could be through a web link or some other mechanism. It is also proposed that members of the public who are engaging formally with the subject of the hearing e.g. as an objector can do so remotely. This will ensure members of the public can observe and, where appropriate, participate as an objector in remote hearings held by the licensing authority.

86. The Scottish Government takes the view that ensuring the availability of remote hearings will allow licensing authorities to consider how best to conduct their business and as such continue to provide welcome flexibility that will benefit and assist all users of the licensing systems as they begin to recover from the adverse impact of the Covid pandemic. In given situations, there are advantages of remote hearings such as reduced travel for participants which creates both benefits for the environment and time-savings for individuals. It may be that in some cases an “in person” hearing is more suitable in the circumstances and it is intended for licensing authorities to assess when remote hearings should be used subject to the licensing authority weighing up all relevant factors which may arise in any given situation.

Question 11:

It is proposed that the provisions for Topic P7 (Civic government licensing remote hearings) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P7 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P7 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P7 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P7, or the proposal for permanence, please write them below.

Topic P8 – Courts: intimation, etc. of documents

Legislative reference: Paragraph 1A of schedule 4 of the First Scottish Act

87. It is proposed that the law be permanently changed so that any requirement to display a document on the walls (or any other part) of a court building or to make it publicly available within a court can also be fulfilled by publishing the document on the Scottish Courts and Tribunals Service’s (“SCTS”) website. This would be subject to the power of the head of the courts to adjust the operation of the new rule as necessary which allows, for example, redaction of sensitive information to account for any issues arising from the potential online publication of sensitive data. In more modern times, nothing has prevented any person from accessing a court building to photograph information posted publically on the court wall and then posting this online for a worldwide audience to access.

88. Initially implemented as a key measure to provide for the continuation of court business during Covid and the resultant impact of public health restrictions, these provisions have been used to good effect – progressing a substantial volume of cases and applications, predominantly in relation to commissary business, for example, the appointment of an executor of a deceased person. In addition, SCTS have expanded existing functionality within their IT system to automate the publication process which has resulted in reduced staff costs and efficiency savings. Aligning with SCTS strategy to maximise the opportunities afforded by technology to improve processes, provide easy access to information for court users, minimise physical appearance in court buildings and support quicker outcomes, website notices provide a modern day equivalent to walls of the court. These provisions have been identified as a desirable feature of a modern justice system and something that should be made permanent.

89. It is the view of the Scottish Government that the change brought about by these provisions has been beneficial for court users – primarily because documents are available to a wider audience, allowing anyone to view notices online and have the opportunity to make representations to the court at an earlier stage which can, for example, reduce costs or allow a person to properly defend a claim against them. This might be of particular benefit to anyone who does not access court buildings regularly or finds it more challenging to do so, for example, vulnerable users or those with disabilities.

90. It is envisaged that online publication would entirely replace the requirement to display documents on walls of the court. However, to ensure that there is a viable contingency process the option to display a document on the walls (or any other part) of a court building would still be retained. To mitigate any unintended consequences these provisions do not alter existing safeguards and they preserve existing powers for judicial office holders to direct how specific documents are to be made available.

91. The Scottish Government is very supportive of the ability to use website publication of court documents in a way which does not impede access to justice; respects rights to privacy and is equitable for all court users.

Question 12:

It is proposed that the provisions for Topic P8 (Courts: intimation, etc. of documents) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P8 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P8 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P8 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P8, or the proposal for permanence, please write them below.

Topic P9 – Criminal justice: arrangements for the custody of persons detained at police stations

Legislative reference: Part 1 of schedule 2 of the Second Scottish Act (legislation.gov.uk) (paragraphs 2 – 5)

92. The proposal concerns arrangements for the custody of persons detained at police stations. These provisions enable the Scottish Ministers to make arrangements for duties to be carried out by prisoner custody officers with escort functions within police stations. Specifically, this power allows these officers to carry out their functions of transfer or custody of prisoners within police stations for the purpose of facilitating the appearance before a court by electronic means, and functions of an administrative character in connection with those appearances.

93. The proposal is not to change the duties of prisoner custody officers, but to allow their duties to be carried out at police stations, as well as where they have normally been carried out. If prisoner custody officers could not carry out these duties within police stations, then those would have to be carried out by police officers and custody support staff who would not normally be conducting this work.

94. These powers will provide permanent and additional flexibility to help modernise the criminal justice system. It will allow the Scottish Ministers to direct the necessary resources and skills to operate more remote business, thereby minimising the movement of detained persons between custody in police stations and the court estate. Importantly, the use of these provisions will also continue to reduce pressure on front line police officers and staff.

95. It is proposed that remote custody appearances be used beyond the period of the pandemic and become part of future working practice, freeing capacity within the physical court estate for evidence-led trials and priority procedural matters. As with all custody appearances, this could either result in the release of the person or remand to prison; in either case, transfer to the court estate is minimised.

Question 13:

It is proposed that the provisions for Topic P9 (Criminal justice: arrangements for the custody of persons detained at police stations) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P9 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P9 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P9 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P9, or the proposal for permanence, please write them below.

Topic P10 – Freedom of Information: giving notice electronically

Legislative reference: Part 2 of schedule 6 of the First Scottish Act (legislation.gov.uk)

96. The proposal is to enable the Scottish Information Commissioner and Scottish public authorities to issue formal notices under the Freedom of Information (Scotland) Act 2002 (“FOISA”) electronically.

97. Prior to the First Scottish Act, FOISA provided that formal notices required to be delivered or posted to the recipient (section 74(1)(a) of FOISA). The First Scottish Act enables the Scottish Information Commissioner and Scottish public authorities to issue formal notices electronically as an alternative to delivering or posting them.

98. This provision has been utilised by the Scottish Information Commissioner to issue around 290 notices electronically since the First Scottish Act came into force.

99. The Commissioner has noted that had this provision not been in place, it would have significantly slowed his ability to carry out investigations and issue decisions during the coronavirus pandemic, which would have risked undermining confidence in the Commissioner and in FOISA. Other authorities would have been in the same position, to the extent that they issue notices under FOISA by post.

100. The Public Audit and Post-legislative Scrutiny Committee of the Scottish Parliament carried out post-legislative scrutiny of FOISA in 2019 and 2020^[20], reporting in May 2020^[21]. Modernising the notice provisions was one of a suite of minor and technical changes identified by the Commissioner as being desirable to improve the operation of the legislation. The Committee recommended that the Scottish Ministers should consider and consult on those proposed changes. The temporary modification of the notice provisions by the First Scottish Act means that we now have a greater understanding of how such a change would operate in practice.

101. In our view, the efficiencies brought about by allowing formal notices to be issued electronically have been beneficial. Given the pre-existing calls to make a change of this nature, we now propose to legislate so that the Commissioner and other Scottish public authorities have the option to issue notices electronically on a permanent basis.

Question 14:

It is proposed that the provisions for Topic P10 (Freedom of Information: giving notice electronically) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P10 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P10 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P10 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P10, or the proposal for permanence, please write them below.

Topic P11 – Legal aid

Legislative reference: Part 9 of schedule 4 of the First Scottish Act (legislation.gov.uk)

102. The proposal is to make permanent existing temporary provisions which allow for increasing the availability of interim payments to solicitors, with corresponding powers of recovery in the event of overpayments resulting from interim payments, and removal of conditions for counsel to be able to apply for interim payment.

103. Through these provisions and working with the Scottish Legal Aid Board, a flexible and accessible scheme of interim payments has been introduced to support cash flow to legal aid providers. The scheme has been accessed by many legal aid providers through the pandemic. The Scottish Government remains keen to support legal aid providers and extending the ability to make payments in this way, beyond March 2022, will continue to support cash flow to solicitors and counsel providing legal aid services.

Question 15:

It is proposed that the provisions for Topic P11 (Legal aid) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P11 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P11 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P11 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P11, or the proposal for permanence, please write them below.

Topic P12 – Legal writings etc.

Legislative reference: Paragraph 9 of schedule 4 of the Second Scottish Act (legislation.gov.uk)

104. This proposal would make permanent the disapplication of the requirement for the “physical presence” of certain parties, and allows for Scottish notaries public, solicitors and advocates to adopt alternative appropriate means of executing documents, and administering of oaths, affirmations and declarations.

105. These powers will allow Scottish notaries public, solicitors and advocates, guided by their professional bodies, the ability to execute documents and administer oaths etc. by other means such as live video connection on a permanent basis. Thus allowing greater access, convenience, and flexibility to those who may require such legal services, whilst facilitating a move to a more digitalised justice sector. In addition the provisions will support Insolvency Practitioners, as oaths are required in a number of insolvency processes.

Question 16:

It is proposed that the provisions for Topic P12 (Legal writings etc.) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P12 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P12 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P12 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P12, or the proposal for permanence, please write them below.

Topic P13 – Mental health: named person nomination

Legislative reference: Part 6 of schedule 1 of the Second Scottish Act (legislation.gov.uk)

106. The proposal removes the need for a person to have their signature witnessed when they agree to become a named person.

107. Under the Mental Health (Care and Treatment) (Scotland) Act 2003 a patient, aged 16 or over, may choose an individual to be their named person. The role of a named person is to allow someone to look after a patient’s interests and represent a patient when they are subject to compulsory powers under the law. It is a safeguard which allows and assists the patient to be represented and helps them to exercise their rights. The nomination of a named person by the patient must be made in writing and requires to be witnessed. Likewise, the nominated named person, if content to accept the nomination, must do so in writing and have it witnessed. The legislation states that only a certain group of people who are defined in law as “prescribed persons” can act as a witness.

108. Schedule 1, paragraph 15 of the Second Scottish Act removed the requirement for a nominated person to have their signature witnessed by a “prescribed person” when they agree to become a named person. Importantly, there is no change to the corresponding process for the patient. Named person nominations will continue to be made in writing and the patient will still require to have their signature witnessed by a prescribed person. The role of the prescribed person in witnessing the patient’s signature is to certify that the patient understands the effect of their nomination and the patient has not been subject to any undue influence in making the nomination. An individual will have a named person only if they wish to appoint one and they can also revoke the appointment of a named person.

109. The proposal to permanently remove the requirement for witnessing the acceptance of a nomination aims to reduce barriers within the named person process which can lead to delays in the appointment of a named person while ensuring that adequate safeguards remain. The named person nominee retains the right to accept or refuse the nomination and, if they do agree to become a named person, can also withdraw their consent providing they submit their decision in writing.

110. In practice, the temporary removal of the process of witnessing for nominees has reduced delays experienced by the Mental Health Tribunal for Scotland caused by practical difficulties in complying with signature requirements. Additional time previously had to be spent to secure the validity of named person nominations before the Tribunal was able to hold a hearing. The requirement for a prescribed person to witness someone agreeing to become a named person adds no additional safeguard for a patient but has added an additional layer of bureaucracy to the overall process.

111. We are not aware of comparable provisions in legislation, requiring the need for a witness (from a prescribed list of persons) to certify a person’s agreement in similar circumstances. The proposal to permanently remove the requirement for witnessing the acceptance of a nomination is expected to continue to help to reduce any potential for delay in completing the named person process. In addition it will ensure the patient can continue to be treated and cared for in a way which respects their rights and allows services to be delivered effectively.

Question 17:

It is proposed that the provisions for Topic P13 (Mental health: named person nomination) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P13 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P13 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P13 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P13, or the proposal for permanence, please write them below.

Topic P14 – Parole Board: delegation

Legislative reference: Part 7 of schedule 4 of the First Scottish Act (legislation.gov.uk) (paragraph 17)

112. The proposal is to continue to allow the Chairperson’s functions to be delegated to another member of the Parole Board should the Chairperson become incapacitated for any reason. To also continue to provide that the Chairperson may delegate functions for other reasons e.g. should another member have a particular expertise that would assist in carrying out the Chairperson’s functions.

113. Prior to the pandemic there was no scheme of delegation set out in legislation which allowed the Chairperson of the Parole Board to delegate functions to another member of the Board. These provisions have provided delegation powers to allow the operation of the Chairperson’s functions to continue should they become incapacitated for any reason and for those functions to be carried out by the most senior member of the Parole Board. This has the benefit of continued leadership and guidance in the absence of the Chairperson. There are also benefits where the Chairperson requires another member to carry out functions of a particular nature which enable the Chairperson to delegate functions to another member for a particular purpose. This allows the Chairperson to share functions amongst members where it is appropriate to do so.

Question 18:

It is proposed that the provisions for Topic P14 (Parole Board: delegation) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P14 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P14 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P14 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P14, or the proposal for permanence, please write them below.

Topic P15 – Parole Board: live link

Legislative reference: Part 7 of schedule 4 of the First Scottish Act (legislation.gov.uk) (paragraph 18(3))

114. A further proposal related to the Parole Board is to allow the entire proceedings of a parole hearing to be held by video/teleconference (“live link”) so the Board or tribunal members, the parties, witnesses and others can provide evidence and participate remotely. Prior to the pandemic, only some witness evidence was able to be provided in this way. The ability to hold the full proceedings by live link has reduced the number of in-person oral hearings being held to keep members and others safe by avoiding face-to-face contact and postponements. These provisions have allowed the Parole Board to continue to operate almost unaffected by the pandemic.

115. It is important that the Parole Board can continue to function in this way going forward to provide future proofing, for example in the event of any new variants or the emergence of other public health concerns, or indeed where a remote hearing might be appropriate for any other reason.

116. It is proposed to allow the Parole Board to hold a part or the whole of a hearing by live link, provided the Board considers it is in the interests of justice. This ensures fairness to the parties is provided, but allows flexibility for live link to be used for any reason in the future.

117. Maintaining the ability to continue to work online also removes the need for the physical transportation of prisoners to and from hearings and reduces the need for other participants to travel for the purpose of a hearing.

Question 19:

It is proposed that the provisions for Topic P15 (Parole Board: live link) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P15 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P15 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P15 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P15, or the proposal for permanence, please write them below.

Topic P16 – Remote registration of deaths and still-births

Legislative reference: Part 2 of schedule 13 of the UK Act (legislation.gov.uk)

118. The measures which are proposed to be put onto a permanent footing are:

• provision which enables the option of giving the particulars of a death or still-birth by phone or other methods than in-person attendance at the registration office;
• provision which enables alternative methods by which a person who is required to give information about a death or still-birth to the registrar may attest the death registration form, or the register page for a still-birth, rather than attending at the registration office to manually sign the form or page;
• provision which enables the giving or delivery of documents relating to a death or still-birth under the Registration of Births, Deaths and Marriages (Scotland) Act 1965 by electronic or other means;
• provision which enables discretion within local authority areas as to how those provisions would be implemented;
• provision for a funeral director who is responsible for the arrangement of a funeral to give information to the district registrar concerning a death (as an option), if the funeral director is willing and so authorised by a relative.

119. The Scottish Government considers the benefits of the proposal to be:

• maintaining the flexibility, convenience and accuracy of a remote death and still-birth registration process which has allowed the registration system in Scotland to maintain high standards of data collection while protecting staff and members of the public;
• significantly reducing travel and other logistical difficulties associated with more remote/outlying registration offices (as well as facilitating appropriate rationalisation of office provision across the country); and
• expanding the range of persons able to assist a family by serving as informant to a death or still-birth registration.

Question 20:

It is proposed that the provisions for Topic P16 (Remote registration of deaths and still-births) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P16 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P16 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic P16 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P16, or the proposal for permanence, please write them below.

Topic P17 - Remote registration of live births

Legislative reference: proposed new provisions so no existing legislative reference

120. As a result of the Covid pandemic, and the need to minimise exposure of both registration staff and members of the public to the virus, the process for live birth registration has altered from the established procedure.

121. Currently, someone wishing to register the birth of a child initially contacts a registrar to make an appointment to do so, as happened previously under the established procedure. However, as a result of the Covid pandemic, the registrar arranges a phone conversation with the informant and takes as much of the information required as possible down by remote means, principally by phone, before the appointment at the registration office.

122. The registrar uses the information gathered in the phone call to prepare the required form, and to generate a sample birth register page for checking by the informant. The informant(s) require to attend the registration office to sign the form and attest that the information provided is correct. This procedure significantly reduces the time informant(s) spend in the registration office, from a previous appointment time averaging perhaps half an hour.

123. The Scottish Government is proposing to develop permanent legislative provisions in relation to registration of live births. The proposed changes will build on the above revised ‘hybrid’ process for live birth registration that has been adopted as a result of the Covid pandemic. This will:

• enable giving the particulars of a live birth by remote methods, as an alternative option to in-person attendance at the registration office;
• retain the existing option for local authorities and informants of in person attendance at a registration office;
• enable alternative methods by which a person who is required to give information about a live birth to the registrar may attest the register page rather than attending at the registration office to sign the page. These alternative methods would allow people not to have to attend a registration office to attest to the veracity of the information contained on the register page;
• enable documents relating to a live birth under the Registration of Births, Deaths and Marriages (Scotland) Act 1965 to be given or delivered by the informant to the registrar by remote means. “Remote” may mean predominantly via email but could also be by using video conferencing, where email or video could be appropriate for the particular documents. Similarly, the registrar could send documents onwards to the informant and other key recipients by remote means.

124. The intention is that in future it will be possible across Scotland to register a live birth remotely or by in-person attendance at a registration office. Local authorities may, after consultation with the Registrar General, configure services in the way which best meets local needs. For example, rural authorities may wish to encourage remote registration, with in-person registration happening as needed. Urban authorities, by contrast, may wish to primarily deliver in-person registration with remote registration happening on occasions as necessary. In all cases, we would expect authorities to make appropriate provision for delivery of the service to informants who for specified reasons need to use one or other model of delivery (for instance an informant with a disability necessitating their use of an in-person interpreter or other support).

125. Birth registration has significant legal implications. Jointly registering a birth is the principal means by which fathers and second female parents who are not married or in a civil partnership with the mother can be recognised as a child’s legal parent^[22].

126. In addition, jointly registering the birth of a child is the most frequently used way for fathers and second female parents who are not married or in a civil partnership with the mother to obtain parental responsibilities and rights. In 2020 there were 22,038 jointly registered births where the mother was not in a civil partnership or a marriage^[23].

127. When the option of remote birth registration is introduced, the intention is to retain the right of the mother, if the father or second female parent is not married or in a civil partnership with her, to act as sole informant to the birth if she so wishes.

128. The Scottish Government considers the benefits of the proposal to be:

• future proofing the requirement for expeditious birth registration services;
• introducing greater flexibility to the configuration of local registration services; and
• significantly reducing travel and other logistical difficulties associated with more remote/outlying registration offices (as well as facilitating appropriate rationalisation of office provision across the country, as necessary).

Question 21:

It is proposed that new permanent legislative provisions for Topic P17 (Remote registration of live births) as described will be developed. Which of the following best describes what you think about this?

I think the proposed provisions for Topic P17 should be developed

I do not think the proposed provisions for Topic P17 should be developed

Unsure

I have no view

If you have any comments on the proposed provisions for Topic P17 please write them below.

Topic P18 – Tenancies: protection against eviction (discretionary grounds of eviction); and pre-action requirements for eviction proceedings on ground of rent arrears

Legislative references: Paragraphs 1, 3 and 5 of schedule 1 of the First Scottish Act (legislation.gov.uk) and Part 2 of schedule 1 of the Second Scottish Act (legislation.gov.uk)

129. The intention is to ensure the continuance of the provisions which provide the First-tier Tribunal (Housing and Property Chamber – the “Tribunal”) with discretion to consider all matters relating to eviction cases going before them (First Scottish Act, schedule 1) and also provisions that set out pre-action requirements for orders for possession or eviction orders on the ground of rent arrears (Second Scottish Act, schedule 1, Part 2).

130. While the proposal is to enact the provisions in relation to pre-action protocols and Tribunal discretion on a permanent basis, the Scottish Ministers intend to bring forward further housing legislation in this parliamentary term, which will provide an opportunity to further refine these provisions if required.

131. Schedule 1 of the First Scottish Act introduced provisions providing the First-tier Tribunal with discretion to grant an eviction order in all private rented sector eviction cases regardless of the grounds on which eviction is sought. Previously, where eviction was sought on certain grounds – such as where a tenant under a private residential tenancy had been in rent arrears for at least three consecutive months and owed at least one month’s rent on the day of the Tribunal hearing – the Tribunal were obliged to grant an eviction order if satisfied that the eviction ground applied.

132. This new discretion given to the Tribunal was further enhanced by schedule 1, Part 2 of the Second Scottish Act, which introduced private landlord pre-action protocol procedures for the private rented sector where eviction is being sought on the basis of rent arears accruing during the pandemic. These pre-action protocols were designed to improve communication between the tenant and landlord, ensure that tenants have all the information they need about their rights and place more responsibility on the landlord to ensure the correct procedures are followed.

133. Both discretionary grounds of eviction and pre-action protocols have long been established in the social rented sector. In Housing to 2040, published in March 2021^[24], the Scottish Ministers indicated their intention to introduce pre-action protocols for the private rented sector on a permanent basis. While the current proposal is to make pre-action protocols permanent, the Scottish Ministers will bring forward further housing legislation, which will offer an opportunity to further refine the pre-action protocol provisions if required.

134. Ensuring the First-tier Tribunal continues to be able to exercise discretion on all grounds for eviction, will enable them to take all matters and circumstances into account, which is particularly important as we move towards the potential ending of key support for individuals, such as the UK Government’s Job Retention Scheme. In addition, it will ensure the effective operation of pre-action protocols provisions, meaning a Tribunal can take into account how well a landlord has followed the requirements before commencing eviction proceedings.

135. The current proposal would make permanent the provisions creating discretionary grounds of eviction and pre-action requirements for the private rented sector, until such time as future housing legislation is passed and implemented. Pre-action protocols would be made permanent for evictions proceedings brought on grounds of rent arrears of any nature and not just arrears accruing during the pandemic. The proposals in this paper are intended to prevent a gap between the expiry of these provisions (as laid out in the Extension and Expiry Act) and future housing legislation coming into force.

Question 22:

It is proposed that the provisions for Topic P18 (Tenancies: protection against eviction (discretionary grounds of eviction); and pre-action requirements for eviction proceedings on ground of rent arrears) as described will be made permanent. Which of the following best describes what you think about this?

I think the provisions for Topic P18 should be extended beyond March 2022 and made permanent

I think the provisions for Topic P18 should be extended beyond March 2022 and made permanent, but only to the extent that rent arrears should continue to be a discretionary eviction ground – with all other eviction grounds returning to their pre-pandemic status

I think the provisions for Topic P18 should be extended beyond March 2022, but not made permanent

I think the provisions for Topic P18 should be extended beyond March 2022, but not made permanent, but only to the extent that rent arrears should continue to be a discretionary eviction ground – with all other eviction grounds returning to their pre-pandemic status

I do not think the provisions for Topic P18 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic P18, or the proposal for permanence, please write them below.