Questions concerning legislation and police powers in enforcing restrictions: FOI release

Information requested

1. Copies of all the scientific evidence used to determine the efficacy of Scotland's 4 tiers rules.

2. Details of devolved legislative powers being used by Scotland to enforce these 4 tiers.

3. Details of devolved legislative powers being used or will be used to prevent travel in / out of Scotland and around Scotland internally by Scottish police forces.

4. Details of specific police powers as defined by legislation either UK wide or via Scottish Parliament that give police officers / police forces authority to stop and question individuals (on foot or in vehicle) without reasonable suspicion of a crime having been committed.

5. Details of specific police powers as defined by either UK legislation or via Scottish Parliament that give police officers / police forces authority to issue fines.

6. Details of specific police powers as defined by either UK legislation or via Scottish Parliament that give police officers / police forces authority to demand / request information from individuals without legal representation.

7. Details of specific police powers as defined by either UK legislation or via Scottish Parliament that give police officers / police forces the reason to believe a crime has been committed, or reasonable suspicion a crime has been committed when an individual refuses to answer questions until they have legal representation.

8. Details of specific police powers as defined by either UK legislation or via Scottish Parliament that give police officers / police forces the authority to carry out a search of an individual or vehicle when an individual refuses to answer questions until they have legal representation and when police officers have no reasonable suspicion other than an individual requesting legal advice.

Response

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. While all of the information you have requested in questions 2 to 8 is available from https://www.legislation.gov.uk/, in order to facilitate your research, I attach links to some of the most relevant legislation. If, however, you do not have internet access to obtain this information from any of the websites listed in the full response, then please contact me again and I will send you a paper copy.

With regards to UK wide legislation you may wish to contact the Department of Justice direct - https://contact-moj.service.justice.gov.uk/ for assistance.

1. The Scottish Government has published information about the process and scientific evidence used to determine Scotland’s tiers/levels, as explained below.

Prior to implementing the protection levels the Scottish Government published ‘A levels approach to suppression of COVID-19’ in which we established our approach to creating a set of indicators to inform decision-making on assigning local authorities to levels. We explained how the five indicators specified in Scotland’s Strategic Framework are used to inform which level to apply to an area.

The Scottish Government publishes the evidence and analysis which informs the decisions on which protection levels to apply in each local authority area each week, on a Tuesday: ‘Covid 19 protection levels reviews and evidence’. A summary of how the five indicators are used is also available ‘Covid-19 Indicators’.

Furthermore, from 21 May until December, the Scottish Government has published a weekly research findings document (https://www.gov.scot/collections/coronavirus-covid-19-modelling-the-epidemic/) which provides modelling outputs on the current epidemic in Scotland as a whole, based on a range of methods. We use modelling outputs from a number of different academic groups to inform our estimate of the R value for Scotland. Also included are medium term projections of hospital bed and ICU bed demand that is the basis of the level indicators (d and e) in the strategic framework.

2. The regulations and restrictions that Police Scotland are required by statute to enforce can be found in The Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 - https://www.legislation.gov.uk/ssi/2020/344/contents/made

Enforcement of these regulations, including operational activity, performance and outcomes are matters for the Chief Constable of Police Scotland with oversight by the Scottish Police Authority. As such, you may wish to contact Police Scotland directly for further advice at :

PO Box 2460
Dalmarnock
Glasgow
G40 9BA

The regulations and restrictions that Local authorities enforce can be found in The Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020. Their enforcement powers are set out in these regulations, as well as the Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020

Each local authority will manage the operations of its own officers, who will work alongside police and public health colleagues.

3. The Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No. 3) Regulations 2020 set out restrictions on travel. These Regulations prohibit nonessential travel to and from Level 3 and 4 local authority areas and to and from the rest of the UK and Ireland, and have been in force since 20 November, supplementing guidance in place since 2 November. The Regulations can be found here: The Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No. 3) Regulations 2020 (legislation.gov.uk)

The Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No. 3) Regulations 2020 are made using powers in the Coronavirus Act 2020, specifically Section 49 of the Act which introduces Schedule 19, and which gives Scottish Ministers
the powers to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Scotland.

4. In carrying out a stop and search, Police Scotland officers will act in accordance with the Code of Practice on the use of Stop and Search.

Under the Code, reasonable grounds for suspicion is the legal test that a constable must satisfy before they can stop and detain a person to carry out a search under almost all statutory provisions. The usual requirement is a reasonable suspicion that the person has committed, or is committing, or is about to commit, a particular crime or is in possession of a prohibited article. Annex A of the Code lists the main statutory powers of Stop and Search of a person.

5. Links to the main legislation under which fines or fixed penalty notices can be issued by police officers in Scotland are set out below:-

Covid 19
https://www.legislation.gov.uk/ssi/2020/103/regulation/9/made

Anti-Social Behaviour
https://www.legislation.gov.uk/asp/2004/8/contents

Dog Fouling
Dog Fouling (Scotland) Act 2003

Driving Offences
Road Traffic Act 1988

6. Provisions setting out the specific powers requested in questions 6, 7 and 8 can be found in the Criminal Justice (Scotland) Act 2016 - Criminal Justice (Scotland) Act 2016 (legislation.gov.uk)

7. Criminal Justice (Scotland) Act 2016 (legislation.gov.uk)

8. Criminal Justice (Scotland) Act 2016 (legislation.gov.uk)

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