Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No.2) Act 2020 - proposed extension: statement of reasons

2. Background to proposal

2.1 The Coronavirus (Scotland) Act 2020^[1] (the 'first Scottish Act') came into force on 7 April 2020 (except for one provision) and the Coronavirus (Scotland) (No.2) Act 2020^[2] (the 'second Scottish Act') came into force on 27 May 2020. The Acts have provided powers and measures which have helped to protect the public, maintain essential public services and support the economy in the face of the unprecedented and ongoing public health and economic challenges created by the pandemic. This includes protections for individuals in areas such as housing, measures to support the ongoing operation of the justice system, and support for public bodies in their response to coronavirus (COVID-19) such as adjustments to deadlines for reports and accounts.

2.2 As set out under section 12 of the first Scottish Act, and section 9 of the second Scottish Act, Part 1 of both Acts were due to expire on 30 September 2020. On 29 September 2020, the Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2020^[3] (SSI 2020/299) came into force extending the expiry date of Part 1 of both Acts to 31 March 2021. On the same day, the Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020^[4] came into force expiring provisions of those Acts which were no longer required beyond 29 September 2020.

2.3 Section 12(3)(b) of the first Act and section 9(3)(b) of the second Act allow for a further extension of Part 1 of these Acts for a further six months to 30 September 2021 through regulations with the agreement of Parliament.

2.4 On 11 February 2021, the Cabinet Secretary for the Constitution, Europe and External Affairs advised Parliament that the Scottish Ministers were conducting analysis to determine whether the Acts should be extended beyond 31 March 2021 since, regrettably, the pandemic is not yet over. The Cabinet Secretary further made clear that, if supported by the evidence, regulations would be brought forward seeking the Scottish Parliament's agreement to extend the expiry dates of the Scottish Coronavirus Acts to 30 September 2021.

2.5 Having concluded that analysis, the Scottish Government intends to lay draft regulations for the Parliament to consider which would seek to extend the expiry date of Part 1 of both Scottish Coronavirus Acts from 31 March 2021 to 30 September 2021. As required by section 12(6) of the first Scottish Act and section 9(6) of the second Scottish Act, this Statement of Reasons has been prepared by the Scottish Government to set out reasons why the draft Coronavirus (Scotland) Acts (Amendment of Expiry Date) Regulations 2021 (the 'further extension regulations') should be made. This Statement of Reasons is laid ahead of the draft extension regulations as required by section 12(6) of the first Scottish Act and section 9(6) of the second Scottish Act.

2.6 At the time the Scottish Government laid the 'Coronavirus Acts: first report to Scottish Parliament'^[5], it had recently published, on 21 May 2020: 'Coronavirus (COVID-19): Scotland's route map through and out of the crisis'^[6] (the 'route map'). On 23 October 2020, the Scottish Government brought into effect 'COVID-19: Scotland's Strategic Framework'. This Framework set out five levels of protection that can be applied nationally or to different areas of the country according to evolving patterns of infection and transmission. Since the Scottish Government laid the 'Coronavirus Acts: fourth report to Scottish Parliament'^[7] on 9 December 2020, and as a result of the new, more transmissible variant of the virus being identified in the UK in December, firm, preventative action was taken designed to reduce the risk of it spreading any further in Scotland. This action included applying tightened level 4 measures to all of mainland Scotland from 5 January 2021. The island areas were kept under review and level 4 restrictions were applied to the Isle of Barra and the Isle of Vatersay from 20 January 2020^[8], while Na h-Eileanan Siar also moved to level 4 from 30 January 2021 due to an increase in prevalence of coronavirus and an increase in infection rates^[9].

2.7 It is in this context that Scottish Ministers have given consideration to the question of whether Part 1 of the Scottish Acts should be extended. In doing so, careful consideration has been given to the requirement to balance the needs of many stakeholders and partners who wish to see the provisions remain available, against the commitment given when the Acts were introduced, that the powers would not remain in place unless necessary. As the coronavirus pandemic is not yet over, and as measures in the Scottish Acts continue to be an important part of the Scottish Government's response to the continuing and significant public health risk and economic challenges posed by the pandemic, the assessment that Ministers have arrived at in proposing to extend the Acts is proportionate and appropriate to the scale of that risk.

2.8 Part 1 of each of the Scottish Acts can only be extended in their entirety and not on a provision by provision basis. This is done through regulations with the agreement of the Parliament. Any provisions that should not be extended therefore need to be expired through separate regulations. The Scottish Government has taken the decision that, subject to the agreement of Parliament, Part 1 of both Acts should be extended, to 31 March 2021. Following the laying of this Statement of Reasons, the Scottish Government will lay draft regulations to amend the expiry dates of both Acts accordingly. However, this extension will not apply to all provisions in the Acts which are currently in place.

2.9 The Scottish Government has been clear that the provisions contained within the Scottish Acts must only be in place for as long as it is necessary and therefore in the preparations for the potential extension of the Acts, consideration has been given to whether each individual provision continues to be needed beyond 31 March 2021. It has been judged that seven measures will no longer be needed and can be expired. Therefore, alongside the further extension regulations, the Scottish Government is also laying a separate set of regulations, the Coronavirus (Scotland) Acts (Early Expiry and Suspension of Provision) Regulations 2021 ("the early expiry and suspension regulations").

2.10 The early expiry and suspension regulations will expire the seven identified provisions on 30 March 2021 and so these provisions would not be covered by an extension to Part 1 of both Acts.

2.11 The early expiry and suspension regulations will also provide for marriage and civil partnership provision in the second Scottish Act to be suspended from 30 March 2021. This will ensure that the duties in this provision could be revived at a future point if required as a result of changing circumstances.

2.12 Information on the provisions to be expired or suspended, and the reasons for their inclusion in the early expiry and suspension regulations, is provided within the Policy Note for those regulations.

2.13 The reporting requirement under section 15 of the first Scottish Act and section 12 of the second Scottish Act will continue to require reporting whilst provisions in Part 1 of each of the Acts are in force. The reporting periods under the legislation end on 31 March 2021, 31 May 2021, 31 July 2021 and 30 September 2021. It is also important to note that, throughout the proposed six month extension period, if provisions are deemed to be no longer necessary during that time, they can be suspended or expired early. A suspended provision could subsequently be revived if this was considered necessary. So proposing that Part 1 of both Acts be extended at this time does not mean that all provisions covered by the extension will remain in place until 30 September 2021. As it has done throughout the life of the Acts so far, the Scottish Government will keep the continued necessity of these provisions under review.

2.14 This Statement of Reasons provides further detail of the considerations that have been made in arriving at the recommended list of provisions which are proposed to be covered by the extension regulations to be laid before the Parliament to extend the expiry date of Part 1 of each of the Scottish Acts.