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

1. Background to proposal

1.1 The Coronavirus (Scotland) Act 2020 (the 'first Scottish Act') came into force on 7 April 2020 (except for one provision) and the Coronavirus (Scotland) (No.2) Act 2020 (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.

1.2 As set out under section 12 of the first Scottish Act, and section 9 of the second Scottish Act, Part 1 of both Acts expire on 30 September 2020.

1.3 On 11 August 2020, the Cabinet Secretary for Constitution, Europe and External Affairs confirmed the Scottish Government's intention 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 30 September 2020 to 31 March 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 for making the Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2020 (the 'extension regulations'). 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.

1.4 At the time the Scottish Government laid the 'Coronavirus Acts: first report to Scottish Parliament'^[1], it had recently published on 21 May 2020: 'Coronavirus (COVID-19): Scotland's route map through and out of the crisis'^[2] (the 'route map'). When the 'Coronavirus Acts: second report to Scottish Parliament'^[3] was laid before Parliament on 11 August 2020, Scotland was in phase three of the route map and remains in this phase as the Scottish Government lays this Statement of Reasons. Scotland has made major progress in tackling coronavirus but there remains a very real risk both of a potential resurgence or 'second wave' of the virus, and that impacts could as yet emerge from the first wave which require further action to be taken in response. 

1.5 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. In view of the continuing risk of a resurgence of the virus, the assessment that Ministers have arrived at in proposing to extend the Acts is proportionate and appropriate to the scale of that risk. 

1.6 Part 1 of each of the Scottish Acts can only be extended in their entirety and not on a provision by provision basis. This can only be done through regulations and with the agreement of the Parliament. Anything that should not be extended is therefore required to be expired early 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 include all provisions in the Acts which are currently in place. Alongside the regulations to extend Part 1 of the Acts, the Scottish Government is also laying a separate set of regulations to expire provisions on 29 September 2020 and so these provisions would not be covered by an extension to Part 1 of both Acts - the Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020 (the 'expiry regulations'.)

1.7 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 30 September 2020. It has been judged that 13 paragraphs of various schedules will no longer be needed and can be  expired. These paragraphs are therefore included in the expiry regulations and will expire on 29 September 2020 and further information on the basis for arriving at the decision to expire those provisions is set out within the Policy Note for those regulations. 

1.8 Three provisions are being proposed for suspension. This will ensure that those provisions will be available to be revived at a future point if required, for example, if certain thresholds for commencing their operation are met; to support the Scottish Government, public bodies, and the third sector as we transition out of lockdown; and to ensure that the appropriate tools are available, should there be a resurgence of the virus. Should the extension regulations not be made, then Part 1 of both Scottish Acts would expire on 30 September 2020, so the suspension of the provisions would have no effect. Separate suspension regulations are being prepared for these provisions, to be laid in the near future, in order to ensure that Parliament has as full a picture as possible of the intended status of the provisions in the Acts beyond 30 September.

1.9 The reporting requirement under section 15 of the first Scottish Act and section 12 of the second Scottish Act will continue to be in place until Part 1 of the Acts expire, including during a period of extension up to 31 March 2021. The reporting periods under the legislation end on 30 September 2020, 30 November 2020, 31 January 2021, and 31 March 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 could be subject to suspension, revival and/or early expiry. Proposing that Part 1 of both Acts be extended at this time does not mean that all provisions covered by the extension need remain in place until 31 March 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.

1.10 This Statement of Reasons provides further detail on 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 the first and second Scottish Coronavirus Acts.