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

2. Background to proposal

2.1 The First Scottish Act came into force on 7 April 2020 (except for one provision) and 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 included 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 Covid such as adjustments to deadlines for reports.

2.2 As set out under section 12 of the First Scottish Act, and section 9 of the Second Scottish Act, Part 1 of each of the Acts were due to expire on 30 September 2020, with the potential to be extended for two further periods of six months to 30 September 2021, subject to the approval of the Scottish Parliament. On 29 September 2020 and 30 March 2021, regulations came into force extending the expiry date of Part 1 of each of the Acts to 31 March 2021 and 30 September 2021 respectively^[4]. As highlighted above, provisions in the Acts have been suspended or expired where they were no longer necessary or appropriate.

2.3 The Coronavirus (Extension and Expiry) (Scotland) Act 2021^[5] ("the Extension and Expiry Act") amended the Acts to extend Part 1 of each Act until the end of 31 March 2022, with the potential for further extension by secondary legislation to the end of 30 September 2022, subject to the approval of the Scottish Parliament. In addition to extending provisions, the Extension and Expiry Act also expired certain provisions within the Acts which were no longer necessary or appropriate.

2.4 The Extension and Expiry Act contained no provision to extend the Acts beyond the end of 30 September 2022.

2.5 The draft regulations which accompany this Statement of Reasons seek to extend the expiry date of Part 1 of each of the Acts from the end of 31 March 2022 to the end of 30 September 2022. 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 Dates) Regulations 2022 ("the extension regulations") should be made. This Statement of Reasons is laid with 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 The emergence of the Omicron variant altered the epidemiology of Covid in Scotland with a rapid increase in cases observed from 29 November 2021, when Scotland confirmed its first cases of the Omicron variant, to December 2021. Since then the number of new Covid cases per day has decreased from an average of around 16,000 at the beginning of January 2022, to around 7,000 by mid-January 2022, and has since remained at around that level with a slight decrease in February 2022. This is a high plateau compared to previous phases of the pandemic in Scotland and it remains difficult to predict the future trajectory of cases due to the evolving nature of the virus itself, and possible changes to population immunity and behaviour.

2.7 Hospital occupancy has gradually reduced from a peak of around 1500 in mid-January 2022 to around 900 by mid-February 2022. This remains a high level and health services are stretched. Hospital occupancy may be expected to plateau somewhat hereafter, reflecting the plateau in case numbers. The proportion of Covid cases resulting in ICU occupancy and death is low compared to earlier phases in the pandemic, reflecting the reduced severity of the Omicron variant, compared with the Delta variant, and increased levels of immunity in the Scottish population.

2.8 Covid cases could increase again with the emergence of future variants, which might be more severe or transmissible than the Omicron variant, or with the waning of immunity; such events are inherently unpredictable and reflect the need to be able to implement proportionate measures in the face of future threats from this virus.

2.9 It is in this context that Scottish Ministers have given consideration to the question of whether Part 1 of each of the 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 provisions would not remain in place unless necessary. The Scottish Ministers consider that it remains necessary and proportionate to have these provisions available during this time due to the ongoing nature of the pandemic, and the need to mitigate the impact of Covid, including the Omicron variant and any other new variant.

2.10 Part 1 of each of the Acts can only be extended in their entirety and not on a provision by provision basis. Any provisions that should not be extended therefore need to be expired through separate regulations.

2.11 The Scottish Government has been clear that the provisions contained within the 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 the end of 31 March 2022. It has been judged that four measures will no longer be needed and can be expired. Therefore, alongside the extension regulations, the Scottish Government is also laying a separate set of regulations, the Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2022 ("the early expiry regulations").

2.12 The early expiry regulations will expire the four identified provisions on 30 March 2022 and so these provisions will not be covered by the extension of Part 1 of each of the Acts.

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

2.14 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. 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. Therefore, proposing that Part 1 of each of the Acts be extended at this time does not mean that all provisions covered by the extension will remain in place until the end of 30 September 2022. 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.

2.15 This Statement of Reasons provides further detail of the justification for extending the expiry date of Part 1 of each of the Acts.