Permanence of Coronavirus Recovery and Reform Act measures: consultation analysis

9. Impact Assessments

The consultation paper invited views on the potential impacts of consultation proposals, to inform ongoing impact assessments. Overall, 17 respondents provided comment regarding one or more of the areas identified in the consultation document, with some of these comments being relatively brief.

This included a police respondent making the general point that effective monitoring will be required to ensure that any emerging issues affecting access to justice as a result of proposals can be understood and addressed. Comments in relation to each of the specific areas noted in the consultation document are summarised below.

Human rights

Eleven respondents commented on the potential impacts of consultation proposals on human rights. These comments included reference to the potential positive impact of proposals for human rights (for example by making justice processes more efficient and accessible) as well as potential adverse impact on human rights.

A legal profession respondent referred specifically to potential impacts associated with use of virtual attendance and digital productions on articles 6 (right to a fair trial) and 8 (right to respect for private and family life, home and correspondence) of the ECHR. In relation to Article 6, concerns regarding virtual attendance focused on the conditions in which individuals present evidence remotely and how to ensure they are not subject to undue influence, and guaranteeing that accused persons have confidential communication with their defence solicitor. There was also concern that proposed use of digital productions could have an impact on the right to present physical evidence in cases where it is appropriate. In relation to Article 8, it was suggested that proposals on the use of digital evidence could have implications for the right to privacy.

Concerns were also raised around the potential for proposals to specifically affect individuals with protected characteristics or other needs. This included reference to vulnerable people such as those with addiction, mental health, neurodiversity and special needs, and those with visual impairment. Some community justice and health/social care respondents suggested that proposals could affect individuals’ ability to fully understand and participate in proceedings, and that use of digital communication can be a barrier to identifying individuals where this is a risk. A third sector respondent saw a need for enhanced support to ensure that vulnerable people are not adversely affected by the proposals.

Digital exclusion was also identified as a potential issue in terms of the potential impact of proposals on equality of access to justice and rights to freedom of expression. Respondents suggested that proposals could particularly affect those without access to the equipment, connectivity, skills and/or confidence necessary to make effective use of digital technologies. This included specific concern that proposals could lead to a “digital by default” approach which disadvantages the digital excluded unless enhanced support is made available. A third sector respondent identified specific groups as being more likely to face digital exclusion including rural and island communities, those affected by financial insecurity and/or in areas of high socio-economic deprivation, those with disability or health needs, and those facing language or literacy barriers. It was also noted that prisoners, including those on pre-trial and pre-sentencing remand, also lack access to digital technologies.

Equalities and protected characteristics

Eleven respondents commented on the potential impacts of consultation proposals on equalities and the protected characteristics.

Some legal profession and third sector respondents suggested that wider use of digital technologies is likely to support rather than hinder access to justice for those with protected characteristics. For example, virtual attendance was seen as making court more accessible for people with physical disabilities.

Reference to potential negative impacts included concerns noted previously in relation to human rights around adverse impacts on specific groups. It was suggested that proposals could limit access for vulnerable people who may struggle to meaningfully engage with and understand justice processes via digital means, and could make it more difficult for defence agents and others to support clients through these processes. This included reference to some specific protected characteristics such as people with disabilities or visual impairment, and other needs such as those with addiction or mental health needs, or neurodivergence. It was also noted that “offenders” as a group are often stigmatised.

The potential for proposals to limit access for those affected by digital exclusion was also a concern, including for some public bodies. People without access to the equipment, connectivity and skills required to make effective use of digital platforms were seen as being potentially disadvantaged by proposals, for example compared with professional prosecutors likely to have better access to and understanding of technology. There was reference to digital exclusion being a more significant issue for specific groups such as children and families, and children in care.

Reflecting the concerns noted above, it was suggested that care is required to ensure that the focus on maximising use of technology does not prevent access to other processes and procedures that are more appropriate for certain groups.

A public body respondent noted that the Scottish Government should ensure that there are no gaps in the evidence base for the equality impact assessment (EQIA) of proposals, and suggested that further consultation with protected characteristic groups may be necessary. It was also noted that SCTS is required to carry out an EQIA in the development of any strategies or policies related to implementation of proposals.

Children and young people

Eight respondents commented on the potential impact of consultation proposals on children and young people as set out in the UN Convention on the Rights of the Child (UNCRC).

These comments focused on areas where proposals were seen as having potential to negatively impact children and young people. For example, it was suggested that proposals in relation to fiscal fines could disproportionately affect children and younger people given they typically have limited or no income. A legal profession respondent proposed that additional sentencing guidelines would be helpful in mitigating this impact.

Points noted earlier in relation to human rights and equalities around varying capacity to use digital platforms were also highlighted specifically in relation to children. While it was noted that use of digital technologies could be suitable for some children, several community justice and health/social care respondents expressed concern that others may have difficulty engaging meaningfully with justice processes in this way. Wider policies intended to improve outcomes and wellbeing for children and young people were highlighted as relevant here.

Scotland’s Bairns Hoose Standards, based on the Barnahus model underpinned by the UNCRC, were highlighted as relevant to the potential impact of proposals on children and young people. It was suggested that the Standards should be a reference point for work around implementation of proposals for virtual attendance. For example, Article 12 of UNCRC (the right for children to be listened to and taken seriously) was cited in suggestions that children’s views should be brought into decisions about virtual or physical attendance at court. There was also reference to Article 13 giving children the right to receive information, and concern that directions given by court should be child friendly and accompanied by appropriate relationship-based and trauma-informed support.

It was noted that children who offend are more likely to be dealt with by the children’s hearing system, and wished to ensure that this system can also benefit from proposals intended to improve experience of justice processes.

Socio-economic equality

Twelve respondents commented on the potential impacts of consultation proposals on socio-economic equality and the Fairer Scotland Duty.

These comments primarily focused on proposals relating to fiscal fines and use of digital technologies. The ability to pay fiscal fines was identified as a key issue for socio-economic equality, with proposals seen as having potential to disproportionately affect those with lower incomes and/or in socio-economically deprived areas. This included concern around the potential financial impact on the individuals’ family. It was suggested that imposition of fines must not result in households falling below a liveable income, and sentencing guidelines were seen as having a role in mitigating any negative impact.

Digital exclusion was also seen as an important factor for the impact of proposals on socio-economic equality. Respondents noted that those affected by socio-economic inequality, including in areas of deprivation, are more likely to lack access to the equipment, connectivity and skills/education necessary to properly engage with digital platforms. It was suggested that proposals could therefore limit access to justice for those experiencing socio-economic inequality.

Island communities

Eleven respondents commented on the potential impacts of consultation proposals on communities on the Scottish islands.

This included reference to virtual attendance proposals as having potential to improve the accessibility of court for island communities. This was identified as a particular issue for communities where no court is available locally, and where travel to and from the mainland can be costly and unreliable. It was also noted that justice social work teams are typically smaller on Scotland’s islands, and that these teams could benefit from greater use of digital technologies and remote communication.

Discussion of potential negative impacts included concern that proposals could contribute to the closure of sheriff courts for island communities. More widely, it was suggested that any centralising of justice could disproportionately affect island communities and their access to local justice. There was also concern that local justice is particularly important for islands given the distinctive character of island communities. Concerns noted earlier in relation to digital exclusion were repeated, with respondents noting that many island communities have more limited access to reliable digital connectivity than other parts of Scotland.

Data protection and privacy

Seven respondents commented on the potential impacts of consultation proposals on data protection and privacy.

These respondents cited several areas where proposals could have a negative impact on data protection and privacy. Use of digital technologies and production of digital evidence were identified as having potential for a significant negative impact, includeing concerns about the risk of data protection breaches, particularly where technical capacity and knowledge varies across justice partners. Specific issues were also raised around assuring the right to privacy for witnesses and victims, and the need for suitable protocols to ensure that handling of data collected in the production of digital evidence complies with data protection legislation. There was specific reference to the need to ensure secure storage and transmission of data, that data is only used for necessary purposes, and that files are deleted appropriately after use.

Businesses and the third sector

Five respondents commented on the potential impacts of consultation proposals on businesses and the third sector.

Reference to potential positive impacts included a suggestion that proposals may benefit the prosecution of financial crime, for example through efficiencies resulting from conduct of business by electronic means and digital productions. It was also suggested that greater use of digital technologies could enable third sector community organisations to better support individuals to engage with justice processes.

Concerns raised by respondents included the potential for any closure of court buildings to have an adverse impact on businesses in the local area. It was also noted that proposals could result in additional financial burden for organisations required to upgrade digital technologies and security systems. This was seen as a particular challenge for third sector organisations.

Environment

Seven respondents commented on the potential impacts of consultation proposals on the environment.

These respondents identified positive impacts associated with greater use of digital technologies. In particular, some judiciary, community justice and health/social care respondents noted that proposals for virtual attendance and use of digital productions are likely to reduce environmental impacts associated with travel to and from court due to reduced transport of evidence and people.