This extended blogpost provides briefing for MSPs and other interested parties ahead of parliamentary consideration of the Coronavirus (Scotland) Bill on 1 April 2020. For ease of navigation, links below take you to the relevant section of the briefing.
Contents
Schedule 1 – Eviction from Dwelling Houses
Schedule 2 – Temporary Extension of moratoriums on diligence
Schedule 3 – Children and vulnerable adults
Schedule 5 – Alcohol licensing
Schedule 6 – Functioning of public bodies
Schedule 7 – Other measures in response to coronavirus (Covid-19)
Part 2 – Supporting Provisions
Introduction
Following on from the UK Government’s Coronavirus Act 2020 which introduced a number of provisions aimed at tackling the spread of Coronavirus (COVID-19), the Scottish Government has introduced its own emergency bill – the Coronavirus (Scotland) Bill, containing substantial further powers and measures to ensure the continuation of essential public services throughout the coronavirus (Covid-19) outbreak.
The Cabinet Secretary for the Constitution, Europe and External Affairs, Michael Russell, said:
“This bill will provide substantial additional emergency powers to help the justice system, public services and the economy to cope. These measures, which will be strictly limited to the duration of the outbreak, are absolutely necessary to help us all through the coming months.
This is a substantial of Bill comprising 2 parts, 17 sections and 7 schedules, the latter containing most of the detail of the Bill. The Bill is scheduled to complete all stages of parliamentary scrutiny on Wednesday 1 April.
The Bill proposes to introduce additional emergency powers and measures in the following areas:
- measures to protect renters from eviction during the outbreak by adjusting the notice periods for the majority of repossession grounds across both private and social rented sectors (s2 and schedule 1)
- measures to provide additional protection to debtors through temporary extension of certain moratoriums on diligence provided for in Part 15 of the Bankruptcy (Scotland) Act 2016 (s3 and schedule 2)
- provision to make temporary changes to legislation in relation to children and vulnerable adults (s4 and schedule 3)
- provision to make adjustments to criminal procedure and to other aspects of the justice system, to ensure essential justice business can continue throughout the coronavirus (Covid-19) outbreak (s5 and schedule 4)
- measures providing for temporary modifications of legislation in relation to alcohol licensing (s6 and schedule 5)
- provision in relation to the functions of public bodies including various changes relating to non-alcohol licensing, local authority meetings and the provision of accounts under the Public Finance and Accountability (Scotland) Act 2000 (s7 and schedule 6)
- a range of other provisions including measures relating to social security, irritancy clauses in commercial leases, the planning system, the registration of deeds, changes to the Anatomy Act 1984, changes to the scrutiny of secondary legislation and provisions relating to Business improvement districts.
The measures introduced by the Bill will be limited to the duration of the coronavirus (Covid-19) outbreak (s11) with the majority of these measures (those introduced under Part 1 of the Bill) automatically expiring on 30 September 2020, six months after they come into force. These may be extended for two further periods of six months, meaning that the measures in the Bill will last for a maximum of 18 months. Conversely, s12 provides a power to bring forward the expiry date of Part 1 provisions.
Schedule 1 – Eviction from Dwelling Houses
Schedule 1 is introduced by section 2 of the Bill which is concerned with eviction from dwelling houses.
Private Rented Tenancies
The Private Housing (Tenancies) (Scotland) Act 2016 will be amended. Section 51(2) (the First-tier Tribunal’s power to issue an eviction order) changes mandatory grounds of eviction to enable the Tribunal to consider the reasonableness of making an eviction order in each case during the relevant period.
Grounds for eviction under schedule 3 of the 2016 Act are each to be made discretionary during the relevant period.
The length of time that a landlord must give a tenant when issuing a notice to leave under paragraph 62 of the 2016 Act is extended. The exact length of notice will depend on the grounds for repossession used by the landlord but may be up to six months.
Short Assured Tenancies
The Housing (Scotland) Act 1988 will be amended, again depending on the grounds for eviction; This means that, depending on the grounds used, eviction may be two, three or six months.
The Bill will also amend the 1988 Act in that, during the relevant period, the First Tier Tribunal (Housing and Property Chamber) will consider the reasonableness of making an eviction order in relation to all grounds for repossession.
Rent arrears grounds require six months before a notice for possession can be provided.
Tenancies under the Rent (Scotland) Act 1984: eviction grounds to be discretionary
The Bill will amend the Rent (Scotland) Act 1984 to say that during the relevant period the Tribunal will consider the reasonableness of making an eviction order in relation to all grounds for repossession.
An application for repossession in relation to a short tenancy under the 1984 Act can be made not less than six, nor more than nine, months after the landlord has served a notice of intention to apply for repossession.
Scottish Secure Tenancies
The Housing (Scotland) Act 2001 will be amended in that the earliest date on which proceedings for recovery of possession can be raised from the current 4 weeks after the date a notice of proceedings is served to 3 months where the ground for recovery of possession is specified is paragraph 2, 6, 7 or 8 of schedule 2 of the 2001 Act.
Where paragraph 5 of schedule 2 is also specified in the notice the earliest date proceedings can be raised is 3 months. It also amends the earliest date on which proceedings for recovery of possession can be raised, from 4 weeks after the date a notice of proceedings is served to 6 months in cases where the ground for recovery of possession is set out in paragraph 1, 3, 4 or 9-12 of schedule 2 of the 2001 Act. The 6 month date applies whether or not any other grounds are also specified in the notice.
This means that eviction for rent arrears cannot be applied for before 6 months.
Short Scottish Secure Tenancies
The date on which proceedings for recovery of possession can be raised ahs changed from the current 2 weeks after the date a notice of proceedings is served, to 6 months where the tenancy was given under one of the grounds at paragraphs 3-7A of schedule 6 of the 2001 Act.
The date on which proceedings for recovery of possession can be raised for short Scottish secure tenancies given under section 35, or paragraphs 1, 2 or 2A of schedule 6 of the 2001 Act remains at 2 months.
Schedule 2 – Temporary Extension of moratoriums on diligence
Schedule 2 is introduced by section 3 of the Bill.
People and unincorporated organisations (such as partnerships and trusts) may be able to access a range of formal solutions set out in legislation if they can’t pay their debts. They can also negotiate informal arrangements with their creditors.
The three formal solutions available in Scotland are:
- bankruptcy
- protected trust deed (similar to bankruptcy, but more flexible)
- Debt Arrangement Scheme (gives debtors more time to pay their debts in full).
It is important that debtors have time to seek advice about their situation and choose an option appropriate for their circumstances. Legislation therefore creates a legally enforceable pause on action by creditors to allow this to happen. This is called a “moratorium on diligence”.
A money adviser or insolvency practitioner must notify the Accountant in Bankruptcy (the Scottish Government agency with responsibility for supervising bankruptcy) of the intention to apply for a formal debt solution. Creditors are then prevented from executing any new diligence (formal debt enforcement, like seizing money in a bank account) against the debtor.
Normally, the moratorium lasts for six weeks. The provisions in Schedule 2 of the Bill would extend this to six months during the coronavirus (Covid-19) crisis. The provisions would also suspend the restriction that debtors can only apply for one moratorium in a 12-month period.
Schedule 3 – Children and vulnerable adults
Section 4 of the Coronavirus (Scotland) Bill seeks to introduce Schedule 3 Children and Vulnerable Adults.
Children
Section 4 introduces Schedule 3 which makes a number of changes to how the Children’s Hearing System works and other aspects of children’s social work. In general these measures are intended to make it easier for Children’s Hearings and formal child protection decision making to take place and to relax prescribed timescales.
Children’s Hearings consider referrals on a number of grounds. The grounds may relate to criminal behaviour of the child or just welfare issues with the child. In either case, “the need to safeguard and promote the welfare of the child throughout the child’s childhood is the paramount consideration” (Children’s Hearings (Scotland) Act 2011, s25). The schedule removes the necessity to have three panel members for a children’s hearing or pre-hearing and the requirement for a gender balance. There are a number of consequential changes to the rules of children’s hearings. In addition, children and other relevant persons will be able to participate in children’s hearings and pre-hearings through video conference on the telephone.
Schedule 4 extends timescales in a number of aspects of child protection measures.
- Child assessment orders: the Bill extends the period by which the assessment must commence from 24 to 48 hours and the duration of the assessment from 3 to 5 days.
- Child protection orders: the Bill removes the necessity for CPOs which, in an emergency, allow a child to be removed to a place of safety to be reviewed by children’s hearing. It also extends the period during which an individual could challenge the CPO.
- Compulsory Supervision Orders (“CSO”): These are the main orders used to specify that a child is ‘looked after’ The automatic expiries of CSOs are extended by 6 months (except for individuals who reach the age of 18).
- Interim CSOs: The Bill provides that new interim CSOs and interim variations of CSOs may be for a maximum of 44 days (from 22 days) or longer if a sheriff has determined so.
- Where a child has been moved to a place of safety through an interim CSO or out of accommodation previously determined by a CSO, a children’s hearing must be convened. The Bill extends the timescales for the hearing to be convened from 3 to 7 working days.
- Without an order being made by a Children’s Hearing or a sheriff a child may be placed in secure accommodation for a maximum of 72 hours in aggregate over a period of 28 days. The Bill would extend this to 96 hours. Where a child is already subject to a CSO (or another relevant order) which does not specify that the child should be in secure accommodation, and Chief Social Work Officer and head of unit have decided to place the child into secure accommodation, a children’s hearing must be arranged within 72 hours; the Bill provides that the Reporter would have a further 24 hours to arrange the hearing if it became necessary.
- The Bill would extend the time limits for a the making and determination of appeals. These periods are generally doubled by the Bill; in the case where the current period is 3 days, the period is extended to 7 days.
The policy memorandum and explanatory notes explain in detail all of these measures.
In terms of local authorities placing children with foster carers, the Bill would disregard the current maximum number of children who can be placed with any one foster carer and extend a number of statutory periods. The period of an initial emergency placement with a foster or kinship carer is increased from 3 to 5 days. In addition, the requirement for a review in the extended period could be delayed if the local authority consider the placement to be in the best interests of the child. Once an emergency placement has been initially reviewed, there are limits to how long the placement can remain as an emergency measure – the Bill doubles these limits.
The Policy Memorandum recognises that the Bill engages consideration of Articles 5 and Article 8 of ECHR. The PM states:
“The Bill engages Article 5 in the context of making provision for the placing of children in secure accommodation, which would amount to a deprivation of the child’s liberty. Furthermore, the Bill makes provision in relation to child assessment orders and child protection orders, which may include measures which (albeit temporarily) deprive the child of their liberty. Such deprivation can be justified because it is pursuant to a lawful order made by an independent and impartial tribunal and is for the broad purpose of the educational supervision of the child. The Scottish Government consider that, insofar as Article 5 is engaged, any deprivation of liberty is justified and strikes a balance between the Article 5 rights of the child and the obligations of the State to protect children, under Articles 2 and 3 of the ECHR.
“The Bill engages the Article 8 rights of children and their parents on a number of levels. The Bill makes provision in relation to existing measures such as child assessment orders, child protection orders and compulsory supervision orders. In particular, it increases the periods of time such measures can be in place for and when they are to be reviewed. Such measures impinge on the private and family life of the child and their parents. Such interferences are, however, in accordance with the law and are potentially necessary for several of the reasons outlined in Article 8(2): public safety; prevention of disorder or crime; protection of health or morals; or for protection of the rights and freedoms of others.”
(Policy Memorandum paras 110 and 111)
It is worth reiterating that the Bill extends the period during which a child can be placed in secure accommodation without an order from 72 to 96 hours in any 28-day period. The European Court of Human Rights’ guide to Article 5 states in relation to how long an individual can be detained or held that judicial consideration should occur promptly and “any period in excess of four days is prima facie too long” (para 169). Four days is 96 hours. The policy memorandum states:
“Due to the coronavirus outbreak there may be many good reasons why there cannot be a review hearing lawfully constituted within 72 hours, even remotely. The secure accommodation may become affected by the virus in that period, preventing the child being able to be involved in a hearing even remotely in an emergency. There will also be significant challenges with convening a lawful children’s hearing within existing timescales in the peak coronavirus outbreak period.” (Para 73 of Policy Memorandum)
“The child, family and professionals could be put at risk if there is a requirement to maintain existing practice. The extra 24 hours provides extra flexibility without being disproportionately adverse with respect to the child’s rights.” (Para 104 of Policy Memorandum)
As noted above, the policy memorandum notes that increasing certain periods can engage article 8 rights. Members might wish to consider what this might mean in practice. For example, a child subject to a CSO who lives with their family might be moved to a place of safety. Under normal circumstances, a children’s hearing would be arranged to consider this movement within three working days which may or may not include a weekend; the bill extends this to seven working days, which will include at least one, potentially two, weekends. This would only occur if the relevant chief social work officer considered the move to be urgently necessary. In relation to theses timescales being changed, the policy memorandum highlights the potential impact of coronavirus:
“Due to the coronavirus outbreak there may be a high number of children who need to be moved from their current kinship, foster or residential home in an unplanned way due to illness. The resilience and availability of alternative out-of-authority emergency placements will therefore be impacted and authorities may have more difficulty in sourcing them.” (Policy Memorandum, paragraph 58)
It is not clear in this case how the proposed changes to the timescales for oversight of a children’s hearing will help alleviate a possible lack of placements. Other aspects of the Bill, for example in relation to foster care placements, are more aligned to the issue the policy memorandum highlights here.
Among the bodies the Scottish Government “informally consulted” in developing the Bill were: “the SCRA, Children’s Hearings Scotland, Children 1st, Clan Childlaw, the Children and Young People’s Commissioner Scotland”. The Policy Memorandum does not provide any detail on the views of these bodies on any specific proposals. SPICe understands that the Children and Young People’s Commissioner Scotland will be publishing a briefing on the Bill shortly.
Vulnerable Adults
Part 2 of Schedule 3 would amend the Social Work (Scotland) Act 1968, the Criminal Procedure (Scotland) Act 1995 and the Adults with Incapacity (Scotland) Act 2000.
The policy memorandum states that the purpose of these amendments are to allow for the continuation of guardianship orders and treatments in the context of courts not functioning fully and because of greater demands on medical practitioners, mental health officers and hospital beds. It also potentially removes vulnerable people from hospital where they might be at greater risk of infection from coronavirus (Covid19).
Currently, local authorities are able to provide an adult, who is deemed to be incapable of making their own decisions, with services they believe would be beneficial. This could include moving the person into residential accommodation. However, the local authority is not able to act if the person has a welfare attorney who is able to make the relevant decisions. Also, the views and past views of the person should be taken into account. Sub paragraphs 1b and 2 of this Bill remove this requirement and would allow the Local Authority to act even when there is a welfare attorney. This would also mean, for example that a person could be moved from an acute hospital setting to a setting in the community or their home without delay and without consultation with family members or welfare guardians.
The Bill also seeks to amend the Criminal Procedure (Scotland) Act 1995, allowing three year or time-limited guardianship orders to continue so that they could continue as if indefinite. This is to remove the necessity of the process to renew such orders.
Sub-paragraph (3)(a) deals with section 47 certificates which authorise treatment for incapacitated adults under the Adults with Incapacity (Scotland) Act 2000. Section 47 certificates are granted to permit treatment for a limited period of time. The Bill would ‘stop the clock’ on that authority, allowing the treatment to continue beyond the stated end date.
Sub-paragraph (3)(b) also makes amendments to section 58 of the 2000 Act. If a guardianship order is for a limited time, the Bill allows for it to continue as if it were for an indefinite period.
Sub-paragraph (3)(c) amends section 60 of the 2000 Act. Section 60 is about the renewal of guardianship orders, and permits a Sheriff to continue an existing guardianship order for 5 years or such period as he determines. This Bill again ‘stops the clock’ running, meaning that such orders can continue.
The amendments to sections 47, 58 and 60 only refer to the renewal of orders, and not to other grounds on which the orders might cease, such as the order or certificate being revoked.
Schedule 4 – Justice
This substantial schedule is introduced by section 5 of the Bill and is concerned with various aspects of the justice system. The Lord Justice General has already made a statement on the Bill, as have Rape Crisis Scotland.
Courts and tribunals
Although the UK Coronavirus Act 2020 includes provisions aimed at supporting the continued operation of criminal courts, the relevant provisions do not apply to the Scottish courts.
Thus far, in relation to the courts in Scotland, a range of non-legislative measures have been taken to reduce physical attendance in court and prioritise essential business.
For example, a Notice for Court Users During Covid 19 Outbreak (Scottish Courts & Tribunals Service and Crown Office & Procurator Fiscal Service) states that:
“Only essential business will call in court. Essential business is as follows:
- New custody cases where a remand is to be sought on public safety grounds, and individuals who have been released on undertakings to appear at a specified court.
- New undertaking cases.
- Custody sentencing cases. Where possible the accused will video conference in from prison.
- High Court preliminary hearing and sheriff court first diet courts. If the accused has been served with an indictment and have either a first diet or preliminary hearing set down, then it is likely that these will be postponed administratively. However, all efforts will continue for Crown Office to liaise with solicitors to identify issues that require to be resolved and whether the case itself could resolve.
- A small number of summary custody trials may take place where witnesses are available, and it is possible to continue. Solicitors and witnesses will be contacted proactively by the Crown where this is proposed.
- Other criminal and civil business where there is an urgent need for the court to make a decision.”
The Coronavirus (Scotland) Bill provides for a range of temporary legislative changes to criminal procedure in Scotland. They are aimed at enabling further flexibility in dealing with criminal cases. The explanatory notes state that the Bill:
“makes adjustments to criminal procedure, and to other aspects of the justice system, to ensure that essential justice business can continue to be disposed of throughout the coronavirus outbreak”. (para 10)
Relevant provisions are set out in Schedule 4 and include ones dealing with:
- the requirement for physical attendance in court
- the extension of time limits
- trials on indictment without a jury.
These three areas are considered below.
Requirement for physical attendance in court
Part 1 of Schedule 4 deals with the conduct of court business by electronic means.
It includes provisions seeking to suspend legal requirements (in statute or otherwise) for a person to physically attend court. Instead, the relevant court would instruct the person on appearing before it by live visual and/or audio link.
In the criminal context, this could apply to a range of court hearings including trials. In relation to trials, this would only apply where the court directs. Before doing so, the court would need to:
- be satisfied that allowing the person to attend by electronic means would not prejudice the fairness of proceedings, or in any other way be contrary to the interests of justice
- allow the parties to the case an opportunity to make representations
- have regard to relevant court guidance.
The Bill does not seek to provide further detail on when the court might use this power in relation to trials. This may be contained in the envisaged court guidance. However, the policy memorandum does provide some indication of who might be involved:
“Mandatory attendance at court and tribunal exposes parties, victims, witnesses, accused people, justice workers, legal representatives and members of the public to unnecessary increased risk of infection and runs contrary to the new public health guidance. Digital tools exist to allow the risk to be mitigated; this legislation will allow this technology to be appropriately leveraged.” (para 178)
Extension of time limits
Part 4 of Schedule 4 seeks to extend certain time limits set out in the Criminal Procedure (Scotland) Act 1995. The policy memorandum states that:
“There are a number of time limits applicable to criminal proceedings. These are set out in the Criminal Procedure (Scotland) Act 1995 and are intended to prevent, insofar as possible, undue delays in the criminal trial process, which can negatively impact on accused persons, victims and witnesses.
It is highly likely that the coronavirus outbreak will lead to time limits not being met because of its impact on the ability of the courts to conduct criminal trials, including by reason of the impact on the availability of sheriffs, court staff, COPFS staff, witnesses and defence agents.” (paras 219-220)
The policy memorandum goes on to note that time limits, in individual cases, can be extended by the court where justified but argues that a general extension would be better in the current circumstances.
The relevant time limits are detailed in the policy memorandum. They include the following where an accused person is remanded in custody pending trial:
- summary procedure (less serious cases) – 40-day limit on bringing the accused to trial
- solemn procedure (more serious cases) – 140-day limit on bringing the accused to trial.
In relation to these particular limits, the Bill provides for 3-month extension to the former and a 6-month extension to the latter.
Trials on indictment without a jury
Part 5 of Schedule 4 deals with the possibility of trial on indictment (i.e. under solemn procedure) without a jury.
Less serious cases are prosecuted under summary procedure. Any trial in a summary case is heard by the judge without a jury. However, a trial under solemn procedure currently involves a judge and jury. These are cases involving more serious charges.
The Bill seeks to allow the Scottish Government to provide, by way of regulations, for trials under solemn procedure without a jury. The policy memorandum states that:
“The provisions in the Bill would allow at least some trials of the most serious offences to continue to take place notwithstanding the social distancing requirements.
Without these provisions, no trials on indictment could take place until it is possible to resume jury trials. This would not only delay the resolution of cases which have already been indicted, but would result in a mounting backlog as additional cases are indicted. The delays involved would have adverse impacts on accused persons (including accused persons detained on remand) and on victims of crime, as well as on the effective administration of justice.” (pars 239-240)
As already noted, the Bill also includes provisions allowing for greater use of live video links in the conduct of court business. The policy memorandum indicates that this was looked at in relation to juries but ruled out:
“The Scottish Government also considered whether it would be possible to have ‘remote juries’ who would be able to watch the proceedings via live TV link. This was not however considered feasible. There would be a number of significant problems with making this change work in practice: for example, how jurors would be empanelled for each trial and continuing public health concerns with numbers of jurors being located together to watch the proceedings by live link or during deliberations. Further, if jurors were to watch proceedings remotely and from different locations it would be difficult to secure the integrity of the process.” (para 250)
Release of prisoners
It was recently reported in various sections of the media that the Scottish Government was considering plans to release some prisoners who were close to the end of their sentence in order to alleviate what had been described as an “increasingly alarming” situation in overcrowded prisons due to the coronavirus (Covid-19) outbreak.
The Bill provides that Scottish Ministers may, by regulations, require that a prisoner who falls within a specified description be released from prison early. The Bill is clear that the Scottish Ministers may only make such regulations if they are satisfied that they are necessary and proportionate, and in response to the effects coronavirus (Covid-19) is having, or is likely to have, on a prison or prisons generally, for the purpose of protecting:
- the security and good order of any prison to which the regulations relate; or
- the health, safety or welfare of prisoners, or those working, in any such prison.
However, the Bill states that a prisoner is not to be released under the regulations where certain criteria apply.
A person is not to be released where the governor of the prison where that person is being held makes a determination that, if released, the person would pose an immediate risk of harm to an identified person.
In addition, the following categories of prisoners would not be considered for early release under the regulations:
(a) a life prisoner
(b) an untried prisoner
(c) a terrorist prisoner within the meaning of section 1AB of the Prisoners and Criminal Proceedings (Scotland) Act 1993
(d) liable to removal from the United Kingdom for the purposes of section 9 of the 1993 Act
(e) subject to a supervised release order under section 209 of the Criminal Procedure Scotland Act 1995
(f) serving a sentence imposed under section 210A of the 1995 Act (extended sentences for sex, violent and terrorist offenders)
(g) subject to an order for lifelong restriction under section 210F of the 1995 Act
(h) the subject of proceedings under the Extradition Act 2003
(i) subject to the notification requirements of Part 2 of the Sexual Offences Act 2003.
The Bill also sets out how a prisoner released via the regulations is to be treated following release. Those prisoners released under the regulations will be treated as if they had been released in accordance with Part 1 of the Prisoner and Criminal Proceedings (Scotland) Act 1993.
Short-term prisoners (those serving sentences of less than 4 years) are to be released unconditionally, while long-term prisoners (those serving sentences of 4 years or more) are to be released on licence.
Those sentenced to detention will be treated as if they are released in accordance with the relevant provisions in sections 6 or 7 of the 1993 Act as appropriate. Sections 6 and 7 of the 1993 Act deal with young offenders and children detained without limit of time, and children detained in solemn proceedings, respectively.
Legal Aid
Legal aid provides financial support for those on low and moderate incomes to seek legal advice or take court action. It is funded by the Scottish Government via the Scottish Legal Aid Board.
The provisions in Part 10 of the Bill would extend the situations when solicitors can apply for interim payments in relation to work they are carrying out for legally-aided clients.
Legal aid provides financial support for those on low and moderate incomes to seek legal advice or take court action. It is funded by the Scottish Government via the Scottish Legal Aid Board.
The provisions in Part 10 of the Bill would extend the situations when solicitors can apply for interim payments in relation to work they are carrying out for legally-aided clients.
This should improve solicitors’ cashflow. It may also allow solicitors to claim payments on accounts which may remain dormant for a while due to the coronavirus (Covid-19) crisis.
The Bill’s provisions would also create a mechanism by which the Scottish Legal Aid Board can recover any overpayments made under the new provisions. All solicitors in a firm would be jointly liable to repay any overpayment.
This should improve solicitors’ cashflow. It may also allow solicitors to claim payments on accounts which may remain dormant for a while due to the coronavirus (Covid-19) crisis.
The Bill’s provisions would also create a mechanism by which the Scottish Legal Aid Board can recover any overpayments made under the new provisions. All solicitors in a firm would be jointly liable to repay any overpayment.
Schedule 5 – Alcohol licensing
Schedule 5 is introduced by section 6 of the Bill.
Premises selling alcohol on a regular basis must have a premises licence under the Licensing (Scotland) Act 2005. A premises licence requires that there is a designated person responsible for the supervising the sale of alcohol. That person must hold a personal licence under the 2005 Act.
Licensing Standards Officers are responsible for supervising compliance with, and providing advice on, licensing legislation.
The provisions in the Bill would make various adjustments to the legislation to enable the alcohol licensing system to function during the coronavirus (Covid-19) crisis. For example, it would be possible for:
- licensing hearings to be held outwith formal meetings of the licensing board
- some of the requirements of licensing board functioning to be suspended
- participation in meetings through written submissions, by telephone or via video conferencing (where facilities are available)
- various deadlines to be automatically extended or, in some cases, extended if the licensing board is satisfied that the reason for delay is in relation to coronavirus (Covid-19)
- various responsibilities – eg. of Licensing Standards Officers and the Chief Constable of Police Scotland – to be adjusted.
The requirement to perform a wide range of obligations could be delayed as a result of the Bill’s provisions. This may have resource implications for those involved in the alcohol licensing system once the coronavirus (Covid-19) crisis is over.
One provision is particularly worth highlighting because it could provide badly needed support to the pubs sector.
Premises licences contain an operating plan, which sets out the activities which take place on the licensed premises. All pubs are currently shut. However, they can continue to make alcohol off-sales (sales for consumption off the premises) if they choose to.
Some pubs would normally sell food. There has been some confusion about whether such pubs can offer a take-away food service while closed. Paragraph 2(8) of Schedule 5 to the Bill would put this issue beyond doubt. Where food was previously provided on the premises, a term allowing a take-away or home delivery food service would be implied to any operating plan which was silent on this issue.
Schedule 6 – Functioning of public bodies
Schedule 6 is introduced by section 7 of the Bill which is concerned with the functioning of public bodies.
Licensing other than alcohol licensing
The Civic Government (Scotland) Act 1982 deals with a range of local government licensing functions – from taxis to scrap metal dealers and market operators.
Where a local authority doesn’t reach a decision on a licence application within nine months, the 1982 Act provides for the licensing in question to be automatically granted or renewed. This requirement is intended to ensure decisions which have significant implications for people’s livelihoods are made timeously.
However, it could also result in licences being issued to people who were not suitable (termed “fit and proper” in the legislation). And it could mean that licences were issued without appropriate conditions.
Paragraph 1(2) of Part 1 to Schedule 6 of the Bill would extend the maximum time frame for local authorities to reach a decision on licence applications and renewals from nine to 12 months.
The other provisions in Part 1 of Schedule 10 would preserve the functioning of the civic government licensing system during the coronavirus (Covid-19) crisis. As with alcohol licensing, provision would be made to allow remote hearings and extend various deadlines.
The deadline extensions appear to be less generous than those that would apply to alcohol licensing. However, this may reflect two factors relating to the civic government licensing system:
- some of the requirements of the 1982 Act are intended to minimise the opportunity for criminal behaviour – it is therefore arguably more important that these requirements are met
- decisions may have an ongoing impact on people’s livelihood – this contrasts with alcohol licensing, where operators (with the exception of some off-sales) are currently closed to the public.
Freedom of Information
Part 2 of Schedule 6 relates to Freedom of Information and amends the Freedom of Information (Scotland) Act 2002. The Explanatory Notes to the Bill explain at paragraph 230 that “these provisions are being made in consequence of anticipated pressures on the resources of Scottish public authorities for the duration of the coronavirus outbreak.”
Part 2 of Schedule 6 has the effect of:
- extending the period of response to a freedom of information request from 20 working days to 60 working days
- extending the period of response to a freedom of information request made to the Keeper of the Records of Scotland from 30 working days to 70 working days
- extending the review period from 20 working days to 60 working days or from 30 working days to 70 working days in the case of the public body being the Keeper of the Records of Scotland
- disapplying the Freedom of Information (Scotland) Act 2002 (Time for Compliance) Regulations 2016. From 1 September 2016, grant-aided and independent special schools are public authorities under the Freedom of Information (Scotland) Act 2002. The cited regulations extend, in certain circumstances, the time period which a grant-aided school or an independent special school have to respond to a request (or request for a review) made under the 2002 Act so that days which are not school days are not counted in the response period. Grant-aided and independent schools will be treated as other public bodies under this Bill and will have 60 days to respond to requests.
- allowing public authorities to extend a relevant period by a further 40 working days if the authority determines that it is not reasonably practicable to respond to the request within the usual time period because of the volume and complexity of the information requested, or because of the overall number of requests being dealt with by the authority at the time that the request is made.
- enabling Ministers to issue direction to public authorities to further extend the relevant period for responding to requests if this will allow public authorities to ‘better utilise resources to respond to coronavirus’. Before issuing such direction, Ministers must consult with the Scottish Information Commissioner.
- allowing the Commissioner to take into account the impact of coronavirus (Covid-19) in making a decision on the failure of a public authority to comply with a relevant period for response to a request.
Duties in respect of reports and other documents
Paragraph 9 effectively delays any statutory duty on Scottish Ministers and/or public bodies to publish and lay before the Parliament any report where doing so is likely to impede the Ministers’ or public body’s ability to ‘take effective action to prevent, protect against, delay or otherwise control the incidence or transmission of coronavirus.’
If Ministers or public bodies postpone compliance with a duty to publish and lay a report a statement must be published to that effect on or before the date by which the report is due, or as soon as practicably after the due date.
The postponement of compliance does not relate to any duty contained in the Coronavirus (Scotland) Bill or to accounts or associated documents required under section 19 or 20 of the Public Finance and Accountability (Scotland) Act 2000. Ministers are able to modify the effect of the Public Finance and Accountability (Scotland) Act 2000 as it applies to accounts that are required under section 19 or 20 of that Act for the financial year ending with 31 March 2021. This provision is contained in Schedule 6, part 5 paragraph 16.
Schedule 6 paragraph 10 provides Scottish Ministers and public bodies with similar powers of non-compliance in relation to statutory duties to:
- publish or publicise a document (other than by electronic means),
- (ii) lay a document (or a copy of it) before the Scottish Parliament,
- (iii) give notice of where a document may be inspected,
- (iv) make available a document for inspection in a particular manner.
Such publications and publicity is to be provided electronically if possible.
Local Authority Meetings
Two amendments are made to Part III of the Local Government (Scotland) Act 1973. Section 50A of the 1973 Act sets out when the public may or may not be admitted to council meetings. The new legislation sets out additional grounds for the exclusion of the public from meetings, being that “whenever it is likely that, if members of the public were present, there would be a real and substantial risk to public health due to infection or contamination with coronavirus”.
Section 50H(2)(b) of the 1973 Act makes a requirement for local authorities to provide hard copies or extracts of a document when requested by a member of the public. The Bill adjusts this line to confirm that this is to take place only “if reasonably practicable”.
Schedule 7 – Other measures in response to coronavirus (Covid-19)
Schedule 7 is introduced by section 8 of the Bill.
Irritancy Clauses in commercial leases: Non-payment of rent or other sums due
The Bill, at paragraphs 6 and 7 of Schedule 7, makes some changes to the legislation around commercial leases.
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 provisions have been amended to reflect this. The main changes are:
- If the landlord has served notice on the tenant requiring payment of monies, the period by which the monies must be paid has been increased from not less than 14 days to not less than 14 weeks.
- if any period remaining between the service of the notice and the expiry of any time provided for in the lease or otherwise for the late payment of the sum which the tenant has failed to pay is greater than 14 weeks, that greater period.
Additionally, if a notice has been served on a tenant for non-payment of rent before the date on which the Coronavirus (Scotland) Act 2020 came into force, it becomes VOID if the time period specified in the notice has not yet expired.
What does this mean for landlords and tenants?
If a tenant has not paid their rent, they are provided with extra time to do so. There is also sufficient time for the landlord and tenant to enter into meaningful discussions with regards to payment plans and alternative payment arrangements if required. This is to mitigate the impact of any changes in financial circumstances the tenant may have experienced; for example having to apply for Universal Credit.
However, the landlord faces longer periods of time where their rental income becomes uncertain. They are also, due to The First-tier Tribunal for Scotland (Housing and Property Chamber), no longer upholding the evictions if the reason for non-payment of rent is a delay in the payment of benefits, including housing benefit or Universal Credit.
Duration of Planning Permission
An award of planning permission normally expires after three years, measured from the date permission was granted, unless development has begun on site. Planning authorities can choose to set longer or shorter expiry periods for individual awards of planning permission, but this option is rarely used and the default three-year period applies to almost all awards of planning permission.
The Bill would automatically extend the expiry date of any award of planning permission, including planning permission in principle, by one year – if the expiry date falls within six months of the legislation being enacted. Scottish Ministers would have the power, through Regulations, to amend the duration of these six month and one-year periods.
Land registration and the Registers of Scotland
This part of the Bill (schedule 7, paras 11-19) relates to the system of land registration and a non-ministerial government department known as Registers of Scotland (RoS), which is directly accountable to the Scottish Parliament.
Land registration is a key part of the conveyancing system in Scotland. It applies to residential, commercial and agricultural property.
Although not well-known, no property can change hands in Scotland without being registered in one of the two property registers held by RoS (Technically, the correct term for the Sasine Register is ‘recording’ but, for simplicity, we use ‘registration’ for both registers here). These registers are the Register of Sasines and the Land Register of Scotland. Similarly, no mortgage can be taken out over a property without registration of a deed known as a ‘standard security’.
Crucially in the current times, registration of the change of ownership also protects the purchaser and his or her lender against the future insolvency of the seller. Without this registration, the purchaser ultimately might end up with no property – and the purchaser’s lender with no asset to cover the cost of the loan.
On 24 March, due to the Government’s Coronavirus (COVID-19) guidance on the protection of employees, the doors of the buildings which house RoS closed and the staff were sent home. This is very significant, as RoS can only accept paper-based applications for registration of changes of ownership and standard securities. Accordingly, no new applications for registration have been possible since that date.
It is not yet known when RoS will be able to accept digital applications, although RoS hopes to provide an update on this topic this week. In the meantime, the Law Society of Scotland had advised its solicitors not to proceed with transactions on behalf of its clients.
After rapid negotiations with RoS and UK Finance (the trade body for lenders) interim guidance was issued by the Law Society on 26 March. This aims to enable some urgent property transactions to be completed.
With the aim of supporting both the interim solution and any longer term one, the Bill’s provisions do two main things: First, they amend the current system of advance notices. Registration of an advance notice (possible online) provides protection for the purchaser and his or her lender during the period after the purchase price is paid but before registration occurs. In practice, advance notices act as a legal ‘place marker’, indicating to creditors (and others) the purchaser’s prior claim over the property and that an application for registration will follow.
Under the current law, advance notices can last for up to 35 days. The Bill proposes to extend the period of protection provided by an advance notice until 10 days after the day on which RoS fully re-opens for new applications for registration.
Second, the Bill makes provision for registration in the property registers to proceed on a (scanned) copy of a deed submitted to RoS by electronic means (e.g. email).
In the short-term, this provision is likely geared towards the situation where the risk of seller insolvency is high and it is not possible to rely on an existing advance notice for protection. RoS seems to anticipate that it has capacity to accept such scanned applications on a small scale at present. The Policy Memorandum (at para 460) suggests this provision may also be part of RoS’s longer-term solution to the issues it faces associated with the pandemic.
More on the background to this part of the Bill can be found in a blog post from SPICe entitled Conveyancing and the Cornavirus (COVID-19).
Anatomy Act 1984 – Extension of periods
When people donate their bodies to medical teaching and research, Universities can possess those bodies for 3 years after the person’s death. After this time, they must dispose of the body by burial or cremation. If this period expires during the time the Coronavirus (Scotland) Act 2020 is in place, the 3-year period would be treated as having elapsed on the day that paras 21 and 22 of Schedule 7 of the act cease to have effect. This would allow funeral directors and crematoria to prioritise other burials and cremations during the pandemic.
Scrutiny of subordinate legislation in urgent cases
Paragraphs 23 to 29 of Schedule 7 detail cases where subordinate legislation can be made in urgent cases.
Paragraph 23 provides that subordinate legislation which is made by Scottish statutory instrument and which would usually be subject to the affirmative procedure can be made without being subject to affirmative procedure if the legislation is deemed necessary ‘by reason of urgency’. It is instead made under the made affirmative procedure.
Any Scottish statutory instrument made in accordance with paragraph 23 must state that the person who made it considered it to be necessary and urgent.
Paragraph 25 allows subordinate legislation to be made without the usual requirements for regulations made under paragraph 23.
Subordinate legislation made in accordance with paragraph 23 ceases to have effect after 28 days from the day on which it is made unless, during that period, the legislation is approved by resolution of the Scottish Parliament. In calculating the period of 28 days, no account is taken of any period during which the Parliament is in recess for more than four days or dissolved.
Paragraph 30(1) provides that subordinate legislation (as referred to in paragraphs 23-29) includes an instrument to be made under any retained direct EU legislation on or after exit day (within the meaning of the European Union (Withdrawal) Act 2018. The European Union (Withdrawal) Act confers powers to address deficiencies in retained EU law. These powers are usually to be exercised using the affirmative procedure. This provision is likely to have been included to allow the Scottish Government to ensure that the statute book is ready for the end of the transition period at the end of December 2020. Any long-term interruption to normal parliamentary business as a result of coronavirus (COVID-19) may make it difficult to ensure that all the secondary legislation necessary ahead of the end of the transition period could be made without this provision.
Paragraph 30(2) provides that paragraphs 23 to 29 do not apply to regulations made under paragraph 20(1) of Schedule 4. These are regulations concerned with the early release of prisoners in some circumstances.
Business improvement districts – extension of certain arrangements
Business Improvement Districts (BID) are funding mechanisms whereby businesses within a defined area invest collectively to deliver projects and services for the benefit of the whole area. Activities funded and delivered by BIDs have included Christmas markets and other events, CCTV systems, town centre websites, shop front improvements, environmental investments, shop local campaigns, community partnerships and social investments targeting homelessness.
Why the need for legislation now?
According to the Scottish Government, Coronavirus (Covid-19) presents two problems for operating the system of BIDs:
- several BIDs are due to seek to end and/or go to ballot in the coming months, and
- one already has a ballot underway. The Scottish Government does not consider it appropriate to have to ballot in that period, given the uncertainty involved.
Some of Scotland’s 37 BIDS are due to expire over the next year and are up for renewal. The 2006 Planning (Scotland) Act requires a further vote amongst participating businesses, and an affirmative majority returned, before any BID can be renewed for another 5 years.
According to Scotland’s Improvement Districts, an organisation supported by the Scottish Government to foster the development of Improvement Districts, the BID areas due to expire over the next year are those in Dunblane, Crieff, Aberdeen, St Andrews, Clarkston, Edinburgh West and Penicuik. The Bill will ensure that these BIDS are extended, without a vote being required, until 31 March 2021.
Will businesses still have to pay their BID levy?
Scotland’s Towns Partnership (STP) is suggesting that BIDs and Councils agree to pause levies for 6 months as a pragmatic response to Covid-19 (personal correspondence between SPICe and STP). It was announced last week that Stirling’s BID, Go Forth Stirling, is suspending levy payments in the wake of the Covid-19 crisis.
As the Financial Memorandum specifically states that there will be no direct costs or savings to either the Scottish Government or local authorities as a result of these provisions, it is not clear how BIDs will be funded should levies be paused. Approximately £6.5m is raised across Scotland in core BID levies, bringing with it a further £750,000 in sponsorship and leverage (personal correspondence between SPICe and STP).
Key questions the Government will have to answer during the swift progress of this Bill include:
- Will businesses continue to be compelled to pay BID levies even when business rates are being suspended?
- If yes, how will this be possible when businesses have experienced, and will continue to experience, a massive drop in income?
- If businesses are not required to pay, will the Scottish Government make up the shortfall and ensure councils can continue to fund the BID infrastructure?
According to Scottish Government officials, Scottish Ministers cannot legislate to pause the levy as this is a reserved matter. Nevertheless, the Scottish Government acknowledges that collection of the levy will be difficult and could impact on the income of BIDs (personal correspondence between SPICe and the SG).
In addition to the emergency legislation published today, the Scottish Government announced the creation of a £1 million COVID-19 Business Improvement Districts Resilience Fund. This aims to help BIDs across Scotland support local businesses by signposting them to Government support that is available, and also coordinating “a response at a local level to keep the local economy moving”.
Part 2 – Supporting Provisions
This section of the briefing considers Part 2 of the Bill which considers ‘supporting provisions’. This section provides a summary of the powers given to Scottish Ministers under Part 2; the duration of the legislation, and scrutiny of the use by Scottish Ministers of the powers conferred by this Bill.
Section 9 – Subordinate legislation making powers
Section 9 clarifies that Ministers’ powers to make subordinate legislation conferred by Part 1 of the Bill includes power to make incidental, supplementary, consequential, transitional, transitory or saving provision, and different provision for different purposes or areas.
Section 10 – Power to suspend and revive provisions
This section provides that Ministers may by regulation suspend the operation of any provision of Part 1 of the Bill or revive a provision which has been suspended. Ministers may exercise these powers more than once in relation to any provision. Any regulations made are subject to the negative procedure – that is to say that they do not require an affirmative vote of the Parliament.
Section 11 – Expiry
Section 11 sets out the time limitations of the legislation and provides that:
- part 1 of the Bill expires on 30 September 2020.
- section 11(3) gives Ministers powers to extend the legislation so that it is in force until 31 March 2021. A further extension until 30 September 2021 is also possible – powers to make regulations to extend the validity of the Act cannot be exercised prior to 30 September 2020.
- regulations made under section 11 (i.e. regulations to extend the legislation to 31 March 2021 or 30 September 2021) are subject to the affirmative procedure meaning that extension requires the Parliament to pass such regulations.
A sunset clause is included in legislation to set a time limit on the legislation. These clauses can be used in both primary legislation (an Act of Parliament) and secondary legislation (laws made by Ministers and occasionally other bodies by way of statutory instrument – often referred to as regulations). The inclusion of a sunset clause means that the legislation will expire on a specific date in the future. This has the same legal effect as repealing or revoking the legislation. The addition of a sunset clause in the Bill means, however, that further legislation will not be needed to repeal or revoke it. After the expiration date the legislation is no longer the law, but anything done under the legislation whilst it was in force is valid. Section 11(1) provides the sunset clause for this Bill. It is, however, amendable as provided for at section 11(3).
The Coronavirus Act 2020 which is the UK legislation in place to help deal with the coronavirus (Covid-19) pandemic is in force for two years. Section 98 of the Act provides for a review by the UK Parliament every six months. The measures contained in the Bill will remain in force if the UK Parliament supports a vote on a motion which is in the form “That the temporary provisions of the Coronavirus Act 2020 should not yet expire”.
Section 12 – Power to bring forward expiry
Section 12 provides that Scottish Ministers may bring forward the expiration date of the whole of Part 1 or of different provisions by regulation subject to the negative procedure.
Section 13 – Power to amend Act in consequence of amendments to subordinate legislation
Section 13 provides that Ministers can, by regulation, modify any provision of the Bill which modifies a provision of a statutory instrument.
The power conferred to Ministers under Section 13(1) can only be exercised if the change is necessary in consequence of the modification of the provision of the statutory instrument by another statutory instrument.
Such regulations cease to have effect 28 days after being made unless during that period they are approved by the Parliament. When calculating 28 days, days when the Parliament is in recess for more than four days and days during which the Parliament is dissolved do not count.
Section 14 – Reports by the Scottish Ministers on status of provisions
This section provides that Scottish Ministers must undertake a review of the operation of provisions of Part 1 of the Bill with a view to considering whether those provisions remain necessary. Ministers must prepare a report on the review which details how the powers conferred by Part 1 have been exercised.
Section 14(4) provides that reporting periods are:
- Royal Assent to 31 May 2020
- each successive period of two months that ends during the period before Part 1 expires (i.e. 30 September 2020 unless amended in line with Section 11(3) to 31 March 2021 or 30 September 2021).
Equality Impact Assessment
The Scottish Government’s Equality Impact Assessment on the Bill can be found via this link.
SPICe Research, 31 March 2020