Coronavirus (Extension and Expiry) (Scotland) Bill – Extended blogpost

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Last updated Tuesday 22 June, at 4.10pm (details of all updates at the foot of the blog).

Introduction and background

The Coronavirus (Extension and Expiry) (Scotland) Bill (“the Bill”) was introduced on Friday 18 June 2021. On Tuesday 22 June, the Parliament agreed for the Bill to be treated as an Emergency Bill, with Stages 1-3 running on consecutive days from 22 June to 24 June.

According to the Scottish Government’s Policy Memorandum, its purpose is to:

“update a range of existing legislative measures which support various aspects of the ongoing response to the public health emergency caused by the coronavirus (COVID-19) pandemic”

The Bill amends the Coronavirus (Scotland) Act 2020, passed by the Scottish Parliament on 1 April 2020, and the Coronavirus (Scotland) (No.2) Act 2020, passed by the Scottish Parliament on 20 May 2020.  In this extended blogpost we refer to these as the “first” and “second” Scottish Acts.

These Acts both contain provisions subject to an expiry date, which was extended by regulations on two occasions, but which cannot be extended beyond 30 September 2021. This new Bill sets the expiry date of the Scottish Acts for a further six month period to 31 March 2022, with the Scottish Parliament given the power to extend the Acts for another period of six months to 30 September 2022.

The Bill also expires a number of provisions which the government no longer considers necessary. The effect of this is also to extend a (longer) list of other provisions which the Scottish Government considers remain “essential”. This blog discusses each of the measures to be expired and extended, focusing on the decision on expiry/extension and the Government’s reasons for doing so.  The contents popup menu below helps you navigate to discussion on specific policy issues.

It is perhaps worth pointing out that the government has explicitly aimed to use such powers in way that is “proportionate to the challenge”, and to “only last as long as is required” (for example on 1 April 2020).  One  former Permanent Secretary of the UK government’s legal department) has also highlighted the role of appropriate parliamentary scrutiny of the COVID legislation.

A blog by the Covid-19 Review Observatory (21 June 2021) argues that despite “impressive (though imperfect) political accountability” to the Scottish Parliament during the pandemic to date, the speed with which the bill is being progressed:

“puts Parliament in a challenging position, diminishing its ability to shape the emergency response, in circumstances when parliamentary committees have not resumed their work, and pressurising MSPs to either accept the government’s proposal, or face political responsibility for stripping people in Scotland of relevant protections provided by the Scottish Acts”.

Setting the context for the Bill

A previous SPICe blog (February 2021) set out the emergency legislation the Scottish Government had so far used, and for example explained that there are three main sources of COVID-19 legislation – the two Scottish Coronavirus Acts, the (UK) Coronavirus Act 2020 (the UK Act), and a wide range of other Acts including the Public Health etc (Scotland) Act 2008. 

It is worth noting that some of the most high-profile powers, such as restricting the operation of retail and hospitality businesses, restricting public gatherings, requiring the use of face coverings, and limiting travel between parts of the country arise from the UK Act.  The Public Health etc (Scotland) Act 2008 is the source of regulations on international travel.  These measures are therefore not the subject of the Bill due to be considered by the Parliament.

Another SPICe blog (forthcoming) has some more information on the Parent Acts for COVID-19 related Scottish Statutory Instruments (SSIs), and the processes used in the Scottish Parliament to scrutinise them. 

A look across the measures

The Scottish Government is required (by the parliament’s Standing Orders rule 9.3) to consider the impact of legislation on equal opportunities, human rights, island communities, local government and sustainable development.  These impacts are set out in the Policy Memorandum, separately for each expiry or extension measure in the bill. 

Equalities

As well as the requirements of Standing Orders, under the UK Coronavirus Act, Ministers must still have regard to advance equality and non-discrimination, and to the importance of communicating in an inclusive way.  In considering the equalities impacts, for all measures the Scottish Government says that it has “determined it will not unlawfully discriminate in any way with respect to any of the protected characteristics”.  In many cases this is the extent of its equality analysis.  In cases where further analysis has been done the government analysis also says:

• “temporary legislative changes to protect renters continue, and will continue, to have a positive impact across those with protected charactaeristics, including women who are more likely to have caring responsibilities and therefore be impacted more significantly – socially and financially – by the consequences of the pandemic”
•  [If the FoI commissioner and other public bodies issue notices and reports electronically, the government] “considers there may be some impact in terms of limiting access to documents for older people and those with long-term health conditions” [but this is] “a reasonable and appropriate temporary measure”
• “Enabling local authorities to assess their local circumstances and decide whether it is appropriate to exclude the public from their committee meetings on public health grounds associated with coronavirus could, however, have an impact on some particular groupings of the public”
• “The continuation of these powers [Social Care Support Staff Fund] will continue to have a positive impact on those with protected characteristics, particularly women who make up around 80% of the workforce”
• “The majority of people living in care homes are older people or have a disability and the aim of the [emergency care home] provisions is to protect the, life health and wellbeing of these vulnerable categories of people”.

Human rights

In the case of many of the provisions, the Scottish Government concludes there are no adverse implications for human rights and/or that it is satisfied that its provisions are compatible with ECHR.  There is however a more detailed discussion of human rights issues on a number of measures including those relating to

• children and vulnerable adults
• timescales for appeals and redeterminations on social security
• measures relating to marriages and civil partnerships
• evictions and tenancies
• moratorium on diligence and bankruptcy
• the operation of the justice system, including electronic conduct of courts and tribunals, cases dealt with by Fiscal Fine, time limits to be held on remand, use of hearsay evidence, community payback orders, operation of parole boards, release of prisoners, time limits for court adjournments, and expiry of undertakings,
• discretion for licensing boards
• mental health (named person) measures
• care homes – emergency directions and interventions.

Island communities

For virtually all measures the Scottish Government said it had made an assessment and, in each case, “determined it will have no significantly different impact on island communities. No detrimental effects are anticipated”.

In a couple of instances though, it was suggested that the measures would be of benefit to island communities:

• “The extended moratorium [on diligence] itself, and the ability for the individual themselves to apply for the moratorium via Accountant in Bankruptcy’s website, are likely to be of more use to those in such locations.”
• The flexibility introduced by the ability to hold remote hearings in relation to both alcohol licensing.

Local government

For most measures, the Scottish Government’s assessment on local government is that it has

“determined that no adverse effect on local government is anticipated.”

In a few cases it is suggested that the impact on local government could be positive, the government saying for example that action to prevent evictions will “result in a reduced demand for local authority services” and that the extension of the licensing provisions “has assisted local government by providing greater flexibility and discretion”.  On a less positive note the government said that:

“excluding the public from local authority meetings on health grounds will have an impact on the openness and transparency of council decision-making. However, the exercise of the powers is a matter for the consideration of the local authority in individual circumstances.”

Sustainable development

In the case of sustainable development, virtually every measure to either expire or extend legislation includes a similar phrase to the effect that the government has “assessed the potential impact of extending the measure on sustainable development and no detrimental effects are anticipated”, but with no description of how the assessment was carried out, and with no further analysis published.

Consultation

The parliament’s Standing Orders also require the government to set out a summary of the consultation process and its outcome.  The Scottish Government also sets out its approach to consultation.  It says:

“Due to the pre-election period and the need to have this legislation in force by 30 September 2021, it has not been possible to undertake formal consultation on the Bill itself. The Scottish Government has, however, informally consulted with public bodies affected by the measures to be extended or expired by the Bill”

More detail on the consultation carried out on each measure is provided in the Policy Memorandum. 

Alternative approaches

The parliament’s Standing Orders also require the government to set out whether alternative ways of meeting those objectives were considered and, if so, why the approach taken in the Bill was adopted.  The government said (Policy Memorandum para 15) that:

“Given the need to continue to respond to the public health emergency, there is no alternative to a Bill…”

The government also says that it has considered alternatives for the measures to be extended by the Bill and has set out its deliberations separately for each of the measures.

Financial Memorandum – the government’s estimates of what the Bill will cost

Under Rule 9.3.2 of the Parliament’s Standing Orders, a Financial Memorandum (FM) has been published to accompany the Bill.

The FM separately assesses the costs of each individual measure, and specifically considers the costs falling on the Scottish administration, on local authorities, and also on other bodies, individuals and businesses.

In summary (para 369) the FM estimates that the costs in 2021-22 of expiring measures is, in most cases, either nil or minimal.  Some broad conclusions about costs are suggested:  

• Temporary extension of moratoriums on diligence – “May be some savings for businesses who are creditors.”
• Children and vulnerable adults: children’s hearings – “Local authorities may make savings if children from the same family can be placed together with one carer”.
• Care Homes – Further provisions – “Minimal savings for the Care Inspectorate and care home providers.”

Unsurprisingly, there is a much more extensive range of costs identified arising from those provisions to be extended (see para 340 in the FM).  Although, the scale of total aggregate additional costs or savings is rarely quantified for the provisions, the FM does consider the very broad scale of costs, as well as identifying a number of drivers of those costs.

Selected examples of the government’s assessments of the costs of some of these measures are set out below:

• Eviction from dwelling-houses – possible costs for the First Tier Tribunal in Scotland, likely additional costs in repossession cases for social sector.  In the private sector – likely additional costs for private sector landlords seeing repossession for rent arrears or damage caused to a property.  However possible saving to local authorities if fewer private tenants are at risk of homelessness.
• Courts and tribunals: conduct of business by electronic means – Scottish Courts and tribunal Service (SCTS) and Crown Office and Procurator Fiscal Service (COPFS) will continue to incur software licencing costs, associated ongoing system maintenance and operational resource to manage bookings system for video links, with the majority of costs likely to fall to SCTS.  Capital costs will be incurred by Police Scotland in relation to further expansion of the infrastructure to support enhanced police to court video linking for first appearances from custody; also, for enabling confidential solicitor to client video linking for interviews. 
• Release of prisoners – staff may be required to work in excess of their contracted hours, and there will be minimal cost saving for reduction in prisoner numbers. Costs for any increase in demand on local authorities for the delivery of voluntary throughcare support to help short sentence prisoners reintegrate after release from prison.   Anticipated cost pressure if the provisions used in relation to the benefits system.
• Student residential tenancy: termination by tenant – Costs if students end tenancies early in new academic year (for every 100 students who are released from contract early it is estimated to cost the university sector around £55,000 per 4-week period)
• Social care staff support fund – It is difficult to forecast use of the current funding of £136 million (in 2020-21) and therefore the cost as this fund depends on staff absence rates relating to coronavirus
• Bankruptcy – Creditors will face no increase in direct costs, but for the extended period will be unable to seek to make their debtors bankrupt for debts of less than £10,000
• Powers to purchase care home services and care at home providers – Will be costs if the powers are used and a local authority [or body/business] buys a care home or care at home service.
• Restriction on giving grant to businesses connected to tax havens – Potential saving to Scottish Administration by reducing the number of businesses eligible for COVID-19 business supports grants.  Conversely, businesses affiliated with a tax haven will suffer the cost of being ineligible for COVID-19 business support grants

Provisions to be expired

This section provides a summary and analysis of each provision to be expired, focusing on the reasons for the expiry/extension decision. For ease of reference, provisions are covered in the same order as in the Policy Memorandum.

Temporary extension of moratoriums on diligence (multiple applications)

A “moratorium on diligence” is a legal block on creditors taking action to enforce their debts. It is currently possible for both individual debtors and other bodies, such as partnerships and trusts, to benefit from a moratorium on diligence while they consider how to deal with their debt situation.

The purpose of the moratorium is to give the debtor time to consider their options and to access advice from an insolvency practitioner or money adviser. With a moratorium in place, debtors can make their decision free from the threat of action by creditors.

Usually, debtors are also prevented from applying for a moratorium if they have already had one in the past 12 months. The purpose of this restriction is to prevent repeated applications for a moratorium, which could have the effect of allowing the debtor to avoid responsibility for repaying debts indefinitely.

The Coronavirus (Scotland) Act 2020 suspended this restriction, so that debtors were able to apply for more than one moratorium in any 12-month period. This was to ensure that people who had recently had a moratorium were not prevented from accessing protection again if the coronavirus pandemic had an impact on their financial situation (Policy Memorandum paragraph 20).

It is the Scottish Government’s intention that that this suspension to the 12-month time limit should be allowed to expire at the end of September.

The Scottish Government argues that allowing the provision to expire provides a better balance between the interests of creditors and debtors

The Scottish Government argues (Policy Memorandum paragraph 20) that the policy justification for the suspension no longer exists. It notes that creditors’ rights to recover debts can be considered a property right under the European Convention on Human Rights (ECHR). The ECHR states that “no one shall be deprived of his possessions except in the public interest […]”.

In the view of the Scottish Government (Policy Memorandum paragraph 24):

“Expiring the provision that removes the prohibition against benefitting from more than one moratorium on diligence in any 12 month period helps ensure that the extended period of moratorium protection is proportionate and strikes a fair balance between the general interest and the rights of creditors.”

Note that it is the Scottish Government’s intention that other changes to the moratorium on diligence which support debtors will continue. These are discussed in the later section on the extended provisions. Separately, changes which originally appeared in coronavirus legislation to extend access to bankruptcy have been put on a permanent footing.

Children and vulnerable adults: children’s hearings

The Bill makes provision to expire Section 4, Schedule 3, Paragraphs 1 to 5 and 7 to 10 of the Coronavirus (Scotland) Act 2020. Paragraph 6 regarding children in secure accommodation was repealed at the end of September 2020 by the Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020.

The remaining provisions relate to children’s social work and the Children’s Hearing System. The nature of the provisions mean that transitional arrangements will be introduced upon their expiry; further detail about these arrangements can be found below.

The measures introduced by the 2020 Act were intended to make it easier for Children’s Hearings and formal child protection decision making to take place and to relax the timescales involved. The provisions introduced by the 2020 Act are explored in more depth in a March 2020 SPICe blog.

The policy memorandum states that during the initial pandemic response, these provisions allowed authorities to prioritise work in a way that protected children and their rights. The provisions meant Children’s Hearings were able to continue, local authorities could use foster carers more flexibly, and legal orders could continue to be reviewed and appealed. 

However, the policy memorandum goes on to state:

“…use of these provisions is becoming less frequent and from 30 September 2021 it will be possible to return to the pre-Covid legislative arrangements.”

The Scottish Government view is that extension beyond this date would not be “appropriate or proportionate”.

Transitional arrangements

Major stakeholders including COSLA, the Scottish Government, the Scottish Children’s Reporter Administration (SCRA), Children’s Hearings Scotland (CHS), Social Work Scotland and care experienced people have been consulted and believe it will be possible for services to operate without the provisions of the 2020 Act past 30 September 2021.

The Schedule of Bill sets out transitional arrangements for provisions relating to children’s hearings and social work. Upon expiry of the provisions in the 2020 Act, transitional arrangements will be in place around child protection orders, appeals and compulsory supervision orders. These arrangements will mean that orders granted under the 2020 Act will not fall when the Act expires; they will continue to operate and expire in line with its provisions. In addition, children in foster placements arranged under the 2020 Act will not be required to move placement as a result of its expiry.

Vulnerable adults: cases of adults with incapacity

In February 2021, the Scottish Government, with the involvement of a stakeholder group, opted to continue the suspension of  these provisions, rather than expire them at that stage, because of continuing uncertainty about the course of the pandemic. The suspension has been in place since 30 September 2020. The decision to expire them was taken with the same group in April 2021, according the Policy Memorandum accompanying this Bill. According to the Policy Note that accompanied the Suspension Regulations, these provisions:

“were brought in because there was a concern about whether the system would be able to process renewals of guardianship in sufficient time. Renewal applications have to be lodged with the court before the original expires, otherwise a whole new application has to be made, rendering the work put into the renewal reports otiose and meaning that additional, unnecessary work is required for the new guardianship. In order to prevent this, the ‘clock was stopped’ on expiry of guardianship orders, meaning that they would not expire for the period the provision was in force.”

Paragraph 11(3) also related to certificates, authorising the continuation of medical treatment, while the provisions were in force, of people being treated under Section 47 of the Adults with Incapacity (Scotland) Act 2000. Part 5, Section 47 of the Act allows medical practitioners to authorise treatment to be given to safeguard or promote the physical or mental health of an adult who is unable to provide consent themselves. (see Guidance)

This can be carried out on the completion of a medical certificate of Incapacity. The certificate can only last for a maximum of 1 year (or 3 years if conditions/circumstances prescribed by Scottish ministers apply). This power does not apply when a guardianship order exists in relation to the treatment in question. This provision would have allowed certificates to run on, and therefore for treatment to continue beyond a year without clinical review.

There were concerns on human rights grounds if the provisions were reinstated – if guardianship orders were allowed to continue on without review. However, specific information was issued relating to vaccinations and those without capacity. The decision to suspend however, was taken in case the Office of the Public Guardian, (the organisation that processes guardianship applications), was unable to function normally because of the pandemic worsening again. In this case, work would have been pushed into the courts to deal with expired orders.

In the most recent (seventh) two-monthly report to the Scottish Parliament, paragraph 7.1.3.9 states that the stakeholder group unanimously agreed that the provisions should be expired in September 2021. However, the report also highlights challenges in obtaining medical and mental health officer reports to support incapacity applications and renewals; issues that are not pandemic related.

Easements of Section 13ZA of Social Work (Scotland) Act 1968

Provisions relating to the easement of this section in the Coronavirus (Scotland) Act 2020 possibly caused some confusion with provisions in the Coronavirus Act 2020 (Section 16, now expired) that were superficially similar and relate to powers local authorities have to assess needs (in the case of the UK Act), and to act on someone’s behalf if they lack the capacity to make decisions, such as providing community care services for someone in hospital (in the case of paragraph 11, paragraphs 1-3) Schedule 3,Coronavirus (Scotland) Act 2020).

The easements removed the duty to take account of present and past wishes the view of other interested parties such as family or welfare guardians. It is important to note that these provisions – i.e. paragraph 11(1) of Schedule 3 – were the only ones never commenced in the Coronavirus (Scotland) Act. However, they were written into the Act, so, visible to all. They were expired with other provisions in September 2020.

The Mental Welfare Commission published a position statement on this section and published a report, ‘Authority to discharge: Report into decision making for people in hospital who lack capacity’ in May 2021, that discusses confusion and potential illegality over the use of emergency legislation in the moving of vulnerable adults early in the pandemic.

Community orders

The relevant paragraphs in schedule 4 of the 2020 Act relate to extensions of the time required to complete unpaid work or other activity requirements in Community Payback Orders (CPOs).

The provisions in paragraphs 12(1), (2), and (7) relate to a one-off extension of the time to complete unpaid work or other activity requirements by 12 months for CPOs imposed on or before the date the Coronavirus (Scotland) Act 2020 came into force (7 April 2020). The Scottish Government has stated that these one-off provisions can therefore be expired on 30 September 2021.

There are further provisions in paragraph 12 which enable Scottish Ministers to make regulations which extend the period allowed to complete unpaid work or other activity requirements of a CPO. Ministers may only do so if it is required due to a likely failure to comply with the requirements due to the coronavirus, or in response to the effects of the coronavirus on local authorities or the courts.

The court is already empowered to extend the period allowed to complete the requirement on a case by case basis, and while there may be some rationale for retaining this power, to allow Ministers to reduce the administrative burden on courts should a lot of orders require to be extended, on balance the Scottish Government does not envisage a situation where such an extension could be justified.

The Scottish Government has stated that information from local areas on orders which may be about to expire, but are not complete, indicates that the volume of such orders is not sufficient to require an extension of the power. The Scottish Government is therefore satisfied that cases can be dealt with by local authorities taking cases to court as necessary. To that end, the Scottish Government does not consider it proportionate or necessary to extend this provision, and as such, it should expire on 30 September 2021.

The provisions in paragraph 14 allow for the postponement of CPOs. To date these provisions have not been used and, taking into account the likely progress of the pandemic and recovery work, the Scottish Government does not envisage any circumstance where they would be required in future. As such, the Government believes that these provisions can also be expired on 30 September 2021.

The provisions in paragraph 15 allow for regulations to be made to vary or revoke requirements imposed in Community Payback Orders or Drug Treatment and Testing Orders (DTTOs). To date the provisions in relation to DTTOs have not been used and again, taking into account the likely progress of the pandemic and recovery work, the Scottish Government does not envisage any circumstance where they would be required in future. It is the Scottish Government’s intention that the provisions in paragraph 15, as far as they relate to DTTOs, should also expire on 30 September 2021.

The provisions in paragraph 16 are interpretive and are applicable to some of the powers proposed for extension. However, as it is the Government’s intention that paragraphs 12, 14, and 15, as they apply to DTTOs, should not be extended beyond 30 September 2021, paragraph 16 will be amended accordingly.

Freedom of information

Schedule 6 paragraph 6 of the Coronavirus (Scotland) Act 2020 allowed the Scottish Information Commissioner to decide that a public authority had complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in instances where a delay occurred, if certain conditions were met. The conditions focused on whether a delay was reasonable and “the effect of coronavirus on the authority generally or its ability to carry out its functions”.

The Bill expires this provision. The policy memorandum explains that the Scottish Information Commissioner has been consulted and has advised that there have been fewer that ten instances where a public authority has asked the Commissioner to consider exercising this power. The Scottish Information Commissioner will still be able to take the effects of the coronavirus pandemic into account in instances where an application reaches him for a decision under section 47(1) of FOISA in respect of a request for information made before 30 September 2021.

Two related provisions in the Coronavirus (Scotland) (No.2) Act 2020 are also being expired. These are paragraph 10 of schedule 4 (which amended paragraph 6 of schedule 6 to the Coronavirus (Scotland) Act 2020) and paragraph 11 of schedule 4 (which repealed paragraphs 3 to 5 of schedule 6).

Duties under the Public Finance and Accountability (Scotland) Act

These provisions allowed for amendment of statutory deadlines on Scottish Ministers and/or public bodies to publish and lay before Parliament annual accounts where doing so is likely to impede the Ministers’ or public bodies ability to respond to the pandemic. 

There were no requests to use this power during the previous financial reporting cycle with all accounts successfully laid by the December 2020 deadline. There have also been no requests to use this provision during the current reporting cycle for December 2021. As such, the Scottish Government, having consulted with Audit Scotland, considers that this provision is not needed and should be expired. 

Social Security

The coronavirus Acts included two social security measures.  These related to:

• Relaxation of deadlines, where the reason for being late related to COVID-19. Achieved by inserting sections 52A and 52B into the Social Security (Scotland) Act 2018 and requiring s.43 of that Act to be read as if it gave an extended deadline to carry out a redetermination.
• Carer’s Allowance Supplement : provision for a ‘double payment’ in June 2020.  Achieved by inserting s.81(4A) into the Social Security (Scotland) Act 2018 (covered in more detail under specific heading below).

Under the Scottish coronavirus Acts, Social Security Scotland was given an additional nine weeks to carry out a re-determination (i.e when an applicant asks the agency to look again at a decision they’ve made on entitlement to benefit).  This new Bill provides for this to expire in September 2021 (s.2(6)(a) of the Bill). Official statistics show that, for example, in August 2020, 84% of Best Start Grant redeterminations were closed within the ‘pre-COVID’ statutory deadline of 16 days (Scottish Government BSG statistics).  Funeral Support Payment response time rose to a median of 16 working days in September 2020 (Scottish Government FSP Statistics).  The latest report on the coronavirus Acts states that:

“Social Security Scotland has extended the timescales for a re-determination on 38 occasions, taking an average 38 days to complete these re-determinations. This represents 1.8% of the re-determinations received.”

The policy memorandum to the Bill states:

“given strategic approach to outbreak management in place and low numbers of occasions the provisions were engaged, the conclusion has been reached that there is insufficient justification for extending these provisions beyond September 2021.” (para 83)

The nine weeks was a deadline that Social Security Scotland had to meet.  Separate provisions gave flexibility to those applying for benefits.  Deadlines for applicants aren’t addressed in this new Bill. Applicants still have flexibility around deadlines for certain benefits where the reason they are late is due to COVID-19.  See sections 52A and 52B Social Security (Scotland) Act 2018. This is despite the expiry in September 2020 of provisions that made those amendments. The Policy Note to SSI 2020/249 stated at para 26: “The relaxation will continue to benefit individuals whilst there is coronavirus-related disruption.”

Irritancy clauses in commercial leases

The Coronavirus (Scotland) Act amended the legislation on commercial leases so that landlords must give tenants at least 14 weeks’ notice before they can recover possession (i.e. evict someone) where there has been a monetary breach of the tenancy (e.g. rent hasn’t been paid). Prior to the Act the minimum notice period was 14 days.

Consequently, commercial tenants currently have more time to pay before they can be evicted. Other forms of debt recovery action remain open to landlords though where rent is not paid (the lengthened notice period does not affect these).    

Under the Bill, the 14 week notice period would expire at the end of 30 September 2021. After that date a 14 day notice period for eviction for non payment of rent would apply.

The Policy Memorandum explains the rationale for this as follows:

“105.  It is considered that the provisions can now be expired as the  economy opens up so rents will start flowing again, possibly with revised lease structures put in place during lockdown. This is in line with other administrations  across the UK (England, Wales and Northern Ireland) whose current moratoria are due to expire on June 30 2021.

106.  Eviction was still possible in Scotland during the pandemic and any notices to quit would have been exercised already if that had been  the landlord’s intention therefore no transitional arrangements are required.”

According to the Policy Memorandum, the Royal Institution of Chartered Surveyors and the Scottish Property Federation indicated during a consultation on the Bill that are in favour of expiry of the legislation. The Policy Memorandum does not indicate whether the views of commercial tenants were sought.

Student residential tenancy: termination by tenant

This provision allows students living in halls of residence and Purpose Built Student Accommodation (PBSA) to end their lease early for a reason relating to coronavirus.

There is a 28 day notice period where the agreement was entered into while the Coronavirus (Scotland) (No.2) Act 2020 is in force.

The Scottish Government propose to extend this provision arguing that the notice period aligns with those students residing in the mainstream private rented sector (see paras 443 to 459 of the Policy Memorandum).

The Policy Memorandum notes that the provisions have been used by students and has proven particularly important given that colleges and universities adopted alternative learning models from face to face teaching in response to coronavirus.

The Scottish Government states that it is engaging with student accommodation bodies, their representative bodies and student’s associations to response to the needs of students at this time. In response to an informal consultation, the Student Accommodation Group advised that they were content to with the proposal to extend the measures. 

Coronavirus Carer’s Allowance Supplement

The Coronavirus (Scotland) no. 2 Act 2020 amended the Social Security (Scotland) Act 2018 to require a ‘double payment’ of the Carer’s Allowance Supplement for the period 1 April 2020 to 30 September 2020.  This new Bill provides for this to expire in September 2021 (s.2(7)(b) of the Bill).

This one-off payment was made in June 2020.  The provision that is being expired therefore relates to payments that have already been made. Other legislation, yet to be introduced, is planned to provide for a double payment this year.

The SNP manifesto and the First Minister’s statement to Parliament on 26 May stated that there would be another ‘double payment’ made this December.  The Explanatory notes to this bill state that:

“Further legislation will be introduced to allow for provision to be made for a subsequent increase to carer’s allowance supplement for the period of 1 October 2021 to 31 March 2022.”

Care Homes

These provisions amended the Public Services Reform (Scotland) Act 2010 and made it a duty that the Care Inspectorate (Social Work and Social Care Improvement Scotland – SCSWIS) lay a report before parliament every two weeks setting out which care homes had been inspected and the findings. The provisions also placed a duty on care homes to make daily reports to the Care Inspectorate on deaths of residents, whether or not they were attributable to coronavirus. In turn, the Care Inspectorate had to report to the Scottish Ministers, who in turn had to report to the Parliament within seven days. In February 2021, Scottish Ministers indicated that the provisions would be extended for a further six months.

The provisions were introduced in the context of the high number of care home deaths during the first wave of the pandemic, and the fact that the Care Inspectorate were not carrying out in-person inspections of care homes at that time.

National Records of Scotland publish data weekly on deaths involving coronavirus (COVID-19), including those in care homes. However, the care homes are not identified in publicly available documents. The topic was the subject of a FOI request to the Care Inspectorate, which requested the number of deaths in each of West Dunbartonshire’s care homes. The Care Inspectorate denied the request for information on grounds of exemption due to commercial interests and confidentiality in respect of care homes. The FOI had also been put to the local authority, which did disclose the information. The Information Commissioner ruled that the information requested be disclosed.

The expiry of these provisions means that these reports to the Care Inspectorate and onto the Scottish Ministers will no longer be required to be made. The names of care homes and the number of deaths in each of the homes has been made public. If the reporting is no longer required, then this information will no longer be available.

Marriage and Civil Partnership

The provision

Section 2(7)(d) of the Bill provides for an existing provision on marriage and civil partnerships to expire on 30 September 2021.

This provision (schedule 1, Part 10, para 24) was introduced by way of a non-government amendment, by the former MSP, Professor Adam Tomkins, at Stage 2 of what became the second Scottish Coronavirus Act.

Among other things, the provision requires Scottish Ministers:

• in conjunction with the Registrar General of Births, Deaths and Marriages, to take necessary steps to ensure that marriages and civil partnerships continue to be available in Scotland

• to report every two months on the steps taken, and on the number of marriages and civil partnerships that have taken place.

The provision was aimed at concerns about the extent to which the ability to marry, or enter a civil partnership, was being affected by the pandemic. The provision has been suspended by secondary legislation, with the possibility of revival, since 31 March 2021.

How the pandemic has affected the numbers of marriages and civil partnerships taking place

The chart below shows the number of marriages and civil partnership registrations which took place every quarter in 2020, compared to an average figure for the equivalent quarter in 2017-2019.

Most noticeable is that, in the second quarter of 2020, the number of marriages and civil partnerships was 98% lower than the average for the same quarter for 2017-19 (falling from an average of 7,834 in 2017 to 2019, to just 118 in 2020). While the third quarter showed some recovery, and is usually the busiest quarter of the year, it remained 63% lower than the three year average (falling from an average of 10,187, to 3,811).

What factors lie behind these trends?

Local registration offices play an important role in marriages and civil partnerships. For example, they supply the legal document which allows any marriage or civil partnership to take place.

Due to registration offices’ heavy reliance on paper-based services and ‘in office’ appointments, these offices were heavily impacted in the early phase of the pandemic. They had to close to the public, and staff were sent home.

A procedure was then introduced so that a couple could get married or civilly partnered where there was pressing need, such as when one person was terminally ill. However, otherwise, in May 2020, the position on marriages and civil partnerships was described by Professor Tomkins as follows:

“There is no legal bar to, or ban on, people getting married in Scotland, but, as a matter of fact, we know that people are not able to get married in Scotland at the moment, principally because registrars are not licensing, registering or solemnising at marriage ceremonies.” (Official Report, col 54):

Most registration offices re-opened (with restricted staff in the building) early summer 2020. The Registrar General said offices should aim to process marriage and civil partnership paperwork, where they had capacity to do so, in accordance with local needs. However, there were still other important registration priorities (deaths) and backlogs associated with birth registrations.

Aside from the issues facing the registration offices, there are other well-publicised factors affecting marriages and civil partnerships during the pandemic. These include ongoing restrictions on the number of people who can attend a ceremony or registration (or any reception after it), as well as travel restrictions. A couple may decide to postpone their wedding or civil partnership, in response to pandemic-related restrictions.

Why did the Scottish Government suspend the provision?

The Scottish Government’s decision to suspend the provision on marriage and civil partnerships (from 31 March 2021) is discussed in this month’s 7^th Report on the Coronavirus Acts.

The Government’s arguments in favour of suspension included that the right to marry is protected under Article 12 of the European Convention on Human Rights (ECHR), Also, in any event, the Government’s policy is to ensure the continued availability of marriage and civil partnerships.

The report also notes:

“the provision could be revived by regulations should the availability of marriage and civil partnership be further impacted as a consequence of the pandemic.”

Why is the Scottish Government proposing to expire the provision now?

The Bill now proposes expiry of the provision on marriage and civil partnerships, meaning its revival would not be possible after 30 September 2021.

On this proposal, the Scottish Government comments in the Policy Memorandum (at para 142):

“Since the reopening of local registration offices…couples wishing to marry or enter a civil partnership are generally able to do so…given the general availability of marriage and civil partnership going forward, it is not considered necessary to seek an extension of this provision beyond 30 September 2021… The policy underpinning the provision can continue to be delivered after the provision has expired.”

The availability of remote registration

Arguably, a remaining policy concern in 2021 is the availability of remote registration, i.e. registration by telephone or electronic means. This was introduced at an early stage in the pandemic for deaths and for still-births, but not for marriage and civil partnerships (nor for live births).

One issue then is how registration offices would perform their functions for marriages and civil partnerships if staff were, once more, not allowed in the building at all for their own safety. The pandemic situation in Scotland would have to take a significant and unexpected turn for the worse for this to happen. However, registration offices’ potential vulnerability here is not a topic addressed in the Policy Memorandum.

Provisions to be extended

This section provides a summary and analysis of each provision to be extended, focusing on the reasons for the expiry/extension decision. Again, for ease of reference, provisions are covered in the same order as in the Policy Memorandum.

Eviction from dwelling-houses

These provisions aim to protect renters from eviction during the coronavirus pandemic by:

• Extending the notice periods landlords need to give their tenants to end their tenancy (except in the case of criminal or antisocial behaviour).  In many cases, the notice period is extended to 6 months.
• Making all eviction grounds in private rented housing discretionary. This means that when considering eviction cases, the First-Tier Tribunal (Housing and Property Chamber) can consider all the circumstances of the case before deciding whether to grant an eviction order.

These provisions do not ban evictions, rather they give tenants a longer time to get financial assistance or to move to a more suitable property.

For more detail see the SPICe Briefing COVID-19 Support for tenants and landlords.

The Policy Memorandum indicates that the Scottish Government proposes to extend these provisions to protect tenants who may only now be experiencing the negative effects of the pandemic, or who are made redundant following the end of the furlough scheme. There is also evidence that tenants in the private rented sector are experiencing financial difficulty due to the pandemic and are finding themselves unable to meet obligations under their tenancy agreement.

The Scottish Government has been engaging with stakeholders including through the Private Rented Sector and Social Housing Resilience Groups, which were established to respond to the needs of tenants and landlords during the pandemic. In terms of informal consultation of the provisions with stakeholders, the Policy Memorandum notes a mixed reaction:

• Tenant representative groups, including Shelter Scotland and Citizens Advice Scotland, broadly welcomed the move highlighting that the full impact of restrictions easing will not be felt until later in the summer and safeguards are needed to protect renters and provide certainty. 
• The Scottish Association of Landlords have serious concerns about extending the provisions.  They commented that such action does not solve the problem and can result in a tenant building up further rent arrears which then impacts their ability to find alternative housing.
• Social landlord representatives expressed their understanding of why the Scottish Government wishes to continue the provisions and think this is sensible given the ongoing public health uncertainty

Regulations made under the Coronavirus Act 2020 provide for a ban on the enforcement of eviction orders (except for criminal and antisocial behaviour cases) in Protection level 3 and 4 areas.  These regulations have applied from 11 December 2020 and will end on 30 September 2021. As all of Scotland is currently in Protection levels 1 or 2, this means eviction orders can be enforced. If an area was to move back into level 3 or 4 before 30 September, then the eviction ban would apply again. It is not yet clear if the Scottish Government intends to extend the ban on the enforcement of eviction orders.

Temporary extension of moratoriums on diligence

A “moratorium on diligence” is a legal block on creditors taking action to enforce their debts. It is intended to give debtors time to consider how best to deal with their debt situation, free from threats of debt enforcement from creditors.

The moratorium is discussed in more detail in sections of this blogpost on expired sections. The provisions here (paragraphs 1 and 4 of Schedule 2 to the 2020 Act) have the effect of extended the normal period a moratorium lasts for from six weeks to six months. It is the Scottish Government’s intention that this extension will continue.

The Scottish Government argues that the extension is necessary to support the likely increase in demand for formal debt solutions and debt advice (Policy Memorandum paragraphs 174 and 175).

Personal debt problems are likely to increase as support from creditors and the government is wound down

Statistics from the Accountant in Bankruptcy (the Scottish Government agency responsible for supervising formal debt solutions) show that personal insolvencies have decreased during the pandemic. The number of debt payment plans under the Debt Arrangement Scheme (which give debtors more time to pay their debts in full) have increased.

However, stakeholders expect the need for access to formal debt solutions – and money advice – to increase in the medium term. The coronavirus pandemic has had an adverse effect on the personal finances of many people. It is possible that the full effects will not be seen until support from creditors and the government (eg. the furlough scheme) is wound down.

In order to access formal debt solutions, debtors need to get advice from an insolvency practitioner or money adviser. Both demand for these services and restrictions to the way services can be delivered due to coronavirus are likely to create access delays.

The Scottish Government aims to balance the interests of creditors and debtors

As discussed in the above section on expired provisions, creditors’ rights to recover their debts can be considered property rights protected under the European Convention on Human Rights. The Policy Memorandum (paragraphs 183and 184) explains that those rights can be restricted in the public interest.

By extending these provisions – while allowing the suspension of the requirement that only one moratorium can be applied for in any 12-month period to expire – the Scottish Government aims to create an appropriate balance between the interests of debtors and creditors.

Note that changes to the law to make bankruptcy more accessible, which originally appeared in coronavirus legislation, have separately been made permanent.

Courts and tribunals: conduct of business by electronic means

These provisions enable court business – both criminal and civil – to be carried out remotely in most cases. Specifically:

• documents relating to court proceedings can be signed electronically rather than in person
• documents relating to court proceedings can be transferred electronically, rather than being delivered in person or in hard copy, where the person receiving the document has indicated that they are happy to receive it in this way

The provisions provide the courts with ongoing flexibility to respond to the coronavirus pandemic

The Scottish Government argues that it is necessary to extend these provisions because they give the justice system the ongoing flexibility to respond to the coronavirus pandemic. According to paragraph 196 of the Policy Memorandum

“Without the provisions enabling business to be conducted by electronic means being extended, the ability of the justice system to continue will be severely adversely affected, as the expiry of these provisions would result in the requirement for physical processes to once again take effect.”

The coronavirus pandemic has had a significant impact on the justice system. It was heavily reliant on physical presence in often old buildings where social distancing may not have been possible.

Information from the Scottish Government shows that there were 39,488 criminal trials outstanding at the end of April 2021, compared to 18,355 at the end of March 2020. The bulk of the backlog relates to summary criminal trials (for less serious crimes) in the sheriff courts.

It is less clear how the civil courts are coping with the effects of the pandemic – both the number of cases being raised and the number of cases being heard by the courts have dropped. However, undue delays in the civil courts can also have serious consequences – e.g. in relation to child contact and residency issues.

There are significant concerns about the impact of remote hearings on access to justice

Remote hearings have been a key part of ensuring the courts can continue to function, and for dealing with the backlog of criminal cases. However, there are serious concerns about the impact of conducting court hearings remotely, particularly on accused people, but also in relation to lawyers and participants in civil court action.

The Faculty of Advocates issued a joint statement with the other bar associations of the British Isles highlighting their concerns about widespread use of remote hearings. They highlight issues with the quality of judicial interaction, effective advocacy, witness management and dealing with the diverse and complex needs of clients. However, they also welcome remote hearings in some contexts – particularly for short, procedural issues – as a more efficient use of time and resources.

The Scottish Government has commissioned three short research projects into the effectiveness of remote hearings. The final paper looked at remote mock jury trials in England and Wales, as well as bringing together themes from the other projects. It concluded that the overall message was:

“Remote hearings were invaluable for keeping the justice system moving during the emergency. […] BUT very significant access to justice issues were found – not least digital exclusion – that need to be taken into consideration in moving forward with remote hearings.”

Alternative options

The courts have existing powers under the Criminal Procedure (Scotland) Act 1995 (sections 288H to 288L) to enable participation in court proceedings by live TV link by detained people. This would cover remote hearings for those appearing from police custody and from prison. However, some other types of remote hearing – including using cinemas for jury trials – appear to rely on the provisions in the Coronavirus (Scotland) Act 2020.

Fiscal fines in criminal cases

Where a criminal allegation is reported to the Crown Office & Procurator Fiscal Service, prosecutors have a range of actions they can take instead of prosecution through the criminal courts.

In appropriate cases, these alternatives to prosecution include offering the alleged offender the opportunity to pay a fixed penalty under section 302 of the Criminal Procedure (Scotland) Act 1995. This form of penalty is commonly referred to as a ‘fiscal fine’. The offer does not have to be accepted, but the possibility of prosecution remains if it is not.

Schedule 4 (paragraph 7) of the Coronavirus (Scotland) Act 2020 temporarily increases the levels of fiscal fine available to prosecutors, including an increase in the maximum level from £300 to £500.

The Bill seeks to delay expiry of the above provisions. The policy memorandum argues that:

“Providing for the continued expansion of the use of alternatives to prosecution by extending the provisions will continue to enable a greater number of cases to be resolved without the need for court procedure and associated appearance at court. This has and will continue to free up the courts and prosecutors to deal with more serious cases and ease the burden on the courts during a time of significant resource pressure as a result of coronavirus.” (paragraph 211)

Criminal proceedings beginning with an appearance from police custody

In some cases, suspects are held in police custody until their first appearance in court (e.g. where the police consider that release would present a significant risk to a complainer which cannot be adequately addressed by conditions placed on release).

Schedule 4 (paragraphs 8 and 9) of the Coronavirus (Scotland) Act 2020 does not affect the rules on whether the police should or should not keep a suspect in custody. What it does is temporarily provide greater flexibility in relation to which sheriff courts can deal with a case when it comes to court. The Bill’s policy memorandum explains that:

“The provision introduced Scotland-wide jurisdiction for sheriffs dealing with first appearances from police custody and any continuation of the case up until a not guilty plea is tendered (or full committal in petition proceedings). This has enabled custody proceedings to be heard in any sheriff court in Scotland by a sheriff of any sheriffdom no matter where the alleged offence took place during the coronavirus pandemic. This has provided the necessary flexibility to allow for police centralised custody suites and to enable custody courts to be conducted in a way that minimises unnecessary travel and congregation of people in accordance with public health guidance.” (paragraph 223)

The Bill seeks to delay expiry of the provision.

Extension of time limits in criminal cases

A range of statutory time limits apply to criminal court proceedings with the aim of preventing unnecessary delays. Such delays can have a negative impact on accused persons, victims and witnesses.

Schedule 4 (paragraph 10) of the Coronavirus (Scotland) Act 2020 temporarily extends some of these time limits. It was argued that the impact on court business of COVID-19 meant that a failure to comply with the normal time limits was highly likely. Although most time limits could, where justified in individual cases, be extended by a court, a general extension was considered more appropriate in the circumstances of the pandemic.

The Bill seeks to delay expiry of the above provisions – continuing the temporary extension of normal time limits. In seeking to justify this, the Bill’s policy memorandum states that:

“The court system continues to be under significant pressure as a result of the significant backlog of cases that has built up while coronavirus restrictions limited the courts’ capacity to hear cases. Steps are being taken to seek to address this and the introduction of remote jury centres is assisting in preventing further backlogs building up in the High Court and for sheriff and jury trials, but further work will continue to be required to address the existing backlog and the serious issues also present in summary cases.” (paragraph 240)

In relation to time limits in criminal cases, the Scottish Government’s seventh report on the Coronavirus Acts (published June 2021) stated that:

“with crime levels back to near pre-COVID-19 levels and the courts still operating at some way below pre-COVID-19 levels, the need for flexibility in time limits clearly remains and is likely to do so for a considerable time”. (page 99)

The time limits affected are listed in paragraph 237 of 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 Coronavirus (Scotland) Act 2020 provides for a 3-month extension to the former and a 6-month extension to the latter.

The Bill’s policy memorandum acknowledges the significant impact of extended time limits on people held in custody on remand, whilst also noting the right of an accused to apply to court for a review of a decision not to grant release on bail.

In 2020-21, there was a significant reduction in the average daily prison population. This was due to a fall in the sentenced population (e.g. restrictions on criminal court business limited the number of cases concluded and thus numbers of custodial sentences imposed). The remand population did not fall in 2020-21, instead rising to over 1,700. This represented close to a quarter of the total prison population in 2020-21 and has been a cause of concern. For example, see the following reports on Scottish Legal News:

• Remand population grows by a third over lockdown (25 May 2021)
• Prisoners on remand pleading guilty to avoid Covid custody (6 April 2021).

Whilst the pandemic has affected recent levels of remand, highlighting concerns about numbers, such concerns are not new. For example, a 2018 Scottish Parliament Justice Committee report on the use of remand noted that:

“A key issue throughout the Committee’s inquiry was whether any steps could be taken to reduce what many witnesses perceived to be an inappropriately high use of remand.” (paragraph 144)

Exceptions to the rule that hearsay evidence is inadmissible evidence in criminal cases

The law of evidence includes a general rule against the use of ‘hearsay evidence’ in criminal trials.

The rule reflects the idea that, in general, the best way of assessing the credibility and reliability of a witness is to hear from that witness during the trial, with the opportunity of questioning by both prosecution and defence. In this context, an example of hearsay evidence would be if the court only had access to a written statement setting out the evidence of the witness.

The rule against the use of hearsay evidence is subject to various exceptions. Schedule 4 (paragraph 11) of the Coronavirus (Scotland) Act 2020 adds to the list of statutory exceptions set out in section 259 of the Criminal Procedure (Scotland) Act 1995.

This temporary addition to exceptions deals with situations where requiring a witness to physically attend a trial would involve:

• a particular risk to that person because of COVID-19 or of transmitting the virus to others; and
• it is not reasonably practicable for the person to give the evidence in any other competent manner (e.g. by video link).

This is something the court must be satisfied applies in the particular case.

The Bill seeks to delay expiry of the exception, with the policy memorandum stating that:

“it is likely to continue to be necessary for as long as public health measures around self-isolation and coronavirus remain in effect and will be especially important at times when infection rates are high.” (paragraph 256)

The policy memorandum also says that:

“The Scottish Government has assessed the potential impact of extending the measure on human rights and has considered Article 6 of the ECHR, which provides that, in the determination of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. One of the minimum rights is the right to examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

However, there is no absolute rule that the defence must have some opportunity to question every witness.” (paragraphs 262-263)

And that:

“Courts are still required to consider the fairness of any trial and to keep the fairness of trials under review. Judges will assess the weight to be attached to evidence introduced by statement and may be expected to take into account the fact that it has not been given on oath or subject to cross examination. In appropriate cases, they may disregard such evidence or direct the jury to disregard it.” (paragraph 257)

Community orders

As a result of the outbreak of the coronavirus pandemic, local authority justice social work services were experiencing significant difficulties in continuing to implement community orders (which contain requirements such as unpaid work and supervision). This was due to a combination of sickness, self-isolation, and compliance with guidance on social distancing, all of which had an effect on both social work staff and individuals on community orders. As a result, local authorities were having to severely restrict the provision of unpaid work in particular, and to scale back the delivery of other aspects of community sentences. Consequently, a significant number of offenders would not have been able to comply with the requirements of their orders (through no fault of their own), and local authorities were at risk of not complying with their own statutory obligations with regard to the delivery and oversight of such orders.

The Scottish Government contended that without action, there was a high risk that many of these court orders would be effectively abandoned, which would have serious implications for the administration of justice, the delivery of appropriate interventions, and confidence in the justice system. To that end, the relevant provisions in the Coronavirus (Scotland) Act 2020 extended the time limit for the completion of all unpaid work or other activity requirements by 12 months (i.e. whatever time limit has been imposed by the court for completion of unpaid work in an individual order, the new time limit will be 12 months later). The provisions in the emergency legislation seek to extend that arrangement beyond 30 September 2021.

The provisions in the 2020 Act also allow for regulations to be made by Scottish Ministers to vary or revoke requirements imposed in Community Payback Orders or Drug Treatment and Testing Orders. Ministers may do so only if it is required due to a likely failure to comply with the requirements due to the coronavirus, or in response to the effects of the coronavirus on local authorities or the courts. The Scottish Government’s intention is that these provisions in as far as they relate to Community Payback Orders, should be extended beyond 30 September 2021. The policy objective of this extension is to enable similar action to be taken to mitigate the effects of the coronavirus should this appear necessary to ensure the continued effective operation of the community justice system.

Parole Board

These provisions are fairly straightforward.

The provisions in paragraph 17 provide that if the Chair of the Parole Board is unable to carry out the duties of the Chair, then the next senior member of the Board is able to do so. They also provide a power for the Chair of the Parole Board to delegate their functions to another member of the Parole Board, should they become incapacitated for any reason. The provisions in paragraph 18 allow parole hearings to continue by video/teleconference and avoid postponements. This reduced the number of in-person oral hearings being held to keep members and others safe by avoiding face-to-face contact.

The provisions also have the effect that extended sentence prisoners recalled under section 17(3) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 and serving the extension part of their sentence, can be considered under Part III of the Parole Board (Scotland) Rules 2001 instead. Part III of the Rules allows these cases, where appropriate, to be heard at casework meetings by two rather than three members. The Scottish Government has stated that this was designed to increase resilience within the system. The provisions still allow for an oral hearing where one is merited as such a hearing will be arranged due to consideration of the issue at the casework meeting.

The Scottish Government believes that these provisions should be extended beyond September 2021 as staff and Parole Board members continue to work from home and it is important the parole system continues not only to release people from prison, but to recall them when they breach their parole licence in order to keep the public safe. These provisions have allowed the Parole Board to continue to operate almost unaffected by the pandemic. In the period 23 March 2020 to 5 March 2021, over 99% of Tribunals/Oral Hearings scheduled have been heard successfully with only 3 of 1196 unsuccessful. To that end, the Scottish Government has stated that it is important that the Parole Board can continue to function in this way.  

Release of prisoners

The Scottish Government is required to respond to any circumstances where a relatively high proportion of prison officers and other staff are unable to attend work due to illness, being in isolation and other coronavirus-related issues. In such circumstances, even with all mitigating actions being taken and a slowing down of cases from the courts, the COVID-19 outbreak presented a risk that Scotland’s prisons might not be able to continue to safely operate with current population levels. In such emergency circumstances, the Scottish Government contended that there was a need to have effective statutory options to respond, including the potential to release prisoners early from custody.

The 2020 Act provides that Scottish Ministers can by regulations provide for the early release of certain prisoners in order to protect the security and good order of the prison and the health, safety and welfare of anyone accommodated or working in the prison. Scottish Ministers can make different provision in the regulations for: different classes of person, prisons or classes of prison or other different purposes. Prison Governors can also veto release where they think release would involve an immediate risk of harm to an identified person, and there are a number of categories of prisoners who are excluded from being released under the regulations.

It is the Scottish Government’s intention that that this provision should be extended beyond 30 September 2021 in order that it can be further utilised, if necessary, to maintain safe operation of the prison system. 

Legal Aid

This provision relates to the availability of interim legal aid payments.

Following the COVID-19 outbreak, the Scottish Government entered into discussions with the Scottish Legal Aid Board (“the Board”), as concerns had been raised that the disruption resulting from the coronavirus outbreak would adversely affect legal services providers who carry out legal aid work. It was anticipated that trials and hearings may not go ahead, that face-to-face meetings with clients will be reduced or suspended, and that wider disruption would be likely to impede or prevent the continuation of business. As well as the adverse impact on the profession in the short term, it was considered that there were risks to access to justice in the longer term, as firms and individuals delivering services may, if steps to mitigate the impacts were not taken, be unable to continue in business.

To that end, Scottish Ministers engaged with the Board to identify steps that should be taken to mitigate the risks to the profession. While some of those steps could be achieved within existing powers, the Board identified that increasing the availability of interim payments would support solicitors and counsel to continue delivering services under legal aid, with acceptable levels of risk to the Board, and the Scottish Government considered that this could only be achieved by way of primary legislation. The specific measures that were identified as being required through primary legislation were:

• reduction of the level of scrutiny required before interim payment may be made;
• enhanced powers of recovery in the event of overpayments resulting from interim payments
• removal of conditions for counsel to be able to apply for interim payment.

Through both these provisions and working with the Board, a flexible and accessible scheme of interim payments has been introduced to support cash flow to legal aid providers. The scheme went live on 1 April 2020 and has been accessed by many legal aid providers through the pandemic.

The Scottish Government has pointed out that many providers of legal aid services will continue to experience disruption to cash flow and that these provisions will support access to payment prior to a case concluding. With the ongoing backlog in the courts and impact on businesses of social distancing, etc. the Government is of the view that it would not be appropriate to remove the enhanced interim fee arrangements, and it is therefore important that these provisions remain in force and should be extended beyond 30 September 2021.

Alcohol licensing and Licensing other than alcohol licensing

These provisions give greater flexibility to those involved in alcohol licensing and licensing under the Civic Government (Scotland) Act 1982.

Alcohol licensing

The provisions relax a range of requirements and deadlines in relation to alcohol licensing. For example:

• they allow licensing hearings to be held outwith formal meetings of the licensing board
• they allow participation in meetings through written submissions, by telephone or via video conferencing (where facilities exist)
• they excuse compliance with various deadlines if the licensing board accepts that the reason for delay was related to coronavirus
• they extend other deadlines by specific time periods (for example, if a board cannot decide on a renewal application for a personal licence before its expiry date, the licence is extended for six months)
• they adjust various responsibilities of licensing boards, Police Scotland and Licensing Standards Officers (who supervise compliance).

Civic government licensing

The Civic Government (Scotland) Act 1982 covers a whole range of local government licensing functions – from taxis to scrap metal dealers, public entertainment and sex shops.

As above, the provisions relax various requirements and deadlines. Because of the way the legislation is written, sex shops are dealt with separately.

For example, the provisions:

• remove the requirement for in-person hearings and allow participation through written submissions, telephone or video conferencing (where facilities exist)
• extend various deadlines (for example, where a licence has been revoked, the licence holder has 14 rather than 7 days to return the licence to the licensing authority).
• allow licensing authorities to give notice of applications via their website rather than in a newspaper advert
• excuse the courts from the requirement to pass on information about relevant offences within certain deadlines.

The Scottish Government believes the licensing system continues to need additional flexibility

The Scottish Government notes that the additional flexibility provided by these provisions has supported licensing boards/authorities and other users during the coronavirus pandemic. It states (Policy Memorandum, paragraph 335):

“These provisions have enabled all 32 Licensing Boards and 32 Licensing Authorities to continue to hold hearings throughout the pandemic and enabled the licensing regimes to continue to function which otherwise would not have been possible to anything like the extent they have functioned.”

The Scottish Government highlights two factors supporting extension of the provisions (Policy Memorandum, paragraph 332):

1. the need to support licensing boards/authorities and other stakeholders to deal with the backlog of work built up during the coronavirus pandemic, and
2. the need to ensure there is an ongoing ability to function under coronavirus-related restrictions.

The need for a licence is a key part of operating in various sectors. Avoiding problems and delays in the licensing system therefore supports economic activity, both during the coronavirus pandemic and as part of the recovery.

Freedom of Information

The Bill extends section 7 and schedule 6 paragraphs 2 and 7 of the Coronavirus (Scotland) Act 2020) which enables the Scottish Information Commissioner and Scottish public authorities to issue formal notices under the Freedom of Information (Scotland) Act 2002 (FOISA) electronically.

The provision is being extended to maintain the flexibility which the provision allows. If the provision was not extended it would mean sending notices by post, thus requiring at least some staff to work from the Commissioner’s office rather than remotely, as well as the need to visit a post office regularly.

The policy memorandum highlights that the Scottish Information Commissioner has used the provision to issue nearly 300 electronic notices.

The Bill also extends section 5 and schedule 4 paragraph 12 of the Coronavirus (Scotland) (No.2) Act 2020) which require Scottish Ministers to report to Parliament on their performance in freedom of information requests every two months. The reporting requirement exists whilst Part 2 of schedule 6 of the Coronavirus (Scotland) Act 2020 is in force. Given that Part 2 of schedule 6 remains in force the Bill provides for the extension of the reporting requirement.

Scottish Ministers published the sixth report on freedom of information on 9 June 2021. The table below highlights the figures on performance given in the six reports to date.

Duties in respect of reports and other documents

Section 7 and schedule 6 paragraphs 8 – 10 of the Coronavirus (Scotland) Act 2020 allow statutory reporting requirements to be postponed where necessary as well as allowing for documents to be produced online.

The provision allowing for postponement of reporting requirements was introduced to allow public authorities to focus on the coronavirus response. The reports must still be provided as soon as possible after the statutory deadline.

In the Policy Memorandum the Scottish Government explains that extension of the provision allowing for documents to be provided online instead of physically may reduce access to information for those who do not have access to the internet. Nevertheless, it is acknowledged that having to produce documents available for public inspection risks spread of the virus and, as such, public bodies would be unable to meet their statutory duties without the extension of this provision.

Local Authority meetings

Section 7 and schedule 6 of last year’s Coronavirus (Scotland) Act amended 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 2020 legislation set out additional grounds for the exclusion of the public from meetings, as “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”.

Since last year, local authorities have excluded members of the public from council meetings on public health grounds. The Government intends to extend provisions until “such time as council offices can reopen to the public, without the need for physical distancing, and/or other relevant aspects of local authority business resumes”. The Policy Memorandum for the current Bill informs us that the decision to extend has been made in consultation with councils (through COSLA).

Research conducted by the Improvement Service in October 2020 found that around half of councils were livestreaming their meetings online. Other local authorities were said to be “exploring other technological solutions to support greater public access to meetings”. Given this research was conducted some 10 months ago, it is possible that more councils are now livestreaming their meetings.

Audit Scotland found that many councillors had adapted well to virtual council meetings. Nevertheless, the Scottish Government is concerned that excluding the public from council meetings could impact on the openness and transparency of local authority decision-making (see PM, p.72).  The Government highlights that holding online meetings only could have a disproportionate impact on older people, people with disabilities or “members of the public who do not have the infrastructure or skillset to access public meetings remotely”. Clearly, it is important that people should be able to view council meetings where decisions impacting their lives and communities are being made.

Duration of planning permission and Listed buildings and conservation areas: consents

These provisions extend the duration of planning permission, listed building consent and conservation area consent that were due to expire while coronavirus restrictions were in place.  For more detail see the Policy Memorandum or the SPICe blog on the Bill. 

The policy memorandum indicates that the Government proposes to further extend the duration of those consents which had been previously extended until 30 September 2021.  The aim being to support the construction sector in its recovery from coronavirus restrictions, reduce the burden on authorities needing to reconsider applications and provide consistency to businesses operating across the UK.

Land registration: electronic delivery of copies to Registers of Scotland

The Bill affects four public registers held by the non-ministerial government department known as Registers of Scotland (RoS):

• the Land Register
• the Register of Sasines
• the Register of Judgments
• the Register of Inhibitions.

The Bill would extend provisions in the first and second Scottish Coronavirus Acts on the operation of these registers beyond 30 September 2021.

Although not well known, the first two registers (‘the property registers’) are key to the operation of the housing market and the system of mortgage lending. In turn, they are vital for Scotland’s economy.

Pre-pandemic, RoS was heavily reliant on paper-based processes for registration, including those which required the physical presence of some of its staff in the building to operate. RoS’ digital agenda for the property registers had stalled, as solicitors and mortgage lenders could not yet accommodate some of the changes RoS had hoped to introduce.

In March 2020, as a result of the government guidance for the protection of employees, RoS had to close its doors and staff were sent home, temporarily bringing registration systems for the property registers to a grinding halt.

Provisions in the first Scottish Coronavirus Act (section 8 and schedule 7, paras 11-14) enabled the system to get up and running again over time. They allowed registration in the property registers to proceed on a (scanned) copy of a traditional deed submitted to RoS by electronic means (e.g. email or uploading).

Similar provisions in the second Scottish Coronavirus Act (section 5 and schedule 4, paras 3 and 4) later did the same for two further registers which until then relied to a significant extent on paper-based applications – the Register of Inhibitions (RoI) and the Register of Judgments (RoJ). The RoI is important in the context of debt recovery, the RoJ in some court cases affecting more than one country or legal system.

On the policy justification for now extending both sets of provisions, the Policy Memorandum says (at para 423):

“The ability to access digital submission services has not only been vital but has also proved extremely popular with those using those services. Their continuation beyond September will continue to be important to limit physical movement and contact, while allowing the continued safe and effective operation of the registers.  Were the provisions to expire, both Registers of Scotland and the conveyancing profession as a whole would have to significantly amend their operating procedures which would incur additional costs and likely be viewed as a backwards step by stakeholders.”

In other words, while these provisions are very important during the pandemic, it appears that they may also have removed customers’ reluctance to do more digitally. They may have accelerated a programme of change which was considered desirable for other policy reasons. Overall, they represent an uncontroversial extension in the context of this Bill.

Scrutiny of subordinate legislation in urgent cases

Section 8 and schedule 7 paragraphs 23-30 of the Coronavirus (Scotland) Act 2020 is concerned with scrutiny of subordinate legislation in urgent cases. The provisions allow for regulations that would normally be made under the affirmative procedure to be made under the “made affirmative procedure” where an accelerated timetable is necessary “by reason of urgency”.

The made affirmative procedure allows for regulations to be brought into force immediately but to only remain in force if Parliament approves the regulations. Any Scottish statutory instrument (SSI) made in accordance with paragraph 23 must state that the person who made it considered it to be necessary and urgent. More detailed information on the procedure is available in the SPICe briefing blog on the Coronavirus (Scotland) Act 2020.

Page 6 of the Session 5 Delegated Powers and Law Reform Committee’s most recent annual report published in March 2021 gives some figures on the use of the made affirmative procedure. The report shows that in 2020-21 91 made affirmative instruments were considered, up from 9 the previous year.

SSIs made in accordance with paragraph 23 have been used mostly in relation to the powers contained in the UK Coronavirus Act 2020 and the Public Health etc. (Scotland) Act 2008. Powers in the latter have, for example, been used to make travel regulations linked to international travel.

The made affirmative procedure has not been used in respect of the powers in the Coronavirus (Scotland) Act 2020.

The Policy Memorandum (paragraph 434) notes that the Scottish Government:

“is satisfied that the provisions are appropriate and proportionate in the current circumstances in order to provide both the Scottish Government and Scottish Parliament with necessary flexibility to address any unexpected change in circumstances that may still arise due to the coronavirus.”

Student residential tenancy: termination by tenant

The Coronavirus (Scotland) (No.2) Act 2020 allows students living in halls of residence and Purpose Built Student Accommodation (PBSA) to end their lease early for a reason relating to coronavirus.

Where a student has signed a lease and occupied the property before 27 May 2020, this provision allows a notice period of 7 days.

This provision is being expired. In the Policy Memorandum (para 107), the Scottish Government argue that the seven-day notice period was for a particularly challenging period and the social, economic and health pressures faced by students now are not the same as they were a year ago.

The majority of student tenancies are on an annual basis so the number of student tenancies entered into prior to 27 May 2020 will be significantly lower.

Students in halls and PBSA will still be covered by the 28-days’ notice period to end their accommodation from 30 September for reasons related to coronavirus, under other parts of this section of the 2020 Act that are being extended.  

The Scottish Government was not able to consult on expiring this provision.

Tenancies: pre-action requirements for order for possession or eviction order on ground of rent arrears

This provision requires private landlords to adhere to pre-action requirements if they wish to evict a tenant for rent arrears where all or part of the arrears have accrued during the coronavirus period. This means that landlords must make reasonable efforts to work with tenants to manage rent arrears, helping to sustain tenancies. The First-tier Tribunal for Scotland (Housing and Property Chamber) are required to take account of compliance with the requirements in deciding whether to grant an eviction order.

Further detail is contained in the  Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 and Scottish Government guidance.

The Policy Memorandum notes that the Scottish Government intends to extend this provision, “in order to support keeping people safe in their homes, who are experiencing financial difficulties due to the continued coronavirus-related disruption.” It will also complement the measures to protect tenants from eviction (described above) and help to sustain tenancies and prevent homelessness.

Views on these provisions have been sought from tenant, landlord and local authority representative groups and, “there is general agreement that it is sensible for the pre-action requirements to continue” (Policy Memorandum para 467).

Social care staff support fund

With the continued uncertainty during the pandemic, Scottish Ministers consider that the continuation of the Social Care staff support fund provides added protection and some added financial support to social care staff, whose terms and conditions are less favourable, in the event of them having to self-isolate. The provisions in turn support infection control by removing the financial pressure to work when staff might be infected.

The requirement for this specific fund is in the context of the widely acknowledged issues surrounding challenging employment conditions and low pay in social care. Fair work principles in social care have been highlighted as a priority by the Scottish Government in the new Session.

Bankruptcy

These provisions make changes to how bankruptcy operates, in response to the coronavirus pandemic:

• paragraph 8 makes it easier to serve documents electronically
• paragraph 10 raises the amount of money a debtor must owe – from £3,000 to £10,000 – before a creditor can petition for bankruptcy. This makes it more difficult for creditors to force debtors into bankruptcy (but debtors can still choose to apply for their own bankruptcy)
• paragraph 12 enables meetings of creditors (which happen very rarely in practice) to happen electronically rather than physically.

The Coronavirus (Scotland) (No. 2) Act 2020 originally contained a number of other provisions relating to bankruptcy. These were intended to make accessing bankruptcy easier for a debtor as a response to the expectation that the coronavirus pandemic would create increased levels of problem personal debt.

The other provisions were made permanent by the Bankruptcy (Miscellaneous Amendments) (Scotland) Regulations 2021. However, the changes highlighted above were not made permanent.

The Scottish Government states that these provisions have nevertheless been considered helpful by stakeholders (Policy Memorandum, paragraphs 487-492). As discussed in the sections of this blog on the extension of a moratorium on diligence, while bankruptcy rates have decreased during the pandemic so far, debt problems are expected to increase in the medium term. The Scottish Government therefore believes that there is a policy rationale for their extension.

There is a need to balance the interests of creditors and debtors

The Policy Memorandum (paragraph 500) recognises that creditors’ rights to recover their debts are property rights protected by the European Convention on Human Rights (ECHR). In particular, increasing the level of debt required before a creditor can petition for a debtor’s bankruptcy affects the usual balance between creditor and debtor interests.

The Scottish Government argues (Policy Memorandum, paragraph 501) that, given the expected impact of the coronavirus pandemic on personal finances, such a provision promotes the public interest and is therefore compliant with the ECHR.

Mental Health: named person nomination

These provisions extend the provisions in the Coronavirus (Scotland) (No.2) Act 2020 in relation to the nomination of named persons to allow them to be available beyond 30 September 2021.

The Mental Health and (Care and Treatment) (Scotland) Act 2003 allows for a person over 16 years of age to nominate a ‘named person’ to represent their interests and provide support. This nomination must be made in writing and the signature of the nominee has to be witnessed by a ‘prescribed person’ in order to be valid. Someone is classed as a ‘prescribed person’ if they are a regulated health professional, social care worker, social worker or solicitor.

The Bill seeks to extend the provisions in the Coronavirus (Scotland) (No.2) Act 2020 so that a nominated named person’s signature does not require to be witnessed by a prescribed person.

The policy memorandum indicates that the Scottish Government believes that these provisions “keeps the safeguards a named person offers but crucially helps minimise the disruption caused by the pandemic.” It notes that:

“These provisions have minimised the delays which were being experienced by the Mental Health Tribunal (MHTS) which had reported a slowing down of processes causing practical difficulties in compliance with the current Mental Health (Care and Treatment)(Scotland) Act 2003. This in turn had caused delays in securing the validity of named persons nominations, and there had been an increase in time having to be dedicated to liaising with stakeholders by telephone and email which must take place before a Tribunal is able to sit to consider whether the patient should continue to be detained under the Mental Health (Care and Treatment) (Scotland) Act 2003.

[…] Extending the provision will continue to ensure that the patient still has the ability to choose their own representation while providing for a named person to act for the patient. It is expected to continue helping reduce any delays in having the patient involved in their care and treatment decisions. This approach continues to respects their rights and allows services to be delivered effectively during the pandemic.”

In its submission to the COVID-19 Committee, in September 2020, the Law Society of Scotland agreed that extending these provisions is appropriate and necessary. It said:

“We are aware of individual circumstances in which the availability of these temporary provisions has been beneficially utilised. It is likely that future unpredictable and localised restrictions on travel may continue to make it difficult for nominated persons to arrange to have their signature witnessed by a prescribed person. The temporary changes made by these provisions are pragmatic and enabling, in that they protect the right of the patient to have a named person.”

Care Homes – Emergency directions and emergency intervention orders

The provisions on emergency directions give health boards the power to direct care home providers to take any steps they think necessary to protect the health of those within the home from coronavirus.

If not satisfied that the steps have been carried out, the provisions allow health boards to seek entry to the care home, undertake the specified steps and to recover the associated costs.

If refused entry, a health board can apply to a Sheriff Court for permission to gain entry and carry out the steps required.

The emergency intervention order provisions allow Ministers to apply to the court to appoint a nominated officer to take over the running of a care home where there is a serious risk to life, health or wellbeing. If felt necessary, Ministers can exercise these powers before applying to the courts, but the application must follow within 24 hours.

The Policy Memorandum to the Bill explains that it is felt necessary to extend these powers. Although they have not been formally used, care homes have experienced significant numbers of COVID-19 deaths and some providers have required support from the NHS, local authorities and the Care Inspectorate. The threat of new variants may necessitate rapid action in the future to protect care home residents.

Powers to purchase care home services and care at home providers

These powers follow on from those in paragraphs 16 and 17 of Schedule 1 which allow health boards to direct care home services to take action to protect the wellbeing of residents.

The provisions in paragraphs 18-21 give health boards and local authorities the power to purchase both care homes, or a care at home service, that is in financial difficulty or failing to provide safe and effective care because of coronavirus. This can include the purchase of all assets, not just the buildings. To ascertain the threat to the service, a number of stakeholders have to be consulted.

Scottish Ministers wish to extend these powers because of the continuing vulnerability of the sector, and the uncertainty that continues. Continuing these powers provides a ‘safety net’ for the sector and in particular residents in allowing for continuation of care in the event of financial breakdown in the service or care home.

Criminal Justice – Criminal proceedings: extension of time limits

As noted earlier in relation to the Coronavirus (Scotland) Act 2020, various statutory time limits apply to criminal court proceedings with the aim of preventing unnecessary delays.

Schedule 2 (paragraph 1) of the Coronavirus (Scotland) (No.2) Act 2020 includes provisions temporarily disapplying some time limits on the length of time a criminal court can adjourn a case before the matter must return to court.

The time limits affected are listed in paragraph 561 of the Bill’s policy memorandum. They include situations where a court may remand a person (e.g. whilst adjourning a hearing to allow inquiry into an apparent failure to comply with a community sentence).

The Bill seeks to delay expiry of the above provisions. In seeking to justify further continuation of the temporary provisions, the policy memorandum states that:

“It is the Scottish Government’s view that these provisions should be extended beyond 30 September 2021 to ensure the courts will not be impacted by large numbers of individual hearings to re-adjourn cases, by ensuring that the courts are able to adjourn cases for a period of time which realistically reflects the length of time required to complete further inquiries and obtain information from other parties.” (paragraph 562)

Criminal Justice – Arrangements for the custody of persons detained at police stations

These provisions enable Scottish Ministers to make arrangements for Prisoner Custody Officers with escort functions (PCOs) to carry out their functions within police stations for the purpose of facilitating the appearance before a court by electronic means of prisoners in police custody. This will involve prisoners appearing before the court by video link from police stations. The arrangements allow PCOs to be responsible for the custody of prisoners in police stations before, during or after their appearance before the court, so long as those functions are exercised in connection with the appearance of the prisoner before the court by electronic means. The arrangements could also allow prisoner custody officers to administer court papers and manage timetables for hearings.

The Scottish Government has worked closely with Police Scotland and the Scottish Prison Service to put these measures in place. These arrangements allow PCOs to support police officers and court staff in the administration of virtual custody courts, with PCOs now being deployed in over half of the virtual custody courts in Scotland. The Scottish Government contends that this support protects other court users and members of the public from the risks of coronavirus by reducing the amount of physical hearings and the requirement for transport to court.

The Scottish Government believes that the provisions remain necessary beyond 30 September 2021 to provide for the safety and transfer of detained persons between cells and remote court appearance within the police estate. It’s likely that the use of remote custody courts will continue for the foreseeable future and as such, will help release capacity within the court estate to resume trials, and to further reduce the movement of people while the criminal justice system responds to and recovers from the pandemic.

The use and support of trained PCOs within police stations also allows the usual duties of police and civilian staff to be protected; the expiry of these provisions while remote custody courts are in place would place additional burden on front line officers and other police staff. To that end, it’s the Scottish Government’s intention that these provisions should be extended beyond 30 September 2021 so that the justice system can continue operating safely and as effectively as possible by reducing pressure on the physical court estate while enabling business to continue.

Criminal Justice – Undertaking to appear in court in criminal cases

One of the options open to the police, following the arrest of a suspect, is to release the person subject to an undertaking to appear at court on a specified date. During this period, the person is subject to conditions which may include ones seeking to protect others (e.g. a prohibition on approaching the complainer in the case).

Where the person appears in court, as required by the undertaking, it is for the court to then decide what should happen next (e.g. whether the person should be released on bail subject to conditions). If the person fails to appear, the court may grant a warrant for the person’s arrest. However, the court may decide not to do so if there appears to be a good reason for non-attendance. Under normal rules, this leads to the expiry of the undertaking and associated conditions.

There was a concern that the pandemic could lead to situations where a person had a good reason for non-attendance (e.g. a need to self-isolate) but the loss of conditions attached to an undertaking would remove important safeguards (e.g. for the protection of the complainer).

Schedule 2 (paragraph 6) of the Coronavirus (Scotland) (No.2) Act 2020 seeks to address this by allowing a court to extend an undertaking where a person fails to appear; and the court considers that this is attributable to a reason relating to COVID-19. This has the effect of preventing the undertaking its conditions from expiring.

In seeking to justify further continuation of the temporary provisions, the policy memorandum states that:

“The need to self-isolate because of possible infection with coronavirus (or the continued existence of other coronavirus related reasons which prevent people from attending court) will continue for some time to come. Therefore, it is necessary for this provision to remain in force beyond September to ensure that in any case where an accused is unable to attend court for a coronavirus-related reason, the court has a power to ensure that any conditions associated with the undertakings on which they were released can continue to have effect until they are able to appear in court.” (paragraph 595)

Proceeds of Crime

The Coronavirus (Scotland) (No.2) Act 2020 (“the No.2 Act 2020”) includes a number of provisions which deal with proceeds of crime legislation and temporarily amend parts of the Proceeds of Crime Act 2002.

The provisions provide that, for the purposes of section 99(4) of the 2002 Act “exceptional circumstances” includes the effect (whether direct or indirect) of coronavirus on the proceedings. This is important as following a conviction in relevant criminal cases, prosecutors can make an application to the court for a criminal confiscation order. These proceedings can be postponed on an application by either the prosecutor or the accused, or by the court by its own motion. The permitted period for any postponement is two years, unless “exceptional circumstances” can be demonstrated for an extension. This provision has the effect of ensuring that reasons directly, or indirectly related to coronavirus are regarded as “exceptional circumstances” for the purposes of extending the period of postponement of confiscation proceedings.

Section 116 (Time Limit for Payment), is amended to ensure that no individual subject to a confiscation order is disadvantaged if they cannot pay a confiscation order on time for reasons relating directly, or indirectly, to coronavirus and for the court to make a further order extending the period for payment. Without that amendment those required to pay within 12 months may receive a custodial sentence for non-payment due to coronavirus related reasons.

Section 117 is amended to ensure that the defendant will not pay interest on any outstanding confiscation order where an application for extended time to pay has been made, and allowed, under section 116A.

The Scottish Government contends that these provisions should be extended to help ensure that the confiscation process is not frustrated due to delays in court proceedings as a result of coronavirus-related backlogs. The provisions also ensure that individuals are not treated unfairly or disproportionately throughout this period if they have been unable to pay a confiscation order for reasons related to coronavirus.

Intimation etc. of documents

This provision allows documents to be published on the Scottish Courts and Tribunals Service website – rather than displayed on the walls of a court building – as a way of intimation to the general public.

There are various court procedures which require the physical display of documents in court buildings. For example, this may be because the location of the person they are intended for is not known, or because there is a need to publicise the information contained in the document.

Restrictions on public access to court buildings during the coronavirus pandemic has meant that displaying documents there could not perform these functions. Alternative arrangements to publish documents on the Scottish Courts and Tribunals Service website were therefore put in place.

The Lord President and the Lord Justice General (the head of the civil and criminal courts respectively) can issue directions regulating how this should be done.

The Scottish Government argues that this provision continues to be needed to allow the courts to function. Paragraph 627 of the Policy Memorandum highlights the frequency it has been used across a range of civil court business.

In particular, there are circumstances where the winding up of the estates of deceased people cannot be progressed without this alternative measure. It has been used 3,357 times since June 2020 in this context.

Care services: giving of notices by the Care Inspectorate

These provisions allow the Care Inspectorate to issue formal notices by electronic means, in addition to post. Such notices include those relating to the registration of a service, variations of a registration and enforcement notices.

This option was deemed necessary due to the closure of offices during the pandemic and to limit face to face contact and the physical processing of notices.

The policy memorandum to the Bill states that the power has been used 2,858 times and extending it will allow the Care Inspectorate to continue issuing notices in a safe and timely manner.

Execution of documents, etc.

This provision removes any legal requirement for lawyers or notaries public to be physically present to witness the signing of a document or the taking of an oath or affirmation.

Various legal processes require oaths or affirmations to be sworn or the signing of documents to be witnessed. For example, there are circumstances where a written statement can be presented in court as evidence if the author has sworn an oath that it is true. These functions can be carried out by solicitors, advocates or notaries public. 

In normal circumstances, the lawyer or notary public would be physically present to carry out their role. The provision removes this requirement in order to minimise the need for physical contact and travel during the coronavirus pandemic.

The Scottish Government argues that the provision remains necessary to allow the justice system to operate as safely and effectively as possible (Policy Memorandum, paragraph 654). 

Council tax: exempt dwellings

During 2020 many landlords of student accommodation found their properties were suddenly empty as a result of COVID-19, with their student tenants returning home before the end of their leases. Schedule 4, paragraph 14 of the 2020 Act ensured that such properties would continue to be exempt from council tax after their tenants left early. The provision would only apply to the period when such properties were unoccupied.

The Bill extends this measure beyond 30 September 2021. In its Policy Memorandum, the Government informs us that the Scottish Property Federation supports the continuation of the measure. Furthermore, the Government states that local authorities will suffer no financial detriment, as the properties in question would likely have been occupied by students during pre-COVID period, and therefore exempt.

Restriction on giving grant to businesses connected to tax havens

This provision ensures that in order to receive a coronavirus-related grant, a business must not be:

• based in a tax haven
• the subsidiary of a company based in a tax haven
• the parent company of a subsidiary based in a tax haven
• party to an arrangement under which any of its profits are subject to the tax regime of a tax haven.

The Scottish Government seeks to extend this provision beyond 30 September 2021 while coronavirus-related grants are still required and can still be applied for. The Scottish Government argues that everyone should pay a fair share of tax to fund public services and infrastructure and that business who chose to take advantage of tax havens should not receive financial assistance and support.

The Scottish Government, therefore, consider that this measure continues to be necessary while coronavirus related grants are likely to be required.

Authors

Sarah Atherton, Kate Berry, Abigail Bremner, Lizzy Burgess, Ross Burnside, Allan Campbell, Lynne Currie, Angus Evans, Sarah Harvie-Clark, Anne Jepson, Camilla Kidner, Greig Liddell, Frazer McCallum, Alan Rehfisch, Kathleen Robson, Graham Ross, Simon Wakefield, SPICe Research

Note of updates

21 June 2021, 12.10pm – first published.

21 June 2021, 2.24pm – infographic added to Freedom of Information extension section.

22 June 2021, 4.10pm – further information on emergency procedure added.