On 28 June 2022, the Parliament will consider the Coronavirus (Recovery and Reform) (Scotland) Bill at Stage 3. This extended blogpost highlights some of the main changes made to the Bill at Stage 2, to inform Stage 3 consideration. It is not a comprehensive review of all of the changes made to the Bill.
For information on the passage of the Bill so far, please see the Bill page on the Parliament’s website.
The blog is arranged according to the parts of the Bill, as set out in the contents pop-out below.
Part 1 – Public Health Protection
Several significant changes were made under Chapter 1: Modifications of the Public Health etc. (Scotland) Act 2008. No amendments were passed under Chapter 2: Arrangements for Vaccination and Immunisation.
The following amended the Bill’s modifications of the Public Health etc. (Scotland) Act 2008:
- Amendment 23 in Part 5A – Public Health Protection Measures: Public health protection regulations
- Amendment 24 in Part 5A – Public Health Protection Measures: Public health protection regulations
- Amendments 25, 26 and 27 in Part 5A – Public Health Protection Measures: Public health monitoring measures
- Amendment 28 in Part 5A – Public Health Protection Measures: Public health monitoring measures
Relevant Stage 2 amendments are discussed in more detail below.
Part 5A – Public Health Protection Measures: Public health protection regulations
Amendment 23
Amendment 23 from the Cabinet Secretary adds proposed new sections 86AA and 86AB to the Public Health etc. (Scotland) Act 2008. Amendment 23 was agreed to (by division), with 5 votes For, 1 Against, and 0 Abstentions.
86AA sets out that a public health declaration would be needed for Scottish Ministers to use the power in section 86A(1) to make regulations in response to a particular infection or contamination. The Scottish Ministers will make a public health declaration following consultation with the Chief Medical Officer for Scotland or another appropriate person.
A declaration will only come into force once a motion approving it has been approved by the Scottish Parliament. The fact that a public health declaration is in force does not require the Scottish Ministers to make regulations under section 86A(1).
If a public health declaration is in place and the Scottish Ministers consider that the test for making such a declaration is no longer met (that an infectious disease or contaminant “constitutes or may constitute a danger to human health” and the making of regulations under section 86A(1) “may be a way of protecting against that danger”), Scottish Ministers must: revoke that declaration, lay notice of the revocation before the Scottish Parliament, and publish notice of the revocation in “such a manner as the Scottish Ministers consider appropriate.” A public health declaration ceases to have effect immediately after it is revoked.
The purpose of Amendment 23 is to strengthen parliamentary safeguards in the Bill by introducing the gateway vote mechanism announced by the Deputy First Minister at the beginning of the Stage 1 debate on 12 May.
Key aspects of the power to make public health protection regulations under section 86A(1) would have effect only after a parliamentary vote on a formal Government declaration is held and approved by the Scottish Parliament. The key aspects of this power could only be exercised whilst the approved declaration remained in place. Once Ministers have revoked the declaration, the key aspects of this power could not be used unless and until a further public health declaration was in place.
The Scottish Government believes that Amendment 23 preserves the ability of the Scottish Ministers to take quick and effective action in the event of a future public health threat, while also balancing this with the need for effective parliamentary scrutiny.
Amendment 24
Amendment 24 from the Cabinet Secretary removes the 3-week review requirement from public health regulations that “make only provision of a general nature or contingent provision.” Amendment 24 was agreed to (by division), with 5 votes For, 1 Against, and 0 Abstentions.
Section 86G(1) requires that so long as any public health protection regulations under section 86A(1) remain in effect, the Scottish Government must review those regulations every three weeks. Amendment 24 removes this requirement for public health regulations that make provision of a general nature or contingent provision.
Regulations which make “general or contingent provision” would not directly impose restrictions or requirements under section 86A(1).
Part 5A – Public Health Protection Measures: Public health monitoring measures
Amendments 25, 26 and 27
Amendments 25, 26 and 27 from the Cabinet Secretary provide that regulations under section 86A(1) which modify an Act of the Scottish Parliament or an Act of Parliament can only be made using the draft affirmative procedure. Amendments 25, 26 and 27 were all agreed to (by division). Each amendment had 5 votes For, 1 Against, and 0 Abstentions.
Amendments 25, 26 and 27 have the purpose of providing that regulations under section 86A(1) which modify primary legislation (sometimes referred to as “Henry VIII” powers) can only be made using the draft affirmative procedure.
Regulations which modify primary legislation cannot be made using made affirmative procedure, which allows Scottish Statutory Instruments to be made and come into force even though they have not yet been approved by the Scottish Parliament.
Amendment 28
Amendment 28 from the Cabinet Secretary requires that, where regulations under section 86A(1) are made using the made affirmative procedure, Scottish Ministers must explain “why they consider that the regulations need to be made urgently.” Amendment 28 was agreed to (by division), with 5 votes For, 1 Against, and 0 Abstentions.
Amendment 28 also provides that regulations made under section 86A(1) using the made affirmative procedure must include provision for them to expire on a day specified in the regulations. This requirement for an expiry date will not apply if the regulations are amending regulations which already include an expiry date.
Part 2 – Education
The Education, Children and Young People Committee considered Part Two of the Bill on Education at Stage 1. The Committee’s report was published on 1 April 2022.
This Committee did not however consider the Bill at Stage 2. Amendments in Part 2 of the Bill were considered by the COVID-19 Recovery Committee.
The COVID-19 Recovery Committee agreed to a number of amendments lodged by the Scottish Government. These included:
- amendments in relation to the use of powers under Chapter 1 of Part 2
- limiting regulations on the “continuing operation of educational establishments” in relation to further or higher education institutions so as not to include “non-educational functions”.
Relevant Stage 2 amendments are discussed in more detail below.
Use of powers under Chapter 1 of Part 2
Amendment 36 provided for an explanation of urgency to be provided to the Parliament when the Government is making regulations using the made affirmative procedure in relation to the education establishments.
Amendment 38 provided that regulations made under Chapter 1 of Part 2 of the Bill which are responding to a particular infection or contamination must be made after the Scottish Government has made a ‘public health declaration’ and this is approved by a resolution of parliament.
Amendment 39 allows for the Government to make regulations under this chapter circumstances where it is not practicable to make a ‘public health declaration’. The amendment cites the period when Parliament is dissolved prior to an election as an example of a situation where this provision could apply.
Further and Higher Education institutions
Section 8 of the Bill provides for Ministers to make regulations on the continuing operation of an educational establishments, essentially placing duties on the managers of those establishments. The definition of an Educational Establishment includes “all types of schools (i.e. public, grant-aided and independent schools), early learning and childcare settings, out of school care settings, and higher education and further education institutions” as well as any education and training establishments approved by the SQA as being suitable for presenting persons for SQA qualifications. The regulations could include a wide range of provisions, including, restricting access, changing term dates or examination dates, or conferring additional functions on these establishments.
Amendment 29 limits the scope of these regulations as they could apply to further and higher education institutions and provide that any regulations may not apply to any non-educational functions, such as research facilities which are not connected to the provision or delivery of education.
Other amendments not agreed by the Committee
The COVID-19 Recovery Committee considered, but did not agree to, a number of other amendments under this part, lodged by members of the Conservative and Unionist Party. A number of these amendments sought to remove all sections in Chapter 1 of Part 2. Other amendments sought to change the text in various ways, including—
- providing for local discretion over the application of regulations or interpretation of guidance (e.g. amendments 125 and 141)
- creating additional duties to consult both before and after making regulations under certain sections of Chapter 1 of Part 2 (e.g. amendments 130 and 131).
Part 3 – Public Service Reform
A number of significant changes and additions were made to this part of the Bill at Stage 2. They are discussed in more detail under their respective headings below.
Key changes include:
- increased protection for people in debt when creditors seize money in their bank accounts – with the protected sum in a bank account set at £1,000
- setting the length of time people in debt are protected from enforcement action by creditors under the moratorium on diligence at six months
- where an individual is providing information in order to register a birth, still-birth or death, revised provisions emphasise that person has a choice as to whether to do it remotely (for example, over the phone or by video conversation) or in-person at a local registration office
- requiring licensing boards and licensing/local authorities to take account of the views of participants when deciding whether a meeting should be in person, online or in hybrid format.
Bankruptcy
The Scottish Government brought forward several technical amendments dealing with when the bankruptcy provisions would have effect.
However, no amendments dealing with the COVID-19 Recovery Committee’s Stage 1 Report recommendation on electronic service of documents were tabled. The Committee recommended that the Bill was amended to provide for different processes for creditors and debtors to consent to electronic service of documents.
Bank arrestment
Bank arrestment is a form of court-sanctioned debt enforcement. The technical term is “diligence”. It allows creditors to seize money in a debtor’s bank account to pay a debt or other obligation.
Creditors can only use diligence where they have taken court action in relation to an obligation, and the court has found in their favour. Court-sanctioned debt enforcement is undertaken by officers of the court, most commonly sheriff officers.
The biggest users of bank arrestment are local authorities enforcing payment of Council Tax. Scottish Government diligence statistics for 2020/21 show that 90% of “non-earnings arrestments” (the vast majority of which were bank arrestments) were for Council Tax.
There is a Minimum Protected Balance (currently £566.61) in bank accounts subject to bank arrestment. Creditors can only seize money above this level.
The purpose of the Minimum Protected Balance is to prevent the account holder being left destitute. It is linked to the monthly sum protected from seizure in an earnings arrestment (where a creditor seizes wages in the hands of an employer). However, when using an earnings arrestment, creditors can only capture a percentage of earnings above the protected sum, depending on the debtor’s income.
Some stakeholders have argued that the Minimum Protected Balance is too low, making bank arrestment unduly harsh for the person in debt. There have also been calls for wider reform of this diligence, so that the circumstances of the debtor (such as household size) can be better reflected.
The Social Justice and Social Security Committee has looked at this issue as part of its inquiry into low income and debt problems.
Amendment
Amendment 69 in the name of John Mason MSP – and supported by the Scottish Government – would raise the Minimum Protected Balance to £1,000. It was agreed to by division with 4 votes for and 2 against.
For the Scottish Government, Deputy First Minister and Cabinet Secretary for COVID Recovery, John Swinney stated (col 70):
“We accept the need to do something immediately to protect individuals from unnecessary hardship. In the coming year, we will carry out further consultation to look at both the process and the thresholds and consider what longer-term improvements can be made to bank arrestments.”
Moratorium on diligence
A moratorium on diligence is a legally enforceable pause on creditors taking formal action to recover money from a debtor. It is intended to give the person in debt time to seek money advice in relation to their options for dealing with problem debt.
The Bill as introduced did not contain any provisions on the moratorium on diligence. However, the Scottish Government stated that it intended to introduce amendments at Stage 2 (Policy Memorandum, paragraph 36).
Before the coronavirus pandemic, the moratorium lasted for six weeks. This was extended to six months by emergency coronavirus legislation. Views from the Scottish Government’s consultation on coronavirus recovery proposals on the appropriate length of the moratorium in the longer term were mixed.
The Accountant in Bankruptcy – the Scottish Government agency responsible for supervising formal debt solutions – has been taking forward a review of debt solutions. Stage 2 of the Review, which reported in May 2022, looked at what length the moratorium should be.
Members could not reach agreement on the issue. The majority preferred 60 days, with an option for a 30-day extension. But some remained concerned about the impact of a moratorium which lasted more than 60 days.
In its Stage 1 Report (paragraph 135), the COVID-19 Recovery Committee noted that the evidence it had taken suggested the period should be no shorter than 12 weeks.
Amendment
Scottish Government amendment 44 would set the length of the moratorium on diligence at six months. It was agreed to without division.
The Scottish Government argued that maintaining the moratorium at six months was justified because the cost of living crisis is creating continued pressure on household budgets and money advice services. It committed to (col 71) “introduce an amended timeframe when the current risks subside, as we hope they will.”
Registration of births, deaths, still-births, marriages and civil partnerships
Sections 18-20 of the Bill would amend the Registration of Births, Deaths and Marriages (Scotland) 1965 (the 1965 Act) in relation to the registration of certain significant events.
Individual choice of remote or in-person registration
For live births, still-births and deaths, the Bill would enable (but, without a direction from the Registrar General, not require) local registration offices to offer registration services via remote registration. In this context, remote registration is a process completed by email, over the phone, through video conversations or a combination of these methods.
Advantages of remote registration include convenience for some users, particularly in rural areas. However, there is also a risk of digital exclusion.
There is also a need for the safeguards against error and fraud in the registration system to work well in the context of remote registration. In relation to the risk of possible fraud, there is a recent example of child benefit fraud in Scotland via the current birth registration system.
In its Stage 1 Report (paragraphs 79-94) the COVID-19 Recovery Committee noted the benefits and risks associated with digitisation of services. The Committee said (at para 93) that, across the services affected by Part 3 of the Bill, it was essential to ensure that local authorities provided an individual with a choice of remote or in-person service.
Amendments
For the registration of live births, still-births and deaths, Scottish Government amendments 46, 47, 50, 52, 54 and 55 would emphasise that a person providing information for registration has a choice. That person could provide that information remotely or in-person at a local registration office.
These amendments were agreed to without division.
Electronic registers
There is a policy goal of making the various registers associated with the 1965 Act (including the registers of marriages and civil partnerships) to be able to be held electronically rather than in paper form.
Amendments
Key Scottish Government amendments at Stage 2 relating to this policy goal include amendments on:
- how the registration forms can be signed by the person supplying the information for registration
- the format of the register of civil partnerships
- the scope of the Register General’s powers to make secondary legislation under the 1965 Act.
For remote birth and death registration, the Bill as introduced contains general powers for the Registrar General, as well as the local registrar, to stipulate in future the methods of signing which would be permitted.
Scottish Government amendments 46, 47, 54 and 55 would specifically enable the signing of registration forms via methods including a ‘transcribed signature’, for both in-person, as well as remote, registration. A transcribed signature is one where the registrar signs on behalf of the person providing the information (for example, following an information-gathering phone or video call) rather than that the person signing themselves.
On the civil partnership register, Scottish Government amendment 59 would enable the register, if the Registrar General so decides, to be electronic rather than paper-based. At present, this statutory power is only available to the register of marriages.
Section 54 of the 1965 Act contains very broad powers for the Registrar General to make secondary legislation under the Act. This includes enabling the Registrar General to “prescrib[e] anything which by this Act is required to be prescribed”. The provision gives lots of flexibility in terms of future policy development.
Scottish Government amendment 58 would amend section 54 so that the Registrar General could by regulations, make different provision for “different cases or circumstances”.
Amendments 46, 47, 54, 55, 58 and 59 were all agreed to without division.
Licensing
The Bill would provide for licensing boards (for alcohol licensing) and licensing/local authorities (for civic licensing) to hold meetings and hearings in person, remotely or in hybrid format.
In its Stage 1 Report (paragraphs 95 to 102), the COVID-19 Committee expressed concern that licensing boards or licensing/local authorities would have complete discretion as to the format a meeting should take. It recommended that the Scottish Government brought forward amendments to make it clear that those entitled to participate in meetings should be involved in the decision.
Amendment
Scottish Government amendments 60 to 63 would require licensing boards and local/licensing authorities to “take account of” the views of those entitled to participate in meetings when deciding on format. The amendments were agreed to without division.
Digital exclusion
The COVID-19 Committee made recommendations aimed at addressing the risk of digital exclusion created by moving services online in its Stage 1 Report**. As noted earlier, in particular, it recommended that the Scottish Government brought forward amendments to ensure that local authorities offered a choice between in-person and remote services where required.
No Stage 2 amendments addressed this cross-cutting issue – although amendments in relation to birth and death registration and licensing dealt with more specific aspects of it. The Deputy First Minister stated the Scottish Government considered that no further amendments were needed to address this issue (col 76).
Mental Health
Two amendments were lodged. These related to the named person. A named person is someone chosen by a person with a mental disorder such as dementia, a learning disability or a personality disorder who will help look after their interests should they need to be detained under The Mental Health (Care and Treatment) (Scotland) Act 2003. Amendment 3 was intended to ensure that a person nominated to be a named person understands the role, duties, rights and responsibilities of the role. This was disagreed to by division 3 (For 3, Against 3, Abstentions 0; amendment disagreed to on casting vote). Amendment 2 on guidance for named persons was not moved.
Part 4 – Tenancies
Part 4 of the Bill relates to tenancies in private rented housing. The Bill proposes that all eviction grounds become discretionary. Prior to the emergency legislation there was a mix of mandatory and discretionary grounds. The Bill would also require the First-tier Tribunal (Housing and Property Chamber) to consider whether landlords had complied with a pre-action protocol for rent arrears eviction cases.
The only change made to this part of the Bill was because of technical amendments lodged by the Scottish Government relating to the transition from the emergency legislation. Scottish Government amendments 64 and 65 (ancillary to amendments 67 which relate to commencement dates) were agreed to without division.
The effect of the amendments is that where an eviction notice has been served on a tenant prior to 1 October 2022, the law, as framed by the Scottish Coronavirus acts and the relevant regulations, will still apply.
If an eviction notice is served on, or after 1 October 22, the new law, as framed by the bill will apply. The Rent Arrears Pre-Action Requirements (Coronavirus)(Scotland) Regulations 2020 will continue to apply as if they had been made under the pre-action protocol powers that are created by the bill. The aim is to ensure a seamless transition from the emergency legislation, and it also takes account of the fact that there might not be enough time to pass new regulations before 1 October 2021.
Other amendments affecting this part of the Bill were either disagreed to, not moved, or withdrawn. These amendments included:
- Amendments lodged by Edward Mountain MSP to make some of the eviction grounds mandatory, remove the private landlord pre-action protocol and to propose new eviction grounds relating to employees.
- An amendment lodged by Murdo Fraser MSP to propose a mandatory eviction ground for a landlord who owns a property in a rural business who wishes to recover possession of the property to provide accommodation for an employee.
- An amendment lodged by Mercedes Villalba MSP to require Scottish Ministers to produce, within three months of the bill receiving royal assent, a plan to introduce an emergency rent freeze for all tenancies in Scotland. The rent freeze would have to remain in place until Scottish Ministers bring forward their proposed legislation in relation to rent control measures.
- An amendment lodged by Mark Griffin MSP to improve the information, evaluation and reporting of the operation and effect of the provisions in part 4 of the Bill and their precursors.
Part 5 – Temporary Justice Measures
Stage 1
During Stage 1 scrutiny of the Bill, the Criminal Justice Committee took evidence on a range of justice provisions affecting civil as well as criminal law. This included some provisions in Part 3 of the Bill (e.g. dealing with interim legal aid payments). However, the main focus of scrutiny was the temporary justice provisions set out in Part 5 of the Bill and the associated schedule.
The temporary justice provisions in the Bill are broadly similar in effect to equivalent temporary provisions in existing COVID-related legislation, which are due to expire on 30 September 2022.
The Bill provides that its temporary provisions will expire on 30 November 2023. It allows for the expiry of all or some of them to be brought forward or delayed by statutory instrument. However, expiry could not be delayed beyond 30 November 2025 using these powers.
More information on all of the provisions scrutinised by the Criminal Justice Committee is set out in the SPICe briefing Coronavirus (Recovery and Reform) (Scotland) Bill: Criminal Justice, Courts and Legal Aid, published in February 2022.
Some of the temporary justice proposals gave rise to more debate than others, with the more contentious ones being found within provisions dealing with:
- conduct of court business by electronic means – allowing more flexibility for people to attend by electronic means (e.g. live video link)
- fiscal fines – allowing prosecutors to use increased levels of fiscal fine
- criminal procedure time limits – extending a range of statutory time limits applying to criminal cases
- early release of prisoners – giving the Scottish Government a power to release prisoners in response to COVID-19.
In addition, there was debate on how long any temporary provisions should remain in force.
The Criminal Justice Committee’s Stage 1 report, setting out its views on these issues, was published in April 2022.
Stage 2
A total of 57 Stage 2 amendments were lodged for consideration by the Criminal Justice Committee. Of these, eight were agreed to (all without the need for a vote). In relation to those which were not, four were disagreed to on the Convener’s casting vote.
Reflecting the focus of debate during Stage 1, most of the proposed Stage 2 amendments related to:
- conduct of court business by electronic means
- fiscal fines
- criminal procedure time limits
- early release of prisoners.
All of the proposed amendments were considered by the Criminal Justice Committee at its meeting on 8 June 2022. Some of the more notable ones (not necessarily those which were agreed to) are outlined below.
Conduct of court business by electronic means
In providing a framework under which people are able to attend court by electronic means rather than in-person, the Bill distinguishes between situations where:
- the default position is attendance by electronic means, but the court can direct a person to attend in-person
- the default position is attendance in-person, but the court can allow a person to attend by electronic means.
The Bill as introduced provided that the latter applies where a person is to give evidence (e.g. at a trial). Scottish Government amendments in this area sought to add the situation where a person has been released from police custody on an undertaking to appear in court. The amendments were agreed to.
Non-government amendments in this area included ones seeking to:
- add the appearance of an accused from police custody to the list of situations where the default position is in-person court attendance
- require the publication of more information on aspects of how the conduct of court business by electronic means is working in practice.
The debate on these amendments picked up on some of the issues highlighted in the Criminal Justice Committee’s Stage 1 report (e.g. in relation to the need for more evidence to assess the merits of fully virtual trials). Following debate, the amendments were either withdrawn or not moved. However, the Scottish Government agreed to further consider relevant issues, including asking:
“officials to work with the courts service to agree a workable and focused approach to publishing data to improve the evidence base on virtual trials on a non-statutory basis”. (Committee meeting 8 June 2022, col 12)
Fiscal fines
Existing provisions on fiscal fines allow prosecutors to offer an alleged offender the opportunity to pay a financial penalty. This is instead of facing the possibility of prosecution through the criminal courts.
The Bill provides for an amended scale of fiscal fines, with a higher maximum of £500.
Several non-government amendments in this area were lodged at Stage 2. Although none of them were agreed to, an amendment seeking to ensure that victims are proactively advised where cases are dealt with by fiscal fine was only disagreed to on the Convener’s casting vote. In not supporting the amendment, the Scottish Government highlighted existing laws allowing victims to obtain relevant information on request.
Criminal procedure time limits
The provisions of the Bill in this area seek to extend a range of statutory time limits applying to criminal cases. A total of 26 Stage 2 amendments were lodged in this area, with three being agreed to.
Although relatively few amendments were agreed to, there was significant debate at the Criminal Justice Committee meeting on the impact of, and justification for, the extended time limits. Much of this reflected concerns highlighted in the Committee’s Stage 1 Report which, for example, stated that:
“The Committee would not want these extended time limits to become the new normal. The Committee seeks reassurance that the use of extended time limits would be monitored and used proportionally.” (para 162)
During the Committee meeting, the Cabinet Secretary for Justice emphasised that the Scottish Government wanted a return to pre-COVID time limits. However, he argued that the current extensions were still necessary:
“justice agencies have made it clear that it will take several years to bring timescales for the overall case load back to pre-coronavirus levels. In that light, it would be entirely counterproductive to amend the Bill to reduce the length of any time limit extension or to remove the extension entirely, if that impacts on the number 1 priority of throughput of cases.” (Committee meeting 8 June 2022, cols 45-46)
Early release of prisoners
The Bill seeks to give the Scottish Government a regulation making power to release prisoners early where this is a necessary and proportionate response to the impact of COVID-19.
Stage 2 amendments on this topic fell into two categories. The first were concerned with removing or limiting the proposed power. In relation to limiting the power, a group of non-government amendments sought to:
- place a six-month limit on how far a prisoner’s release could be brought forward
- exclude certain prisoners from release under the provisions (e.g. those serving a sentence for domestic abuse).
Although relevant amendments were not agreed to, the Cabinet Secretary for Justice indicated that the Scottish Government would be willing to work with the relevant members to produce Stage 3 amendments covering some of the issues.
The second category of amendments on this topic related to the procedures under which the Scottish Government could bring forward relevant regulations. They included several non-government amendments seeking to remove or restrict the Scottish Government’s ability to make regulations which would take effect prior to approval by the Scottish Parliament (‘made affirmative procedure’). The amendments were not agreed to but included two which were only disagreed to on the Convener’s casting vote.
A Scottish Government amendment, requiring an explanation where made affirmative procedure is used, was agreed to.
SPICe research, 22 June 2022